1 of 46 DOCUMENTS 

IGNATIUS BOARMAN vs. HENRY PATTERSON AND FIELDER ISRAEL, EXECUTORS OF HENRY PETERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 Gill 372; 1843 Md. LEXIS 32 

December, 1843, Decided 

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

This was an attachment to compel an appearance, commenced on the 15th January, 1841, on the following proofs and proceedings, to wit:

"State of Maryland, city of Baltimore, to wit: Be it remembered, that on this fifteenth day of January, in the year one thousand eight hundred and forty-one, before me, the subscriber, a justice of the peace of the State of Maryland, in and for said city, personally appeared Fielder Israel, a citizen of the State of Maryland, and made oath on the Holy Evangely of Almighty God, that Ignatius Boarman, late of Baltimore county, is justly and bona fide indebted unto him, the said Fielder Israel and Henry Patterson, executors of Henry Peters, late of said county, deceased, in the sum of three thousand two hundred and fourteen dollars twenty-eight cents, over and above all discounts. And at the same time the said Fielder Israel produced to me an account, with sundry notes, bills and obligations, on and by which the said Ignatius Boarman is so indebted, which are hereto annexed; and the said Fielder Israel did also make oath, that he is credibly informed and verily believes, that the said Ignatius Boarman has removed [**2]  from his place of abode, with intent to injure and defraud his creditors.

"Sworn before T. Hanson Belt, a justice of the peace of the State of Maryland, in and for the city of Baltimore."

________________________________________________________________________________
"Ignatius Boarman to Henry Patterson and Fielder Israel, ex	
ecutors of Henry Peters, deceased.	
To your note dated 1st of March 1836, for	$ 400 00	
  Interest thereon from 1st Sept. 1837,	80 80	
		$ 480 80	
To your due bill, dated 26th March 1836,	
   for	375 00	
  Interest thereon from 1st Sept. 1837,	75 75	
		450 75	
To your note dated 6th Nov. 1835, for	1,000 00	
  Interest thereon from 1st Sept. 1837,	202 00	
		1,202 00	
To your note under seal, dated 12th May	
   1827, for	800 00	
  By cash,	350 00	
	
	450 00	
  Interest thereon from 1st Sept. 1837,	90 90	
		540 90	
To your obligation and receipts, dated	
   27th March 1827,	400 00	
  Interest thereon from 1st Sept. 1837,	80 80	
		480 80	
To your due bill, dated 9th Jan. 1838,	50 00	
  Interest thereon from date,	9 03	
		59 03	
	
		$ 3,214 28	
________________________________________________________________________________

N. B.--Interest calculated to 13th Jan. 1841."

"$ 400. Baltimore, March 1st, 1836. Twelve months after date,  [**3]  I promise to pay Henry Peters, or order, four hundred dollars, for value received, with interest.

IGNATIUS BOARMAN."

"375. Baltimore, May 26th, 1836. Balance due Henry Peters, on a note I have for collection on the C. Nuns, in Old Town, three hundred and seventy-five dollars, principal and interest.     IGNATIUS BOARMAN."

"1,000. Baltimore, Nov. 6th, 1835. Twelve months after date, I promise to -- Henry Peters, or order, one thousand dollars, for value received.     IGNATIUS BOARMAN."

"Baltimore, May 12th, 1837. On this first day of September, eighteen hundred and thirty-one, I promise to pay Henry Peters, or order, the sum of eight hundred dollars, with legal interest thereon, commencing on the first of September next, payable half-yearly, for value received, the first half-years' interest becomes due on the first day of March, eighteen hundred and twenty-eight.     IGNATIUS BOARMAN. (Seal.)"

Witness,--Thomas Moore.

(Endorsed.) "350. Baltimore, Nov. 20th, 1829. Paid three hundred and fifty dollars on the within bond, and interest on the said three hundred dollars, and interest on the balance up to the first of September last, for which Boarman [**4]  has a receipt. 800=350--450 balance due."

The plaintiff also exhibited as a part of his claim a covenant under the seal of the said I. B., by which Peters agreed to lease him a lot, and B. to build two houses thereon, with receipts endorsed thereon by B. for $ 400.

"To the clerk of Baltimore county court: Mr. Kell, you are hereby required, on receipt of this warrant and the above oath and annexed vouchers on which the same is granted, to issue an attachment against the lands, tenements, goods, chattels and credits of the said Ignatius Boarman, to answer unto the said Fielder Israel and Henry Patterson, executors of Henry Peters, deceased, the above mentioned sum of three thousand two hundred and fourteen dollars twenty-eight cents, current money, and cost of this attachment, according to the acts of Assembly in such case made and provided; and this warrant shall be your sufficient authority therefor. Given under my hand and seal this fifteenth day of January, in the year eighteen hundred and forty-one.     T. HANSON BELT, (Seal.)

Justice of the peace in and for the city of Baltimore."

Thereupon the said Henry Patterson and Fielder Israel, &c. prosecuted out of [**5]  the county court here, the writ of attachment, in form following, to wit:

"The State of Maryland, to the sheriff of Baltimore county, greeting: Whereas, Thomas Hanson Belt, esquire, one of the justices of the peace for Baltimore city, hath this day issued his warrant to the clerk of said county, directing him to issue attachment against the lands, tenements, goods, chattels and credits of Ignatius, Boarman, to answer unto Fielder Israel and Henry Patterson, executors of Henry Peters, deceased, the sum of three thousand two hundred and fourteen dollars twenty-eight cents: We therefore command you, that you attach the lands, &c., to the value of three thousand two hundred and fourteen dollars twenty-eight cents, current money, and cost of this attachment, according to the form of the act of Assembly in such case made and provided. And we further command you, that by, &c. &c. Issued the 15th day of Jan. 1841.

THOMAS KELL, clerk."

The plaintiffs also sued out a writ of trespass upon the case, against the said I. B., and filed the following short note, to wit:

"Fielder Israel and Henry Patterson, executors of Henry Peters, against Ignatius Boarman, action of assumpsit [**6]  in Baltimore county court.

"This suit is instituted to recover the sum of three thousand two hundred and fourteen dollars twenty-eight cents, due and owing from the defendant to the plaintiffs, as executors of Henry Peters, deceased, on a note of defendant for $ 400, dated 1st March 1836, payable to said deceased, twelve months after date; on another note of defendant for $ 1,000, payable to said deceased twelve months after date; on a due bill of defendant for $ 375, dated 26th May 1836; on another due bill for $ 50, dated 9th Jan. 1838; on a single bill of defendant to deceased for $ 800, payable on the first September 1831, dated 12th May 1827; and, on the obligation and receipt of defendant to deceased for $ 400, payable 1st September 1832, with interest thereon.     J. PENNINGTON, plaintiff's att'y."

The sheriff returned the attachment, to wit:

"Laid in the hands of William J. Boarman and Ignatius Boarman, junior, the 21st of January 1841, in the presence of Samuel R. Hiser and John Gallagher, and attached as per schedule.     WILLIAM D. BALL, sheriff."

Which said schedule is in form following, to wit:

"A schedule of the goods and chattels, lands [**7]  and tenements of Ignatius Boarman, seized and taken at the suit of Fielder Israel and Henry Patterson, executors of Henry Peters, by virtue of a wit of attachment 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 20th day of January 1841.

1 lot of ground fronting on the south side of Little Hughes," &c. &c.

And the sheriff aforesaid also makes return to the court here, of the said last mentioned writ, thus endorsed, to wit: "N. E., copy set up."

Neither the defendant, I. B., nor the garnishee appearing, upon the prayer of the plaintiff: "Therefore it is considered by the court here, that the lands and tenements aforesaid, of the said Ignatius Boarman, so as aforesaid attached, be condemned according to the act of Assembly in such case made and provided, towards satisfying unto the said Henry Patterson and Fielder Israel, executors as aforesaid, as well the sum of three thousand two hundred and fourteen dollars and twenty-eight cents, current money, in the writ of attachment aforesaid specified, with interest from the [**8]  fifteenth day of January, eighteen hundred and forty-one, as the sum of thirteen dollars eighty-six and two-third cents, by the court here, unto the said Henry Patterson and Fielder Israel, executors as aforesaid, on their assent adjudged, for their costs and charges by them, about their suit, in this behalf expended."

Whereupon at the same term comes into court here, the said Ignatius Boarman, by, &c., and moves the court here, to quash the writ of attachment aforesaid, and files in court here, in said cause, the following motion and reasons, to wit:

1st. Because in the said suit are embraced different pretended causes of action, some of which ought to have been sued upon in assumpsit, and others thereof in debt, and one thereof in covenant.

2nd. Because the sum of money claimed to be due from the defendant to the plaintiffs, for which said attachment issued, is composed of various amounts mentioned in several promissory notes, due bills and single bills, and one action of assumpsit was brought thereon, embracing the whole pretended claim.

3rd. Because causes of action of a different nature are embraced in the said attachment, and together compose the amount claimed [**9]  in the said attachment, as due from the defendant to the plaintiffs.

4th. Because the said attachment and the proceedings in the said case, are otherwise, and in other respects, informal and invalid.

The defendant, as an additional reason for quashing the attachment in this cause, urges: That the proceedings do not disclose upon their face a compliance with the requisites of the act, in this, that they do not aver the defendant has actually runaway, absconded or fled from justice, or secretly removed himself or herself, from his place of abode, with intent to evade the payment of his just debts.

The motion to quash being overruled by the county court, the defendant prayed an appeal from the judgment of condemnation and from the overruling his motion to quash the attachment.  

DISPOSITION:
JUDGMENT REVERSED AND ATTACHMENT QUASHED.  

HEADNOTES:

After a judgment of condemnation has been rendered in an attachment cause, if the defendant desire to move to quash the writ, regularly he should first move to strike out the judgment, and then make his motion to quash.

Without the short note showing the plaintiffs cause of action, and the issuing thereon of a capias ad respondendum or a summons, (as the case may be,) the proceedings in an attachment would be wholly irregular.

Nothing ought to be recovered by a condemnation of the property attached, which was not recoverable from the defendant, had he given special bail, and appeared to the process issued against him.

Where the short note states a cause of action in assumpsit, and the writ issued was in trespass upon the case, matters for which debt or covenant was the only remedy could not be recovered.

A short note cannot be amended from assumpsit, to debt or covenant, where the writ is in trespass upon the case.

It is no ground for quashing an attachment that some specific portions of the claim as made could not be recovered under the short note.

Where the creditor deposes "that he is credibly informed, and verily believes, that the said J. B. (the debtor) has removed from his place of abode with intent to injure and defraud his creditors," this is a sufficient compliance with the act of 1795, ch. 56, sec. 1, in that particular.

A judgment on attachment which not only condemns property towards satisfying that portion of a plaintiff's demand which might be recovered under the short note, but also to satisfy that which could not be so recovered, is erroneous.

Where the plaintiff exhibits a claim for principal, and with interest added, up to a given day, it is error in the county court to enter up a condemnation for the gross sum as bearing interest from the day on which the attachment issued. The charge of interest upon the interest was not warranted under such circumstances.

This court will not reverse a judgment of condemnation in an attachment cause upon an appeal from such judgment, for errors which do not appear to have been presented to the consideration of the county court, or that it made any decision in relation thereto.

Where a special limited jurisdiction, distinct from and not embraced by its general jurisdiction, is conferred by act of Assembly on any tribunal, its powers to act as it has done must appear upon the face of its proceedings.

When those proceedings are brought for review in this court, it must appear from their inspection, that every thing has been done which the law required, as the basis of the authority which has been exercised.

The act of 1825, ch. 117, interposes no obstructions to enquiries into such a subject. It has no application to them.

Under the act of 1795, ch. 56, sec. 1, unless the affidavit of the creditor contain an averment of citizenship as to both creditor and debtor, no attachment against an absconding debtor can lawfully issue.

The act of 1834, ch. 76, sec. 1, dispensed sith the averment of citizenship of the plaintiff; provided, that if any trial take place it be proved that the plaintiff or plaintiffs, or any of them, at the time of issuing the attachment was or were a resident or inhabitant, or residents or inhabitants, of one of the United States of America, or of a District or Territory thereof.

But where the affidavit is designed to procure a warrant for an attachment against the effects of an absconding debtor, under the act of 1795, and does not contain an averment of his citizenship of Maryland, it is substantially defective; and upon an appeal from a judgment of condemnation rendered upon it, without a motion to that effect in the county court, the judgment will be reversed and the attachment quashed.  

COUNSEL:
By T. P. SCOTT for the appellant, and

By WILLIAM F. FRICK for the appellees.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*378]  DORSEY, J., delivered the opinion of this court.
We cannot say the county court erred in overruling the motion, there made, to quash the attachment. The appellant never [**10]  appeared, or made such motion, until after the judgment of condemnation was rendered by the court. Instead therefore of an application to quash the writ of attachment, his motion should have been first to strike out the judgment, and then to quash the attachment. Until the judgment was stricken 

 [*379]  out the court could, with no consistency, be asked to quash the writ of attachment, upon which it was founded. But, waving this objection to the regularity of the appellant's motion, let us enquire whether the reasons assigned by him were such as would have justified the court in gratifying his request?
The first reason assigned as a ground for quashing the attachment, is that "in the suit are embraced different causes of action, some of which ought to have been sued upon in assumpsit, and other thereof in debt, and one thereof in covenant." The decision of this court, in the case of Dawson vs. Brown, 12 G. & J. 53, is decisive upon this point. It is there decided that it is not necessary that a creditor should recover the whole amount of his claim for which the attachment issued. The attachment may be good and available to him for a part of his claim, though wholly [**11]  unavailable as to the residue. Without the short note showing the plaintiff's cause of action, and the issuing thereon of a capias ad respondendum or a summons, (as the case may be,) the proceedings in the attachment would be wholly irregular. Nothing ought to be recovered by a condemnation of the property attached, which was not recoverable from the defendant, had he given special bail and appeared to the process issued against him. The short note states the cause of action to be in assumpsit, and the writ issued was in trespass on the case. For all that part of the appellee's claim, therefore, for the recovery of which an action of debt or covenant was the only remedy, the present proceedings in attachment furnished no remedy. Their short note or declaration, by no amendment which could have been made to it, could be made to embrace claims recoverable only in debt or covenant. It must conform to the writ; of which there could be no amendment, changing the nature of the action. No portion of the claim of the appellee's was recoverable under the proceedings before us, except that for which an action of assumpsit was the appropriate remedy. To this extent the appellees were entitled [**12]  to recover, and consequently the county court could not, for the reason assigned, have quashed 

 [*380]  the writ of attachment, no matter at what stage of the proceedings the motion for that purpose might have been made.
The second and third reasons assigned for quashing the attachment are but reiterations of the first, and consequently are disposed of by the views we have hereinbefore expressed. The fourth reason is so vague and indefinite, that it presents no point which this court are enabled to say, was determined by the court below, and for that vagueness and uncertainty was properly overruled by it, and regarded as a nullity. The additional reason, which was filed for quashing the attachment, was in these words: "That the proceedings do not disclose upon their face a compliance with the requisites of the act, in this, that they do not aver the defendant had actually runaway, absconded, or fled from justice, or secretly removed himself or herself, from his place of abode, with intent to evade the payment of his just debts." It is true that the affidavit in the case before us contains no such averment, but it is equally true that such an averment is not an indispensable requisition [**13]  to the issuing of an attachment. The provision of the act of Assembly has been, in this respect, if not to the letter, at least substantially complied with. The creditor has sworn "that he is credibly informed, and verily believes, that the said Ignatius Boarman, (the debtor,) has removed from his place of abode, with intent to injure and defraud his creditors." Which is all that the act of Assembly in that respect requires.
Had the reasons assigned in the county court, for quashing the attachment, been preferred in the most appropriate stage of the cause, we see nothing in the specific grounds relied on in the motion that could have sustained it. The county court therefore committed no error in overruling it. But the present appeal is not only taken to the order of the court, overruling the motion, but to the judgment of condemnation which has been rendered in the cause. For the reversal of this judgment we see in the record sufficient grounds, if in accordance with the act of 1825, ch. 117, it sufficiently appeared, that the county court had before entering the judgment, or subsequently on a motion to strike it out or amend it, (had such motion 

 [*381]  been made,) decided [**14]  upon the sufficiency of those grounds. This judgment we think erroneous because it condemned the property attached not only towards satisfying that portion of the appellees' claim which was recoverable in an action of assumpsit, but also that portion thereof which could only have been recovered in an action of debt or covenant. And waiving this error, it was also erroneous because it added the interest to the principal on all the claims up to the fifteenth day of January, 1841, and from that time awarded interest to be paid on the gross sum so ascertained. Thus compounding the interest, or charging the appellant with the payment of interest upon interest, a charge, in proceedings like the present, not warranted by any act of Assembly or principle of law of which we are apprised. But for these errors, we are not at liberty to reverse the judgment, it not appearing that they were presented to the consideration of the county court, or that it made any decision in relation thereto. Sasscer vs. Walker's ex'rs., 5 G. & J. 102.
The appellant, however, claims a reversal of the judgment before us, for other reasons than those we have mentioned: First, "because there is no [**15]  averment of the citizenship of Patterson, one of the plaintiffs;" and, secondly, "because there is no averment of the citizenship of the defendant." These points were not raised in the court below, nor does it appear that they were considered or determined by it. Nevertheless, notwithstanding the act of 1825, they are, in this case, fit subjects for review in this court. Where a special limited jurisdiction, distinct from and not embraced by its general jurisdiction, is conferred by act of Assembly on any tribunal, its power to act, as it has done, must appear upon the face of its proceedings. And when those proceedings are brought up for review in this court, it must appear from their inspection, that every thing has been done which the law required as the basis of the authority that has been exercised. To our enquiries into such a subject the act of 1825 interposes no obstructions; it has no application to them. That such is the doctrine of this court in relation to the two defects now under consideration 

 [*382]  we think fully appears by the case of Bruce and Fisher vs. Cook, garnishee of Scarborough, 6 G. & J. 345--where, in the court's opinion, it is said,  [**16]  that if there be error in the proceedings on which an attachment had issued, by reason of which the jurisdiction of the court did not appear, "it would have been a fatal objection after verdict on a motion in arrest of judgment." That the garnishees "might have taken advantage of it, if a jury had been sworn, by a prayer for the instruction of the court; or, after verdict and judgment against them, without raising the objection below, it might, on appeal or writ of error, have been assigned as error here, and this court would have taken notice of and sustained it." To show the materiality of the omissions here complained of, it is only necessary to refer to the act of 1795, ch. 56, sec. 1; under which, unless the affidavit contain such averment of citizenship, as to both creditor and debtor, no attachment against an absconding debtor can lawfully issue; no judgment of condemnation can be rendered by the county court. Those facts not appearing in the affidavit, neither the magistrate who issued the warrant, nor the county court, have any jurisdiction over the subject matter: the whole proceedings would be irregular and ought to be quashed. So stood the law under the act of 1795. But [**17]  by the act of 1834, ch. 76, sec. 1, it is enacted "that no attachment that shall hereafter be issued by virtue of the act to which this is a supplement or of any of the supplements thereto, shall fail, be dismissed, quashed or defeated, because of any defect in any averment, as to the citizenship or residence or inhabitancy of the plaintiff or plaintiffs or any of them, or because of any omission altogether of averment in that respect in the affidavit for such attachment, or in any act or any part of the proceedings preliminary to such issuing of attachment; provided that if any trial take place it be proved at the trial in such attachment case that the plaintiff or plaintiffs, or any of them, at the time of issuing said attachment, was or were a resident or inhabitant or residents or inhabitants of one of the United States of America, or of a District or Territory thereof." By this act of Assembly, under 

 [*383]  the circumstances in which this case stands before us, we think the appellant cannot claim a reversal of the judgment, or that the proceedings on which it is founded be quashed, by reason of the omission of the averment of citizenship as to one of the plaintiffs. The [**18]  design of this act of Assembly was to protect plaintiffs from the effects of the omissions enumerated until a trial should take place, at which the omission complained of could be supplied by proof. The infirmity in the affidavit, as to the citizenship of the defendant, remains unhealed by any legislative act, and compels us to reverse the judgment of the county court, and to quash the writ of attachment on which it is founded.
JUDGMENT REVERSED AND ATTACHMENT QUASHED.  

2 of 46 DOCUMENTS 

WILLIAM G. HARRISON vs. THE MAYOR AND CITY COUNCIL OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 Gill 264; 1843 Md. LEXIS 24 

December, 1843, Decided 

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

This was an action of assumpsit, commenced on the 1st January 1841, in which the plaintiff, the appellees, averred that the defendant in this action on, &c., at, &c., was indebted to plaintiffs in a large sum of money, to wit, the sum of one thousand dollars, lawful money, for so much money by the plaintiffs before that time paid, laid out and expended for the defendant, as consignee of the ship Ellen Brooks, at his special instance and request; and being so indebted, &c.

The defendant pleaded non-assumpsit, on which plea the issue was made up.

At the trial of this cause, the plaintiff to support the issue on its part, offered in evidence and read to the jury ordinance No. 12, entitled an ordinance for the due performance of quarantine at the port of Baltimore. The plaintiff further proved by Dr. Martin, that he was the health officer of the port of Baltimore, duly appointed in the year 1840, and at the time the Ellen Brooks arrived at Baltimore, and during all that year; that the ship Ellen Brooks arrived at the port of Baltimore, about the 20th May 1840; that immediately on her arrival, and coming to at the quarantine ground, he [**2]  the said Dr. Martin, as health officer, went on board the said Ellen Brooks, and there found a number of passengers, say about one hundred and eigty; that some of the passengers were then afflicted with the small pox, and some of them with typhus or jail fever, and that they continued to sicken after the arrival of the vessel almost daily, some with one disease, some with the other; that the passengers were most of them Irish emigrants, who were living almost entirely on potatoes; that he, the said Dr. Martin, directed the said vessel to remain at the quarantine ground, which is within the limits of the city of Baltimore, and that the persons on board of her should not land, or have any communication with the shore; that he, the said Dr. Martin, directed about twenty-four of the said passengers, being all of them who were sick, to be sent to the small pox hospital in the city of Baltimore, about one-half of whom, according to his recollection, when sent to the small pox hospital, were afflicted with the small pox disease, and one-half with the typhus fever; that he, the said Dr. Martin, considering that the passengers who remained on board the said vessel, ought to be furnished with [**3]  fresh provisions, procured such provisions and supplied the said passengers with the same, by whom they were consumed; that the bill headed--

"Ship Ellen Brooks, William G. Harrison, consignee, to the Mayor and City Council of Baltimore, Dr.

For the following articles furnished, and expenses incurred, in disinfecting and purifying said vessel, when at quarantine, in the months of May and June 1840, on her arrival from Liverpool, viz:

________________________________________________________________________________
1840,	June	12,	Paid	John Muckelroy for beef and	
				 vegetables,	$ 35 14	
	"	14,	"	Philip Fell, for provisions,	6 00	
	"	"	"	D. Graves & Son, for 100 herrings,	1 00	
	"	"	"	Mr. McAliston, for groceries,	9 00	
	"	15,	"	for lime to whitewash ship,	1 75	
	"	"	"	cartage sundry times,	1 50	
	"	"	"	boat hire,	1 25	
	"	"	"	John McWilliams, his bill for	
				 provisions furnished ship,	11 76	
	"	"	"	hack hire going to and from hospital,	2 00	
	"	"	"	for brooms and brushes for ships use	1 00	
	"	"	"	Thos. Evans, for conveying 24	
				 passengers to the hospital,	24 00	
	"	"	"	Mr. Bruehl, for bread,	14 00	
	
					$ 108 40	
________________________________________________________________________________

Sworn to by Joseph [**4]  Martin, on this 30th day of November 1840, before me,     SAMUEL BRADY, Mayor.

Received November 30th, 1840, of the commissioners of health, the amount of the above account in full.

JOSEPH MARTIN.

Shows the amount in full expended by him, in the purchase of the aforesaid provisions, as well as the other expenditures incurred by him in relation to the said vessel, and the time of payment of the said bill by him; that in the opinion and judgment of the said Dr. Martin, the said expenditures were necessary, reasonable and proper; and that it was necessary in his judgment and opinion, to the preservation of the health of the said passengers, who remained on board the said vessel, that they should be supplied with fresh provisions; that he considered it necessary to prevent the spread of the typhus fever among the said passengers; that they should be furnished with fresh provisions; that his object chiefly in furnishing these provisions, was to prevent the spread of the typhus fever; but that in his opinion and judgment there was still danger that the small pox might break out among the passengers left on board, after the removal of the persons who were sent as aforesaid,  [**5]  to the small pox hospital, and he considered it necessary to prevent the propagation of the small pox among the said passengers who remained on board the said vessel, to furnish them with fresh provisions, and that he would have furnished said supplies if there had been no typhus; that he, the said Dr. Martin, considered it his duty, as health officer, to send the aforesaid persons to the hospital, and to furnish those who remained on board the said vessel with fresh provisions; that supposing that the master of the vessel might furnish the said provisions at a less expense than he could, he directed the master of the Ellen Brooks, to furnish the passengers remaining on board the said vessel with fresh provisions before witness ordered said supplies; that the master refused to do so, saying that he had lost enough already; that he, in company with the Mayor, went to see defendant, believing him to be consignee, and on his way to defendant's counting room, he met the defendant on Pratt street in the city of Baltimore, and spoke to him of the necessity of furnishing fresh provisions for the said passengers; that he was then accompanied by Sheppard C. Leakin, the then Mayor of the city [**6]  of Baltimore; that the defendant then told him to furnish the necessary supplies, and that he would be responsible for them; that in this interview he explained to the defendant, that he was the health officer, and that the passengers were detained on board by his authority; that in this conversation he spoke to the defendant only in reference to the expenses he was incurring, and not in reference to the bill of the small pox hospital; that he, the said Dr. Martin, would have supplied the said provisions, with or without the consent of the defendant or any one else, and that his object in calling on the defendant was, to let those interested know what he was doing, was necessary to be done, and that he considered it his duty, as health officer, to furnish these supplies, and that he called on the defendant to give him an opportunity to furnish the provisions, if he could do so at a cheaper rate than he, Dr. Martin could; that when he saw the defendant, nearly all the passengers who were sent to the small pox hospital, had been removed to that place; that the said Dr. Martin considered that the change in the provisions so made by him, as necessary to prevent the spread of the small [**7]  pox among the passengers, remaining at that time on board the said vessel; that he directed that none of the passengers remaining on board the said vessel, should land; that in the opinion and judgment of the said Dr. Martin, while the said vessel remained at the quarantine ground, there was no danger, that the contagion of the small pox would be introduced into the city of Baltimore, unless some of the passengers went on shore, or had intercourse with persons from the shore; that he purchased lime, and with it white-washed the Ellen Brooks, and fumigated the vessel, and employed no disinfecting agents with respect to the clothes and other articles on board the said vessel, except soap and water and ventilation. Witness stated that he considered it necessary to send the typhus patients from on board the vessel, as the state of the ship very much increased their danger, and could send them no where else than to the hospital, without danger of communicating the small pox. The plaintiff further proved by one Jones, that he was a resident student, and had charge of the city contagion hospital in 1840; that the persons named in the bill headed--

"Ship Ellen Brooks, to the City Contagion [**8]  Hospital, Dr.

To board, medical attention, medicines, nursing, washing, &c. &c., of the following persons, (vide Dr. Martin's order,) viz:

________________________________________________________________________________
Date of Adm'n.	Names.	Date of dis'ge.	No. days.	
May 27,	Cornelius Simpson,	June 24,	29, &c.,	
________________________________________________________________________________

enumerating 26 persons, and making in all 694 days, at $ 1 per day, $ 694. Approved, S. C. Leakin, Mayor.

J. H. MILLER, Pres. of Faculty."

Received payment of the commissioners of health, as per receipt books.

August 26th, 1840.     JOEL JONES.

I do hereby certify, that the individuals named in this bill were sent by me to the small pox hospital, were sent from the ship Ellen Brooks, as necessary to the purification of said ship.

August 25th, 1840.     JOS. MARTIN, Health Officer.

Were received in that hospital according to contract made with the city of Baltimore to receive all patients sent there by the city, and that they were received in consequence of an order from Dr. Martin, the health officer; that about two-thirds of them had small pox, one case of syphilus, who after arriving at the hospital was attacked with small pox, and the rest had typhus fever; that they were [**9]  kept at the hospital during the periods mentioned in the said paper, and that the cost of each day for each patient, charged by the small pox hospital, was $ 1.00 for board, medical treatment, &c.; that the Hibernian Society furnished them with clothes; that after receiving an order from Dr. Martin, and on the 2nd or 3rd June, he waited on the captain of the vessel who referred him to the defendant, who when applied to, said that the bill of the small pox hospital would be paid, or that he would see it paid, and in this interview the defendant requested the witness to send the patients out of the hospital as speedily as possible and not to keep them there unnecessarily; that about two weeks afterwards, and before the said persons had been removed from the hospital, he again called on defendant, who said that he has made some arrangement with Captain Conkling, who had made an agreement with him to refer to arbitration the question as to who was responsible for the said bill, and that the patients in the hospital were discharged as soon as they could with safety be, and that the charges in the said bill are usual and customary. The plaintiff further proved, that the mayor and city council [**10]  of Baltimore paid, before the bringing of this suit, the amounts of Dr. Martin's bill, and that of the small pox hospital. The defendant then offered in evidence the charter party entered into in Liverpool, and in pursuance of which the voyage from that port to Baltimore was performed, and the said passengers who were removed to the small pox hospital were transported.

The charter party stipulated, that the vessel "with all convenient speed be made ready, and receive and take on board a full cargo of lawful goods and merchandize, such cargo not to exceed six hundred tons weight, and of which not more than four hundred tons dead weight articles, with such passengers as may offer, all expenses on the same being paid by the charterers," &c.; "and being so loaded shall therewith proceed to Baltimore, or so near thereunto as she may safely get, and deliver the same, &c., and so end the voyage," &c. The execution of which was admitted.

The plaintiff further proved by Jones, that in his opinion as a physician, the disease of small pox may break out after it is imbibed in six days, and may not until fourteen, and that the average is nine days, and that it may last in the constitution [**11]  of the patient two months. The defendant further proved by William H. Conkling, that upon the arrival of the Ellen Brooks at Baltimore he entered that portion of the cargo of the said vessel which consisted of salt, and which belonged to and was shipped on board the said vessel at Liverpool by Ingleby & Browne, the charterers; that this portion of the cargo was consigned to order, and the bills of lading for it had been sent to the said William H. Conkling by a Mr. Baldwin of Philadelphia, to whom Ingleby & Browne had transmitted them, the said Conkling deriving all his authority to act from Baldwin; that when he applied to have the salt landed the captain of the vessel refused to suffer it to be landed until he was secured the full amount of his freight; that he, the said William H. Conkling, at the request of the master and the defendant, undertook to collect the freight payable by the consignees of the other portions of the cargo; did in fact collect it, and paid to the defendant the entire freight under the charter party; that he had no other connexion with the vessel or cargo than as above stated.

Upon cross examination the said William H. Conkling stated, that before the [**12]  Ellen Brooks arrived at Baltimore, he heard the defendant say, that he would want to sell or freight her upon her arrival, and that he had acted on former occasions as the agent in Baltimore of Mr. Sheppard of New Orleans, the owner of the Ellen Brooks, and had been the consignee on former voyages of that vessel, and that he acted as consignee of the vessel when she was in Baltimore at the time of incurring these expenses. The defendant further proved, that the Ellen Brooks is an American vessel, owned by Mr. Sheppard of New Orleans, and was entered at the custom house at the port of Baltimore, upon the oath of the master of the vessel, as to the character of the vessel. The defendant also read to the jury ordinance No. 11, entitled "An ordinance to preserve the health of the city of Baltimore." The plaintiff then offered the two following prayers and instructions to the jury:

1. If the jury believe from the evidence in the cause, that the ship Ellen Brooks came to at the quarantine ground of the port of Baltimore, with persons on board afflicted with the small pox, or varioloid or both diseases, at the time spoken of in the testimony, and that the expenses charged in the several [**13]  bills referred to in the testimony, were incurred in the process of disinfecting the said ship, and in the measures directed to be taken in reference to the officers, crew and passengers, to disinfect them, and to prevent their propagating the said disease, by the officer of the city of Baltimore, authorised to act on such occasions, to wit, the health officer or his assistant; and if they shall believe, that the said expenses have been paid to the parties incurring them, in the first instance by the plaintiffs, and that the defendant was the consignee of the said ship at the time referred to, then the plaintiff has a right to recover from defendant, so much of said expenses as are reasonable and fair of their kind."

2. If the jury believe from the evidence, the facts set forth in the first prayer, that the plaintiffs have a right to recover, notwithstanding the charter party exhibited in evidence. To the granting of which prayers, or either of them, the defendant objected, but the court (PURVIANCE, A. J.,) overruled their objection, and granted each of the said prayers. The defendant excepted.

2ND EXCEPTION. The evidence having been given as stated in the defendant's first [**14]  bill of exceptions, the defendant prayed the court to instruct the jury as follows:

1. If the jury find the expenses incurred and claimed in this action, were not necessary to preserve the health of the city of Baltimore, and were not necessary to prevent the introduction of small pox into the said city, by or through the instrumentality of the Ellen Brooks, the persons, baggage or articles on board of her, then the plaintiff cannot recover, and the recovery must be limited to the amount of expenses absolutely necessary to preserve the health of the city, or to prevent the introduction of small pox.

2. That under the true construction of the ordinance, the expenses which can be recovered, are those incurred in disinfecting and purifying the Ellen Brooks, the persons, baggage and articles on board of her at the time of her arrival at the port of Baltimore, from the infection of the small pox, and the jury can render a verdict only for such amounts as were properly incurred, in such disinfection and purification from the infection of small pox, of the said vessel, persons, baggage and other articles.

But the court (PURVIANCE, A. J.,) refused to grant the said prayers,  [**15]  or either of them, as they stand, but did grant them with the following modification, and instructed the jury as follows:

The qualification of the said first prayer of the defendant, was, to strike out all of it, after the word "recovery," and insert, "must be limited to such amount of expenses as in the opinion of the health officer was necessary to disinfect the vessel, cargo and passengers of the said disease, and to prevent their propagating the same."

And the qualification of the second prayer was, to strike out all of it, after the word "amounts," and insert the following--"as in the opinion of the health officer were necessary to disinfect the vessel, cargo and passengers of the said disease, and to prevent their propagating the same."

To which refusal to grant the said prayers, and each of them as they were presented, and to which granting of the said prayers, and each of them with the said qualifications, the defendant excepted.

3RD EXCEPTION. The evidence having been given as stated in the defendant's first bill of exceptions, the defendant then prayed the court as follows:

3. That under the true construction of the ordinance in question, the health [**16]  officer had no power to send to the small pox hospital, any but those persons who, when sent, were affected with the small pox or varioloid disease, and that no expense incurred from the sending of any other persons, can be recovered in this action.

4. That if the jury find, that the health officer required the captain of the Ellen Brooks to furnish fresh provisions for such persons as remained on board the Ellen Brooks, and were not removed to the small pox hospital, and did this with a view to prevent the spread of disease, then the remedy for the violation of such requisition, if any, was under the 8th section of the ordinance, against the captain of this vessel, and the fact that the health officer did furnish the provisions in question, does not authorise the recovery of the amount so furnished in this action.

5. That the expense incurred and paid by the health officer, under the 7th section of the ordinance, could only be collected from the party charged by him, and if such charge was made in this case in the first instance, against the captain of the Ellen Brooks, then it ought to have been collected from him, and there having been no effort made to recover this amount [**17]  from the captain, there was no obligation on the part of the city to pay it, and such payment was therefore voluntary, and does not entitle the city to recover in this action.

6. That the Mayor and City Council of Baltimore, have full power to provide by ordinance for the preservation of the health of the city, and to prevent the introduction of contagious diseases, but this power does not confer any right on the corporation to impose upon the owner, captain or consignee of a vessel arriving at the port of Baltimore, the expense of curing all passengers arriving in their vessels at that port, nor the expense of providing them with such provisions as the health officer of that port may order for their use, in a case where the charterers of the vessel have undertaken to provide for all expenses of passengers, and that there can be no recovery in this action, for the amount paid for curing the passengers in the small pox hospital, or the amount paid for furnishing provisions by the health officer.

7. That under the true construction of the ordinance, the expenses which can be recovered from the owner, consignee or master, are confined to the disinfecting and purifying the vessel [**18]  and baggage and articles on board of the vessel, and does not extend to the support and cure of the passengers, who were removed to the small pox hospital, nor to the provisions furnished by the health officer for the use of the passengers who remained on board of the vessel.

8. If the jury find, that the Ellen Brooks was chartered in the manner given in evidence, at Liverpool, to perform a voyage to Baltimore, and that the charterers were to pay all expenses of passengers; and further find, that all expenses claimed in this action, arose from the diseases among the passengers on board the said vessel; and further find, that the defendant in this action had no agency in effecting the said charter party, and his control over the said vessel, as consignee, was to take effect from and after the full performance of all the stipulations in the said charter party, and performances of the said voyage, then the defendant is not responsible in this action.

9. If the jury find, that the defendant in this action was the ship's husband, rather than the consignee, and acted as ship's husband, then he is not responsible in this action.

10. If the jury find, that some of the passengers [**19]  who were removed by the order of the health officer to the small pox hospital, were afflicted with small pox, and some with typhus, or some other diseases different from small pox or the varioloid disease, there can be no recovery in this action for the expense of removal, board and medical treatment, at the said hospital, incurred on account of the said passengers who were not afflicted with the small pox, unless the jury find, that such expenses were necessary to disinfect and purify the said passengers from the infection of the small pox.

11. If the jury find, that the passengers who remained on board said vessel were not sick, and find that the health officer furnished them with fresh provisions, there can be no recovery on account of the expense of such provisions, unless the jury find, that such expense was necessary to disinfect and purify them from the infection of the small pox.

12. There can be no recovery in this action, for any expense incurred on account of any passenger not afflicted at the time of incurring such expense, with the small pox, or varioloid disease, unless the jury find that such expense was necessary to prevent such passenger from being infected [**20]  with the small pox, and that no expense incurred exclusively in curing any passenger of any disease, different from the small pox or varioloid disease, or in preventing such other disease, can be recovered in this action.

But the plaintiff having objected to the same, the court (PURVIANCE, A. J.,) rejected all and each of them, and refused to grant any one of them, to which refusal to grant any of them, and to which rejection of all and each of them, the defendant excepted.

The verdict and judgment being against the defendant, he appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

The Mayor and City Council of Baltimore by their charter, have full power to pass all laws and ordinances necessary to preserve the health of the city, prevent and remove nuisances, and prevent the introduction of contagious diseases within the city, and within three miles of the same.

That act clothed the corporate authorities within the specified limits, with all the legislative power which the General Assembly could have exerted, and of the degree of necessity for such municipal legislation, the M. and C. C. of B. were the exclusive judges; the means and manner contributory to the end in view, were committed to their sound discretion.

The corporation might impose penalties, or cause the vessel and all persons on board to be taken possession of, and controlled until their disinfection was effected, and impose on the captain, owner or consignee, reimbursement of all expenses incurred, or they might adopt at the same time both those remedies.

Where testimony has been offered, legally sufficient to warrant the jury in finding certain facts enumerated in the plaintiff's prayer, which gave him a right of action, he may upon the hypothesis, that the jury believe the evidence in the cause, and the facts enumerated, require the court to instruct them that he is entitled to recover to the extent of such right.

In an action to recover the expenses incurred by the Mayor and City Council of Baltimore, in disinfecting and purifying a vessel, persons, and baggage, on board her at the time of her arrival, from the infection of the small pox, the defendant cannot require the court to instruct the jury, that the recovery must be limited to the amount of expenses absolutely necessary to preserve the health of the city, or to prevent the introduction of the small pox. By such an instruction the rights of the plaintiff would have been unreasonably and illegally restricted.

If the Health officer of the city, on whom the duty of disinfection is imposed by the ordinances of the corporation, in causing expenses to be incurred, acted bona fida within the limits of a sound discretion and with reasonable skill and judgment in this discharge of his official duties, the reasonable expenses thus incurred by him, must be paid by the captain, owner or consignee of the disinfected vessel as declared by the ordinances of the city on such subjects.

The Health officer in his disposition of persons on board of an infected ship, under the ordinances of the city, must send the persons laboring under the infectious disease to the hospital, and may also send those on board the same vessel, liable to be affected by it, to the hospital, if in his opinion such course be necessary to prevent the spread of the disease.

And that officer, acting with reasonable skill and judgment, and with a sound and honest discretion in relation to persons not apparently afflicted with the disease, renders the owner, master or consignee, also, liable for the reasonable expenses incurred as in other cases.

Where the county court undertakes of its own motion to add a qualification to a prayer granted at the request of a party, the qualification must be consistent with the original prayer, and not leave it doubtful or difficult to determine what was the scope or design of the entire instruction.

Upon motion of the defendant, the county court instructed the jury, "that if they find the expenses incurred and claimed in this action were not necessary to preserve the health of the city, and not necessary to prevent the introduction of the small pox by or through the instrumentality of the vessel, the persons, baggage or articles on board her," then the plaintiff cannot recover; and then added, "that the recovery must be limited to such amount of expenses as in the opinion of the Health officer was necessary to disinfect the vessel, cargo and passengers of said disease, and to prevent their propagating the same. HELD: that this was erroneous, because difficult to reconcile the two parts of the instruction so given, or to discover what was the instruction the court designed to give.  

COUNSEL:
By GEO. M. GILL and G. L. DULANY for the appellant, and

By MARSHALL for the appellees.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*276]  DORSEY, J., delivered the opinion of this court.
By the act of the General Assembly of Maryland, incorporating the Mayor and City Council of Baltimore, it is enacted, "that the corporation aforesaid shall have full power and authority to enact and pass all laws and ordinances necessary to preserve the health of the city, prevent and remove nuisances; to prevent the introduction [**21]  of contagious diseases within the city, and within three miles of the same." The transfer of this salutary and essential power is given in terms as explicit and comprehensive as could have been used for such a purpose. To accomplish, within the specified territorial limits, the objects enumerated, the corporate authorities were clothed with all the 

 [*277]  legislative powers which the General Assembly could have exerted. Of the degree of necessity for such municipal legislation, the Mayor and City Council of Baltimore were the exclusive judges. "To their sound discretion was committed the selection of the means, and manner (contributory to the end) of exercising the powers, which they might deem requisite to the accomplishment of the objects of which they were made the guardians. "To prevent the introduction of contagious diseases within the city, and within three miles of the same," they might impose heavy penalties on the captain, owner or consignee of any ship or other vessel entering the port of Baltimore, on board of which the small pox or other contagious disease might prevail; or they might seek the accomplishment of their object by causing the vessel and all persons [**22]  on board to be taken possession of and controlled until their purification and disinfection were effected, and impose on the captain, owner or consignee the payment or re-imbursement of all the expenses incurred by such proceedings; or they might adopt at the same time both the suggested remedies, if for the successful and faithful execution of their powers, they deemed it necessary to do so.
With this view of their powers, let us see what laws or ordinances have been passed by the Mayor and City Council of Baltimore in relation to the case now before us. By No. 12 of the revised ordinances, page 47, they have provided for the appointment of a "health officer," and prescribed his duties and powers; and by the sixth section thereof, it is enacted, "that the health officer or his assistant shall visit all vessels that may come to at the quarantine ground, as directed in the fifth section of this ordinance, as soon as practicable, in daylight, after the knowledge of such fact shall have been, by any means, obtained by him; and said officer is hereby authorised and directed to send all persons afflicted with the small pox or varioloid disease, who may be found on board such vessel, [**23]  to the small pox hospital, until a receptacle for small pox patients be provided at the Lazaratto; to take or direct such measures in regard to the officers, crew and passengers, as in 

 [*278]  his opinion may be necessary to disinfect them and to prevent their propagating the disease." And by the seventh section of the ordinance, it is enacted, "that the expenses which may be incurred in the disinfecting and purifying of such vessels, persons, baggage or other articles from the infection of small pox, as provided for in the sixth section of this ordinance, shall be done at the proper costs and charges of the commander, captain, owner or consignee of the vessel infected; and such part thereof as it may be necessary for the health officer to incur in the first instance, shall be charged to the commander, captain, owner or consignee, or either of them, in the discretion of the health officer, and collected by him, but if it cannot be so collected, the amount which he shall have necessarily expended, for the purpose aforesaid, shall be refunded or repaid by the register of the city, with the approbation of the mayor."
With this outline of the powers and duties of the Mayor and  [**24]   City Council of Baltimore and the health officer, we now proceed to examine the several prayers and instructions given and refused by the court to the jury, which by the bills of exceptions taken in the cause are brought up to be reviewed in this court.
In granting the plaintiff's first prayer in the first bill of exceptions, and overruling the defendant's objection thereto, we think the county court committed no error. Of all the facts submitted in that prayer to the finding of the jury, there had been testimony offered, legally sufficient, to have warranted such finding. And if those facts were found, the plaintiff's right to recover to the extent claimed by his prayer, followed as the natural and legal consequence.
We think the court below were also right in granting the plaintiff's second prayer and overruling the objection made to it by the defendant. The Mayor and City Council of Baltimore had the power, as they have done, to visit the penalty for the introduction of a contagious disorder within the limits prescribed by the Act of Assembly, on the owner, the captain, or consignee of the vessel. Of the charterer of the vessel, they 

 [*279]  are not presumed to have [**25]  had knowledge. And if they had, what has he to do with a contagious disorder prevailing amongst the crew? And even conceding he were responsible therefor, could the salutary power, vested in the corporation in this respect, be effectuated, by making him only answerable, who, perhaps never was and never would be within the reach of the process of our judicial tribunals, and might be a resident, if any settled residence he had, of the most remote portion of the commercial world.
We concur with the county court in the propriety of its rejection of the appellant's two prayers in his second bill of exceptions. The first part of the first prayer having been granted. Whether the court were right or wrong in doing so on this appeal, it is unnecessary for us to inquire. But the second part of that prayer, and which was refused by the court, was, that the recovery of the plaintiffs "must be limited to the amount of expenses absolutely necessary to preserve the health of the city, or to prevent the introduction of small pox." By granting this instruction the rights of the plaintiffs would have been unreasonably and illegally restricted. It limited the right of recovery, not only to expenses,  [**26]  incurred in the soundest exercise of economical discretion, and of the greatest professional skill and judgment, by the health officer, but it deprived them of the right of recovery thereof, if the jury, judging perhaps from results and circumstances, occurring after the authority of the health officer had been thus exerted, should be of opinion, that the expenses incurred, had not been "absolutely necessary to preserve the health of the city, or to prevent the introduction of small pox." The right of the plaintiffs to recover is dependant on no such occurrences, is confined to no such restrictions. If the health officer, in causing these expenses to be incurred, acted bona fide within the limits of a sound discretion, and with reasonable skill and judgment, in this discharge of his official duties, the reasonable expenses thus incurred must be paid by the defendant. But we think the court below erred in instructing the jury according to their qualification of the defendant's first prayer. The portion of the prayer 

 [*280]  which was retained by the county court and given to the jury, was, that "if the jury find the expenses incurred and claimed in this action, were not [**27]  necessary to preserve the health of the city of Baltimore, and were not necessary to prevent the introduction of small pox into the said city, by or through the instrumentality of the Ellen Brooks, the persons, baggage, or articles on board of her, then the plaintiff cannot recover." With this part of the instruction the defendant surely had no reason to be dissatisfied. It submits, exclusively to the finding of the jury, the question as to the necessity of the expenditures made. Of that necessity they were created the sole judges. But to this instruction the court appended the following modification, viz: "and the recovery must be limited to such amount of expenses as in the opinion of the health officer was necessary to disinfect the vessel, cargo and passengers, of the said disease, and to prevent their propagating the same." Uniting that portion of the prayer granted, with the court's modification there of, we must confess we are much at a loss how to reconcile them, or to discover what was the instruction which the court designed to give to the jury. Viewing them separately, the meaning of each is obvious enough, but their consistency is not so apparent. By the modification, [**28]  the jury were told that the plaintiffs' recovery must be limited to such "amount of expenses as in the opinion of the health officer was necessary to disinfect the vessel, cargo and passengers of the said disease, and to prevent their propagating the same." Thus making the opinion of the health officer the sole ground upon which the verdict of the jury must be formed; and, in effect, withdrawing from their consideration the expenses which had actually been incurred and the question previously submitted to them, as to the necessity, in point of fact, for incurring those expenditures. And, in truth, instructing the jury to find a verdict for such amount of expenses as in the opinion of the health officer was necessary, although the jury might believe that the health officer, in forming his opinion, had acted mala fide, had given countenance to the grossest extravagance, and exorbitance of charges, and had shewn himself destitute of all 

 [*281]  professional skill and judgment, and wholly incompetent to make the estimates requisite to the formation of a correct opinion upon the subject. And it is a peculiarity in this instruction, that in that part of it granted at the instance [**29]  of appellant, it denies to the health officer all right to decide on the necessity of the expenditures to preserve the health of the city, (a necessity of which it may be presumed he was peculiarly competent to determine,) and submitted the determination of that necessity exclusively to the jury; yet in the ascertainment of the amount to be recovered, they were denied the exercise of all discretion and judgment, and were confined "to such amount of expenses as in the opinion of the health officer was necessary to disinfect the vessel, cargo and passengers of the said disease, and to prevent their propagating the same." Notwithstanding it did not appear that he had any particular knowledge of the great portion of those expenses, or that they were incurred under his supervision or management, but on the contrary, that they occurred after he had ceased officially to have any agency in relation to them, and when the patients, or persons infected, were under the care and management of the physicians and nurses of the small pox hospital; of whom there is no ground for presuming that the health officer was one. Of the amount and necessity of the expenses that accrued at the small pox hospital,  [**30]  (which form the great bulk of the amount in controversy,) the physicians and nurses thereof possessing actual knowledge, were more competent than the health officer to give opinions and testimony as to the necessity thereof, for the purpose for which such expenditures were authorised. The county court therefore erred in its opinion which excluded such testimony from the consideration of the jury.
The second prayer appears to us to have been properly rejected by the court, because it called for an instruction to the jury, that no expenses could be recovered, which were not "incurred in disinfecting and purifying the Ellen Brooks, the persons, baggage and articles on board of her at the time of her arrival at the port of Baltimore." Whereas, the ordinance 

 [*282]  not only authorises the health officer "to take or direct such measures in regard to the officers, crew and passengers, as in his opinion may be necessary to disinfect them;" but also "to prevent their propagating the disease." For aught that we can know, one-half the expenses incurred, might have arisen, not from the measures taken by order of the health officer to disinfect or purify the officers, crew and passengers, [**31]  but "to prevent their propagating the disease." The qualification given by the court to the second prayer in this exception, is almost identical with the modification made of the first prayer, and is erroneous for the same reasons.
We concur with the county court in the rejection of the appellant's third prayer, that under the ordinance "the health officer had no power to send to the small pox hospital any but those persons who, when sent, were affected with the small pox or varioloid disease, and that no expense incurred from the sending of any other persons, can be recovered in this action." The disposition to be made of persons afflicted with the small pox or varioloid disease is not left to the discretion of the health officer. The ordinance peremptorily directs them to be sent to the small pox hospital. But the discharge of this ministerial service is not the only duty imposed on the health officer, by the ordinance, in respect to the persons on board such vessel. He is further required "to take or direct such measues in regard to the officers, crew and passengers, as in his opinion may be necessary to disinfect them, and to prevent their propagating the disease." If then, in [**32]  pursuing such measures, the health officer, acting with reasonable skill and judgment, and with a sound and honest discretion, had sent others of the crew and passengers, than those afflicted with the small pox, to the small pox hospital, we can see no sufficient objection to its being done, or to the recovery of all reasonable expenses incurred in their disinfection and purification, or during their necessary detention for the prevention of their propagation of the small pox.
The county court, we think, was obviously right in rejecting the appellant's fourth and fifth prayers in his third bill of exceptions.

 [*283]  The rejection of the appellant's sixth prayer we also approve of. For although there are parts of this prayer which, if standing alone, the county court would have granted without the slightest hesitancy, yet they are coupled with other matters, so obviously wrong and inadmissible, that acting on the prayer as an entirety, it was properly refused by the court.
The seventh prayer was properly refused by the court below, for reasons assigned by this court in the previous part of its opinion.
The eight prayer was rightly rejected, because it called on the court to [**33]  leave to the finding of the jury certain conditions and qualifications, on which the appellant assumed to act as consignee of the vessel, of which no testimony had been offered.
No proof having been offered, which was legally sufficient to have warranted the jury in finding the fact, that the appellant was the ship's husband, and not the consignee of the vessel, his ninth prayer could not be otherwise than rejected.
The tenth prayer, for reasons stated in previous parts of this opinion, was correctly rejected by the court.
The rejection of the eleventh prayer also meets our approbation, because, although the expenses incurred for fresh provisions may not have been necessary in the sense in which those terms are used in the ordinance, yet, according to the testimony of the health officer, they may have been necessary to prevent the propagation of the disease.
We concur with the county court in its rejection of the twelfth prayer. By it the court were requested to instruct the jury, "that there can be no recovery in this action, for any expense incurred on account of any passenger, not afflicted at the time of incurring such expense, with the small pox or varioloid disease, unless [**34]  the jury find that such expense was necessary to prevent such passenger from being infected with the small pox." This prayer the court clearly could not have granted consistently with the ordinance, as it would have excluded all allowances for expenses incurred for the disinfection, purification, and necessary detention of the passengers, to prevent the propagation of the contagious disease.

 [*284]  We concur with the county court in granting the plaintiffs' prayers in the appellant's first bill of exceptions, and in its rejection of all his prayers in the third bill of exceptions; and we also concur in its rejection of the appellant's two prayers in the second bill of exceptions, but we dissent from the modified instruction given by the court to the jury under the first prayer, and also from its qualified instruction given under the second prayer, and therefore reverse its judgment.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

3 of 46 DOCUMENTS 

THE NEPTUNE INSURANCE COMPANY vs. BENJAMIN ROBINSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 G. & J. 256; 1840 Md. LEXIS 14 

December, 1840, Decided 

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

This was an action of assumpsit, brought by the appellee against the appellant, on their policies of insurance, by which they undertook to assure the appellee; lost or not lost, at and from Richmond, Virginia, to Portland, Maine, and at and from thence, with the liberty of touching and trading at New York, to Baltimore, three thousand dollars, on the good schooner Wildee, of Baltimore, value thereat, whereof was master for that voyage, or whoever should be master in the said vessel; beginning the adventure upon the said vessel as aforesaid, and to continue during the voyage aforesaid on the vessel, until she should be arrived and moored at anchor at Baltimore, twenty-four hours in safety, &c. Also on her freight.

The plaintiff declared for a total loss, and the defendant pleaded non-assumpsit, on which issue was joined.

The case was submitted to the county court on the following statement of facts:

It is admitted, that Benjamin Robinson, the owner of the schooner Wildee, of Baltimore, plaintiff in this case, on the 20th April, 1837, effected with the defendant an insurance by two policies herewith exhibited, marked A and B, and [**2]  hereby made part of this statement, on the said vessel, to amount of three thousand dollars, and on her freight three hundred and fifty dollars, upon a voyage from Richmond to Portland, and at and from thence to Baltimore, with liberty of touching and trading at New York. That the said schooner, staunch, strong and sea worthy in all respects, left Richmond laden with a cargo of corn, on the aforesaid voyage, on the sixteenth day of April 1837, four days previous to the date of said policies. That on the seventeenth day of April, in said year, the winds and current drove her on the Western Shore of James River, and on Goods Rocks, whereby by the perils of the seas, she was totally lost, notwithstanding all due efforts of the captain and crew to save her. That on the seventeenth day of April 1837, the day of said vessel's grounding as aforesaid on said Rocks, the captain addressed to the said plaintiff a letter, which, marked C, is here presented as part of this statement, which letter, it is admitted, was delivered at the post office in Richmond, in the afternoon of said 17th April, and was post marked accordingly, of that date, and in due course of mail must have arrived at the post [**3]  office in Baltimore on the 20th April, in the morning, between three and four o'clock, and could have been had at the post office, if applied for, on that day, at the hour of seven o'clock in the morning. It is also admitted, that the plaintiff, at the time of making said insurance, was, and for several years before had been, a resident of the city of Baltimore; that he is not a merchant, and has no place of business or counting room other than his private dwelling; that his letters, at the periods aforesaid, were not taken to him by a letter carrier, but were called for by him at the post office in Baltimore, or sent for thence by him; that on the 19th April 1837, he called at the said office, and received then the letter hereinafter mentioned, dated 14th April 1837, and that he did not afterwards call at said office for letters until the 24th April, when he received the aforesaid letter of 17th April; that on receiving the said letter he in due form abandoned said vessel to the defendant. It is further admitted, that on the 19th April aforesaid, the plaintiff received from the captain of the said vessel the letter dated 14th April, above referred to, which letter, having been lost [**4]  or mislaid, it is admitted, that it in substance stated, that the captain aforesaid had obtained a freight for said vessel from Richmond to Portland, and that he expected to sail with her on the 16th or 17th April. That on this letter and the information it gave, the plaintiff on the 20th April 1837, applied for insurance to the defendant, by an order, which, marked D, is here exhibited as part of this statement; that the answer of the defendant, as noted at foot of said order, was given at two o'clock, P. M. of said 20th April, and that between the hour of two and the hour of five, P. M. of that day, the terms of the defendant were excepted by the plaintiff, by his writing on said order, "Accepted. Benjamin Robinson," and then delivering said order at the office of the defendant. That the information in said letter of 17th April, if known to plaintiff, would have been material to the risk; and if the court shall, on these stated facts, be of opinion that the plaintiff had notice, either actual or constructive, of the loss of the schooner Wildee, or of the contents of said letter of 17th April, prior to the making of said insurance, or shall be of opinion, that the plaintiff was guilty [**5]  of such laches in not calling regularly for his letters at the post office, and receiving the intelligence of the loss communicated by said letter, as will vitiate said insurance, then and in either case, their judgment must be for the defendant,--otherwise, for the plaintiff, for the sum of twenty-eight hundred and fifty-one dollars and sixty-four cents, with interest from the 14th August 1837, and costs of suit.

The policies A and B, were in the usual form on vessel and freight.

(C.) "Dear Sir,--I left the port of Richmond yesterday, with a load of corn, bound to Portland, and about 2 o'clock run on Goods' Rocks near the bar. The vessel does not appear to be damaged, although the cargo no doubt is. If you have any instructions to give, I wish you to write. I have noted my protest, and proceeded according to law, for the benefit of all concerned.

Yours, in a hurry,

JOHN HAYES."

April 16, 1837.

(Endorsed,) "Mr. Benj. Robinson, Baltimore, Maryland."

"April 24. I certify that this letter was delivered to B. Robinson, on the morning of the 24th.

J. H. HANSON.

(D.) "Benjamin Robinson wants insurance against all risks, for whom it may concern,  [**6]  for $ 3000, on the schooner Wildee of Baltimore, valued at that sum, at and from Richmond, Virginia, to Portland in Maine, and at and from thence with the liberty of touching and trading at New York, to the port of Baltimore; also on the freight of said vessel $ 350, to be valued at that sum out, and the same back. Please name a premium for the above, and what return if the risk ends at the time of her leaving Portland. The Wildee was expected to leave Richmond about the 15th or 16th of the present month.

Baltimore, April 20th, 1837.

"2 per cent. to return, 1 per cent. if the risk end at Portland, and no loss happen; or 3/4 per cent. if the risk end without loss at New York; or 1/4 per cent. if the vessel proceed direct from Portland to Baltimore."

The county court on the statement, rendered judgment for the plaintiff, and the insurance company appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

Upon a case stated, the court is not at liberty to make inferences of fact.

There are many cases, in which negligence will be visited with the same penalty, as a wilful design to do wrong; as if a party, with knowledge that his agent is in treaty for insurance, gets information of a material fact, he is bound promptly to use the means of communicating it, and his omission to do so, will avoid the policy, independently of any proof of bad motives for the delay.

There is no principle however, which requires the assured, to use all accessible means of acquiring information material to the risk, up to the last instant of time; and therefore his omission to call at the post office, where a letter was received on the morning of the day the insurance was effected, containing material information, did not vitiate the policy.  

COUNSEL:
By MAYER for the appellant, and

By MCMAHON for the appellee.  

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

OPINIONBY:
CHAMBERS 

OPINION:

 [*259]  CHAMBERS, J., delivered the opinion of the court.
The claim of the appellee upon this policy of insurance,  [**7]  has been resisted on the ground, that under the circumstances of this case, he is to be charged with notice of the loss prior to the insurance, or at least with such neglect as will vitiate the policy. That the contents or existence of the letter of 17th April, were known to him in fact, is not alleged in the statement of facts, nor could it by any just inference be deduced therefrom, if indeed, the court could make inferences of fact, which is certainly not the case. The statement in reference to this matter is, that the appellee, on the 19th of April applied at the post office, (where his letters remained till he called for 

 [*260]  them,) and received the letter of 14th of April, and on the following day, the 20th; effected the insurance; and that he did not call again at the post office, until 24th April, when he received the letter of 17th, informing him of the loss. It being then conceded, that the facts stated do not prove actual knowledge of the letter of 17th of April, and consequently of the loss of the schooner, we are to decide whether they make a case, from which the law will impute the consequences of knowledge, and imply concealment, suppression or negligence,  [**8]  on the part of the assured to vitiate the policy.
The principles advanced on the part of the appellant, on the authorities cited, may all be admitted, and yet we do not think they will furnish an affirmative answer to this question. That the assured acted with entire good faith, and without any design to impose upon himself a condition of ignorance, the facts afford sufficient evidence to prove. It is very true, that in many instances negligence will be visited with the same penalty, as wilful design to do wrong. Thus, if a party with knowledge, that his agent is in treaty for insurance, obtains information of a material fact, he is bound promptly to use the means of communicating it. The impossibility of fixing a definite limit, between prompt attention, and unreasonable delay, and the difficulty of certainly ascertaining the motives and excuses, for all intervening grades of despatch, in performing an admitted duty, make such a rule imperatively necessary. When the principles of fair dealing, as well as the rules of law, require a fact to be communicated, if known, and time enough had elapsed within which to communicate it, and a means of conveying it had presented, it would be [**9]  fatal to the rights of the party to require him to prove bad motives for the delay. Justice requires the same standard in this respect for the man of active industry as for the habitually indolent, and wisely says, what a man is thus obliged to do, he must do promptly, and diligently, or bear the consequences of his neglect.
But we do not think the case before us is one where the party has neglected a duty.

 [*261]  He was under no obligation to go to the post office, nor had he as far as the facts are disclosed, any cause to expect information. In point of fact, it was solely in consequence of the loss of the schooner, that the captain did write.
The principle relied on by the appellant is, that the assured is bound to use all accessible means of information, at the very last instant of time, to ascertain the condition of the property insured.
We do not think this principle recognised by any adjudged case, and if carried out to its ligitimate, indeed, necessary, results, would embarrass the whole doctrine of insurance, with complicated and endless difficulties.
We approve the opinion expressed by the county court of Baltimore, and affirm the judgment.
JUDGMENT AFFIRMED.  [**10]  

4 of 46 DOCUMENTS 

JAMES A. and GEORGE E. SANGSTON, vs. MAITLAND, KENNEDY and COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 G. & J. 286; 1840 Md. LEXIS 18 

December, 1840, Decided 

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

This was an action of assumpsit brought by the appellees against the appellants, on the 8th March 1838. The appellants pleaded the general issue. The verdict was for the plaintiffs below.

At the trial, the plaintiffs to support the issue on their part, proved by James Winchester, a clerk of Campbell & McIlvain, merchants of Baltimore, that the goods for the price of which this suit was instituted, and of which the following paper,

No. 1. Items on Kennedy, Maitland & Co. account in hands of John Glenn, Esq. against J. A. Sangston & Co.

________________________________________________________________________________
1837	March	15	15	ps.	Sheeting,	525	a	21	$ 110.25	
	"	"	10	"	do.	350		17	60.38	
	"	17	8	"	do.	280		17	48.30	
	April	5	10	"	Bear Duck,	350		10	35.00	
	"	"	7	"	Sheeting,	245		21	51.45	
	"	21	20	"	do.	700		21	147.00	
	
									$ 452.38	
________________________________________________________________________________

was the bill of particulars furnished to the defendants, belonged to the plaintiffs, and that the said goods were sold by Campbell & McIlvain as their factors; the defendants then on cross examination proved by the said witness, that Campbell & McIlvain at the [**2]  time of the transaction in question, sold goods on their own account as importers, as well as for others in the capacity of commission merchants and factors; that the said goods were sold by Campbell & McIlvain to the defendants in their own name, and as their own property, the following being the bills of purchase furnished by them to the defendants, in which it was admitted the goods in dispute are included.

No. 2.     Baltimore, 21st April, 1837.

Messrs. J. A. Sangston & Co.

Bought of Campbell & McIlvain.

________________________________________________________________________________
1	ps.	B	blk.	Bombazine,	9392,	60	a	38	$ 22.80	
1	"	I	blk.	do.	8357,	60	a	38	22.80	
1	"	B	blk.	do.	9390,	60	a	35	21.00	
1	"	I	blk.	do.	9229,	60	a	35	21.00	
1	"	B	blk.	do.	9736,	60	a	50	30.00	
1	"	I	blk.	do.	5739,	60	a	50	30.00	
20	"	Im. Russia Sheeting,	35 ea.	700	a	21	147.00	
	
									$ 294.60	
________________________________________________________________________________

No. 3.     Baltimore, April 5th, 1837.

Messrs. J. A. Sangston & Co.

Bought of Campbell & McIlvain.

________________________________________________________________________________
24	ps.	Bro.	Bear	Duck,	840 yds.	9 c.	$ 75.60	
10	"	Sup.	"	"	350	10 c.	35.00	
7	"	Im. Russia Sheeting,	245	21 c.	51.45	
E.*4	1	Lacquired Faus,	500	6 c.	
	
							$ 162.05	
________________________________________________________________________________

 [**3]  

No. 4.     Baltimore, 17th March, 1837.

Messrs. J. A. Sangston & Co.

Bought of Campbell & McIlvain.

________________________________________________________________________________
30 ps. double twill Crape Camblets, 1093 yds. a $ 1,	$ 1093.00	
10 dozen men's kid Gloves, No. 47, $ 5	50.00	
6   "   "   "   174, $ 4	24.00	
8 pieces Bro. Im. R. Sheeting, 280 yds. 17 1/4 c.	48.30	
	
	$ 1215.30	
Less 1 p. short of No. 47,   	42	
	
   Ex'd.	$ 1214.88	
________________________________________________________________________________

No. 5.     Baltimore, 15th March, 1837.

Messrs. J. A. Sangston & Co.

Bought of Campbell & McIlvain.

________________________________________________________________________________
15	ps.	Bleached	I. R. Sheetings,	525 yds.	a 21.2 c.	$ 112.88	
10	"	Brown,	"     "	350	17.2	61.25	
3	"	Canvass,	No. 3,	132.3	17.3	23.56	
5	"	Canvass,	No. 4,	220.1	16.3	36.89	
	
						$ 234.58	
off 1/2 at on 525 yds. sheeting, 2.63	
   1/4 " " 250   "   87--	3.50	
	
		Ex'd.				$ 231.08	
________________________________________________________________________________

that the persons to whom the said goods belonged were not disclosed to the defendants; that they were sold on a credit of eight months; that the sale was guaranteed by Campbell & McIlvain, and that Campbell & McIlvain failed in May 1837. The plaintiffs having here rested [**4]  their case, the defendants offered in evidence the following receipt:

No. 6. Copy.   Baltimore, 31st May, 1837. Received of Messrs. J. A. Sangston & Co. their note at nine months from 15th April, for sixteen hundred dollars, being on account of our bill against them.   For Campbell & McIlvain,

$ 1600.   J. WINCHESTER.

A true copy from the original receipt.     J. J. POLLARD.

And proved that the note for $ 1600, given by them in conformity with the said receipt, was paid at maturity, the note being produced by them at the trial.

No. 7.   Baltimore, 15th April, 1837.

$ 1600.    Nine months after date, we promise to pay to the order of Campbell & McIlvain, sixteen hundred dollars and no cents, for value received. J. A. SANGSTON & CO.

C. & McI. No. 3166. Due 15-18 January, 1838.

"Endorsed, Campbell & McIlvain. Alex'r Fridge."

The plaintiffs then proved, that at the time the said receipt was given, an account existed between Campbell & McIlvain and the defendants, amounting to $ 3352.27, as appeared from the following account:

No. 8.    Messrs. J. A. Sangston & Co.

To Campbell & McIlvain, DR.

________________________________________________________________________________
1837.	Jan'ry	4	Bill of this date,	$ 37.86	
		17	do.	do.	6.66	
		19	do.	do.	22.28	
		28	do.	do.	62.00	
	Feb'ry	22	do.	do.	112.20	
		23	do.	do.	50.23	
		25	do.	do.	199.06	
	March	15	do.	do.	234.58	
		17	do.	due 20 Jan.	1214.88	
	April	5	do.	do.	162.05	
		6	do.	do.	87.50	
		10	do.	do.	100.00	
		12	do.	do.	300.00	
		17	do.	do.	252.87	
		21	do.	do.	294.60	
		24	do.	do.	100.00	
	
					$ 3246.77	
	March	7	do.	do.	105.50	
	
Average date 15th April, 1837,	$ 3352.27	
________________________________________________________________________________

 [**5]  

And then offered in evidence the following entries from the day book of Campbell & McIlvain.

No. 9.

________________________________________________________________________________
June 30	By note for (due 18th Jan. 1830,)	$ 1600.00	
Aug. 31	" goods belonging to Wood, Johnston &	
	   Burrett,	132.91	
Sep. 20	" ditto Maitland, Kennedy & Co.	452.38	
Nov. 30	" Note protested,     $ 875.00	
	    Protest,     1.75--	876.75	
"	" ditto ditto,	876.75	
Dec. 21	" Amount of bill against E. S. Falconer,	3.13	
	
		$ 3941.92	
________________________________________________________________________________

The defendants then proved by James Winchester, the before mentioned witness, that he was the clerk of Campbell & McIlvain during the year 1837, and had been so for several years; that Campbell & McIlvain failed in May 1837; that a short time after the failure of Campbell & McIlvain, in the latter part of May, he called on the defendants for a settlement of their account with Campbell & McIlvain, exhibiting the account already referred to as No. 9, as the correct amount, and desired the defendants to settle it by their notes; that the defendants stated that they were the holders and owners of two notes of Campbell & McIlvain, one dated the 1st March 1837, payable five months after date, drawn [**6]  by Campbell & McIlvain in favour of the Maryland Manufacturing Company, for $ 875, and the other dated the 17th April 1837, at four months, drawn by Campbell & McIlvain, in favor of the Maryland Manufacturing Company, for $ 875, making together the sum of $ 1750, and that Campbell & McIlvain must deduct the amount of those notes from their account against them; that the witness expressed surprise, and said his principals would be much disappointed; that the defendants again remarked that Campbell & McIlvain had failed, that the notes would be due before the account, and that they would not settle it unless the said notes were deducted; that the witness then left the defendants, observing that he would consult Campbell & McIlvain and see them again; that after calling on Messrs. Sangston's several times, they stated that they had two notes of Campbell & McIlvain, which they held against the account; that the witness went back to the counting house and consulted Campbell & McIlvain, and then told Sangston, that C. & M. were much surprised at the claim, but as they wanted paper for a specific purpose, would take Sangston's note for $ 1600, which they gave, and they, Sangstons, mentioned [**7]  that an interest account could be settled afterwards, which was accordingly given by the defendants, and a receipt taken. The note and receipt being the papers before referred to, No. 6 & 7. The defendants further proved by the witness, that a short time after the note for $ 1600 was given, as before stated, they prepared an account current between Campbell & McIlvain and themselves, of which the following paper--

No. 10.

Messrs. Campbell & McIlvain in acc't with J. A. Sangston & Co.

________________________________________________________________________________
1837.	March 2 To your note in favor Maryland Manufactur-	
	   ing Co. due 4th Aug. 1837,	$ 875.00	
April 7	To your note in favor Maryland	
	 Manufacturing Co. due 20th of	
	 Aug. 1837,	875.00	
	" our note at nine months from	
	  15th April 1837, due 18th Janu-	
	  ary 1838, for balance of account,	
	  including interest ac't,	1600.00	
	
   Average, due 27th October 1837,	3350.00	
   Less Int. from 1st July till due, 118 days,	65.88	
			$ 3284.12	
	CR.	
1837.	June 30 By sundry purchases from	
	  4th Jan. 1837 to 24th April 1837,	
	  inclusive, per your ac't rendered	
	  av'ge due us, 17th December	
	  1837,	$ 3352.27	
  Less Int. from 1st July till due, 169 days,	94.41	
	
		$ 3257.86	
  Add amount of interest not calculated	
	   on last settlement,	10.98	
			$ 3268.84	
	
Balance due J. A. Sangston & Co. cash 1st July 1837,	15.28	
Add error in bill 15th March,    3.50	
"  Faulker's account,     3.13--	6.63	
	
Errors Excepted. Baltimore, 30th June, 1837.	$ 21.91	
________________________________________________________________________________

 [**8]  

The above is a true copy of the original. J. J. POLLARD. he believed was a copy, but could not say positively, the defendants having shown, that the original could not be found after diligent search for it among the papers of Campbell & McIlvain; that an account of which the said paper was a copy, was given to him, the witness, that he might deliver it to Campbell & McIlvain; that he, the witness, did deliver it to Mr. Campbell, of the said firm of Campbell & McIlvain, and heard from him no objections as to its accuracy or correctness. The defendants further proved by Mr. McIlvain, of the said firm of Campbell & McIlvain, that they had in the summer of 1837, tendered to him the notes drawn by Campbell & McIlvain for $ 875 each, before referred to, and that he had refused to receive them, on the ground that that department of the business was not under his care. The notes were produced at the trial by the defendants and offered to be surrendered.

No. 11. Baltimore, March 1, 1837. Five months after date, we promise to pay the Maryland Manufacturing Company, or order, eight hundred and seventy-five dollars, for value received.

$ 875   Aug. 1-4   CAMPBELL & MCILVAIN.  [**9]  

Endorsed,   "M. McBlair, Ag't M. M. Co."

No. 12. Baltimore, April 17, 1837. Four months after date, we promise to pay the Maryland Manafacturing Company or order, eight hundred and seventy-five dollars, for value received.

$ 875.   Aug. 17-20   CAMPBELL & MCILVAIN.

19th August 1837, pr'd for non p't.   J. B. L. n. p.

The plaintiffs then proved by Mr. Fenby, the clerk of the Messrs. Dawsons, the agents of the plaintiffs, that in August or September 1837, he left a copy of the following paper--

"No. 13. Memo. of sales made by Campbell & McIlvain, of goods belonging to Messrs. Maitland, Kennedy & Co. of New York, to the following persons, which remain on open account and not settled for.

________________________________________________________________________________
1837.	February 16.  Hall & Co.	
	195-30 ps. 1800	yds.	
	196-30 "  1800	"	
	197-12 "  720	"	
	
	4320	"  a 11 cts.	$ 475.20	
________________________________________________________________________________

________________________________________________________________________________
March 10	Mrs. Weaver, Fell's Point, 1 ps. Sheeting,	
	    35 yds. at 22 cts.	7.87	
March 15	J. A. Sangston & Co.   15 ps. Sheeting,	
	   525 yds. at 21 cts.	$ 110.25	
15	J. A. Sangston & Co.   10 ps. Sheeting,	
	   350 yds. at 17 cts.	$ 60.38	
17	J. A. Sangston & Co.   8 ps. Sheeting,	
	   280 yds. at 17 cts.	48.30	
28	B. C. Wright & Co.   15 ps. Bear Duck,	
	   525 yds. at 10 cts.	52.50	
April  5	J. A. Sangston & Co. 10 ps. Bear Duck,	
	   350 yds. at 10 cts.	35.00	
5	J. A. Sangston & Co.   7 ps. Sheeting,	
	   245 yds. at 21 cts.	51.45	
12	S. T. Walker,   10 ps. Bear Duck,	
	   350 yds. at 10 1/4 cts.	35.88	
12	S. T. Walker,   6 ps. Ticklenb'gs,	
	   360 yds. at 11 cts.	39.60	
21	J. A. Sangston & Co.  20 ps. Sheeting,	
	   700 yds. at 21 cts.	147.00	
________________________________________________________________________________

 [**10]  

The above persons will settle their respective amounts with Messrs. William Dawson & Co. on account of Messrs. Maitland, Kennedy & Co.    CAMPBELL & MCILVAIN." at the store of, or with the defendants, for the purpose of informing them that the goods in dispute were claimed by the plaintiffs, and also proved by Mr. Campbell, of the said firm of Campbell & McIlvain, that he had no recollection of ever having seen an account of which the paper before referred as No. 10, is said to be a copy, and certainly never assented to or acquiesced therein; and by Mr. McBlair, the President of the Maryland Manufacturing Company, that the note of the 1st March 1837, before referred to as No. 11, was drawn for the accommodation of the said company, and the note of the 17th April 1837, referred to, as No. 12, was made for the benefit of Campbell & McIlvain; that he placed the note of the 1st March in the hands of an agent for the purpose of having it shaved, and received as its proceeds the sum of $     being a discount at the rate of 2 1/2 per cent. per month.

The plaintiffs then offered in evidence the following answer of the defendants to a bill of discovery filed by the plaintiffs.  [**11]  To the Honorable the Judges of Baltimore County Court:

The petition of David Maitland, David S. Kennedy, and Robert Soutter, Jr., humbly shews, that they have instituted a suit in this court against James A. Sangston and George E. Sangston, for goods sold and delivered to them, belonging to your petitioners, through the agency of Campbell & McIlvain, merchants of Baltimore. That your petitioners have heard and believe, that said defendants do not pretend to say that they ever paid said Campbell & McIlvain said debt, but that they hold in their possession one or two promissory notes, drawn by said Campbell & McIlvain, but which they never received from them nor with their assent, and which your petitioners believe they paid no full value for, or else received after they came to maturity. Your petitioners further state, that they desire an inspection of said note or notes, and also that said defendants may discover at what time they received the same, and from whom they received them, and what they paid therefor, if by a check or checks, that they may produce such check or checks. Your petitioners further state, that they have no means of ascertaining the facts inquired of as aforesaid,  [**12]  except through a discovery thereof from said defendants. They therefore pray that the said defendants may answer said interrogatories, and may produce and file said note, &c.

On this 19th February 1839, into open court comes John Glenn, and makes oath that the foregoing petition is not filed for the purpose of delay.    THOS. KELL. Clk.

Ordered by the court, this 19th of February 1839, that the defendants named in the aforegoing bill of discovery, answer the same on or before the 28th instant, provided a copy of said bill and this order be served on the said defendants, or their attorney, on or before the 23rd instant. R. B. MAGRUDER.

James A. Sangston and George E. Sangston, ats. David Maitland, David S. Kennedy, Robert Soutter, Jr. These defendants reserving to themselves all right of exception to the said bill of discovery, for answer thereto, or to so much thereof as they are advised is necessary for them to answer unto, answering say. They deny that the complainants sold to them the goods referred to in the said bill, and state that said goods were sold and delivered to them by Campbell & McIlvain, merchants of Baltimore, in their own name, and as their own property,  [**13]  and that Campbell & McIlvain have been fully paid for the said goods by these defendants. These defendants admit that they were the holders and owners of two notes drawn by Campbell & McIlvain, copies of which are herewith annexed as part of this answer, numbered 1 & 2. They state that the note of the 1st March 1837, was received by them on the 2d March 1837, and that the note of the 17th April 1837, was received by them on the 17th of April, 1837, and that they became the holders and owners of the said notes at their store in Market street, bona fide, and for valuable consideration, on the days above specified. They state that the consideration given by them for the said notes was money paid in cash, and not by a check or checks. These defendants state that they received the said notes from Lemuel E. Duvall, to whom the money given for them was paid, and that for the note of the 1st of March, they gave $ 806.75, and for the note of the 17th April 1837, they gave $ 783.85.

State of Maryland, Baltimore City:--On this twenty-seventh day of February 1839, personally appeared before me the subscriber, a justice of the peace, for the said State and city, George E. Sangston, one of [**14]  the defendants to the above answer, of the firm of James A. Sangston and company, and made oath that the facts therein stated are true, to the best of his knowledge.   D. H. MCDONALD, Justice of the peace.

"Copy 1." Baltimore, March 1st, 1837. Five months after date we promise to pay the Maryland Manufacturing Company or order, eight hundred and seventy-five dollars, for value received.   $ 875.   CAMPBELL & MCILVAIN.

"Copy 2." Baltimore, April 17th, 1837. Four months after date we promise to pay the Maryland Manufacturing Company or order, eight hundred and seventy-five dollars, for value received.   $ 875.   CAMPBELL & MCILVAIN.

Whereupon the plaintiffs prayed the opinion and direction of the court to the jury, that if the jury believe that Campbell & McIlvain sold the goods for which this suit is brought, at the time and for the prices charged, and that they, the said Campbell & McIlvain, sold the same as the agents of the plaintiffs in this cause, to whom the goods belonged, and if the jury further find, that the notes offered in evidence by the defendants, as payment or set off, were usuriously discounted by defendants, that they are no defence to [**15]  this claim, which opinion and direction the court (PURVIANCE, A. J.) gave to the jury. The defendants excepted.

And the verdict and judgment being against them, they brought the present appeal.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

Under the general issue plea, in an action of assumpsit, evidence of a set-off is not admissible.

In an action brought in the name of principals, for the price of goods sold by their factors, the defendants cannot be allowed to discharge, or extinguish the claims in whole or in part, by proof, that the factors agreed to receive in payment, their own notes, usuriously discounted by the defendants.

Nothing can amount to satisfaction of a debt, which is of no value in the eye of the law.  

COUNSEL:
By. R. N. MARTIN and W. SCHLEY for the appellants, who cited--Paley on Agency, 280, 325, 326. 28 Law Lib. 129. George vs. Clagett et al, 7 Term Rep. 360, 361. Story on Agency, 32, 33, 34. Wheaton vs. Hibbard, 20 John. 293. Fitzroy vs. Gwillam, 1 Term Rep. 153, 156. Davis et al, vs. Barney, 2 Gill & John. 382. Sowerwein vs. Jones, 7 Gill & John. 341. Lucas vs. Latour, 6 Harr. & John. 100. McCombie vs. Davies, 7 East. 5. Hartshorne vs. Slodden, 2 Boss & Puller, 583. Phoenix vs. Assignees of Ingraham, 5 John. 428. Todd vs. Reid, 4 Bar. & Ald. 210.

RICHARDSON for the appellees, cited, Morris et al, vs. Clearsby, 4 Maul. & Sel. 566. 28 Law Lib. 91. Paley on Agen. 28, 212, 290. 7 Eng. C. L. Rep. 10. Guerreiro vs. Peile, 3 Barn. & Ald. 616. 2 Gall. 13. Stor. on Agen. 88, 506. Coates and another vs. Lewes, 1 Camp. 444.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*296]  STEPHEN, J., delivered the opinion of the court, and [**16]  after adverting to the facts of the cause, said, it now becomes the duty of this court to determine, whether or not, there is error in the opinion of the county court. In deciding upon this case, 

 [*297]  from the views which we have taken, it is not deemed necessary to determine, whether or not, there was evidence sufficient to warrant the jury in finding that Campbell & McIlvain assented to the application of the two notes of the 1st of March, and the 17th of April 1837, to the payment in part, of the account which they had against the appellants, embracing with other demands the claim of the appellees, to recover which, this suit has been instituted; because under any aspect, the most favorable to the defendants, which the case could assume, we think that the judgment of the court below ought to be affirmed. In other words, if there had been the most conclusive and irrefragable proof of their assent, to make an application of the notes, it would have furnished no valid defence to the action of the appellees, if the jury had found from the evidence, that the defendants acquired title to them in the manner stated in the opinion of the court below. Admitting, that under the [**17]  circumstances of this case, the purchasers would have been entitled to any set-off they might have had against the factors, (which however it is not necessary to decide, because the defendants have relied exclusively, upon the general issue under which it would not have been admissible in evidence,) it would not follow from the existence of such a right, to set-off a valid and legal demand, that they would also be clothed with the power of discharging or extinguishing the debt due to their principals, by agreeing to take in payment, that which was worthless and utterly void. The establishment of such a principle, might be productive of the grossest injustice, and would, we think, be fraught with the most dangerous consequences, in all dealings connected with, or growing out of the relation of principal and agent. We think therefore, it may be safely said, that the agents, or factors in this case, had no right to bind their principals, by any contract or agreement to take notes, which were void and tainted with usury, in payment of their debt, and that in so instructing the jury as to the law, the court below committed no error.
We further think, there was evidence sufficient to go [**18]  to the jury, from which they might infer the fact, that the notes in question 

 [*298]  were usuriously discounted by the defendants, and so commenced in usury, and became tainted therewith, at the time they acquired their right or title to them as the holders thereof. The testimony of Mr. McBlair, together with the defendant's answer to the bill of discovery, is, we think, very clear, and satisfactory upon that point. As to the note of the 1st of March he says, that he placed the note of the 1st of March in the hands of an agent for the purpose of having it shaved, and received the proceeds, after having allowed a discount at the rate of 2 1/2 per cent. per month. This note the defendants state in their answer to the bill of discovery, they received on the 2nd of March, the day after it bore date, and paid for it $ 806.75. The note of the 17th of April they admit they received on the same day it bore date, and gave for it $ 783.85. In the absence therefore of all explanatory or countervailing proof, we think there was sufficient evidence to go to the jury, to warrant them in finding the fact, that the notes in question were usuriously discounted by the defendants, and that they [**19]  commenced in usury, as their property, or when they became the holders thereof, and if so, we are clearly of opinion, the court below were right in saying, they were no defence to the action of the appellees, and in so instructing the jury. There is nothing in the record to show, that the factors are entitled to any lien against their principals, to the benefit of which the appellants could be entitled upon the principle of substitution. For the reason already given, if there was proof sufficient to place the defence upon the ground of accord and satisfaction, we do not think it would avail the appellants; because an agreement to take notes usurious and void, could not in legal construction be a valid satisfaction--nothing can amount to satisfaction, which is of no value in the eye of the law, therefore a release of an equity of redemption, has been formerly held to be no satisfaction. 1 Bacon's Abr. 43. Title Acc. and Satisf. For these reasons we think the judgment of the court below was correct, and ought to be affirmed.
JUDGMENT AFFIRMED.  

5 of 46 DOCUMENTS 

JAMES WILSON'S LESSEE AND OTHERS, vs. WILLIAM INLOES AND OTHERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 G. & J. 351; 1840 Md. LEXIS 25 

December, 1840, Decided 

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

This was an action of ejectment, brought upon the 28th April 1837, by the appellants against the appellees, for a lot of ground, by metes and bounds, &c. The defendants pleaded non cul. and took defence upon warrant.

The plaintiffs, to support the issue on their part, offered in evidence the following admission and agreement. "We hereby agree, that the present plaintiffs are the fee simple proprietors of the lot on the south side of Wilk street, as described in the deed from William Matthews, attorney for John Brown, according to its true location, and the defendants are the fee simple proprietors of the lots on west side of Bond street, between AliceAnna and Lancaster streets, the leases of which they have located, and that the above admitted facts shall have the same effect, as if regularly proved before the jury."

And also offered in evidence the admission of the defendants, that the patent of "Mountenay's Neck," under which the plaintiffs claim, is older than the patent of "Fell's Prospect," under which the defendants claim. The plaintiffs further offered in evidence from the record book of the city, the following application [**2]  of those under whom the plaintiffs claim, to the Port Wardens, to extend their ground into the water, and also the permission in answer to the same, and likewise a plat with explanations.

The plaintiff further gave in evidence, that after the permission aforesaid, logs were planted along the Port Warden's line, from P to W, but by whom they were so planted, the witness did not know; that the effect of these logs, together with others placed along the said Port Warden's line, was to aid the filling up that part of the Cove, which lies between the Port Warden's line, and the line of Mountenay's Neck, located on the plats; and further proved, that Philip Rogers, to whom the plaintiffs had given a bond of conveyance of the said ground, cut drains from Harford Run, by means of which, at high water, the washings of that stream were carried upon the property between Aliceanna street, and the water line of the plaintiff's lot. That the logs continued where they were planted till 1823, when they were covered by the fillings up by the city. The witness further proved on cross-examination, that the water was six or eight feet deep between Aliceanna and Lancaster streets, when, between Aliceanna [**3]  street and the water line of the plaintiff, the water was shallow, and frequently at low tides, the land between these points was left dry; and that in the opinion of the witness, it would have taken a long time to have filled up and made dry land by the alluvion produced by the causes aforesaid, the land between Aliceanna street and the water line of the plaintiff's lot. The witness further proved on the part of the plaintiff, that the City Council diverted the washings from Caroline street, and sent them into Washington street, during the last war with Great Britain. That in 1810, the washings from Caroline street were thrown into Harford Run, by the City Council; that the washings of said street, naturally run across Bond and Gough streets, and down Caroline street, and went into the basin or cove two or three hundred yards east of Canal street. That the effect of the washings of Harford Run, was gradually to fill up its banks, and make the waters shallow in its neighbourhood; that the logs between P and W, or the Port Warden's line, would assist considerably in filling up the land between the Port Warden's line and the water line of the plaintiff's land; and proved by a witness,  [**4]  that in his opinion, if these washings had continued to the present time to have run over the lands as they did, before they were thrown into Washington street, the land between Aliceanna street and the water line of the plaintiff's lot, would have now been dry land. And further proved, that at full tide the land between Aliceanna street, and the water line of the plaintiff's lot, was covered by water up to 1823. In 1812, at Port Warden's line, the water was four or five feet deep, and up to Aliceanna street the land at low tide would be covered with water. That at moderate tide, the land between Aliceanna street and Fleet street might be waded by one on foot; at high tide it was covered by water; as low down as Fleet street it was nearly fast land in 1823. And further proved, that the city of Baltimore in 1823, began its improvements, and filled up East of Harford Run, and commenced on that part of the land in controversy nearest the city dock, and worked backwards towards the water line of the plaintiff's lot, and three or four years ago, they began to fill up the land between Fleet and Aliceanna streets, on which there was then water at high tide, and proved, that the city from [**5]  1823, continued to fill up the lands in controversy, and that at the institution the same was dry land. The defendants then gave in evidence by Foy, (who had been sworn on the survey,) that he was one of the health commissioners of the city of Baltimore from 1820 to the present time; that between 1812 and 1814, the Mayor and City Council of Baltimore, commenced making the south side of Lancaster street, and in 1821 or 1822, they commenced to fill up on the east side of Strawberry Alley, south of Aliceanna street. The board of health under the said ordinance of 1823, commenced in 1824, to fill up the lots between Aliceanna and Lancaster streets, and that of the filling up were paid by the proprietors of the lots on Bond street, and that long after the lots of land were re-claimed south of Aliceanna street, the tide continued to flow above Aliceanna and above Fleet streets. The defendant also proved by Robert Graves, a competent evidence, that in 1807, William Inloes, one of the defendants, run out a water fence as designated on the plats by dotted lines from P to G; that the fence caught the wash that came down Caroline street, and made the square of ground east of Caroline street and [**6]  south of Aliceanna street, firm land; they also proved by James Curley, one of the city commissioners, that the city commenced filling up the property now in dispute, about 1823, and when it was done and fully completed, the board of commissioners made out bills against the owners of the lots on Bond street, for the expense of the same, in pursuance of the ordinance of 1823, ch. 19, which bills were paid by defendants, they being said owners; that the city has never been paid by any one for the filling up of the square between Fleet and Aliceanna streets in Canal street. The defendants also gave in evidence the patent of Fell's Prospect, bearing date     1761, which was admitted to be correctly located on the plats in the case, so far as the same is located thereon, also, the ordinance of 4th May 1801, ch. 1814, ch. and 1823, ch. 19, and passed the 11th March 1823, and the act of 1745, ch. 9, and the act of 1783, ch. 24; and also gave in evidence the following admissions of title in defendants. "We hereby agree, that the present plaintiffs are the fee simple proprietors of the lot on the south side of Wilk street, as described in the deed of William Matthews, attorney for John Brown,  [**7]  according to its true locations, and that defendants are the fee simple proprietors of the lots on west side of Bond street, between Aliceanna and Lancaster streets, the leases of which they have located, and that the above admitted facts shall have the same effect, as if regularly proved before the jury."

And also proved by Mr. Curley, that in 1824, the whole ground between Fleet and Lancaster streets was covered with tide water, and that at this time the tide water flows over a part of the lot above Fleet street, and offered in evidence the plats and explanations in this cause. And the defendants also offered to prove, that the board of health under the said ordinance of 1823, commenced in 1824 to fill up the lots between Aliceanna and Lancaster streets, and that about the time of the completion of the work, the commissioners caused a plat to be made of the property improved, on which the names of the defendants were set down as the parties chargeable with the payment of the sums due for the filling up of the property in dispute in this action; that this plat was prepared about the time the work was completed, and as witness believes in 1836; and that a part of the work east [**8]  of Caroline street having been previously completed, bills for the same had been previously made out against, and paid by these defendants; that the bills for the property between Caroline and Canal streets, were not presented to or paid by the defendants, until after the completion of the work in 1836; and that the witness stated, that if there were any contracts as to this filling up, they were in writing. To the admissibility of this evidence of the paying by defendants to the city, for the filling up the property in controversy, as any evidence of the contract between the defendants and the city, under the ordinance of 1823, ch. 19, and also as wholly irrelevant to the issue in this case, the plaintiffs objected. But the court, by consent of the counsel, admitted said evidence pro forma, and it is agreed, the plaintiff be considered as excepting to the admission of said evidence, and be at liberty to insist on said objection in the Court of Appeals.

Whereupon the plaintiffs prayed the court to instruct the jury. 1st, that if they believe from the evidence, that the plaintiffs were entitled to the property in yellow shaded lines, to the place on the plat, where they are intersected [**9]  by the line of Mountenay's Neck. And if the jury further believe, that from thence the land within said lines to the Port Warden's line, marked P. W. has been re-claimed from the water, in in part by the acts of those under whom the plaintiffs claim, in planting logs as stated in the evidence, with a view to improve and fill up their lot, under the permission of the Port Wardens of the 28th of September 1786, in part also by the acts of Rogers, assisted by the operation of natural causes, and that the city of Baltimore, by the concurrence of Rogers and the plaintiffs, and under the ordinance of 1823, completed the said filling up at the expense of the plaintiffs, so as to make the said lot fast land, at or before the institution of this suit, then the plaintiffs are entitled to recover according to their pretensions, as far as to the Port Warden's line; and if in addition to these facts, the jury shall believe, that the residue of the land claimed by the plaintiffs, was made and annexed by the said city or their authorised agents, with the concurrence and at the expense of the plaintiffs, to the land within the yellow shaded lines, then the plaintiffs are entitled to recover according [**10]  to their pretensions.

2nd. If the jury believe, that the Mayor and City Council or their agents, filled up and improved the cove as stated in the evidence under the ordinance of 1823, and charged the different riparian proprietors with the expense of the said filling and improvement opposite to their lots respectively, and if said filling and improvement were completed as far as the plaintiffs are concerned, with their consent and co-operation, then under the true construction of the said evidence, and of the acts of 1745, 1783 and 1784, the extension, filling up, and improvement of the plaintiff's lot, and in front thereof, is virtually their own act, done with the consent and permission of the city authorities within limits described by themselves, and that therefore the plaintiffs have a right as riparian proprietors, to follow out their lot thus extended and and improved, until it reaches the water, according to their pretensions; which instructions the court (ARCHER, C. J., and PURVIANCE, A, J.,) refused to to give.

The plaintiffs excepted, and brought up this appeal.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

To enable the lessors of the plaintiff to sustain the action of ejectment, it is essential that they should be cloathed with the legal title and the right of possession, at the time the action was instituted.

By the act of 1745, ch. 9, sec. 10, it was enacted, "that all improvements of what kind soever, either, &c., that have or shall be made out of the water, or where it usually flows, shall, as an encouragement to such improvers, be forever deemed the right, title, and inheritance of such improvers, their heirs and assigns forever." The improvements authorised by that act, were those made by improvers in front of their own lots, not of their neighbours, and the right of improvement, in cases of conflicts between riparian proprietors, arising from the curvature of the shores of our waters, is vested in the elder patent, and not divested by subsequent patent.

The act of 1784, ch. 39, sec. 6, which was intended to make such improvements as had been made in the harbour of Baltimore, a part of Baltimore town, saves to all persons the rights acquired under the act of 1745, ch. 9, sec. 10.

The State has the right to grant the soil covered by navigable waters, subject to the public or common right of fishing and navigation.

For the purpose of protecting the public right of navigation, the Legislature passed the act of 1783, ch. 24, appointing Wardens for the port of Baltimore; and the right to make improvements under the act of 1745, was made subject by the act of 1783, to the jurisdiction of the Board of Wardens, whose permission it was necessary to obtain, before any improvement could be thereafter made into the harbour.

The Board of Wardens, in execution of their duties, established a water line called the Port Wardens Line, beyond which they would not grant permissions.

Where those claiming under an elder patent, obtained permission to improve out to the Port Wardens Line, the intervening fast land made by natural or artificial causes, in front of their lots, vests in them, though also in fact in front of the land of a junior patentee.

The ordinance of the city of Baltimore of 1823, ch. 19, which authorised the corporate authorities to contract with the owners of lots, for filling up the same into the water, and in case of neglect or refusal to contract on the part of the owners, the improvement was to be made at their expense, which was to be a lien on the property, must enure to the benefit of the senior patent, where the city has made the improvement, upon the refusal of the proprietor; and the payment of the cost thereof, by another proprietor claiming under a junior patent, does not divest that right; nor would it be competent to the corporation of Baltimore, to vary rights established in such cases, by the general law.  

COUNSEL:
By ALRICKS and DULANY for the appellants, and

By [**11]  MCMAHON and RICHARDSON for the appellees.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*357]  STEPHEN, J., delivered the opinion of the court.
This action of ejectment was instituted to recover a parcel of ground situated on Fell's Point, in the city of Baltimore, containing six acres, the location of which is particularly designated in the plaintiff's declaration. The defendants in the suit pleaded not guilty, and took defence for a part only of the land claimed by the plaintiff in his declaration; which defence is particularly described and designated upon the plats in the case. The land in controversy was originally covered 

 [*358]  by water, and has since been re-claimed and improved, under the provisions of several acts of Assembly, and ordinances of the city of Baltimore; and the question which this court now have to decide, is to whom under the facts and circumstances given in evidence, and the operation of the acts of Assembly, and the true construction of the ordinances upon those facts, the property in litigation in this suit belonged at the period of the institution of this action; for to enable the lessors of the [**12]  plaintiff to sustain their ejectment, and to recover the land in controversy, it was essential, that they should be clothed with the legal title, and the right of possession at the time the action was instituted. The principle being well settled, that in such suit the plaintiff must recover by the strength of his own title, and not by the weakness of the title of his adversary. It is an admitted fact, that the tract of land called Mountenay's Neck, under which the plaintiffs claim, is older than the land called Fell's Prospect, under which the defendants claim. The patent for the first bearing date in 1737, and the patent for the last in 1761. The dates of these patents are important, because upon the priority of the grant of Mountenay's Neck, to the grant of Fell's Prospect, the merits of this controversy will in our opinion very materially depend, when we come to consider, the right or privilege given by the act of 1745, ch. 9 sec. 10, to the holders of the lots in the then town, now city of Baltimore, to make improvements in front of their own lots. The language of that act of Assembly is as follows: "that all improvements of what kind so ever, either wharves,  [**13]  houses or other buildings, that have, or shall be made out of the water, or where it usually flows, shall as an encouragement to such improvers, be forever deemed the right, title, and inheritance of such improvers, their heirs and assigns forever." We are not called upon now for the first time, to give a construction to this provision of the act of 1745, ch. 9, sec. 10. The court have already setted that question, and performed that duty. In 5 G. & J. 357, 368, where they say, that the improvements authorised by that act, were those made by improvers in front of their own lots, not of their neighbours, 

 [*359]  the Legislature never designed such invasion of the rights of private property, and indeed in that case, the exercise of such a power by the Legislature, is considered to be questionable, and open to serious objections, even if it should be attempted. It is sufficient for us however in this case to say, that we perfectly concur in the opinion then expressed, that the improvements intended to be authorized and encouraged by that act, were such as should be made by improvers in front of their own lots; and we moreover think, that the right of improvement given [**14]  by the act of 1745, vested in the patentee of Mountenay's Neck, and was not divested or in any manner impaired by the subsequent grant to the patentee of Fell's Prospect. This vested right of improvement is also expressly recognised and confirmed by the act of 1784, ch. 39, sec. 6, which was intended to make such improvements as had been made a part of Baltimore town, and to clothe them with all privileges and immunities as such; after performing that office, the section uses the following strong and explicit language: "saving to all persons whatsoever, their right of property in any of the said grounds so made and extended as aforesaid, and in the lots or land from which such ground may be made and extended, and the right to make and extend ground as aforesaid, and the right to the water or the land covered by water, which rights are not meant, or intended, in any manner, to be interfered with, determined on, or affected by this act." In the case of Bowie vs. Kennedy, 5 H. & J. 185, this court established the principle, that the State had the right to grant the soil covered by navigable waters, subject to the public or common right of fishing and navigation,  [**15]  and for the purpose of protecting the public right of navigation from infringement, the Legislature passed the law of 1783, ch. 24, entitled, an act appointing Wardens for the Port of Baltimore town, in Baltimore county. The right to improve given to the owners of lots by the act of 1745, was made subject by that law to the jurisdiction of the Board of Wardens, whose permission it was necessary to obtain, before any wharf or improvement could be made, into the harbour or basin of said town. It appears 

 [*360]  from the proof in this case, that application was made to the Board of Wardens in 1786, by those under whom the plaintiffs claim, to extend their ground into the water, and that permission was obtained to make such extension to a line marked on the plats as the Port Warden's line, along which logs were planted, but by whom the proof did not establish. It was further proved, that the effect of these logs, together with others placed along the said Port Warden's line, was to aid the filling up of that part of the cove, which lies between the Port Warden's line, and the line of Mountenay's Neck, located on the plats; and it was further proved,  [**16]  that Philip Rogers, to whom the plaintiffs had given a bond of conveyance of the said grounds, cut drains from Harford run, by means of which at high water, the washings of that stream were carried upon the property between Aliceanna street, and the water line of the plaintiff's lot; that the logs continued where they were planted till 1823, when they were covered by the fillings up by the city. Some further proof was given by the plaintiffs, and also by the defendants, which it is not deemed necessary to state in detail for the purposes of this opinion, as we think that the merits of this controversy depend upon other grounds. We do not think, that the ordinance of 1801, limiting the right of improvement to the south side of Aliceanna street, by the owners of lots on Wilk street, has any material bearing upon the rights of the parties to this suit; as the corporation by whom the improvement in question was made, had full and complete jurisdiction over the subject of that ordinance; and in making the improvement in question virtually repealed and annulled, any restriction or limitation, imposed by that ordinance. The great and leading question in this case is,  [**17]  for whose benefit was the improvement made by the corporation under the ordinance of 1823, ch. 19? In reference to that question the ordinance speaks a language, which cannot we think be misunderstood. The contract was to be made by the corporate authorities, with the owners of the lots, for the filling up of their lots into the water, and in case of neglect or refusal to contract on the part of the owners, the improvement was to 

 [*361]  be made at their expense, which was to be a lien upon the property, and the proprietors are also made liable to be sued for the amount of the expense incurred in making such improvement. But it has been strongly argued in this case, that both plaintiff and defendants are riparian proprietors, and that as no provision has been made by law for such a conflict of rights, neither party can claim title to the prejudice or exclusion of the other. But we think, as we have before remarked, that the right vested in the prior grantee under the act of 1745, and confirmed by that of 1784, is paramount to, and must prevail over that of the junior grantee, and that the improvement made by the corporation under the ordinance of 1823, must enure to the benefit [**18]  of those who claim title under the senior grant. We think moreover, that the improvement or filling up being made for their benefit, under the true construction of the acts of Assembly and the ordinance of 1823, a title vested in them which could not be divested, or in any manner impaired by the fact, that the expense of such filling up or improvement, was paid for by the defendants. It was not competent for the corporation by any act of theirs, so to vary or affect the rights of the parties as established by law. Under this view of the case we think, that the court below ought to have granted the plaintiff's prayers; that they were entitled to recover, although there might have been no sufficient evidence of certain facts upon which in part their prayers were predicated, they having a right to recover independently of the existence of such facts, upon the evidence which they exhibited. We think also, that the evidence relative to the paying by the defendants for the expense of the improvement in controversy was irrelevant, and therefore ought to have been rejected for the reasons which we have already stated, such expense having been paid by them, could not operate to affect or impair [**19]  the plaintiff's title.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

6 of 46 DOCUMENTS 

THE STATE USE OF URATH STEVENSON vs. PHILIP REIGART.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 Gill 1; 1843 Md. LEXIS 1 

June, 1843, Decided 

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

This was an action of DEBT, commenced on the 12th October 1837, by the appellant against the appellee and Oliver Holmes.

The plaintiff below declared on the bond of Elizabeth L. Stevenson, Philip Reigart, H. Niles and Oliver Holmes, dated 17th March 1832, for $ 25,000, conditioned, that if the above bounden E. L. S. and P. R. should well and truly perform the office of administrator of Josias Stevenson, junior, late of Baltimore county, deceased, according to law, &c., then to be void.

The breach assigned was, that Urath Stevenson, executrix of Josias Stevenson, recovered a judgment in Baltimore county court against E. L. S. and P. R., as administrators of J. S., junior, deceased, for as well the sum of $ 1,000, as, &c., which was still unpaid, though the administrators had assets to satisfy the same. Writ of fi. fa. returned nulla bona, &c.

The defendants appeared and pleaded general performance, with an agreement, that the defendants should, under the plea of performance, be at liberty to give in evidence insufficiency of assets and any other matters that could be given in evidence under any plea to the merits. Seven days notice [**2]  before the time of trial of such other matters being first given to plaintiff's attorney. All errors in pleading on both sides waived.

It was also agreed, that if the jury reject the claim of ELIZABETH SCHRIVER, they shall find a general verdict for the plaintiff for the amount of the judgment offered in this case. If they find in favor of the said claim, they shall find a verdict for the plaintiff for $ 400. If the jury find in favor of E. S. Schriver's claim, its assets shall be marshalled, and the amount of them, as well as the amount of the debt, ascertained by John Glenn and David Stewart, esquires, and the judgment to be released on payment of such sum as they shall ascertain to be due.

If the jury find the claim of E. L. S., a like marshalling of assets shall be made by J. G. and D. S., Esq'rs, and judgment to be released upon payment of the amount ascertained by them.

In all other suits upon the administration bond like judgments to be entered, a like marshalling of assets to be made by J. G. and D. S., and like releases to be entered upon their amount. Nothing herein to prevent the plaintiff from appealing.

A commission to take proof was issued by consent [**3]  to Lancaster.

It was then admitted that Oliver Holmes had died since his appearance; that Josias Stevenson, junior, died, and letters on his estate were issued to E. L. S. and P. R. in 1832, and that J. S., Jr., and Elizabeth Reigart were married in 1827.

The jury found a verdict for the plaintiff, and assessed her damages at $ 400.

At the trial of this cause, the plaintiff offered in evidence to the jury, the following judgment, fieri facias and return of said fieri facias, to wit:

URATH STEVENSON vs. PHILIP REIGART AND ELIZABETH STEVENSON, administrators of Josias Stevenson, Jr. In Baltimore County Court, January term 1837. Case. 23rd March 1837, judgment by confession for $ 800 damages in the nar, and costs of suit; the damages to be released on payment of $ 350, with interest from the 2nd day of July, 1832, and costs. To bind assets. Plaintiff's costs $ 9.73 2/3. 24th April 1837, fi. fa. issued to May term 1837. Returned nulla bona.

Test:     THOS. KELL, Cl'k Balto. Co'ty Court.

The plaintiff also proved that administration upon the estate of the said Josias Stevenson, junior, had been duly committed to Elizabeth L. Stevenson, his widow, and to [**4]  the defendant, on the     day of    , in the year 1832, and that assets came to their hands, but not to an amount sufficient to pay all claims against said estate.

The defendant then offered in evidence to the jury an admitted copy of the last will and testament of Dr. Albert Dufresne, who departed this life some time in the year 1823, and that his said will was duly proved, and that letters testamentary were duly granted on the 13th day of August, 1823, to Dr. Samuel Dufresne and Peter Reed, two of the executors therein named; that Maria Reigart, one of the legatees therein named, afterwards departed this life, in her minority, without leaving any child, and without ever having been married, leaving her sister Elizabeth L. Reigart, (named in said testament and last will,) surviving her; that the said Elizabeth L. Reigart afterwards, to wit, on the 27th day of March, 1827, intermarried with the said Josias Stevenson, junior. The defendant further proved by F. Slower, a competent witness, that he was acquainted with the said Josias Stevenson, junior, in his life time, and with the said Elizabeth L. Stevenson, his wife, formerly Elizabeth L. Reigart, and that she is his niece;  [**5]  that some time in the year 1829, the said Stevenson and his wife were at the house of the witness in Philadelphia, and the said Stevenson then said that he wanted his wife's legacy, but that he did not like to go to Lancaster to get it; the reason why he wanted it was, that he could invest it in Baltimore; that it was his intention to invest it in Baltimore for his wife's exclusive use; that he wanted to protect the money for his wife. Witness told him that he considered it proper that he should do so, as the executors were trustees of this fund, and it was the evident intention of the grand-father to secure it for the benefit of his grand-daughters. He said he could invest it to more advantage in Baltimore, where it would yield eight or ten per cent.; and he frequently repeated, in the course of the conversation, that he intended to settle the money on his wife, and for her exclusive use. Mrs. Stevenson was present during the conversation. Stevenson told witness that the executors wanted security, and he spoke of Mr. Reigart, his father-in-law, as the chief obstacle to his getting the legacy, and he expressed a great deal of surprise at the conduct of the executors, as he did not [**6]  want the money for himself, but to invest it in Baltimore, where it would yield more and be less troublesome to him. Witness thinks that he saw Stevenson afterwards, and Stevenson told him that he had bought a house in Baltimore, near the Circus, in the name and for the benefit of his wife. The defendant also proved by Judge Dale, a competent witness, that some time in the fall of 1828, Stevenson came to Lancaster for his wife's legacy. Said Stevenson, and Dr. Samuel Dufresne, one of the executors of Dr. Albert Dufresne, came together to his office, and spoke to witness about it. Dr. Samuel Dufresne made two objections to paying over the money; the first was that Mrs. Stevenson was yet in her minority, and that the property was hers, and that her husband could not execute a valid release to the executors; the second was, that he himself was entitled to it on the contingency that she died without issue; but he said that he would waive both objections if Stevenson would invest the property for Mrs. Stevenson's use. Witness suggested a conveyance by Dr. Dufresne to Mrs. Stevenson, of real estate in Lancaster, but Stevenson said that he did not want real estate in Lancaster; that he would [**7]  rather have it in money, and said that he could invest it to more advantage in Baltimore. Eventually, they partly came to the conclusion that one-half should be paid in real estate, and the other half in money. Witness remarked to Stevenson, that if he received one-half in cash, it would be a very pretty beginning, but he said that he did not want any of it for himself; that he was in business already. They finally came to this agreement, that one-half, consisting of real estate in Lancaster, should be transferred in trust, for the use of Mrs. Stevenson, and that the other half should be given to Stevenson, and that he should invest it for the use of his wife, in real estate in Baltimore. Witness told him it would be his interest, as it was his duty, to invest it for his wife, and he said it was what he wished, and what he intended to do. Stevenson at all times repeated that he did not want the money for his business, but to invest it in real property for his wife. He came again to Lancaster in the spring of 1829, and he said that he had obtained the opinion of two of the ablest lawyers in Baltimore, that he was entitled to the legacies. Witness looked at the opinion, and read it over.  [**8]  Witness then told Mr. Stevenson, that by the laws of Pennsylvania, no person who was an executor, was required to pay over money, without a refunding bond and security. Witness referred him to the act of Pennsylvania, of 21st March 1772, entitled "An act for the most easy recovery of legacies," and read it to him from the book of laws, and at said Stevenson's request, witness lent him the book, which he carried to the office of his counsel in Lancaster. He returned and said that he could not give the required security in Pennsylvania, but could do so in Maryland. Shortly after this, Dr. Samuel Dufresne came over to my office and said that Stevenson was pressing him for the money, and that he would do almost any thing to get rid of the matter. Witness then went up to see Mr. Reed, the other executor, and told him that he thought Dr. Dufresne would give way, and Reed said, "zounds| the money shan't go out of my hands that way." During all this time, Stevenson said that he only wanted the money where it would be under his own eye, and of no more use to him. Reed came down to my office. It was finally agreed amongst them, that Dr. Samuel Dufresne should convey certain parcels of property [**9]  in Lancaster, valued at $ 9,000, to Mrs. Stevenson, for her use, and her use alone, and that the balance of the money, being $ 10,520, or thereabouts, including the interest, should be paid to said Stevenson, to be by him invested in real property in Baltimore, for the use of his wife. Witness did not see the money paid, nor was he present when it was paid, but he prepared a release to the executors, which was executed both by Mr. and Mrs. Stevenson, and left in my hands, upon the understanding that it should be delivered over to the executors, upon the execution and delivery of the deed, for the real property in Lancaster. The reason why the deed was not executed and delivered at the time was, that Mrs. Stevenson made some objection to Mr. Reigart, as trustee, and said that it should remain until they returned to Baltimore, and that if they should make an arrangement, that some other person was to be inserted as trustee in the deed, and if not, then the deed was to be executed and delivered for the property, with Mr. Reigart's name as trustee. The deed was executed and delivered on the 22nd July 1829.

The defendants then offered in evidence the said deed, which is as follows,  [**10]  to wit:

It is agreed that the appellee may, at the argument of this case in the Court of Appeals, read as a part of the record in the above case, a copy of the deed of trust from Dufresne and others to Philip Reigart; and that an agreement, if any further one be necessary, will be signed on the part of the appellants, to annex the same to the record, as a part of the bill of exceptions in which it is called for. It is further agreed, that the record shall be made out and sent up, without the actual introduction of said deed as a part of the evidence, a reference being made for its insertion in the place where it ought to be introduced.

The defendant further proved by said Judge Dale, that he considered the said deed as a literal execution of the agreement. The said witness on his cross examination further stated, that the release was executed in the month of May 1829, and that said Dr. Samuel Dufresne is dead, and that he died about ten years since. The defendant further proved by Franklin Reigart, a competent witness, that on the very day on which, as he understood, the money was paid, and before the money was paid, there was some conversation at the dinner table between [**11]  Stevenson and the father of the witness, in relation to said legacies. Stevenson said that he had a great deal of trouble with the executors, and he complained that they demanded a bond with securities in Lancaster. The father of witness then told Stevenson that he could easily get rid of the difficulty, if he would do what he ought to do. Stevenson said that he had promised the executors to invest it in property in Baltimore, in his wife's name, and that he intended to invest it in Baltimore in her name, and that would clear the executors, but they still demanded security. Witness went after dinner on that day with Stevenson, to see Schaum, whom Stevenson asked to be his security, but Mr. Schaum declined to be so, upon which Stevenson said to him, that he, Schaum, would run no risk, as he Stevenson had promised the executors that if they would pay him the money he would buy property in Baltimore for the use of his wife. Stevenson contended in conversation with the father of witness, that he was not bound to take any real property, and his father told Stevenson that the executors only required him to conform with the will, and that by the will the legacy was given, so that neither [**12]  the father nor the husbands of the grand-daughters could touch it. They both were a little warm on the subject. Witness says that sometime in 1830, he was in Baltimore, and Stevenson there took him to a piece of property near the Circus, where repairs were being made, and told him that that was the property he had purchased. The defendant was proved by Peter Reed, a competent witness, that he was one of the executors of Dr. Albert Dufresne. Witness knew Mr. Stevenson after his marriage, and says he had cause to know him, as he troubled him very much about the legacy. They tormented Dr. Dufresne, the other executor, almost to death, he was sickly and crabbed; but witness stuck out, and told Stevenson that he would not pay him unless the law required it. Witness asked Stevenson why he did not do as the will required. Witness told him that he should not have the money unless he acted according to the will. Stevenson tried to get security, but could not. He said he would buy property in Baltimore. Witness told him that the will called for the money to go to the separate use of the girl, and the bond required was a bond to secure it to her separate use. Witness being cross examined stated,  [**13]  that the bond required by the executors, was a bond according to the act which Judge Dale, at the time of this conversation, read to Stevenson from the book. At the time of this conversation witness says, that one legacy had been paid to Stevenson in cash, and it was only about the other legacy that there was any dispute.

The plaintiff then further to maintain the issue on its part joined, proved by competent testimony that the said Josias Stevenson and the said Elizabeth L. Reigart were married on the 27th day of March, 1827. The plaintiff also offered in evidence the following depositions taken in a former suit, and to be received in this suit as evidence under the agreement which follows the said depositions:

MARYLAND, SCT: The State of Maryland to William Frick, John Mathiot, Edward Purcell and John R. Findlay, of Lancaster, State of Pennsylvania, greeting: Know that we have appointed you or any three or two of you, to be our commissioners to examine evidences, &c. Witness the honorable THEODORICK BLAND, Chancellor, this 2nd day of September, Anno Domini 1833. RAMSAY WATERS, Reg. Cur. Can.

Commissioners' oath, &c.

Depositions of witnesses produced, sworn or [**14]  affirmed, and examined on the 15th February 1834, at, &c., by virtue of a commission, &c.

Dr. Samuel Dufresne, of, &c. deposeth as follows:

1. Do you know the complainant, and did you know Josias Stevenson, junior, late of Baltimore city, deceased, in his life time?

To the said first interrogatory he deposeth as follows: I do not know Henry Stevenson, the complainant, but I do know Elizabeth L. Stevenson and Philip Reigart, and I did know Josias Stevenson, junior, late of the city of Baltimore, deceased, in his life time.

2. Have you any knowledge of a legacy bequeathed to the said Elizabeth L. Stevenson, by her grandfather Albert Dufresne, 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 Dufresne, whereby said legacy was bestowed.

To the second interrogatory he deposeth as follows: By will, Dr. Albert Dufresne, late of, &c., deceased, dated the 8th of December, A. D. 1820, and duly proved on the 13th day of [**15]  August, A. D. 1823, and letters testamentary thereupon issued to this affirmant and Peter Reed, two of the executors named in said will, the following bequest, amongst others, was made by the said testator in his said last will and testament.

2nd Item. I do give and bequeath unto my two grand-daughters, Elizabeth Reigart and Maria Reigart, the children of my late dearly beloved daughter, Albertina Reigart, deceased, late Albertina Dufresne, the sum of eighteen thousand dollars, that is to say, the sum of nine thousand dollars to each of my said grand-daughters, 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 grand-daughters hereinafter named and appointed as soon as conveniently may be done after my decease, subject nevertheless, to the restrictions and limitations hereinafter mentioned and expressed.

3rd Item. It is my will, and I do order and direct, that the aforesaid legacy or sum of eighteen thousand dollars, shall be understood and deemed as given and bequeathed unto them as their property respectively, and not [**16]  either to their respective husbands, or to their father, Philip Reigart, nor their step-brothers, or step-sisters, in case they or either of my said grand-daughters, Elizabeth or Maria, should happen to die without leaving any child or children, and if either of them, the said Elizabeth or Maria, should die without leaving any child or children, then the whole of the said legacy, or sum, shall descend, come and belong, and I do hereby give and bequeath the same unto the survivor of them. But in case they should both die, without leaving any child or children, then and in such 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 Dufresne, or his legal heirs and representatives.

The amount of the legacies under said will to each of the grand-daughters of said testator, as directed in said item of the will herein before particularly referred to by affirmant, was nine thousand dollars. Josias Stevenson junior, was here several times for the amount of the legacy claimed by him in the years 1828 and 1829. On the 25th of May 1829, he, Josias Stevenson junior, obtained in money and property from the affirmant and [**17]  Peter Reed, executors of the last will and testament of said Dr. Albert Dufrense, deceased, and from them as guardians of the said Elizabeth and Maria, the two grand-daughters mentioned in the item of the will herein before recited, the sum of nineteen thousand five hundred and twenty-six dollars and eight cents, in the manner hereinafter mentioned; the sum of nine thousand dollars, and the interest thereon was paid to the said Josias Stevenson, junior, in cash, and the residue of the whole amount was paid by conveyance of real estate in the city of Lancaster, by deeds of trust, by which the property was to be held for the use of the said Elizabeth L. Stevenson. This real estate consists of three parcels, to wit, &c.

The exact amount of cash paid to the said Josias Stevenson, junior, the affirmant does not recollect; affirmant has not a distinct recollection of every circumstance connected with the payment of the legacy; affirmant recollects that Josias Stevenson, junior, could not get the sureties required by the act of Assembly, requiring sureties to be given to the executors as aforesaid; affirmant expressed his anxiety to Josias Stevenson, junior, about securing the property [**18]  to the said Elizabeth L. Stevenson; affirmant has no recollection of any promise made to him, that the money should be invested for her use, although he understood that such a promise had been made. He spoke to this affirmant, making known his intention to purchase some property in Baltimore. I think it was property near the Circus that he spoke of. The time of this conversation affirmant does not exactly recollect. The exemplification of the will of Dr. Albert Dufresne, deceased, being endorsed, complainant's exhibit A, I have carefully examined, with the original will now in the Register's office in the city of Lancaster, and find the same exemplification to be a correct, accurate and literal copy of said original will.

3. Have you any knowledge of the payment over of said legacy; to whom made, and under what circumstances? If so, detail the same, fully and minutely, and state the time thereof.

To said third interrogatory deposeth as follows: affirmant states that he has not a full recollection of all the circumstances connected with the payment of the legacy to Josias Stevenson, junior, but that as far as his knowledge and recollection extended he has detailed the same [**19]  in his answer to the second interrogatory.

4. Do you know whether or not, previously to said payment, or at the time thereof, the said Josias Stevenson, junior, 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 enquired of, fully and in detail.

To the said fourth interrogatory he deposeth as follows: affirmant states that he has no other knowledge of any undertaking or agreement of the said Josias Stevenson, junior, 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, junior, 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; affirmant has not distinct recollection of any other matters enquired of in this interrogatory,  [**20]  than such as he has detailed in his answer to the second interrogatory, and in his answer given to this interrogatory.

Benjamin Schaum, of the city of Lancaster, gentleman, aged twenty-seven years, or thereabouts, being produced, sworn and examined on behalf of the defendants, deposeth, as follows:

1. Same as before.

To said first interrogatory he deposeth as follows: I do not know Henry Stevenson, the complainant, but I do know Elizabeth L. Stevenson and Philip Reigart, and did know Josias Stevenson, junior, late of the city of Baltimore, deceased, in his life time.

2. Same as before.

To said second interrogatory he deposeth as follows: Deponent has no other knowledge of the legacy bequeathed to Elizabeth L. Stevenson, by her grand-father Dr. Albert Dufresne, late of the city of Lancaster, deceased, nor the amount thereof, nor any of the circumstances connected with its being paid over, except that Josias Stevenson, junior, called upon him in the city of Lancaster, to become one of his sureties in a refunding bond that he wished to give the executors of Albert Dufresne, deceased, for the purpose of enabling him to receive the legacy enquired of in this interrogatory.  [**21]  This deponent declined becoming his surety; that he wished him to get some other person; that he did not wish to have any thing to do with it. The exemplification of the will of Dr. Albert Dufresne, deceased, being endorsed complainant's exhibit A, I have carefully examined, with the original will now in the Register's office in the city of Lancaster, and find the same exemplification to be a correct, accurate and literal copy of said original will.

3. Same as before.

To said third interrogatory he deposeth as follows: Deponent says that he has stated in his answer to the second interrogatory all his knowledge in reference to said legacy, and that he has no knowledge of any other circumstances, except such as are detailed in his answer to the second interrogatory.

4. Same as before.

To said fourth interrogatory he deposeth as follows: Deponent states that he has no knowledge of any of the matters enquired of in this interrogatory, having detailed in his answer to the second interrogatory every circumstance of which he has any knowledge or recollection.

WILLIAM WHITESIDE, Esquire, Register of the county of Lancaster, aged thirty-nine years, or thereabouts, being [**22]  produced, sworn and examined on behalf of the defendants, deposeth as follows:

1. Same as before.

To said first interrogatory he deposeth as follows: Deponent says that he neither knows the complainant nor respondents, nor did he know Josias Stevenson, junior, in his life time.

2. Same as before.

To said second interrogatory he deposeth as follows: Deponent has no knowledge of the legacy bequeathed to Elizabeth L. Stevenson, by her grand-father Albert Dufresne, deceased, or the amount thereof, nor the circumstances by which the said legacy was attended as regards the payment of it over, nor any other of the circumstances connected with the same, except so far as deponent is informed by the exemplified copy of the will of the said Dr. Albert Dufresne, deceased, being endorsed complainant's exhibit A. Deponent is the Register of Wills of the county of Lancaster, and he has carefully compared and examined the exemplified copy, endorsed as aforesaid, with the original will of the said Dr. Albert Dufresne, deceased, now on file in his office, and he finds upon such examination and comparison, that the same is a true, accurate and literal copy of the said original will,  [**23]  on file as aforesaid.

3. Same as before.

To said third interrogatory he deposes as follows: Deponent says that he has stated in his answer to the second interrogatory all his knowledge in reference to said legacy, and that he has no knowledge of any other circumstances, except such as are detailed in his answer to the second interrogatory.

4. Same as before.

To said fourth interrogatory he deposeth as follows: Deponent states that he has no knowledge of any of the matters enquired of in this interrogatory, having detailed in his answer to the second interrogatory every circumstance of which he has any knowledge or recollection.

Samuel Dale, of, &c., deposeth as follows:

1. Same as before.

To said first interrogatory he deposeth as follows: I do not know Henry Stevenson, the complainant, but I do know Elizabeth L. Stevenson and Philip Reigart, the respondents, and I did know Josias Stevenson, junior, late of the city of Baltimore, deceased, in his life time.

2. Same as before.

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,  [**24]  by her grand-father Dr. Albert Dufresne, late of, &c. Deponent says that the amount due to Elizabeth L. Stevenson, after the death of her sister Maria, under the will of her grand-father Dr. Albert Dufresne, deceased, was $ 18,000, and at the time it was settled in 1829, when the executors were released, the legacies, with their interests, were $ 19,526.08. Deponent says some time in 1828, Josias Stevenson, junior, came to the city of Lancaster, and demanded the legacy coming to his wife, under the will of her grand-father Dr. Albert Dufresne, deceased. Dr. Samuel Dufresne, 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 Dufresne to that effect, and sent on to him. He the said Josias Stevenson, junior, some time after, came to Lancaster, perhaps in 1829, the time I do not exactly recollect, and said he would be entitled to recover. Deponent says that Josias Stevenson, junior, told him he could not obtain that security here, but could do it at home in Baltimore, and that [**25]  he wondered why 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, junior, 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, and that it could be as well secured there as in the city of Lancaster for her. Deponent says that Josias Stevenson, junior, 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, junior, 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, junior, 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 25th day of May, 1829, he released and discharged the executors and guardians, to wit, Dr. Samuel Dufresne and Peter Reed. Deponent [**26]  has no recollection of what took place when the money was paid, nor of any conversation that took place at that time. Deponent has examined the exemplified copy of the will of Dr. Albert Dufresne, deceased, being endorsed complainant's exhibit A, and believes it to be a correct copy.

3. Same as before.

To said third interrogatory he deposeth as follows: Deponent states that he has not a full recollection of all the circumstances connected with the payment of the legacy to Josias Stevenson, junior, but that so far as his knowledge and recollection extends, he has detailed the same in his answer to the second interrogatory.

4. Same as before.

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, junior, 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, junior, 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 [**27]  as aforesaid, was paid by her consent. Deponent has no distinct recollection of any other matter enquired 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.

The plaintiff then further proved, that the said Elizabeth L. Reigart, after the death of the said Josias Stevenson, junior, and after letters of administration had been granted to her and the defendant, Philip Reigart, to wit, on the 15th April 1837, presented to the orphans court of Baltimore county, a claim against the estate of Josias Stevenson, junior, an account of the said sum of money, by him so received, from the executors of the said Dr. Albert Dufresne, and for the purpose of showing the proceedings in said orphans court, and the proceedings in the Court of Appeals, upon an appeal prosecuted from the decision of the said orphans court, in relation to the claim so referred, the plaintiff offered in evidence the following record of a judgment of the Court of Appeals, in a case in which Henry Stevenson and others were appellants and Edward Shriver and Elizabeth L. Shriver, his wife, formerly Elizabeth L. Stevenson, were appellees,  [**28]  to wit, which record of the Court of Appeals is sufficiently stated in the opinion of this court, for the purposes of this report.

The plaintiff proved further, that the said Elizabeth L. Stevenson, on the    day of    , in the year    , intermarried with the said Edward Shriver, and is now his wife.

All the foregoing evidence was received under an agreement of counsel made with the knowledge and assent of the court, that the same should be and was received, subject to all objections as to its admissibility and competency, in like manner as if objection had been or was made to its admissibility, before the same was received, and that any opinion of the court in regard to its competency, might be excepted to in like manner as if such opinions had been expressed upon objections made to the admissibility of the evidence before the same was given.

The defendant thereupon submitted the following prayer, to wit:

If the jury find from the evidence, that it was understood between Mrs. Stevenson (now Mrs. Shriver,) and her then husband J. Stevenson, junior, and Reed, one of the executors of Dr. A. Dufresne, that if said executor and the other executor and guardian [**29]  of Mrs. Stevenson, or either of them, would pay him over the legacy of $ 18,000, without requiring of him personal security, that the same would be secured to the separate use of his said wife, that he the said Stevenson would invest the same in property in Baltimore, for such use; and if they further find, that he promised said parties to make such investment for the consideration aforesaid, and never claimed title to said legacy as of his own absolute property, or denied, but that the same should be held by him for his wife's use; and if they further find, that said Reed and Mrs. Stevenson, in consideration only of said premises and undertaking of said J. Stevenson, did agree and consent, and so inform him the said executor, Dr. S. Dufresne; and if they also find, that without advising said wife or said Reed, or said S. Dufresne, that he did not intend to comply with said promise or undertaking, he said J. Stevenson received said legacy of $ 18,000, in property in Lancaster, secured to the use of his said wife, and in money $ 9,000, and added the balance thereof, or never told them or either of them, that he intended to hold said money in his own right, that then the jury are to [**30]  allow defendants, Shriver and wife, a reteable dividend on the account against the estate of said J. S. Jr. out of the assets of said estate, given in evidence in this case; of which opinion the court (PURVIANCE, A. J.) was, and so instructed the jury.

The plaintiff then, upon the evidence stated in the foregoing bill of exceptions, further prayed the court as follows:

1. That according to the true construction of the will of Dr. Albert Dufresne, the legacy thereby bequeathed to Elizabeth Reigart, and the legacy thereby bequeathed to Maria Reigart, and which, upon her death, survived to Elizabeth, vested absolutely in her upon her marriage with Josias Stevenson, junior.

2. That the said Josias Stevenson, junior, by his marriage with the said Elizabeth Reigart, was, in virtue of his marital rights, entitled to demand and receive of the executors of Dr. Albert Dufresne, the bequests mentioned in the preceding prayer.

3. That the executors of Dr. Albert Dufresne had no right to hold or to invest the bequests mentioned in the preceding prayers, to the sole and separate use of the wife of the said Josias Stevenson, junior.

4. That the executors of Dr. Albert Dufresne [**31]  could not lawfully require or exact of the said Josias Stevenson, junior, after his said marriage, as a condition to the payment over to him of the said bequests mentioned in the preceding prayers, any stipulation, promise or agreement, that he would hold or invest the same for the sole and separate use and benefit of his wife.

5. That such portion of the bequests mentioned in the preceding prayers as was received by Josias Stevenson, junior, after his marriage with the said Elizabeth L. Reigart, and during her coverture with him, and in virtue of his marital rights, became his absolute property, and that the claim now preferred against his estate by his widow, for money thus received by him, cannot be supported.

6. That the decree of the Court of Appeals, passed at December term 1837, in the case of Henry Stevenson and others against Edward Shriver and Elizabeth Shriver his wife, is final and conclusive upon the parties to said cause, and that the claim advanced by the said Edward Shriver and wife in said cause, is not a lien or charge upon the estate of Josias Stevenson, junior.

7. That no agreement made by Josias Stevenson, junior, with Elizabeth L. Stevenson, his [**32]  wife, or with any person for her, after his marriage with her, and in consideration thereof, to receive and hold to her separate use, or to receive and invest in property for her separate use, money that belonged to her in her own right, before and at the time of said marriage, and upon which the marital right of the said Josias attached by said marriage, was or is binding upon the said Josias Stevenson, junior, or his administrators, nor can such contract made as aforesaid be the foundation of any claim on the part of the said Elizabeth against the personal estate of the said Josias, since his death.

8. If the jury believe that he was bound to invest this property by the will of A. Dufresne, made any promise to invest the money received from the executors of A. Dufresne, that such promise was made under a mistake of law, and is not binding upon him.

9. If the jury believe that Josias Stevenson received of the executors of A. Dufresne, the money in question, and applied the same about his ordinary business, with the assent of his wife, and that neither the executors of said Dufresne, nor his wife, required its separate investment during his life time, that then the said wife [**33]  has no claim upon the estate for his money so received and used by said Stevenson.

10. That there is no evidence to show a debt due to Shriver and wife, or either of them, from the estate of Josias Stevenson, junior.

11. That Edward Shriver and Elizabeth L. Shriver his wife, late Elizabeth L. Stevenson, and widow of Josias Stevenson, junior, cannot in right of the said Elizabeth L. Shriver, the administratrix of said Josias Stevenson, junior, retain the amount of the claim produced in evidence in this cause, and sought to be established as a debt due to her from the estate of the said Josias Stevenson, junior, or any part thereof, because the same is not passed by the orphans court, and therefore, that the jury in marshalling the assets of the estate of the said Josias Stevenson, junior, in this cause, cannot consider or treat the said claim as a debt due from the said estate.

12. That if the jury shall believe that the promise and agreement testified to by Reed and Reigart was made by the said Josias Stevenson, junior; and shall also believe that the sum of money claimed by Edward Shriver and Elizabeth L. Shriver, his wife, was not paid to the said Josias Stevenson,  [**34]  junior, under said agreement and promise, but if the jury find that a new agreement was made between said Stevenson and Dale, the attorney and agent of the executors, that said Stevenson should receive deeds of real estate in Lancaster, investing the half of the money in the hands of said executors in said real estate for the separate use of the wife of said Stevenson, and that the remaining half should be paid to him in cash, to be at his own disposal, then no debt was due to Shriver and wife for which defendants can claim a deduction in marshalling the assets in this case.

13. That there is no evidence in this case to show that Josias Stevenson, either at the time, or after he consented to the investment of a portion of his wife's legacy in real estate in the city of Lancaster, for her separate use, promised the executors of Dr. Albert Dufresne, or Samuel Dale, or his said wife, that he would invest the balance of said legacy upon its being paid to him in property for her use, or that he would in any manner hold it for her use.

14. If the jury find from the evidence, that Josias Stevenson, junior, consented that one half, or about half of the legacy given his wife by the [**35]  will of Dr. Albert Dufresne, should be invested in real estate for her sole use, he, the said Josias, was under no legal, moral, or equitable obligation, to make any further provision for the sole use of his said wife out of the balance of the said legacy.

15. That if the jury believe from the evidence, that Josias Stevenson, junior, gave his consent that one half, or about half of the legacy given his wife by the will of Dr. Albert Dufresne should be invested in real estate for her sole and separate use, and if they further believe, that at or after the time of giving such consent, he promised the executors of Dr. Albert Dufresne, to invest the balance of said legacy upon its being paid to him in cash for the sole and separate use of his said wife, that such promise was without consideration, and not binding upon him in law.

16. If the jury believe that Josias Stevenson made the promise mentioned in the testimony of Reed and Reigart, to invest the legacies of his wife for her sole use; and if they further believe that such promise was made upon the condition that the whole amount of said legacies should be paid to him; and if they find that this condition was not complied [**36]  with, but that near half the amount of said legacies was invested by the executors of Dr. Albert Dufresne in real estate, and that the balance only was paid to said Stevenson in cash, that then the said promise was not binding on him, and no claim founded upon it can be a charge against his estate.

17. If the jury believe from the evidence, that Mrs. Stevenson was present with her husband, in Lancaster, when he demanded the legacy willed to her by Dr. Albert Dufresne, from his executors; and was also present when the portion of said legacy which her said husband received in cash was paid to him, and that she did not demand of him or of the executors, that such portion or any part of it should be invested or held for her sole use, but gave her free consent to the said payment to her said husband without condition or qualification, then the defendant cannot set up by way of claim on his estate the amount of money so paid him with interest.

18. The plaintiff prays the court to instruct the jury, that if they shall believe from the evidence in the cause that the executors of the said Dr. Albert Dufresne, after the intermarriage of the said Elizabeth L. Reigart with the said Josias [**37]  Stevenson, junior, and during the life time of the said Josias Stevenson, junior, and with the consent of the said Josias Stevenson, Jr., conveyed certain real estate in the city of Lancaster, by deeds of trust, for the sole and separate use of the said Elizabeth L. Stevenson, to the value of one-half, or about one-half of the said legacies mentioned in the preceding prayers; and at the same time, or about the same time, paid to the said Josias Stevenson, junior, in cash, the whole residue of said legacies, in full payment and discharge of the said legacies; and shall further believe from the evidence in the cause, that at the time of such payment, in cash, to the said Josias Stevenson, junior, he the said Josias Stevenson, junior, as an act contemporaneous with such receipt of the said money, and as part of the res gestae, executed and delivered to the said executors, a receipt, in writing, in nature of a deed of release in respect of such legacies, and that the same deed of release was then and there accepted and received by the said executors; and shall further believe, that no other receipt, release or other instrument of writing whatever, was then, or at any other time, either [**38]  before or afterwards, executed or signed by the said Josias Stevenson, junior, or written by him or by his direction, in respect of the said sum, so by him received, or in respect of his said legacies, then the said deed or release is the best evidence of the capacity in which the said Josias Stevenson, junior, received the said amount, and of the trust, if any, on which he received the same, and that parol evidence cannot be received of its contents, without shewing said deed of release to be lost, or otherwise accounting for its non-production.

19. That limitation is a bar to the claim of Elizabeth Stevenson, as respects the claim of the plaintiffs in this case.

The court (PURVIANCE, A. J.) refused to grant the said prayers, or any of them, but rejected the same, and each and every of them; to which refusal of the court to grant the said several prayers, and to the refusal of the court in respect of each several prayer, and to grant such several prayer, the plaintiff excepted.

The parties filed the following agreement, to wit:

It is agreed that the record in this case shall be considered as made out in full, although the record does not contain at length the record [**39]  in the case of Urath Stevenson against the administrator of Josias Stevenson, junior, fi. fa. thereon, and sheriff's return of nulla bona; it being agreed, in order to facilitate the making up of the record, and to save expense, that the short copy should have the same effect in the argument of the case as if the full record had been introduced; the short copy having by agreement been substituted in the place of the record in full. It is also agreed, that in the record of the case of Henry Stevenson and others, appellants, vs. Edward Shriver and Elizabeth L. his wife, formerly Elizabeth L. Stevenson, shall be considered as included in the record in this case, without actual insertion; it being agreed that the same may be read in the argument of this case as a part of the record, from the record thereof in the Court of Appeals, or from the printed report thereof.

Both parties appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

A testator devised a sum of money to his two grand-daughters, as and for their absolute property, to be taken and set apart for that purpose, out of his personal estate, and paid them as soon as conveniently may be done after his decease; the same to be understood as bequeathed unto them as their property respectively, and not to either of their respective husbands or their father, nor their step-brothers or step-sisters. The sum devised to one of the females, was demanded by her husband from the executors, and paid over to him by them upon a special agreement. In an action brought by the legatee against the administrators of her deceased husband to recover the money received by him, HELD: that it was not material whether the will gave her an absolute or a separate estate, and that her rights must depend upon the validity or invalidity of the agreement, in virtue of which the money was paid over to her deceased husband.

A contract founded upon an equitable duty, such as would be enforced by a court of equity, or upon a moral obligation, which no court of law or equity can enforce, or to do that which an honest man ought to do, or upon the waiver of a legal right by the party entitled to it, is maintained by a sufficient consideration.

The executors in this case held the wife's legacy as trustees; and wherever it is necessary for a husband to resort to a court of equity to get possession of his wife's legacy, that court will require him to do equity by making a settlement upon his wife and children, before it will lend him its aid in the recovery of it; and a promise by the husband to the executors to do that which equity would do in this case, is founded upon a sufficient consideration.

Where the husband receives the money of his wife, not in virtue of his marital rights so as to amount to a reduction into possession, but as her trustee and for her benefit, on the death of the husband it continues to be her property, for which she has a claim against his estate, and does not go to his personal representatives.

The agreement being valid and obligatory upon the husband, is to be considered as a substitution for the equity of the wife, which operated for the benefit of the wife and children, though not named, which a court of equity would specifically execute against the husband upon a bill filed for that purpose.

It has been settled by this court, that the wife's equity will prevail against an assignment of the husband for valuable consideration, or in payment of a just debt.

Where the husband receives his wife's legacy from the executors of a testator, making her a bequest, and promises to invest the money for her, does not invest according to the terms and conditions under which he received the legacy, and dies, his widow has a right to elect to consider him her debtor to the amount of it, as so much money had and received to her use.

Where the merits of an action at law depended in every aspect of it, upon the true construction of an agreement, every prayer which went to the right of action, and kept out of view the effect of the agreement, and so did not involve the true point of controversy between the parties, is considered as wholly abstract.

A court is not to be called upon to settle legal principles which have no relevancy to the case before them.

Where the orphans court, upon the application of a creditor of a deceased person, and the exhibition of the proof of his demand, passes a claim to be allowed, if paid by the executor or administrator, and upon appeal that order is reversed, such reversal constitutes no bar to the recovery of the same claim at law. The orphans court possessed only a prima facia jurisdiction, and the exercise of the appellate jurisdiction did not increase its effect.

An executor may interpose to protect the wife's equity in property under his control.

Ignorance of the law cannot be made available where there is a full knowledge of all the facts.

The case of Bowley and Lammot, 6 H. & J. 524, was held an exception to the general rule; for there a forfeiture of title would have been incurred, if the general rule, that a knowledge of the law in civil cases shall be presumed, where there is a full knowledge of the facts, had been permitted to operate; that was an attempt to charge the party with a fraudulent concealment of title in the absence of actual knowledge, upon the legal presumption which imputed knowledge.

An executor or administrator may retain the amount of a debt due him by his deceased testator or intestate, out of his estate, or its due proportion of assets, without passing his claim before the orphans court.

The act of limitations does not apply to the claim of an executor against his testator, who retained for his debt. He could institute no suit at law against himself.  

COUNSEL:
By MCMAHON, SPEED and R. JOHNSON, for the appellant, plaintiff below, and

By W. SCHLEY for the appellee, defendant below.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*24]  STEPHEN, J.  [**40]  delivered the opinion of this court.
The question involved in this case being one of some novelty in point of principle, and the amount of the property depending 

 [*25]  upon the decision of it being of considerable value, and therefore materially affecting the interests of the parties litigant, it has received, as it demanded, the careful and deliberate consideration of this court. The case has been ably and ingeniously argued by the counsel engaged for the respective parties, and much aid has been derived during our researches, from the light thrown upon it by the discussion at the bar. Upon the fullest examination we have been able to bestow upon it, we have come to the conclusion that there is no error in the decision of the court below, and that the judgment there rendered ought to be affirmed. In deciding upon the merits of this controversy, we think that the true construction of the will of the testator in reference to the character of the legacy given to his grand-daughter, Mrs. Stevenson, that is, whether it was absolute, or for her separate use, is wholly immaterial and irrelevant, and that the rights of the parties must depend upon the validity or invalidity of the [**41]  agreement, under or in virtue of which it was paid over to her husband. Under this aspect of the case, many of the prayers made by the appellants' counsel in the court below, which kept out of view the operation and effect of that agreement, were wholly abstract, and did not involve the true point in controversy between the parties, and therefore received at the hands of the court that fate, which upon established legal principles, unavoidably awaited them, it being the undoubted duty of the court not to wander or suffer themselves to be led into the wide and extended fields of legal science, for the purpose of solving or settling legal principles having no relevancy to the case before them, but to confine themselves to those questions of law alone, which arise upon the facts and circumstances established by the testimony, and which properly belong to the case before them. The great and leading question therefore in this case seems to be, whether the agreement made by the husband of Mrs. Stevenson with the executors of her grand-father's will, if satisfactorily proved to have existed, was founded upon a sufficient consideration to render it obligatory upon him, so as upon the non-fulfilment [**42]  of it on his part, to create the relation 

 [*26]  of debtor and creditor between him and his wife. We cannot entertain a doubt of the sufficiency of the consideration to support his promise to the executors, in reliance upon which they paid him the legacy. If it was founded upon an equitable duty, such as would be enforced by a court of equity, that alone seems to be sufficient to give it efficacy, and binding operation, even in a court of law. In Cowper's Rep. 290, Lord Mansfield says, "where a man is under a moral obligation which no court of law or equity can enforce, and promises, the honesty and rectitude of the thing is a consideration. As if a man promises to pay a just debt, the recovery of which is barred by the statute of limitations; or if a man, after he comes of age, promises to pay a meritorious debt, contracted during his minority, but not for necessaries; or if a bankrupt in affluent circumstances, after his certificate, promises to pay the whole of his debts; or if a man promise to perform a secret trust, or a trust void for want of writing by the statute of frauds. In such and many other instances, though the promise gives a compulsory remedy, where [**43]  there was none before either in law or equity, yet as the promise is only to do what an honest man ought to do, the ties of conscience upon an upright man are a sufficient consideration;" and Buller, Justice, in his opinion says, "the true rule is, that wherever a defendant is liable in equity and conscience to pay, that is a sufficient consideration;" and he says that the rule, that to constitute a valid consideration for a promise, there must be a benefit to the promisor or loss to the promisee, is much too narrow. The executors in this case held the wife's legacy as trustees, and wherever it is necessary for a husband to resort to a court of equity to get possession of his wife's legacy, that court will require him to do equity, by making a settlement upon his wife and children, before it will lend him its aid in the recovery of it. This is considered to be an equitable duty on his part, and formed, we think, a sufficient consideration for his promise in this case. The waiver moreover on the part of the executors of the refunding bond, which it appears by the laws of Pennsylvania they had a right to require, formed an additional consideration 

 [*27]  for the agreement [**44]  on the part of the husband for the benefit of his wife. It is also to be considered in the decision of this controversy, that according to the proof, the husband received the money of his wife, not in virtue of his marital rights, so as to amount to a reduction of the legacy into possession, but as her trustee and for her benefit; on the death of the husband therefore, it continued to be her property, for which she had a claim against his estate, and did not go to his personal representatives. On this point the authorities hold a language uniform, explicit and unequivocal.
The agreement then being valid and obligatory upon the husband, is to be considered as a substitution for the equity of the wife, which operated for the benefit of the wife and children, though not named, and which a court of equity would specifically execute against the husband, upon a bill filed for that purpose. In support of this doctrine, see the case of the Attorney General vs. Whorwood, where Lord Hardwick recognises the validity of an agreement made by a husband with a trustee, for the purpose of obtaining his wife's money out of his hands, which the trustee had received upon the sale of her father's [**45]  estate, and decreed an execution of the agreement, on the death of the husband, against his representatives. The agreement was, to invest the money in the purchase of land, to be settled for her benefit for life, and if there were no children, then on himself. In that case his lordship said "that it had been truly insisted, on behalf of the wife, that on the husband's application for the money, the court would undoubtedly have ordered a further settlement." If then the parties did not come into court, but acted among themselves, and the husband had agreed to do that which the court would have directed, had the wife insisted on it in a proper suit, it should have its full effect. It has been solemnly settled by this court, and has also been decided by Chancellor Kent, in New York, that the wife's equity will prevail against an assignment of the husband for valuable consideration or in payment of a just debt. See 4 G. & J. 282; 5 Johns. 484, where Chancellor Kent also decides, that the court may, in its discretion, 

 [*28]  give the whole or part only of the property to the wife according to the circumstances of the case; to same effect, see [**46]  6 Johns. 178.
If we are correct in the views which we have taken, as to the binding and operative effect of the agreement of the husband in this case, the next question which arises is, did his failure to invest according to the terms and conditions under which he received the legacy, give to his wife the right to elect to consider him her debtor to the amount of it, as so much money had and received to her use? Upon principle, and authority, we think it did give her that right. He received the money upon a special trust and confidence, that it would be invested for her benefit; he received it as her trustee; and upon his failure to make that investment, the consideration upon which he received it failed, and she had a right to consider it as so much money had and received for her use. See 1 H. & G. 258, where it is said, "if one man takes another's money to do a thing, and refuses to do it, it is a fraud; and it is at the election of the party injured, either to affirm the agreement, by bringing an action for the non-performance of it, or to disaffirm the agreement ab initio, by reason of the fraud, and bring an action for money had and received [**47]  for his use." The action for money had and received is an equitable action, and equally as remedial in its effects as a bill in equity. In Moses vs. Macfarlan, 2 Burr 1012, Lord Mansfield says, "the gist of this kind of action is, that the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money." There can be no doubt that the wife may be a creditor against her husband's estate, after his death. 1 H. & G. 280; Powell on Contracts, 109; 3 P. Will. 335; 1 Vernon 427. These last cases, it is true, were cases in equity, and there were no creditors to contend with, but they shew that as between husband and wife the relation of debtor and creditor may exist; and in the case in Vernon, the wife was administratrix of her husband, and was permitted to retain for her claim out of his assets. But whether the debt be legal or equitable, this court have decided, 

 [*29]  it is equally within the power and jurisdiction of the orphans court to allow it. In this case, however, for the reasons already given, we think the claim of the wife supported by such considerations [**48]  as constitutes it a debt recoverable in a court of law. We do not think that the decision of this court, reversing the decision of the orphans court allowing the claim, can operate to bar the recovery, it being the exercise of an appellate jurisdiction, reviewing the order of an inferior court, possessing in reference to the subject before it, a prima facie jurisdiction only. As to the objection, that the executors transcended their powers in demanding the execution of the agreement, before they would consent to pay over the money to the husband, we think that it is entitled to no consideration. The agreement having been entered into by the husband, with a full knowledge of all the facts, without fraud or surprise, and being founded upon a valid consideration, cannot be otherwise than obligatory. It seems, however, that the executors may interfere to protect the wife's equity; for in 5 Johns. 473, Chancellor Kent refers to a case where it appears the bill was filed by the executor of the testator, to stay the husband who had instituted a suit in the spiritual court for his wife's legacy. Lord Mansfield said, it made no difference who was plaintiff in equity,  [**49]  and he directed that the money should be disposed of for the benefit of the wife. We do not think that the husband can shelter himself under a mistake of the law; he not only appears to have taken legal advice upon the subject of his marital rights, in relation to the legacy, but if he had not, there is, we think, nothing in this case to except it out of the operation of the general rule, that ignorance of the law cannot be made available with a full knowledge of all the facts. The case of Bowley and Lammott was decided upon a principle wholly inapplicable to this case. That was a case where a forfeiture of title would have been incurred, if the general rule, that a knowledge of the law in civil cases shall be presumed, where there is a full knowledge of the facts, had been permitted to operate; it was to charge the party with a fraudulent concealment of title, in the absence of actual 

 [*30]  knowledge, upon the legal presumption, which imputed knowledge. In that case, the application of such a principle was looked upon as being too monstrous and unjust, to receive for a moment the countenance or sanction of the court; it was a doctrine most glaringly unjust, and alike [**50]  repudiated by the rules of morality, a refined sense of justice, and the principles of law. It was therefore rejected. We think there is nothing in the objection, that the claim of the wife against her husband's estate had not been allowed by the orphans court; the decision of that court, whether favorable or unfavorable, not having a conclusive effect upon the question, when submitted to a court of law for adjudication.
We believe we have now taken a view of all the questions involved in the prayers made by the respective parties in the court below, and upon the best consideration we have been able to give to the subject, we approve of the judgment of that tribunal, and think it ought to be affirmed.
The first, second, third and fifth prayers made to the court below by the counsel for the plaintiff, were properly rejected, as being mere abstract legal propositions, putting the agreement entirely out of view, upon which the defendant rests her claim to retain.
The fourth, we think, was properly rejected for the reasons before expressed.
The sixth prayer, as to the binding effect of the decision of the Court of Appeals, in the case of the appeal from the orphans [**51]  court, was properly rejected for the reasons already given. The effect of the agreement, as now proved, not being in the view of that court when the decision was made.
The seventh prayer was, we think, also properly rejected; for the reasons already given, we think the agreement was a valid one, and supported by an adequate consideration.
The eighth prayer, founded on a mistake of law, for the reasons already assigned, was likewise properly rejected.
The ninth prayer was also properly rejected; under the agreement, it was his duty to invest; no laches is imputable to the wife or executor, so as to create a forfeiture: if a delusion 

 [*31]  existed, it sprung from his bad faith, he having always declared his intention to be, to make the investment according to contract.
The tenth prayer was also properly rejected, for the reasons already given. The proposition contained in this prayer was too untenable to receive for a moment the sanction of the court, that is, that the claim of the wife was totally destitute of evidence to support it.
The court, we think, were right in rejecting the eleventh prayer, for the reasons already given; the claim, we think, did [**52]  not require the sanction of the orphans court.
The court, we think, were right in rejecting the twelfth prayer, there being no evidence in the case to sustain it.
The court were clearly right in rejecting the thirteenth prayer; there was evidence sufficient to go to the jury to prove such promise.
The court were right in rejecting the fourteenth prayer, for the reasons before stated.
The court, were right in rejecting the fifteenth prayer, for reasons which have been already stated; there was a sufficient consideration to sustain the promise.
The court were right in rejecting the sixteenth prayer, there being no evidence to warrant it.
For reasons already given, the court were right in rejecting the seventeenth prayer; if the agreement was a valid one, her consent when the money was paid under it, would not annul or vacate it. She was entitled to the benefit of it, and her consenting to the payment of the money when it was paid, without at that time annexing any conditions or qualifications to such payment, would not deprive her of the benefit of that agreement. No stipulation on her part was necessary for the protection of her interest. She had a right [**53]  to rely upon and claim the benefit of the contract which had been made by the executors for her use.
The court were also right in rejecting the eighteenth prayer. The release had nothing to do with the agreement; the agreement having been made, the release was made to 

 [*32]  discharge the executors, it was only collateral to the agreement. The prayer was clearly not warranted by the proof, and was, therefore, properly rejected.
The nineteenth prayer was properly rejected. Mrs. Stevenson being one of the personal representatives of her husband, could institute no suit against herself, at law; the act of limitations, therefore, did not apply to the case, and created no bar to the recovery of her claim.
The court were right in granting the defendant's prayer; the record containing sufficient evidence to warrant the jury in finding the facts upon which it was predicated. The judgment of the court below is affirmed.
JUDGMENT AFFIRMED.  

7 of 46 DOCUMENTS 

MASON AND LEEF vs. THE FRANKLIN FIRE INSURANCE COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

12 G. & J. 468; 1842 Md. LEXIS 15 

December, 1842, Decided 

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

This was an action of COVENANT, brought by the appellants against the appellees, on the 27th April, 1841.

The plaintiffs declared upon the policy mentioned in the bill of exceptions, and the defendant pleaded they had not broken their covenant, with leave to both parties to give any matter in evidence which might be given under any other plea. Errors of pleading were waived.

At the trial of the cause, the plaintiffs, in order to support the issue on their part, gave in evidence the policy of insurance declared on, of the Franklin Fire Insurance Company of Philadelphia.

"This policy of insurance witnesseth, that the Franklin Fire Insurance Company of Philadelphia have received of William Mason & Co., six dollars forty cents, premium, for insuring (according to the tenor of their printed proposals and conditions, hereunto annexed,) upon the property herein described, viz: On a new barque now being built at Samuel Butler's ship yard in Baltimore, Maryland. Now, know all men by these presents, that in consideration thereof, the capital stock, estate and securities of the Franklin Fire Insurance Company of Philadelphia, shall be subject [**2]  and liable to make good and satisfy unto the insured, their heirs, executors, administrators or assigns, all such damage or loss which shall or may happen by fire, to the property above mentioned, from the date hereof, to the full end and term of two months, not exceeding the sum of $ 4,000, say four thousand dollars, unless the said company shall, &c."

It is agreed that this policy shall expire at twelve o'clock at noon, on the 10th Dec., 1840. In witness whereof, &c.

The plaintiffs further gave in evidence, that the new barque therein referred to, was launched on or about the 30th day of November, 1840, and called The Orb, having on board her lower masts and rigging belonging thereto; that on the evening of the day following, the ship yard of Samuel Butler was set on fire, and all combustible articles therein were entirely burned up; and further, that previous to the aforesaid fire, and subsequent to the 10th day of October, 1840, certain spars, blocks, cordage and other articles necessary and proper for the building, fitting and equipping the aforesaid barque were prepared, finished and delivered, at and in the said ship yard, ready for setting up, but which had never [**3]  been put upon said barque, and being after such delivery at the sole risk of the owners of the said barque; that the said spars were at the time of the fire aforesaid, lying within from four to ten feet of the said barque, and the blocks, ropes, rigging and other articles, were lying partly in a shop, and principally in a loft, over the shop, within from forty to fifty feet of the said barque, but all within the enclosure of said Butler's ship yard; and that it is usual for riggers and ship builders to store the light spars intended to be put on new vessels under sheds, or in the lofts of buildings in ship yards where there were such buildings.

The plaintiffs further gave in evidence by a witness who examined the ruins the day following the fire, and had worked on the materials hereinafter referred to, that the fire had burnt the following articles:

A list of blocks, rigging and spars belonging to the new barque Orb, burned at Butler's ship yard, December 1st, namely, &c., &c.

And that neither the hull of the said barque, nor any of the materials on board of her were burned or injured by the fire.

The plaintiffs further gave in evidence sundry accounts of articles [**4]  furnished to supply such as were burnt as aforesaid, and the particulars of labor required thereon, according to a statement thereof summed up in the following paper, &c., valued at $ 834.40.

The plaintiffs further offered in evidence, by Charles W. Karthaus, a competent witness, that in the month of February, 1836, a ship of his called the Jefferson, arrived at New York, where her sails were sent to a sail loft to be repaired, and four or five new sails in place of those worn out, were ordered to be made for said ship, but were not sent on board; that said ship was insured upon time; that a fire occurred in said sail loft in New York, by which said sails were destroyed; that the witness inquired the usage as between the insurers and insured in the port of New York, in regard to the loss in such cases, and ascertained that the usage there was, that the insurers were liable; and upon that fact being made known to the Neptune Insurance Company of Baltimore, they paid the said loss. The plaintiffs further proved by said witness, that he has been informed by others, that the same usage in regard to vessels whose sails are sent on shore for repair, from a vessel insured on time, existed [**5]  in England, but of that fact the witness has no personal knowledge. The plaintiffs further proved by the said Karthaus, that he has been informed by others, that several merchants in Baltimore, whose vessels had been insured on time, and upon their arrival in Baltimore, whose sails had been sent to the sail lofts for repair, and which were destroyed by fire, were, as he heard from others, paid for their loss by the insurers. The witness further stated, that he had no knowledge of any usage in such cases in the city of Baltimore, except as deduced from the above fact and information, and knew of no usage, pro or contra, in regard to vessels unfinished, or vessels being built in Baltimore.

The defendants then by their counsel moved the court for its opinion and direction to the jury.

If the jury shall believe from the evidence in this cause, that the spars, blocks, rigging and other materials and work, for the value of which this suit is brought, were never in fact put upon the barque Orb, upon which the insurance in this cause was affected, prior to the accident by fire proved in this cause, that the plaintiffs are not entitled to recover under the policy in this cause, notwithstanding [**6]  the jury may believe from the evidence that the said spars, blocks, rigging and other materials, were intended to be put upon the barque, and would have been put upon said barque if said accident by fire had not occurred.

The plaintiffs then moved in like manner the following prayer:

That if the jury believe from the evidence, that the blocks, spars, rigging and other articles destroyed by fire, as set forth in the evidence, were actually delivered to the plaintiffs in a finished state by the parties furnishing the same, for the purpose of being forthwith put upon the barque Orb, and were the property of the plaintiffs as owners of the said barque, and if not insured would have been their exclusive loss, and were deposited in places near the said vessel, convenient for the then intended use thereof, and in the manner usual and customary in cases of building vessels in this city, then the plaintiffs are entitled to recover, notwithstanding the said articles had never actually been put on board, or fitted to the said vessel.

The court (MAGRUDER, A. J.,) granted the prayer of the defendants, and rejected the prayer of the plaintiffs. The plaintiffs excepted.

The verdict [**7]  and judgment being for the defendants, the plaintiffs appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

A policy of insurance against fire, upon a vessel, building in the port of Baltimore, and for a specified period, is not controled in its operation by proof of usage in other ports of the Union. Such usage could not be considered as entering into the views of the parties in the present contract.

In a valued policy against fire, "on a new barque now being built," it was the design of the parties to cover the vessel in the process of construction and indemnity was agreed to be furnished for her loss by fire, whatever might be her progress towards completion, when the fire occurred.

The policy, in the absence of proof of usage, did not attach upon articles made for the vessel, delivered in the ship yard where she was constructing, in a condition, and intended to be fitted and attached to her, if she had been, or as soon as she might be ready to receive them.  

COUNSEL:
By N. WILLIAMS for the appellants, and

By ST. GEO. W. TEACKLE for the appellees.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*472]  ARCHER, J., delivered the opinion of this court.
We agree with the court below, that the policy did not cover the articles, for the loss of which by fire, this suit was instituted to recover.
We have no proof of usage in the port of Baltimore, in relation to this subject, which would control or govern the contract of the parties. What was the usage in other ports of the Union, could not be considered as entering into the views of the parties in the formation of the contract.
The case must, therefore, be decided by the language which the parties themselves have used in the covenant of insurance.
This is a valued policy "on a new barque now being built," and the question is, what do these words import; do they apply to the ship and such materials as from time to time are placed upon her in a process of construction, or are they to be considered of more extensive signification, and as covering [**8]  whatever materials were brought into the ship yard, and were necessary to her construction, whether fitted and prepared or not, to be placed upon the vessel, though not placed on the ship, or in any way attached to it, or as constituting in fact, a part of the corpus insured?
This is a case of the first impression in this State. No cases have been cited, bearing upon the question directly. The contract of insurance is, it is true, one of indemnity, but the terms of it ought not to be carried beyond their ordinary and legitimate signification. The extent of this indemnity is 

 [*473]  to be ascertained, by arriving at the true intention of the parties, as expressed by the words they have used. The thing injured, "is a new barque now being built," and the design of the parties was to cover the ship in the process of construction, and indemnity was agreed to be furnished for her loss by fire, whatever might be her progress towards completion, when the fire occurred.
The articles, the value of which is claimed, it is proved, were made for the ship, and were in the ship yard, and were in a condition to be fitted and attached to the vessel, if she had been ready to receive them.  [**9]  But they never had been placed upon or fitted to the vessel, so that the policy could attach to them.
Authorities have been cited to show, that an insurance on ship, covers her tackle apparel and furniture, ex vitermini, and that the sails of a vessel, taken on shore for repair, are also covered, there being a usage proved, that vessels engaged in such trade, removed their sails from the ship for repair.
But these cases do not, we apprehend, apply to this case, where the insurance is not on a ship, but on a barque being built, and by which the articles alleged to be insured never constituted a part, and where there is no usage in the port of Baltimore where the insurance was effected, to show that the articles lost were considered within the terms of the policy.
In short, we believe that the insurance in this case covered the barque itself, as it then lay on the stocks at the time of the insurance, and operated on such materials as should be from time to time in a course of construction, put upon and attached to the vessel, so that they might be considered as a part of the vessel.
JUDGMENT AFFIRMED.  

8 of 46 DOCUMENTS 

MICHAEL DOYLE vs. THE COMMISSIONERS OF BALTIMORE COUNTY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

12 G. & J. 484; 1842 Md. LEXIS 18 

December, 1842, Decided 

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

This was an action of debt to recover the sum of $ 200, brought by the appellees on the 9th April, 1841, who declared, that whereas, on the 1st day of October, in the year eighteen hundred and forty, at the county aforesaid, a certain William Doebaker, and a certain John Crandall, did bet and wager each the sum of one hundred dollars, upon the result of the election of Electors of President and Vice President of the United States, in the State of Pennsylvania, to take place on the thirtieth day of October, in the year aforesaid. And whereas, the said parties did then and there deposite, each the sum of one hundred dollars, being the sum of money so bet and wagered as aforesaid, in the hands of the said Michael Doyle, as a deposite of the sum so bet, and between them. And whereas, the said William Doebaker, did then and there, assign and transfer all his right, title and interest in and to the said bet and wager, and in and to the money deposited as aforesaid, in the hands of the said Michael Doyle, unto a certain William Snyder, of the county aforesaid; whereby and by force of the statute in such case made and provided, the said sum of two [**2]  hundred dollars, then and there so deposited, in the hands of the said Michael Doyle, became forfeited and payable to the commissioners of Baltimore county, for the use of primary schools in the said county; of all which premises the said Michael Doyle then and there had notice. Whereby an action hath accrued to the said commissioners to demand and have for the use of the said primary schools of said county, of and from the said Michael Doyle, the said sum of two hundred dollars. Nevertheless, the said Michael Doyle, although, &c.; but to pay the same, or any part thereof, the said Michael Doyle hath hitherto refused, and still doth refuse, to the damage of the said commissioners of Baltimore county, three hundred dollars, and therefore they bring suit, &c. The defendant pleaded nil debet, and the jury found a verdict for the plaintiff of $ 200, &c.

The defendant moved in arrest of judgment for the following reasons:--

1st. Because the declaration in this cause does not conclude against the statute in the case made and provided.

2nd. Because the declaration contains no averment that the offence was committed contrary to the statute on which the suit was brought.

3rd.  [**3]  Because the declaration contains no averment that the offence was committed contrary to any statute.

4th. Because of other matters apparent on the record.

The county court rendered judgment for the plaintiffs.

1st Exception.--At the trial of this cause, the plaintiffs gave in evidence by a competent witness, that a certain William Doebaker, in October, 1840, by the hands of Henry Snyder, deposited in the hands of the defendant, a one hundred dollar bank note as a bet, on the issue of the Presidential election, then soon to take place in the State of Pennsylvania; that defendant stated at the same time a like sum was deposited as a bet against it, but that witness did not know by whom it was made, but afterwards understood it was John Crandall; that before the election Doebaker assigned his interest in said bet to said Snyder; that shortly after the election took place, and before the returns came in, Snyder called on the defendant and warned him not to pay over the deposite without both parties were present, which defendant promised accordingly. And for the purpose of shewing a further warning to the defendant against paying over the said deposite to the supposed successful [**4]  party, the plaintiffs offered in evidence a warrant issued by a justice of the peace at the suit of W. Snyder, for the recovery of the $ 100 deposited by Doebaker, and assigned as aforesaid, dated 17th November, 1840.

To the reading of which warrant in evidence for the purpose aforesaid, the defendant excepted, and his exception was overruled by the court, MAGRUDER, A. J.

2nd Exception.--In addition to the evidence in the first bill of exceptions, which it is agreed shall be incorporated into and made a part of this exception, the plaintiffs further gave in evidence, that the said Crandall was present at the trial before the magistrate on the aforesaid warrant, and acted as if interested therein, and that on the hearing of the appeal in this court from the decision of the magistrate, the said Crandall was present and acted as if interested therein, and gave directions to the counsel of defendant, and conferred with him on the trial. And the plaintiffs, in order to show that the defendant was warned not to pay over the deposite to Crandall, or to the successful party, and that he was advertised that the same was forfeited to the plaintiffs, the plaintiffs gave in evidence [**5]  by the counsel who acted for Snyder in the aforesaid trial, that Baltimore county court decided on said appeal, and distinctly announced the fact, that neither of the betting parties was entitled to the sums deposited, but that the same was forfeited to the plaintiff; and also gave in evidence, that the counsel for the defendant was present and heard the decision of the court; to the offering of which said evidence, the counsel for the defendant excepted, and his exception was overruled by the court.

3rd Exception.--In addition to the testimony offered in the preceding bills of exceptions, which it is agreed shall be incorporated in this, the plaintiff's third bill of exceptions, the plaintiff further gave in evidence by a deputy sheriff, that when the subpoena on the aforesaid appeal was served on the defendant, which summons bears date the 4th of January, 1841, the defendant admitted that he then held the deposite of the bet aforesaid, and stated that it was Crandall's affair, and wished that he could get rid of the affair. The plaintiffs further gave in evidence by the same deputy sheriff, that when the defendant was served with the original writ in this case, his impression [**6]  is, the defendant made the same admission as when he was served with the aforesaid subpoena. And the plaintiff further gave in evidence, that on the trial before the magistrate on the aforesaid warrant, the said Crandall was present, acting as the agent of said Doyle, (but the plaintiffs gave no further evidence of his agency,) and that the said Crandall did not object that the money had been paid over by Doyle to him, or that the said Crandall did not deposite $ 100 for his bet; and further, that on the trial in county court, on the appeal aforesaid, the attorney of Doyle did not object that the money had been paid over, or that Doyle did not receive Crandall's bet of $ 100; to the admissibility of any and all which testimony, the defendant objected, and his objection was overruled.

4th Exception.--The defendant, to sustain the issue on his part, offered testimony that the stake deposited by Doebaker, was a $ 100 note of a Virginia bank, which the defendant receiving, wrapped up in a piece of paper and laid it aside by itself; that at that time, the Virginia banks had suspended specie payments, and that their notes were one and a quarter or one and a half per cent. below the [**7]  value of Baltimore bank notes, and that the Baltimore bank notes were two and a half per cent. below specie; that said Virginia notes would not at that time be received in the banks of Baltimore on deposite, or in the payment of notes due in said banks. The defendant further offered in evidence by James Smith, Jr., that he is now, and was at the time of the making of the bet aforesaid, the clerk of the defendant; has access to all his books, and knows that said Crandall did not deposite any money with Doyle, but put up the bet of Crandall of $ 100, by charging the account of said Crandall with that amount of notes then on deposite with said Doyle, belonging to Crandall, which said notes were notes of individuals, made since the suspension of specie payments in the year 1834; all of which were under the denomination of $ 5, commonly called shin plasters, and were then in circulation in the community as currency. The defendant further offered in evidence by the said Smith, that shortly after the Presidential election in 1840, in the State of Pennsylvania, there were for many days contradictory rumors as to the issue of that election; that in a week after it was finally ascertained how [**8]  the election had gone in that State; he was told by the defendant that the bet had been paid over to Crandall, and that on one occasion, shortly after the said Pennsylvania election, he recollects he heard the defendant remark to a gentleman in the presence and hearing of Crandall, that he had paid over to Crandall the aforesaid bet, and that Crandall did not deny it. And the plaintiffs further proved on the cross examination of the defendant's witnesses, that Virginia bank notes and the shin plasters referred to above, passed current from hand to hand in the city of Baltimore, and in purchases up and down the streets; that Crandall had constant dealings with the defendant before October, 1840, and continually from that time down to within two months of the present time; that Crandall deposited shin plasters with the defendant, and drew out from time to time from defendant, Baltimore bank notes, Virginia bank notes, and the various kinds of currency afloat in the community.

Whereupon, upon the whole testimony in the preceding bills of exceptions, which it is agreed shall be incorporated into this bill of exceptions, and made a part thereof, the defendant prayed the opinion and [**9]  direction of the court to the jury--

1st. That if the jury believe from the evidence, notes were deposited, and not money, then the plaintiffs cannot recover.

2nd. If the jury believe that a bank note or bank notes were put up on one side, and notes of private individuals under the denomination of five dollars, made since the suspension of specie payments in the year 1834, and then in circulation in this community as currency, were put up on the other side, the plaintiff cannot recover.

3rd. If the jury believe that the notes staked were of less value than $ 200 in gold or silver, or either, the plaintiffs cannot recover.

4th. If the jury believe that the bet was paid over to Crandall before this suit was brought, the plaintiffs cannot recover in this action.

5th. If the jury believe that the deposite made with Doyle by Doebaker, was a bank note of a Virginia bank of the denomination of $ 100, and at the time said note was deposited, the bank which issued it had ceased to redeem its issues in gold and silver, and that said note by reason of the failure of said bank so to redeem its issues depreciated in value, and would not be taken in payment of debts in the [**10]  city of Baltimore, then the plaintiffs are not entitled to recover.

6th. And if the jury shall believe the facts stated in the last prayer, and that Crandall, at the time he gave orders to Doyle to put up $ 100 for him, had no other funds to his credit with Doyle but the issues of individuals, such as are described in the second prayer of the defendant in this bill of exceptions, and that the deposite of said Crandall was made by the said Doyle's charging the account of said Crandall with issues as aforesaid, amounting to one hundred dollars of said issues, then the plaintiffs are not entitled to recover.

And the plaintiff thereupon moved the following ten prayers:

1st. That if the jury believe from the evidence, that there was a deposite made with the defendant of $ 200 in the manner set out in the declaration, the same was forfeited to the plaintiffs for the purposes provided in the 3rd sec. of the act of 1838, chap. 392.

2nd. That no payment over by the defendant to Crandall, at any time, (even if the jury should believe from the evidence there had been such payment,) furnishes any defence in this action.

3rd. That no payment over by the defendant to Crandall,  [**11]  after the warning not to do so by Snyder, and his promise not to do so, (if the jury believe such warning and promise,) furnish any defence in this action.

4th. That no payment over by the defendant to Crandall, after service on defendant of the warrant given in evidence, dated the 17th November, 1840, furnishes any defence in this action.

5th. That no payment over by the defendant to Crandall, after the decision of Baltimore county court, at January term last, in the case of Snyder vs. the defendant, furnishes any defence to this action.

6th. That no payment over of the deposite by defendant to Crandall, after being served with the writ in this case, furnishes any defence to this action.

7th. That bank notes (if the jury believe such was the character of the deposite in question,) constitute a part of the common currency of the country, and ordinarily pass as money, that they are to be regarded in the ordinary concerns of this community as money, and are to be considered and treated as money.

8th. That if the jury believe from the evidence, that the defendant received $ 100 from Snyder as a deposite of a bet, to be met with a like amount from Crandall, or [**12]  some other party, and that he held out the impression to Snyder that a sum of $ 100 had been placed against Snyder's $ 100, that then the defendant is estopped from setting up in defence of this action, that there had been no correspondent sum of $ 100 deposited with him.

9th. That the defendant having offered proof that he had paid over the $ 100 deposited with him by Snyder, as stated in the declaration to Crandall, as the winning party, he is estopped from setting up in defence of this action, that Crandall had made no correspondent deposite of a like sum of $ 100.

10th. That if the jury believe from the evidence that Crandall was in the habit of depositing money with the defendant before the deposite of the bet, as set forth in the declaration, and afterwards, from time to time, down to some months since the institution of this suit, and that the defendant had thus an opportunity of re-instating himself in possession of the amount of the deposite, that then no payment at any time over to Crandall, of the special money so left on deposite, (should the jury even believe there was such payment over,) affords an objection to a recovery by the plaintiffs of the amount so deposited.  [**13]  

The court, (MAGRUDER, A. J.,) refused to grant the six prayers, or either of them offered by the defendant, and granted the seven first prayers offered by the plaintiffs, but refused to grant the 8th, 9th and 10th prayers offered by the plaintiffs. To the refusal of which six prayers of the defendant, and the granting of the first seven prayers of the plaintiffs, the defendant excepted.

The verdict and judgment being for the plaintiff, the defendant prosecuted this appeal.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

By the act of 1838, chap. 392, sec. 3, every deposite of money as a wager or bet upon elections, is forfeited, and to be paid over to the levy court or county commissioners of the county. The forfeiture attaches to the deposite the moment it is made, and the courts or commissioners may recover the same in their own names.

This being the public law of the land, a knowledge of it is imputed to every person in whose hands such a deposite is made.

No notice or warning is necessary to prevent the payment of the deposite to the parties to the bet. If such payment be made, it is at the risk of the person making it.

Where the plaintiff, in an action to recover a forfeiture, erroneously deemed it essential to give notice to the defendant not to part with the thing forfeited, evidence for that purpose improperly admitted by the county court, is not such an error as will induce this court to reverse the judgment upon appeal. It did the appellant no injury.

The deposite of a note of the Bank of Virginia, as a wager or bet, is a deposite of money within the act of 1838, chap. 392.

Where the court cannot grant the entire prayer as made, though a portion of it in a separate, distinct form, might have been given, it is not error to reject the whole.

In an action to recover the forfeiture of the deposite under the act of 1838, the jury may award damages equal to the value of the money forfeited.

It is not essential to a recovery under the act of 1838, that both parties to the bet should deposite money. If either make such a deposite it is forfeited, though the deposite of the other may not be forfeitable.

In an action of debt to recover a statutory penalty, the defendant moved in arrest of judgment, because the declaration did not conclude "against the statute in the case made and provided;" nor contain any "averment that the offence was committed contrary to the statute on which the suit was brought," nor any "averment that the offence was committed contrary to any statute," but Held, that the words "whereby and by force of the statute in such case made and provided, the said sum became forfeited," found in the nar, were a sufficient compliance with the rules of pleading.  

COUNSEL:
By ADDISON for the appellant, and

By WILLIAMS for the appellee.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*492]  DORSEY, J., delivered the opinion of this court.
By the third section of the act of 1838, chap. 392, every deposite of money as a wager or bet upon elections, is forfeited, and to be paid over to the levy courts or county commissioners of the county. The forfeiture attaches to the deposite the moment it is made. For this, see Gelston vs. Hoyt, 3 Wheat. 246, and the authorities there referred to. This being the public law of the land, a knowledge of it is imputed to every person [**14]  in whose hands such a deposite is made. No notice or warning therefore, is necessary to prevent the payment of the deposite to the parties to the bet. If such payment be made, it is at the risk of the person making it, who must abide the consequences of his unauthorised act. It hence follows, that the county court erred in permitting the warrant to be read to the jury, as stated in the appellant's first bill of exceptions, it being irrelevant to the issue which the jury were sworn to try. But for this error, their judgment ought not to be reversed. The appellant could sustain no injury from the reception of the testimony objected to. Its admission conferred on him a benefit, rather than inflicted an injury, as the jury might thereby reasonably infer, that to entitle the appellees to recover, they must prove a warning or notice to the appellant, not to pay over the deposite to the winning party to the bet. The remarks made on the first bill of exceptions are equally applicable to the second bill of exceptions. The testimony 

 [*493]  there objected to, and admitted by the court, being offered to prove a warning to the appellant, not to pay over the money to Crandall, and a notice [**15]  to him, that the appellees were entitled thereto.
The testimony permitted to go to the jury in the third bill of exceptions, so far as it tended to prove the receipt of the deposite by the appellant, was properly received by the court, but such parts of it as were offered to disprove the payment of the deposite to Crandall, were impertinent to the issue, and therefore inadmissible. But its only effect being to establish a fact wholly immaterial to the issue in the cause, and not injurious to the appellant, its reception by the court is no ground for the reversal of the judgment. The testimony thus improperly received, could work no detriment to the appellant, but might have redounded to his benefit, by inducing the jury to believe, that if the deposite were without warning, or notice of the claim of the appellees, their verdict must be for the appellant.
The first prayer in the appellant's fourth bill of exceptions, calls on the court to instruct the jury, that if they "believe from the evidence that notes were deposited and not money, then the plaintiff cannot recover." If by notes is to be understood the promissory notes of the parties to the wager, or of other persons, the [**16]  court were fully justified in refusing the prayers; because, by the uncontradicted evidence in the cause, the stake deposited by Doebaker, was a hundred dollar bank note of the bank of Virginia, and therefore, the evidence before the jury did not warrant the court in granting the instruction prayed. But if by notes were meant bank notes, as the argument on both sides assumes, then the prayer was properly refused. This court, in the case of Towson vs. The Havre de Grace Bank, 6 H. & J. 47, having said that the objection, "that bank notes are not money, cannot be sustained; they answer all the purposes of money in the ordinary concerns of the community; by common consent they are treated as money, in the payment of debts, the purchase of goods and lands, and in the every day transactions between man and man, and at this hour can only be considered as such. They are a 

 [*494]  legal tender, unless especially objected to at the time, and will pass by will under the general description of money"--as "all my money in such a drawer." And the same doctrine is to be found in The Bank of the United States vs. The Bank of Georgia, 23 U.S. 333.
We [**17]  approve of the refusal to grant the appellant's second prayer in his fourth bill of exceptions, because, if it were conceded that Crandall's stake deposited, consisted wholly of shin-plasters, as they are termed, and that nothing could be recovered for them, it requires the court to instruct the jury, that no recovery could be had on account of $ 100 Virginia bank note, deposited by Doebaker.
The rejection of the third prayer of the appellant in his fourth bill of exceptions, requiring the court to instruct the jury, that if they believed "that the notes staked were of less value than $ 200 in gold or silver, or either, the plaintiffs cannot recover," is too obviously correct to require any assignment of reasons to sustain it.
The refusal to grant the appellant's fourth prayer in his fourth bill of exceptions, follows as a corollary from the interpretation given in the commencement of this opinion to the 3rd sec. of the act of 1838, chap. 392.
The fifth prayer in the appellant's fourth bill of exceptions, was, we think, rightly refused by the court below. It required too much at the hands of the court. It called on it to instruct the jury, that the appellees could recover [**18]  nothing if the Virginia bank notes were not at that time redeemable in gold or silver, or were so depreciated, that they would not be received in Baltimore in payment of debts. The failure of a bank to redeem its notes in specie, does not per se change the character or destroy the currency of its notes. And there was no evidence from which the court could submit it to the jury to find, that Virginia bank notes were so depreciated in value as not to be taken in payment of debts in the city of Baltimore, except it be in payment of debts due to the banks. But, on the contrary, the proof was, that they "passed current from hand to hand in the city of Baltimore, and in purchases up and 

 [*495]  down the streets." But suppose they were depreciated to the extent assumed in the prayer. According to the testimony before us, their greatest depreciation was not more than four per cent. below the specie standard, and to the extent of such their value, the appellees were assuredly entitled to recover.
We approve also of the county court's opinion on the sixth prayer of the appellant's fourth bill of exceptions. Doebaker having deposited his $ 100 in bank notes on [**19]  the wager, it matters not whether Crandall's stake against it was a horse, or any thing else, the bank notes, that is, the money of Doebaker was, under the act of Assembly, forfeited and payable to the county commissioners, although the horse or other property deposited by Crandall (not being money,) would not be.
The granting of the seven first prayers of the plaintiff in his bill of exceptions, follows as a necessary consequence of the principles which have been adopted in the preceding portion of this opinion.
Were the county court right in overruling the motion in arrest of judgment, is the only remaining branch of this case which we are required to examine?
Three reasons were assigned in the court below for arresting the judgment, to wit:
1st. "Because the declaration in this cause does not conclude against the statute in the case made and provided.
2nd. Because the declaration contains no averment that the offence was committed contrary to the statute on which the suit was brought.
3rd. Because the declaration contains no averment that the offence was committed contrary to any statute."
The authority mainly relied on by the appellant in support of the reasons [**20]  assigned for arresting this judgment, is the case of Lee vs. Clarke, 2 East, 340, in which Lord Ellenborough, in delivering his opinion, says, "but it is contended, that the conclusion here, 'whereby and by force of the statute, an action hath accrued,' &c., and will supply the want of the other allegation," meaning contra formam statuti. "If it had said statutes, in the plural number, perhaps that might have done, 

 [*496]  but it certainly is not sufficient with reference only to the Stat. 2 Geo. 3, chap. 19, because that alone would not support the action." The plaintiff's right to recover in the case in 2 East, rested not on a single but several statutes. In the case before us, the declaration does conclude, "whereby and by force of the statute," &c., and the action being wholly founded on a single statute, the declaration, even upon the principles recognized in 2 East, stands exempt from the defect so strenuously urged against it. It is also clearly sustained by the more recent case of the Attorney General vs. Rattenbury, 4 Eng. Exch. Rep. 134, where, in a prosecution for a forfeiture for an offence, created [**21]  by a particular statute, it was held not to be necessary to charge the acts illegally committed, to have been "against the form of the statute," &c., but that it was sufficient to allege the forfeiture to have been "according to the statute," &c., or "by virtue of the statute," &c., fully equivalent to which is the allegation in the present declaration, of "whereby and by force of the statute in such case made and provided, the said sum of two hundred dollars, then and there so deposited, became forfeited and payable," &c. The mode of declaring now complained of, is in strict conformity to a precedent, in 1 Harr. Ent. 621, taken from 7 Went. 223.
But conceding it was requisite in all the cases referred to, to charge the offence committed as contra formam statuti, such an allegation is wholly inappropriate to the case before us. In the authorities adduced, the suits were instituted for the recovery of penalties imposed on the perpetrators of certain acts prohibited by statute. In stating the perpetration of those acts, it might, not without reason, be requisite to state, that they were committed against the form of the statute in such case made and provided. But [**22]  as respects the acts which create the forfeiture, for the recovery of which the present action is instituted, they are not in terms prohibited by any statute.
All that the act of Assembly does in relation to the subject is, that it declares every deposite of money in this State, as a wager or bet on elections to be held out of the State of Maryland, shall be forfeited and paid over to the levy court or county 

 [*497]  commissioners of the county, for the use of primary schools in said county. We think, therefore, that the declaration complained of, sufficiently indicates to the defendant the act of Assembly under which it is filed, and that the usual allegation (in suing for penalties,) of contra formam statuti is properly omitted.
A ground for arresting the judgment has been relied on in this court, which does not appear to have been one of the reasons assigned for that purpose in the court below, and that is, that the commissioners of Baltimore county are incompetent to sustain this action; that the suit should have been brought in the name of the State. And to sustain this position, Fleming qui tam vs. Bailey, 5 East, 513, has been cited. The words of the [**23]  statute on which the action was there instituted, were, "that all pecuniary penalties imposed by this act, shall, when recovered either by action in any court, or in a summary way before any justice, be applied, one moiety to the plaintiff in any such action, or the informer before any justice, the other moiety to the King." The statute further provided, that the penalties over £  20, each, should be sued for in the name of the informer, but made no provision authorising the informer to sue in his own name, where the penalties did not exceed £  20 each. The suit was brought by Fleming qui tam, for three penalties, each of the sum of £  20. The court held, that the action could not be sustained. Justice Lawrence observing, in reference to the portion of the statute recited, that it "only applies to the penalty when recovered, but does not give the informer the original power to sue for it." Thus placing his decision upon the peculiar phraseology of the statute which gave no claim to the penalty until it was recovered, and such recovery, therefore, could only be had in the name of the King. Had the statute directed that the penalty, as soon as it was incurred and sued for,  [**24]  should be paid to the informer, the inference is manifest, that in the opinion of the learned judge, he could have maintained the action in his own name. In the case before us, the language of the act of Assembly is too clear to admit of a doubt. It declares that the 

 [*498]  entire deposite "shall be forfeited and paid over to the levy courts or county commissioners of the county, for the use of primary schools in said county," and their right to sue for it in their corporate name, is a point, we think, too clear for controversy.
JUDGMENT AFFIRMED.  

9 of 46 DOCUMENTS 

FREDERICK AND PHILIP THOMAS DAWSON vs. JOHN A. BROWN & CO., GARNISHEES OF PATRICK RYAN AND JOHN RYAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

12 G. & J. 53; 1841 Md. LEXIS 5 

December, 1841, Decided 

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

This was a proceeding in attachment commenced by the appellants, on the 17th April, 1837, viz:

"State of Maryland, Baltimore city, to wit:

Be it remembered, that on the seventeenth day of April, in the year one thousand eight hundred and thirty-seven, before me the subscriber, a justice of the peace of the State of Maryland, in and for the said city, personally appeared Philip Thomas Dawson, a citizen of the State of Maryland, and made oath on the Holy Evangely of Almighty God, that Patrick Ryan and John Ryan, partners trading under the firm of John Ryan & Son, are justly and bona fide indebted unto him the said Philip Thomas Dawson and Frederick Dawson, partners trading under the firm of William Dawson & Company, in the sum of eleven thousand two hundred eighteen dollars twenty-five cents, over and above all discounts, and at the same time the said Philip Thomas Dawson produced to me the account on, and by which the said Patrick Ryan and John Ryan are so indebted, which is hereto annexed; and the said Philip Thomas Dawson did also make oath that he is credibly informed and verily believes, that the said Patrick Ryan and John Ryan [**2]  are not, nor is either of them a citizen of the State of Maryland, and that they do not reside therein.

SAMUEL PICKERING."

DR. Messrs. P. Ryan & Son, in account current, with interest account to 17th April, 1837, with William Dawson & Co.

________________________________________________________________________________
  1837.	
January 14, To paid 1 per cent. addi-	
  tional commission for collecting	
  Neff & Brother's note, due in Cin-	
  cinnati 27th December, 1836, for	
  $ 2,137 26,	93	32	$ 21 37	
 -- 30, To paid your note due 27th	
instant,   $ 508 20	
Postage and interest,   83	
Expense of protesting,   1 38	77	6 55	510 41	
February 6, To paid your draft favor	
  E. D. Whitney & Co., date 4th inst.	70	3 50	300 00	
 -- 20, To paid your draft E. D.	
  Whitney & Co., date 18th inst.	56	2 80	300 00	
 -- 28, To your note due 13th Feb.	
  1837, unpaid,	63	10 33	983 61	
March 3, To paid your draft at sight,	
  date 1st inst.	45	5 25	700 00	
 -- 6, To paid your two drafts at	
sight, date 3rd inst.   $ 300 00	42	7 70	1,100 00	
   "   4th inst.   800 00	
 -- 20, To paid your draft at sight,	
  date 18th inst. favor E. P. Whitney	
  & Co.,	28	2 33	500 00	
 -- 24, To do. do. date 22nd inst.	24	2 80	700 00	
 -- 31, To do. do. " 29th "	17	1 98	700 00	
 -- 31, To paid your note due 14th	
  inst., unpaid,	34	4 61	813 08	
 -- 31, To do. do. 10th inst.	38	3 72	587 52	
 -- " To do. do. 23rd "	25	2 45	588 85	
 -- " To 3/4 per ct. additional com-	
  mission for collecting N. Sampson's	
  note, due in Cincinnati 12th inst.	
  for $ 1,069 83,			8 02	
 -- 31, To paid 3/4 per ct. do. do.	
  colclecting Neff & Brother's note	
  due in Cincinnati 27th instant,	
  $ 2,137 25,	17	07	16 03	
April 5, To paid your draft favor E.	
  D. Whitney & Co., at sight,	12	1 00	500 00	
 -- 7, To paid your draft, date April	
  5th, at sight, to your order,	10	67	400 00	
 -- 5, To your note due this day,	
  unpaid,	12	1 10	549 59	
 -- 5, To     do.    do.    do.	12	1 10	549 06	
 -- 14, To paid R. B. Hancorck's	
  draft at sight, favor E. D. Whitney	
  & Co., date 12th inst.	3	26	530 00	
 -- 14, To paid expenses protesting	
  your note, due 5th April, 1837,			2 13	
 -- 15, To your note due this day,	
  unpaid,	2	30	910 62	
 -- 17, To postages,			2 50	
 -- " To balance of interest to date	
  of account,			56 14	
	
CR.			$ 11,919 63	
  1837.	
March 8, By your acceptance, due	
  19th March, 1837,	29	3 39	701 38	
April 17, By balance carried down,	
  due 17th April, 1837,			11,218 25	
	
			$ 11,919 63	
	
April 17, To Balance due this day,			$ 11,218 25	
________________________________________________________________________________

 [**3]  

Baltimore, 17th April, 1837.     E. & O. E.

"To the clerk of Baltimore county court:

Mr. Kell,--You are hereby required, on receipt of this warrant, and the above oath and annexed vouchers on which the same is granted, to issue an attachment against the lands, tenements, goods, chattels and credits of the said Patrick Ryan and John Ryan, to answer unto the said Frederick Dawson and Philip Thomas Dawson, the above mentioned sum of eleven thousand two hundred eighteen dollars twenty-five cents, current money, and cost of this attachment, according to the acts of Assembly in such case made and provided, and this warrant shall be your sufficient authority therefor. Given under my hand and seal, this seventeenth day of April, in the year eighteen hundred and thirty-seven.

SAMUEL PICKERING, (Seal.)

A Justice of the Peace for the city of Baltimore."

And thereupon, by virtue of the said warrant, and in pursuance of the act of Assembly aforesaid, the said Frederick Dawson and Philip Thomas Dawson, by John Glenn, esquire, their attorney, prosecuted and sued forth out of the county court here, the writ of the State of Maryland, of attachment, in form following,  [**4]  to wit:

"The State of Maryland to the Sheriff of Baltimore county, greeting:

Whereas, Samuel Pickering, esquire, one of the justices of the peace for Baltimore city, hath this day issued his warrant to the clerk of said county, directing him to issue attachment against the lands, tenements, goods, chattels and credits of Patrick Ryan and John Ryan, to answer unto Frederick Dawson and Philip Thomas Dawson, the sum of eleven thousand two hundred eighteen dollars twenty-five cents: We therefore command you, that you attach the lands, tenements, goods, chattels and credits of the said Patrick Ryan and John Ryan, to the value of eleven thousand two hundred eighteen dollars twenty-five cents, current money, and cost of this attachment, according to the form of the act of Assembly in such cases made and provided. And we do further command you, that by good and lawful men of your bailiwick, you make known unto the person or persons in whose hands you shall make this attachment, that he, she or they be and appear before the judges of Baltimore county court, at the court house in the same county, on the first day in May next, to shew cause (if any he, she or they have,) why the lands,  [**5]  tenements, goods, chattels and credits by you attached by virtue of this writ, in his, her or their hands, shall not be condemned, and execution thereof had and made to and for the use of the said Frederick Dawson and Philip Thomas Dawson, as of the lands, tenements, goods, chattels and credits of the said Patrick Ryan and John Ryan, according to the act of Assembly in such cases made and provided, if to him, her or them it shall seem meet, and how you shall execute this writ, make known to our said judges, at the day and place aforesaid, and have you then and there this writ. Witness the honorable STEVENSON ARCHER, chief judge of our said court, the second day of January, in the year eighteen hundred and thirty-seven.

Issued the 17th day of April, 1837.

THOMAS KELL, Clerk."

And the said Frederick Dawson and Philip Thomas Dawson, by their attorney aforesaid, at the time of suing forth the aforegoing writ of attachment, prosecuted and sued forth out of the county court here, the writ of the State of Maryland, of capias ad respondendum, against the said Patrick and John Ryan; and also filed in said cause the following short note, to wit:

"Frederick Dawson and Philip [**6]  Thomas Dawson against Patrick Ryan and John Ryan--Action of assumpsit in Baltimore county court.--This suit is instituted to recover the sum of eleven thousand two hundred eighteen dollars twenty-five cents, due and owing from the defendants to the plaintiffs, for money lent and advanced by the plaintiffs to the defendants, and at their instance and request, and for money had and received by the defendants to and for the use of the plaintiffs.

J. GLENN, for Plaintiffs."

A copy of which said short note was made and sent with the writs aforesaid, to the sheriff of the county aforesaid, thereon endorsed, "To be set up at the court house door;" and the sheriff returned the same.

Laid in the hands of George Brown, one of the firm of John A. Brown & Co., and laid in the hands of John A. Brown & Co. the 17th of April, 1837, in presence of Robert Wilson and Samuel Hiser. "Non sunt P. and J. R. copy set up, John W. Walker, sheriff."

The garnishees appeared and pleaded non assumpsit and nulla bona, on which pleas issues were joined, and afterwards they moved the court to quash the attachment for the following reasons:

1. Because the claim on which the attachment in this [**7]  case was ordered, consisted of certain promissory notes of the absent defendants, and also of certain drafts drawn by said defendants; and the said notes and drafts do not appear to have been produced to the justice ordering the attachment, nor were they lodged with the clerk issuing it.

2. Because the claims on which the attachment in this case was ordered and issued, consisted in part, of certain promissory notes of the absent defendants, due to the plaintiffs in attachment, and the said notes were not produced to the justice ordering the attachment, nor were they lodged with the clerk issuing it.

3. Because the justice upon the claim as exhibited, had no authority to order, nor had the clerk authority to issue the attachment in this case.

The county court quashed the attachment, and the plaintiffs below appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

By the act of 1795, chap. 56 sec. 1, an attaching creditor at the time of making the preliminary proof of his claim, in order to procure a warrant for an attachment, is required to produce "the bond or bonds, bill or bills, "protested bill or bills of exchange, promissory note or notes, or other instrument "of writing, account or accounts by which the said debtor is so "indebted. Held--

It was not intended that the creditor should be bound to produce before the judge or justice, all the written evidence which may be in his possession, and which might be used before a jury to establish the debt, and entitle him to a condemnation of the property attached.

In an action against an endorser, it would be sufficient to produce the note endorsed by him.

So in an action upon an agreement containing dependent covenants, the production of the agreement would suffice.

So for the recovery of an open account, or for matters and things properly chargeable in account, though the creditor has written orders for each item, he need not produce them, nor more than his account, to the justice.

The act does not require the production of the testimony qua testimony, but of the cause of action. The account, bill, bond, &c., on which a declaration would be framed, and by which the debtor is so indebted.

The creditor in making his preliminary proof for the notes of his debtor, is bound to produce them; but where his claim arises upon the draft of his debtor on him, paid, the drafts are but testimony and need not be produced at that time.

Where the affidavit and account filed by the creditor warrant an attachment for a sum of money, but not for the whole amount claimed, it is irregular in the justice to award the attachment for a greater sum than is properly established under the act of 1795; but it is not such an error, the case is not so entirely coram non judice, as to authorise the county court, upon the appearance of the garnishee, to quash the attachment. 

COUNSEL:
By CAMPBELL and RICHARDSON for the appellants, and

By BROWN and MCMAHON for the appellees.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*58]  DORSEY, J., delivered the opinion of [**8]  this court.
To sustain the judgment of the county court, quashing the writ of attachment issued in this case, a number of the decisions 

 [*59]  of the courts in Maryland have been referred to, in all of which it is apparent, that the requisitions of the acts of Assembly in relation to attachments had not been complied with, and that the judge or justice before whom the proceedings were had, possessed no power to order any writ of attachment to issue thereon. And such, it is alleged, was the condition of the justice who directed the issuing of the writ before us. The objection taken to the proceedings before the justice, is the omission of the appellants to exhibit before him the notes and drafts referred to in their account. Whether this objection be well founded or not, depends upon the true construction of that part of the first section of the act of 1795, chap. 56, which requires the creditor, at the time of making his affidavit as therein directed, to produce "the bond or bonds, bill "or bills, protested bill or bills of exchange, promissory note "or notes, or other instrument or instruments of writing, account "or accounts, by which the said debtor is so indebted. [**9]  " We do not give to this requisition of the act of Assembly that interpretation which the argument of the appellees would impose on it, to wit, that the creditor is bound to produce before the judge or justice, all the written evidence which may be in his possession, and which might be used before a jury to establish the debt, and entitle him to a condemnation of the property attached; as for example, if the attachment, applied for, were against the endorser of a promissory note, and the creditor, the endorsee, were possessed of the written acknowledgment of the endorser, that the endorsement was in his hand writing, that the demand for payment had been duly made, and he notified of non-payment within the time prescribed by law, it would not be necessary to produce such acknowledgment before the judge or justice awarding the attachment; the production of the endorsed promissory note would be all that would be required; and if in the case of an agreement containing dependent covenants, as if A covenants to pay B a sum of money upon B's delivering to A, of certain specified articles, and B delivers the articles to A and takes his receipt therefor, upon an attachment against [**10]  A, the receipt need not be produced; 

 [*60]  the exhibition of the agreement itself being a sufficient compliance with the requisition of the act of Assembly. So if an attachment be required on an open account, for goods sold and delivered, money had and received, paid, laid out and expended, or money lent and advanced, and the creditor had the debtor's written orders for every item charged in the account, their production before the judge or magistrate is uncalled for by the act of Assembly. It requires not the production of the testimony, qua testimony, by which the creditor's claim is to be established, but the production of his cause of action, the account, bill, bond, note or instrument of writing, on which a declaration would be framed, as his cause of action, being in the language of the act of Assembly, "that by which "the said debtor is so indebted." Apply this doctrine to the case before us, and it deprives the magistrate of all power to have issued his warrant for an attachment for that part of the account which relates to the notes not produced before him; not so, however, as to the drafts. They form not the creditor's cause of action, and could not be declared [**11]  on as such. They are but testimony, by which, in connexion with other proofs, certain items in the account may be established. For all that part of the account, therefore, not founded on the notes, the proof is sufficient to have warranted the justice in awarding an attachment. Does the issuing of an attachment for a larger sum than the creditor by his cause of action has shown to be due, nullify the whole proceeding? is the question we are called on to decide. The authorities referred to have no bearing upon this question. In all of them it was manifest, that by reason of a non-compliance with the requisitions of the act of Assembly, the judge or justice had no authority for issuing an attachment for any amount, and therefore the writs of attachment were quashed, as being coram non judice. In the case at bar, we think the magistrate had power to have ordered an attachment; there is error for all that portion of the appellant's claim, dependent on the notes referred to in his account. There is error then in nothing but in the amount for which it issued. By quashing the writ in such a case, 

 [*61]  much greater injustice would be inflicted on the creditor, than sustaining the [**12]  writ would visit upon the debtor. The process is issued but to compel the debtor to appear to the suit instituted against him; and if injured or oppressed by an excessive seizure and detention of his property, his means of relief are immediate, and entirely within his own control. There is no danger therefore of any serious evil resulting from sustaining the writ of attachment in such a case. With as much justice and propriety might it be urged, that if on a trial with the garnishee, the plaintiff fails to recover the entire amount by him sworn to before the justice, he shall recover nothing, and the writ of attachment shall be quashed; or that if a bail piece be taken on the plaintiff's oath, as to the amount of his debt, for a larger amount than shall be recovered on the trial, that an exoneretur shall be entered thereon. We are aware of no principle or analogy of the law, which requires the quashing of the writ of attachment issued in this case for the cause assigned.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

CONCURBY:
BUCHANAN 

DISSENTBY:
BUCHANAN 

DISSENT:

BUCHANAN, C. J., and SPENCE, J., dissented.
BUCHANAN, C. J., delivered the following opinion:
I concur in the opinion of a majority of [**13]  the court, delivered by my brother DORSEY, that where a creditor who has a claim against an absent or absconding debtor, due on bond or note, or other instrument of writing, which he seeks to enforce by the process of attachment, he must at the time of making his application for the attachment, produce before the justice, &c., to whom the application is made, the bond or note or other instrument of writing by which the debtor is indebted, and that the production of an account merely, charging such bond or note, &c., is not sufficient. I agree too, that where the claim arises upon an account, the production of such account as that by which the alleged absconding debtor is indebted, is sufficient, without any voucher or proof to warrant an attachment for the amount charged and sworn to, the other requisites of 

 [*62]  the law being complied with. But I cannot yield my assent to so much of his opinion as sustains this attachment. The power given by the act of 1795, chap. 56, to a justice of the peace, &c., to award attachments, is a specially delegated authority, which this court has decided in Shivers and Wilson, 5 Har. & John. Barney and Patterson, 7 Har. & John.  [**14]  , and some subsequent cases, must be strictly pursued. That act requires that a creditor who is desirous of suing out the process of attachment against an absent or absconding debtor, shall make oath before a justice of the peace, &c., that such debtor is bona fide indebted to him or her, in a sum to be stated in the oath, over and above all discounts, and at the same time produce the "bond or bonds, bill or bills, protested "bill or bills of exchange, promissory note or notes, or other "instrument or instruments of writing, account or accounts by "which the debtor is so indebted," upon his doing which, that is making the oath, and producing the bond or bonds, &c., account or accounts by which the debtor is so indebted, the justice, &c., is authorised to issue his warrant to clerk to issue an attachment, but not otherwise.
Now, what is meant by the words "by which the debtor is so indebted?" Why, they refer the words "by which" to the bond or bonds, &c., account or accounts; and the words "is so indebted," to the oath, and mean (as it seems to me,) indebted to the amount as stated and sworn to. "By which said debtor is so indebted," can, I think, only [**15]  mean by which he is indebted to the amount stated in the oath, and if that be so, (of which I cannot doubt,) as it is only upon the making the oath, to the amount claimed to be due (which amount is required to be set out in the oath,) and at the same time producing the bond, &c., account or accounts by which the absent or absconding debtor is so indebted, that the justice, &c., is authorised to award an attachment. It would seem to follow, not by reasoning from analogy, (which is not always the safest way of coming at a correct conclusion, and need not be resorted to in this case,) but from the language and meaning of the law itself, that the justice, &c., whose power in that respect 

 [*63]  is special and limited and must be strictly pursued, can have no authority to direct an attachment to be issued unless those prerequisites are complied with; that is, unless in addition to the oath, stating the indebtedness and at the same time producing the bond or bonds, &c., account or accounts, or both, as the case may be, by which the debtor is indebted in the sum sworn to, and for which the attachment is sought to be obtained; and that done, the warrant for the attachment goes to the [**16]  clerk for the sum stated in the oath to be due. He cannot award an attachment without a previous oath, stating the sum in which the debtor is indebted. Now, if such oath be made, unless the vouchers by which he is so indebted shall at the same time be produced, the oath without the vouchers can give no authority; nor the vouchers without the oath. Neither can be dispensed with. The two must unite. In this case the plaintiff made oath before a justice of the peace, that the debtor was indebted to him in the sum of $ 11,218.25, and produced an account for that amount, made up, among other things, of charges to a large amount for notes due and unpaid. The production of that account, so far as concerns the other items charged, was sufficient, being that by which the alleged debtor was indebted for so much of the sum sworn to. But not covering the whole amount, and the act requiring the bond or bonds, note or notes, &c., account or accounts by which the debtor is indebted, in the sum mentioned in the oath, to be produced; and the notes charged in the account, by which he is indebted to a large amount of the sum sworn to, not having been produced, that requirement of the [**17]  act was not complied with as far as respects the notes charged, and without the production of the notes, by which he in part was so indebted, the justice of the peace, I think, was not justified in awarding an attachment for the whole amount of the sum sworn to, in a part of which only the debtor is indebted by the account produced. His authority only being to direct the issuing an attachment for the sum mentioned in the oath of a creditor, in the production of the voucher or vouchers, as the case may be, by which the debtor is so indebted; and there is no hardship 

 [*64]  in that, as it would be as easy to produce the vouchers themselves as an account charging them.
There was no authority for awarding an attachment for so much of the sum stated in the oath as was charged in the account to be due on notes that were not produced; and the attachment being for the whole sum, for a part of which the justice was not authorised to award it, it was improvidently issued; and being an entire thing, illegally directed and issued, and not warranted by the act of Assembly, it cannot in my opinion be split up, and sustained in relation to any part of the amount for which it was issued,  [**18]  and the court below, I think, did right in adjudging it to be quashed.
The inquiry is, was it properly issuable; was it authorised by the act of Assembly, and if not, can it now be awarded or deemed good for any purpose? I think not, stamped as it is with the want of authority in the justice to issue it.
NOTE BY REPORTERS. Since the case of Baldwin vs. Neale and Ridgeway, 10 G. & J. 274, originated, the act of 1834, chap. 79, was passed; the first section of that act dispenses with the averment, for the want of which that cause was decided; and which averment is not contained in the affidavit in this case, it being no longer necessary to do more than prove residence in the United States, &c., of some one of the plaintiffs at the trial, where such averment is not made in the affidavit to procure the attachment. The 3rd sec. of the act of 1834, chap. 79, is however repealed by the act of 1842, chap. 107.  

10 of 46 DOCUMENTS 

SAMUEL LUCAS et al. vs. MICHAEL MCBLAIR et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

12 G. & J. 1; 1841 Md. LEXIS 1 

December, 1841, Decided 

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

On the 4th December, 1841, Samuel Lucas, William Gwynn, Charles G. Ridgely, Oliver Holmes, George G. Belt and Chas. F. Mayer, exhibited their bill of complaint against Michael McBlair, George Cooke, Samuel Scribner, Henry M. Bash, William Pyfer and J. G. Gregory, and other persons composing the partnership of J. G. Gregory and Company, alleging, that by an act of the General Assembly of Maryland, passed at December session of 1838, chapter 323, entitled, An act in aid of the construction of a State Armory and Town Hall in the city of Baltimore, and the re-building and improvement of the Hanover Market House in said city. Your orators (excepting Holmes,) were appointed commissioners for the purpose of raising, by sales or drawing of schemes of lotteries, the requisite sum of money for the construction of the State Armory and Town Hall, which for the public convenience and defence, it was the purpose of said act to have erected. And your orators further show, that at their December session, 1839, chap. 52, an act supplemental to that just mentioned, was passed by said General Assembly, extending the term of operation of the original act, and of the privileges [**2]  and rights conferred by said act. And your orators pray reference to said original and supplemental acts, as they appear in the printed compilations of the acts of the aforesaid sessions, and that they be deemed and taken as part of this their bill. Your orators now further state, that the Mayor and City Council of Baltimore, whose property and interest are to be availed of, and to be affected by the said acts, and by the structure by the same required, did, in consideration that said structures should be made, become a party to said acts of Assembly, and grant their assent, and the privilege and control to the said commissioners in respect of the use of the ground and property of said corporation, which are contemplated in the fourth section of the said original act. And your orators state, that thereupon, and to accomplish the project so devised and ordained by the State of Maryland, and through the said assent and concession of said corporation, so stipulated for by the Mayor and City Council of Baltimore, the commissioners aforesaid proceeded to make contracts with persons for purchase of schemes of lotteries so authorised, which contracts were performed; and finally to cause schemes [**3]  of lotteries to be drawn under their own direction, they by their agents selling the tickets therein. And your orators aver, that as commissioners under the acts aforesaid, they are now engaged in carrying out the objects of said acts, by sales in manner aforesaid, with reference to the said purpose of the General Assembly, and of the Mayor and City Council of Baltimore. And your orators give your honor to know, that Solomon Hillen, who by said original act was appointed one of said commissioners, resigned his said office, and that Oliver Holmes, your orator, was duly appointed a commissioner in his place, giving bond with approved security, as did each of your orators, according to the requirements of said acts of Assembly. And your orators suggest, that being thus the constituted agents of an undertaking of much public importance, and which it is the view of the State of Maryland and of the Mayor and City Council of Baltimore to have accomplished as promptly as may be, and for which it is the policy and intent of said acts, that means should be procured as largely and surely as practicable, your orators are specially interested in seeing maintained all the restrictive provisions [**4]  of the law and Constitution of Maryland touching the privilege of lotteries. And now your orators show, that certain officers, by virtue of enactments of the General Assembly of Maryland, have been from time to time appointed, and now are officiating, called commissioners of lotteries, representing the State in reference to the revenue derivable to her from drawings of lotteries and sales of schemes, and licenses for selling lottery tickets, whose duties however, are particularly defined and prescribed in the several relevant acts of Assembly, to which in that respect your orators refer; your orators showing, that the actual commissioners now are, Michael McBlair and George Cooke. Your orators further show, that by the first section of the acts of the General Assembly of Maryland, passed at December session 1831, chap. 79, entitled, An additional supplement to an act to amend the lottery system, the said commissioners are empowered to grant at any time after the passage of said act, a license or licenses to any person or persons, to be in force for one year from the date of the grant thereof, to sell not only tickets in any scheme or schemes of a lottery or lotteries which the said [**5]  commissioners shall form and dispose of, or authorise for the benefit of the State, but also to sell tickets in any scheme or schemes of a lottery or lotteries granted by any of the States of the Union, or by the United States of America, and submitted to and approved by said commissioners, it being further provided, that the person or persons so licensed, shall at or before the obtaining of the licenses, contract with the commissioners aforesaid, for the right to draw a scheme or schemes of a lottery or lotteries within the year for which the license shall be granted, which scheme or schemes shall produce to the State, at least the sum of fifteen thousand dollars within said year. And your orators now state, that in pursuance of the provision of law just recited, the commissioners of lotteries have habitually made contracts with certain individuals, for the benefit of such individuals, of certain schemes of lotteries, devised or approved by the commissioners in behalf of the State; and with reference to the yearly profit of at least fifteen thousand dollars, contemplated to be assured to the State by the terms of the act referred to; such schemes being thus created and operative for [**6]  the benefit of the State of Maryland; and the fruit and profit thereof commuted by the contracts aforesaid, made by the commissioners as aforesaid, with certain individuals. And your orators show further, that conformably to said acts of Assembly, the commissioners of lotteries have been accustomed to grant licenses to said contracting individuals, authorising them or their assignees of the licenses, to sell tickets of lotteries of the State as aforesaid, or of foreign lotteries of other States, or of the United States, within the scope of the provision already herein before set forth, as to those licenses. And your orators state and charge, that under licenses so granted by the commissioners of lotteries, and under colour of the said act of Assembly, tickets have ever since the passage of said act been sold, and are now selling within the city of Baltimore and in the State of Maryland at large, in schemes of lotteries for the State's use as aforesaid, and of lotteries granted and sanctioned by only other States of this Union, or by the United States of America, such sales being made not only by the contracting individuals, and the grantees of the State of the said licenses, by numerous [**7]  assignees of said licenses, under transfer of them respectively from said contractors. And your orators further show, that the contractors aforesaid, for the disposal of said licenses, and the sale of tickets to those using the licenses aforesaid, as grantees of said contractors, have customarily had, and now have, agents in the city of Baltimore, such agents receiving from the commissioners of lotteries the tickets of the various schemes; that the commissioners have approved for the dealing of said contractors and the holders of said licenses, the tickets so delivered, being stamped by said commissioners in token of the approval of the schemes, as required by the act of Assembly aforesaid, of the year 1831. And your orators state, that the persons who have contracted as aforesaid with the commissioners of lotteries, and have so contracted since the tenth day of March, in the year 1841, the day of the passage by the said General Assembly of the act hereinafter mentioned, entitled An act to confirm an act entitled, an act to alter and amend the Constitution, so far as it relates to the power of the Legislature to grant lotteries, passed at December session 1839, chap. 31, are J. G.  [**8]  Gregory and other persons, to your orators unknown, composing the partnership of J. G. Gregory and Company; and that the agents aforesaid of said contractors, acting and managing for them, in manner aforesaid, in the city of Baltimore, are Samuel Scribner, and William Pyfer and Henry M. Bash, doing business as such agents and managers, under the style of partnership, of S. Scribner and Company. And your orators state and charge, that at the December session of the year 1839, the General Assembly of Maryland, contemplating the evils of unlimited lottery dealings, and of the multiplied lotteries agitating and alarming the community, and absorbing their means in many instances, to be diverted to objects of other States, and to be accomplished beyond the borders of Maryland, and repudiating as a source of revenue to the State, the fruits of such inordinate dealing, struck from the ordinary powers of legislature the sanction of lotteries, by passing the act entitled, An act to alter and amend the Constitution, so far as relates to the power of the Legislature to grant lotteries, declaring, that from and after the confirmation of that act by the succeeding Legislature, "no new grant should [**9]  be made to authorise the drawing of any lottery, or the traffic or dealing in lottery tickets, or schemes or devices in the nature of lotteries, or the distribution of money or property by chance;" and your orators state, at the next succeeding session of the Legislature, on the tenth day of March, in the year 1841, by an act entitled as above, an act to confirm the aforesaid act of the session of 1839, chap. 31; the act aforesaid forbidding to the Legislature the power of lottery grants, was confirmed and made part of the Constitution of Maryland; and the State itself, disabled from continuing the practice of lottery dealing, and drawing to the treasury the premium of the mischief which the Constitution thus marked and denounced. But your orators charge, that notwithstanding this constitutional condemnation and inhibition, the commissioners of lotteries, although the agents of the State, who has thus interdicted herself the privilege and profits of lotteries, have nevertheless, in continuance of the evil repudiated by the constitution, entered into contracts of the same scope as those permitted before this Constitutional ordinance, and have approved and allowed to be availed of, (and [**10]  allowed tickets therein to be sold under licenses as aforesaid,) schemes of lotteries for the State of Maryland, and schemes of lotteries granted and authorised above by other States, and have stamped as aforesaid tickets in such schemes, and issued them to the contractors or their agents aforesaid, which contractors and agents your orators have above named. And your orators aver and charge, that by sanction as aforesaid by said commissioners of lotteries, and by the instrumentality of said contractors and said agents, and under pretext of the licenses aforesaid, emanating from said commissioners of lotteries, schemes are every week approved for State lotteries aforesaid, and of lotteries granted and authorised above by other States, and tickets are largely and busily sold under many licenses issued as aforesaid, by said commissioners of lotteries to said contractors, and from them passing to the numerous grantees of the licenses, said commissioners stamping and authenticating thus, or by signature, the tickets so set afloat; and thus affording every ostensible warrant and all encouragement to a transgression of a solemn constitutional rule, and misinterpreting and exceeding the limits [**11]  of their constitutional duty, as agents of the State. And your orators aver and charge, that by such action of said commissioners of lotteries and of the agents and persons aforesaid, not only is that social injury done which the Constitution so studiously sought to avert, but the undertaking to which, as aforesaid, your orators have been appointed as representatives of important purposes of the State and of the city of Baltimore, and which the State seeks to promote, has been seriously retarded, and its interests much prejudiced; and your orators aver and charge, that the project aforesaid of the State, over which they, as aforesaid, preside, must be long delayed, if not utterly intercepted for its accomplishment, if the unconstitutional procedure aforesaid, of which your orators now complain, be not arrested. All which is much to the grievance of your orators; in tender consideration whereof, and forasmuch as no effectual remedy can be afforded in the premises, except in this honorable court.

To the end, therefore, that said Michael McBlair and George Cooke, and said J. G. Gregory and the other persons, his partners as aforesaid, and Samuel Scribner, and Henry M. Bash, and William [**12]  Pyfer, may on oath, answer the premises, and that said McBlair and Cooke, commissioners as aforesaid, may be perpetually enjoined from approving any schemes of any lotteries granted by any of the States of the Union, or by the United States of America, and from devising and approving, and authorising the drawing of any schemes of lotteries for the State of Maryland and the benefit thereof, as contemplated by the said act of Assembly, passed at the session of the year 1831; and that said McBlair and Cooke, as commissioners, be so enjoined from countersigning or stamping, or by any mark or token whatsoever, approving or authenticating any tickets in any schemes of any lotteries as aforesaid, granted by other States than Maryland, or by said United States, or in any schemes devised by, or proposed to, or approved by said commissioners, for the benefit of the State as aforesaid; and further, that said Scribner, and Bash, and Pyfer, be perpetually enjoined from issuing or delivering, or selling or disposing of, or in any wise parting with any tickets of any lottery or lotteries granted by another State than as aforesaid, or by said United States, whether such tickets be or be not approved [**13]  or stamped or countersigned by said commissioners, or either of them, and whether the schemes of such lotteries be or be not approved by said commissioners; and in like manner that they be so enjoined in respect of any lotteries or schemes or tickets thereof, or therein devised or approved by said commissioners of lotteries, for the benefit of the State of Maryland as aforesaid; and further, that said J. G. Gregory and the other persons, his partners as aforesaid, be in like manner perpetually enjoined in respect of any such lotteries or schemes or tickets therein and thereof, as to which such injunction is above prayed and suggested against said Scribner, and Bash, and Pyfer; and that your orators may have such further and other relief in the premises as to your honor may seem right. Subpoena and order of publication, &c. The bill was sworn to by three of the complainants.

On which bill the Chancellor (BLAND) passed the following order:

The State not being represented by its Attorney General, being made a party, no injunction can be granted as prayed by the foregoing bill of compliant.

Afterwards, on the 8th December, 1841, the complainants filed in the said cause the [**14]  following order of the Honorable STEVENSON ARCHER, on of the Judges of the Court of Appeals.

"Upon the aforegoing proceedings, it appearing to me that "the Chancellor has erred in refusing to grant the injunction "prayed for, it is ordered this 7th day of December, 1841, "that the Register in Chancery, do issue the injunction as "prayed in the bill, upon the complainants, or some of them, "executing a bond with security to be approved by the Chancellor, "in the penalty of five thousand dollars, conditioned to "prosecute their injunction with effect, and pay and satisfy "the defendants, all costs to which they may be subjected by "said injunction, and also pay and satisfy all damages which "they or either of them, or the State may sustain by the granting "and continuance of this injunction."

Afterwards, upon the petition of the complainants, the said Judge of the Court of Appeals approved of an injunction bond, &c., and directed the Register of the Court of Chancery to issue an injunction as prayed in the complainants' bill.

In pursuance of the said order, an injunction was issued in the usual form.

The defendants appeared and filed their answers. But as those answers [**15]  are not referred to by the opinion of this court in its disposition of the cause, the reporters deem it unnecessary to publish them. Upon motion at the usual time, His Honor the Chancellor dissolved the injunction, and the complainants having obtained an order from his honor, ARCHER, Judge, prosecuted the appeal to this court.  

DISPOSITION:
ORDER REVERSED AND CAUSE REMANDED.  

HEADNOTES:

By the act of 1838, chap. 323, commissioners were appointed by name to build a Town Hall in Baltimore, and with power, by a scheme or schemes of lotteries and sales thereof, or tickets therein, to raise the sum of, &c. These schemes were to be approved of by the Commissioners of Lotteries. By the act of 1839, confirmed in 1840, it became a part of the Constitution of Maryland, that "no new grant to authorize the drawing of any lottery, or the traffic or dealing in lottery tickets, or schemes or devices in the nature of lotteries, &c., shall be made." The commissioners of lotteries were public officers of annual appointment. By bill filed in 1841, the Town Hall Commissioners complained, that while they were endeavouring to sell the tickets in their schemes, the Commissioners of Lotteries, since the acts of 1839-40, "approved, and allowed to be availed of, (and allowed tickets therein to be sold under licenses,) schemes of lotteries for the State of Maryland, and schemes of lotteries granted and authorised by other States than Maryland; stamped tickets in such schemes, and issued them to contractors for sale, and under pretext of licenses emanating from such Commissioners of Lotteries, that the same were largely sold, thereby violating the acts of 1839-40, also seriously interfering with the sales of the complainants, in their Town Hall schemes authorised by the act of 1838. To restrain this evil their bill prayed for an injunction against the Commissioners of Lotteries, and the persons licensed by them, in relation to the approval of tickets in the lotteries for this State and other States, and sales of tickets therein and granting licenses therefor. Upon this it was held--

That considering the difficulty of obtaining adequate redress at law, and the probability that a multitude of suits would necessarily be instituted to protect the complainants' franchise, the process of injunction was a proper remedy.

That as trustees, invested by law with an important public duty, they were competent, as parties, complainants, to proceed in equity in their own names, to protect the franchise committed to them from violation.

The State was not necessary party to the bill in order to obtain an injunction.

It was the object of the act of 1839, chap. 39, to prohibit in future, all lottery grants by the Legislature, and all grants of licenses to deal in lotteries by the lottery commissioners, so far as it could be done without affecting antecedent or prior vested rights, secured by a constitutional sanction.

The difficulty of obtaining adequate redress in a court of law is one of the well established grounds for resorting to a Court of Chancery, and especially where in the pursuit of justice it may be necessary to resort to a multiplicity of actions at law.

A statute privilege, in possession, of an exclusive character, not admitting of an injurious competition, may in its use and enjoyment be protected by injunction, equally essential in such cases to prevent ruinous litigation, as fraud and evasion of the right. A franchise to propose a scheme of a lottery and sell tickets for a particular object, is so far of an exclusive nature, as to be within the principle above stated.

The act of 1828, chap. 129, sec. 21, recognizes the propriety of a resort to the writ of injunction in such cases. To prevent irreparable injury or multiplicity of suits, are grounds for obtaining an injunction. This preventive remedy is now granted more liberally than formerly.

Commissioners appointed by law--invested with a public trust--with means for its execution--with full power to act--must be entitled to use all the appropriate means necessary to the end in contemplation, and are regarded as having such an interest in the subject confided to them, as will enable them to proceed before the tribunals of the country, for the due protection of the rights entrusted to them.

It is not necessary in all cases, that the cestui que trusts or parties beneficially interested, should be parties to a bill in equity.

Executors and administrators who may sue, or be sued, in many cases sufficiently represent creditors, legatees or distributees, for whom they are trustees.

The want of a party as a defendant, is generally no ground upon which to claim a dissolution of an injunction; a necessary party may be supplied before final hearing.

It is the constant aim of courts of equity to do complete justice, by deciding upon and settling the rights of all parties interested in the subject matter of the suit, but this may be obtained by having the necessary parties before the court at any time before the final decree is passed.

If all persons interested are not made parties to the suit, the court many times, upon hearing, will not for want of them proceed to a decree.

The act of 1839, chap. 31, was not confined to grants of lottery privileges by the Legislature, but was intended to cover the whole system of dealing in lotteries, and to prohibit the granting of licenses by the Lottery Commissioners, and the sale of schemes by them, except as to existing private lottery grants; and the power the Legislature before possessed of regulating such private grants, and the means by which they might be more effectually and speedily accomplished.

Where the object of the Legislature in passing a statute, was the suppression of a great moral evil, the construction of it should be benign and liberal, and not so restricted as to leave much of the mischief designed to be suppressed, the chance of still being successfully pursued.

The title and preamble of an act are, strictly speaking, no parts of it, though they may be resorted to in explanation of the enacting clause, if it be doubtful; or to restrain its generality, when it would be inconvenient if not restrained.  

COUNSEL:
By NELSON, MAYER, and R. JOHNSON, for the appellants.

Who relied upon the act of 1839, chap. 31. "An act to alter and amend the Constitution so far as relates to the power of the Legislature to grant lotteries," viz:

Sec. 1. Be it enacted, &c., that from and after the confirmation of this act &c., no new grant to authorise the drawing of any lottery, or the traffic or dealing in lottery tickets, or schemes or devices in the nature of lotteries, or the distribution of money or property by chance, shall be made, confirmed by the act of 1840, as prohibiting the defendants, the Lottery Commissioners of Maryland, from entering into any new contracts for the sales of lottery tickets, or granting any further licenses for such objects.

Sec. 2. That the State, in the name of the Attorney Genernl, was not a necessary [**16]  party to the cause, and that if proper to be made a party, the objection cannot be availed of to effect a dissolution of the injunction.

By MCMAHON and W. SCHLEY for the appellees, who contended--

1. That this was not a proper forum before which the complainants should have sought redress.

2. That if the court had jurisdiction, the State, or the Attorney General as the representative of the State, was a necessary party.

3. That the Town Hall Commissioners have no such interest in the subject matter of this controversy as would enable them to apply for a writ of injunction.

4. That the construction given to the act of 1839, chap. 31, was erroneous. The Lottery Commissioners could still grant licenses and still renew them. The acts of 1838, chap. 323, and 1839, chap. 52, under which the Town Hall Commissioners claimed to proceed, will be found in 11 Gill & Johnson's Reports, 515, &c., and to which the reader of this case is referred.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*12]  STEPHEN, J., delivered the opinion of the court.
The decision of four questions will we think cover the [**17]  whole ground of controversy in this case. Those questions involve--
The right and jurisdiction of the court to grant the preventive process of an injunction, as an appropriate remedy to arrest the mischief of which the appellants complain:
The true construction of the constitutional amendment inhibiting lottery grants and the dealing in lottery tickets in this State:
The competency of the complainants in point of interest, to sustain the suit, and--
The propriety of the State's being represented by its Attorney General, as a necessary party to the proceeding.
In reference to the first question, we think that a court of equity was the proper tribunal to take cognisance of the case; and that the prohibitory process of an injunction was the proper remedy to arrest the gravamen.
The difficulty of obtaining adequate redress in a court of law, is one of the well established grounds for resorting to a court of chancery; and more especially, where it may be necessary, in the pursuit of justice, to institute a multiplicity of actions for that purpose. The injury complained of in this case would necessarily lead to that result, if redress should be sought in a court of [**18]  common-law jurisdiction; and it is mainly upon that ground, that an injunction is held to be the proper remedy, to secure to a party the enjoyment of a statute privilege, where it is of an exclusive character, and does not admit of any injurious competition. In 1 John. 615, Chancellor Kent says, "it is settled that an injunction is the proper remedy to "secure to a party the enjoyment of a statute privilege, of "which he is in the actual possession, and when his legal 

 [*13]  "title is not put in doubt. The English books are full of "cases arising under this head of Equity Jurisdiction." In the same case, he says: "The equity jurisdiction in such a "case is extremely benign and salutary; without it, the party "would be exposed to constant and ruinous litigation; as well "as to have his right excessively impaired by frauds and evasion."" It is true the right, which the complainants seek to protect from violation in this case, is not one absolutely and entirely exclusive in its nature, but it possesses the quality and attribute of exclusiveness, at least to a qualified extent; and sufficiently so, we think, to render the principle and practice, upon which the [**19]  equity jurisdiction is founded, not inapplicable. It is moreover not unworthy of consideration, that the jurisdiction of a court of equity to apply a preventive remedy in this case, has, to a considerable extent, received the sanction of the Legislature in the act of 1828, chap. 129, sec. 21, where they direct an injunction to be obtained, to prevent or restrain the drawing of lotteries, which may be unauthorised by the laws of this State. The remedy by injunction, is there spoken of, as one already in existence, and not for the first time given or created for the purpose by that act. In a case of ordinary trespass, remedial justice, in the shape of damages, is only to be obtained in a court of law; but it is now settled, that where the injury would be irreparable, or to prevent a multiplicity of suits, the interference of a court of equity may be obtained to stay the mischief by the preventive process of an injunction. See 6 Johns. Ch. 499. In this case Chancellor Kent observes, that Lord Eldon said in 7 Ves. 305, that the law as to injunctions, had changed very much, and they had been granted much more liberally than formerly. We think, therefore,  [**20]  that under the peculiar circumstances of this case, considering the difficulty of obtaining adequate redress at law, and the probability that a multitude of suits would necessarily be instituted to protect the complainants franchise, supposing it to exist, (which upon the present occasion must be assumed to be the case,) the process of an injunction was properly applied to arrest the mischief of which the appellants complained, and that a court of equity had jurisdiction to grant the writ.

 [*14]  The next question to be considered, is the competency of the complainants to file the bill to obtain the interference of a court of equity, to protect them in the use and enjoyment of a statute privilege, of which they were trustees for great and important public purposes.
By the act of Assembly under which they received the appointment of commissioners, they were invested with a highly responsible public trust; the due and faithful execution of which depended upon maintaining inviolate, the lottery privilege which had been granted to those for whom they were constituted agents, with full power and authority to act in that capacity. A large sum of money was to be raised by the lottery [**21]  grant, to enable them to accomplish the object of their appointment, and in the language of the law, full power and authority were given to them for that purpose. To enable them to execute this important trust, all the appropriate means necessary to that end ought to be considered as incidentally granted, so far at least as the necessity of making parties of their principals may be involved. As trustees cloathed with an important trust, we think they had a sufficient interest in the subject matter of the suit, to enable them to file a bill for the purpose of obtaining an injunction.
According to the principles of equity jurisprudence, it is not necessary in all cases, that the cestuique trust, or parties beneficially interested, should be parties to the suit. A familiar instance to the contrary exists in the case of executors and administrators, who may sue or be sued, as sufficiently representing the creditors, legatees, and distributees, for whom they are trustees. In Story's Eq. Plead. 138, it is said: "It has "been well remarked by an eminent author, in many cases, "that the expression, that all persons interested in the subject "must be parties to the suit, is not to [**22]  be understood as extending "to all persons who may be consequentially interested. "In all cases of bills by creditors, and legatees, the persons entitled "to the personal assets of a deceased debtor, or testator, "after payment of the debts or legacies, are not deemed necessary "parties, though interested to contest the demands of 

 [*15]  "the creditors and legatees." In page 139, the same author remarks: "Perhaps the true explanation of this doctrine is, "that in cases of this sort, courts of equity proceed upon the "analogy of the common law, which treats the personal representative "of the deceased debtor or testator as the regular "representative of all the persons interested in the personal "assets, and bound by his bona fide acts, so far as third persons "are concerned. If so, the doctrine stands upon a very "intelligible and reasonable footing; and we shall presently "see, that in this view, it is not peculiar to this class of cases. "And this leads us in the next place to suggest, that courts "of equity do not require that all persons having an interest in "the subject matter, should under all circumstances, be before "the court as parties. On the contrary, there are [**23]  cases in "which certain parties before the court are entitled to be "deemed the full representatives of all other persons, or at "least so far as to bind their interests under the decree, although "they are not or cannot be made parties. Thus, for "example, where real estate had been purchased by a joint "fund, raised by a subscription in shares of more than two "hundred and fifty subscribers, and the property had been "conveyed to certain persons as trustees for the subscribers; "and afterwards a bill was brought against the trustees for the "sale of the real estate, under a mortgage made in pursuance "of the trust, it was held, not necessary for the subscribers to "be made parties to bill; for the trustees, by the very nature "and constitution of such a trust, must be held sufficiently to "represent the interest of all the subscribers, and a different "doctrine would be attended with intolerable hardship and inconvenience, "as it might be impossible to make all the "subscribers parties." So, in page 171, the principle is stated to be in accordance with the above doctrine, that "where a "mortgagor has conveyed his equity of redemption to trustees, "for the benefit of his other creditors,  [**24]  the trustees alone are "generally the proper parties to a bill to redeem; and not any "of the creditors entitled under the trust." We therefore think, that under the circumstances of this case, the complainants, 

 [*16]  as trustees invested with full and plenary power to execute the undertaking confided to their management, had a competent standing in court, to ask for and to obtain the injunction, which was granted in this case.
The objection that the State ought to have been a party to the proceeding, is of no avail at the present stage of the suit. In other words, it is no ground upon which to claim a dissolution of the injunction. If a necessary party to the cause which it is now not necessary to decide, that defect may be supplied at any time before the final hearing. It is true, it is in all cases the constant aim and object of courts of equity to do complete justice, by deciding upon and settling the rights of all persons interested in the subject matter of the suit, so that the performance of the decree of the court may be perfectly safe to those who are compelled to obey it, and also that future litigation may be prevented, and a decree made which shall bind all; but [**25]  this object may be attained by having the necessary parties brought before the court at any time before the final decree is passed in the cause. And if all persons interested are not made parties to the suit, the court many times, upon hearing, will not for want of them, proceed to a decree. See Wyatt's Chan. 299.
There remains but one other question to be considered and decided to make a final disposition of the matters in controversy in this case; and that is, the construction which ought to be given to the constitutional amendment upon the subject of lotteries.
We have no doubt, that it was the object and policy of the Legislature, in adopting that amendment, to prohibit in future, not only all lottery grants by the Legislature, but all grants of licenses to deal in lotteries by the Lottery Commissioners, so far as it could be done, without affecting antecedent or prior vested rights, secured by a constitutional sanction. In confirmation of this construction, we would remark, that as early as the year eighteen hundred and thirty-five, they expressed an anxious desire that the lottery system should expire at as early a day as practicable, and to effectuate that desire, and [**26]  extirpate 

 [*17]  the whole system, the constitutional amendment was, we think, subsequently adopted.
By the act of 1831, chap. 79, the Commissioners of Lotteries are authorised to grant licenses to sell tickets, either in foreign or domestic lotteries, to be in force for the term of one year from the date thereof; and by the constitutional amendment, which originated in 1839, chap. 31, and was confirmed in 1840, chap. 261, it is provided, that "no new grant shall "be made to authorise the drawing of any lottery, or the traffic "or dealing in lottery tickets, or schemes, or devices in the "nature of lotteries, or the distribution of money or property "by chance." This language, we think, is too explicit to be misunderstood. The term grant, is used indiscriminately as applicable, not only to the drawing of lotteries, but to licenses to sell tickets in any scheme or schemes of lotteries, which shall be approved by the said commissioners. The prohibition, therefore, was not exclusively confined to grants of lottery privileges by the Legislature, but was manifestly intended to cover the whole system of dealing in lotteries, and to prohibit likewise the granting of licenses to sell [**27]  tickets by the Lottery Commissioners, and the sale of schemes by them. No other construction would, we think, be warranted by the terms used, or be calculated to carry into effect the policy and design of the Legislature in adopting the constitutional amendment. The object to be accomplished was the suppression of a great moral evil, and to effect so praiseworthy and laudable a purpose, the construction should be a benign and liberal one. A limited interpretation of the Constitution, confining the prohibition to legislative grants, whilst it would be inefficient and inoperative in alone suppressing the mischief, by leaving the door still open to foreign lotteries, would at the same time impute to the Legislature the folly and absurdity of accomplishing the contemplated object only by halves. It is true, the title of the act is calculated to give countenance to such a confined and limited construction--"it is to amend the Constitution, so far as relates to the power of the Legislature to grant lotteries." But the title of the act, and the preamble 

 [*18]  to the act, are, strictly speaking, no part of it, though they may be resorted to in explanation of the enacting clause, if it [**28]  be doubtful; or to restrain its generality, when it would be inconvenient if not restrained. This is the whole extent of the influence of the title and preamble in the construction of a statute. See 1 Kent's Com. 460, 461. The same author says, that "the true meaning of the statute is generally and properly to be sought from the body of the act itself." Looking therefore in this case to the body of the act for the meaning of the Legislature, we think that their intention is too clearly expressed to admit of controversy; and that such intention was a total suppression in future, of all lottery grants by the Legislature; and of all licenses to deal in lotteries by the Lottery Commissioners, or sales of schemes by them. In adopting the constitutional enactment of 1839, it was not the design of the Legislature to interfere with existing private lottery grants, or to restrict or impair the powers it before possessed of regulating the same, or modifying or changing the means or mode by which such grants might be more effectually or speedily accomplished. Such legislation would promote rather than conflict with the constitutional provision, and tend to hasten the epoch when to draw a [**29]  lottery in Maryland was no longer tolerated by law.
ORDER REVERSED AND CAUSE REMANDED.  

11 of 46 DOCUMENTS 

ELIZA JONES vs. RICHARD T. EARLE, EXECUTOR OF ALFRED JONES.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 Gill 395; 1843 Md. LEXIS 34 

December, 1843, Decided 

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

This was an action of Assumpsit, commenced by consent of parties, under the following agreement:

It is hereby agreed, that all errors in pleadings be waived, and that the paper marked "Plaintiff's exhibit A," herewith annexed, is a true copy of the last will and testament of Alfred Jones, deceased, as well as of the codicil thereto annexed; that after the execution of the said will and codicil, the said A. J. departed this life, and that after his death, the said last will and codicil were duly proved and recorded; that after the same was proved and recorded, the said Richard T. Earle alone took out letters testamentary on the estate of said A. J., and that after he the said R. T. E. became executor as aforesaid, he the said R. T. E., with the consent of the said Eliza Jones, disposed of, and converted into money, all the cattle, sheep and hogs of the said A. J., on his farm at the time of his death, and all the farming utensils, and a part of the house-hold furniture of the said A. J., and that the said R. T. E., as sole trustee under the will, with the consent of the said E. J., invested the said money in bank stock, under a decree of [**2]  the Court of Chancery, affirmed by the Court of Appeals, for the benefit of the said E. J., during her life, and for the benefit, after her decease, of Arthur T. Jones, who is named in said will. It is also admitted, that the said R. T. E., as sole executor of the said A. J., has paid all the debts and legacies of the said A. J., and passed a final account, as executor as aforesaid, and hath delivered over to the said Eliza Jones, all the property, including the negroes, (except the negroes who had absconded at the time of said A. J's. death,) to be held by the said E. J., during her natural life, and that the said R. T. E. has invested the stocks held by the said A. J., at the time of his death, for the benefit of the said E. J., during her natural life, and has paid the dividends thereof, which have hitherto accrued, as well as the dividends that have accrued on the stocks invested under the sanction of the Court of Chancery, to the said E. J. And it is further admitted, that since the said negroes have been delivered over to the said E. J., one of them named Jeff, and another of them named Peggy, did run away, and were subsequently apprehended, and sold as slaves for life, to purchasers [**3]  out of the State, by the said E. J., and that the said E. J. received the purchase money for the negroes so sold as aforesaid, and has ever since held the same; that the said sales were made without the consent of the said R. T. E.; that negro Jeff ran away about the 6th of August 1836, and was apprehended and sold by the said E. J. about the 20th of August 1836, for the sum of $ 800, and that the expenses of apprehending the said negro Jeff, amounted to $ 50, which expense was paid by the said E. J.; that about the 25th of March 1841, negro Peggy ran away, and that she was apprehended and sold about the 30th March 1841, for the sum of $ 575, and that the expenses of apprehending her amounted to seven dollars, which amount was paid by the said E. J. It is further admitted, that the said R. T. E., as executor as aforesaid, had no knowledge of the said sales, at the time that they were made, and never consented thereto, and that since the said sales, and before the bringing of this suit, he demanded from the said E. J. the proceeds of the said sales, for the purpose of investing the same for the use of the said E. J., during her life, and after her death, for the benefit of Arthur T.  [**4]  Jones, the residuary legatee in the will of the said Alfred Jones, but that the said Eliza Jones refused to pay over the said proceeds, and claimed the said slaves as having been forfeited to her. It is further agreed, that no objection is to be made to the form of this action. It is further admitted, that R. T. E. is the only trustee named in the will of Alfred Jones, who has accepted the trust; that the case be docketed to May term 1842 of Baltimore county court; that the nar, plea and foregoing statement of facts and argument, be filed, and that judgment pro forma be entered by Baltimore county court, for damages in nar, to be released on payment of $ 1,318, and costs, and that the defendant may appeal to the June term of Court of Appeals, without giving security.

The will of Alfred Jones, referred to in the statement, after disposing of his real estate, proceeded as follows:

"I give and bequeath unto my said friends, (R. T. E. and others,) their executors, administrators and assigns, all my personal estate, of every description: In trust, nevertheless, to manumit all my slaves as they severally arrive to the age of forty years, the said forty years of age to be determined [**5]  by an entry in the last part of my oldest day-book, where I have made a list of their names and respective ages; and to manumit all my said slaves, immediately upon my real estate devolving on my said grand nephew, Arthur T. Jones, should it come to his hands; and in trust also, to hold my said estate, including my said slaves, for the time they have to serve, for the use of my said dear wife Eliza Jones, and any child or children I may have by her, for and during the term of her natural life, and after her death, for the use of my child or children that may survive her, their executors, administrators and assigns, for ever. If my said wife should have no child or children by me at her decease, or if my surviving child or children should die without lawful issue of their bodies, before they arrive at the age of twenty-one years, then, in trust, to hold my said personal estate, except my slaves, for the use of my grand nephew, A. T. J. aforesaid, his executors, &c., for ever." There were other devises over of the testator's personal estate except his slaves. The testator also made provision for the support of some of his aged slaves, then unable to labor. This will was dated on the [**6]  16th August 1830.

On the 15th February 1831, the testator added the following codicil to his will:

"I hereby revoke and make void that part of my will which manumitted my servants, as they severally arrive at the age of forty years, and do now give and devise all my said servants (except old Harry,) to my dear wife, for and during her natural life, and after her death, then said servants to be free; but in case that any of said servants shall run away, and afterwards be apprehended, they shall forfeit their freedom, and be sold for life. I do hereby give and devise to my dear wife the sum of one thousand dollars, to dispose of as she may think proper. If any of my servants, which I have at this time run away, shall be apprehended after my death, I do hereby direct that they shall be sold for life."

Upon this agreement, Baltimore county court rendered judgment for the plaintiff, and the defendant prosecuted this appeal.

At the argument here, the parties made further admissions, as follows:

It is admitted that Alfred Jones died, having had no child, nor descendant of a child, but leaving a brother at the time of his death, and that since the bringing of this [**7]  suit, Eliza Jones, the appellant, has died, and that in deciding this case, the decision is to be the same as it would have been, if the suit had been brought after the death of Eliza Jones, against her administrator, except, that if the court should be of the opinion that no suit could properly be brought until after the death of Eliza Jones. Costs are to be allowed the appellant.

It is also agreed, that the record shall be amended, by inserting in lieu of the following agreement of counsel, (ante,) to wit:

It is agreed that the case be docketed to May term 1842 of Baltimore county court, &c., down to the words, "without giving security;" and signed by, &c. The following agreement, to wit:

It is agreed that this case be docketed to May term 1842 of Baltimore county court; that the nar, plea and aforegoing statement of facts be filed and submitted to Baltimore county court, for their judgment; and it is agreed, that if said Baltimore county court shall be of opinion, on the aforegoing statement of facts, that the plaintiff is entitled to recover, then said court shall give judgment for the plaintiff, on said case stated, for the damages in the declaration, to be released [**8]  on payment of the sum of $ 1,318, and costs; and if they shall be of opinion, that on said statement of facts the plaintiff is not entitled to recover, then judgment is to be entered for the defendant for costs. And it is also agreed, that from the judgment of said court either party may appeal.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

In every case where a will is to be construed, the great object is to ascertain, from the face of the paper, the intention and design of the testator, which is to be carried into effect, unless opposed by some principle of positive law.

The will and the codicil constitute one instrument; and the codicil revoking in terms a portion of the will, has the effect to republish the will as of the date of the codicil, in respect to all parts of the will not revoked by the codicil, either in express terms, or by a bequest or devise, so entirely inconsistent with the terms of the will as to make it impossible to give effect to both.

A testator devised his slaves, in trust, to be manumitted as they severally arrived at the age of forty years, or immediately upon his real estate devolving on his grand nephew, should it come to his hands; and, in trust also for the term they have to serve, for the use of his wife and any child he may have by her, for and during the term of her natural life, and after her death for the use of any child that may survive her. By a codicil he revoked "that part of my will which manumitted my servants as they severally arrived at the age of forty years, and devised them to his wife, for and during her natural life, and after her death then said servants to be free; but in case that any of said servants shall runaway, and afterwards be apprehended, they shall forfeit their freedom and be sold for life." After the testator's death some of the servants ranaway, and were sold by the widow as slaves for life. The trustees under the will claimed the proceeds for the purpose of investment, and brought an action at law, (in which all errors of pleading were waived,) to recover them. HELD: that the widow was entitled to the fund absolutely.

It is only where, by gratifying a particular intent as to a part of a will, a more general and more important disposition of other parts of it are defeated, that the particular or minor intent must yield. Where both may be gratified there is no conflict, and consequently no necessity to yield either.

A bequest of freedom to slaves, as they arrived at a particular age, is not a legacy to them; nor, when it is granted upon condition of good behavior, will its forfeiture create a lapse, though the bequest of freedom is defeated, the right of the slave after forfeiture, nor to his proceeds after a sale, not being expressly bequeathed to any person.

Where there is a bequest of slaves for life, and of freedom after the death of the tenant for life, a clause in the will declaring forfeiture of freedom in case of running away and a sale for life upon their apprehension, is designed for the benefit of the tenant for life, to secure the good conduct of the slaves, and the proceeds of any such slave sold for absconding, in the absence of any provision to the contrary by the testator, will belong to the legatee for life.  

COUNSEL:
By G. R. RICHARDSON, D. A. G., and REVERDY JOHNSON for the appellant, and

By G. M. GILL and MCMAHON for the appellees.  

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

OPINIONBY:
CHAMBERS 

OPINION:

 [*400]  CHAMBERS, J., delivered the opinion of this court.
In this, as in every other case in which a will is to be construed, the great object is to ascertain, from the face of the paper, the intention and design of the testator; which is to be carried into effect, unless opposed by some principle of positive law. The will and the codicil constitute one instrument; and the codicil revoking, in terms, a portion of the will, has the effect to republish the will as of the date of the codicil, in respect to all parts of the will not revoked by the codicil either in express terms or by a bequest or devise so entirely inconsistent [**9]  with the terms of the will, as to make it impossible to give effect to both.
The terms of this will are plain and perspicuous. In the contingency which occurred, and was apparently anticipated by the testator, that is to say, the survivorship of his wife, without children, she would have taken an interest in all his negroes during her life, or until they should severally arrive to the age of forty years, at which age they were to be successively manumitted by the trustees. The will made no provision in regard to such as should abscond from service, nor any distinction between such as should be faithful and such as should be disobedient.
The existing provisions of our laws, however, have made some distinctions on the subject. If any one of these negroes had absconded from the service of the legatee, the courts, on her application, would have extended the term of service of such negro beyond the age limited by the will for a period sufficient to reimburse to her the loss of his service, and all cost and expense in re-taking him. That additional service would have enured exclusively to her advantage.
The codicil indicates that the testator was not content with this sanction for the [**10]  fidelity of the negroes, and its main design seems to be to secure their services to his wife for her 

 [*401]  life, and then to have them liberated. The codicil is obviously written with less professional skill, but we think it developes the intent of its execution. It revokes in explicit terms that portion of the will "which manumitted his servants as they severally arrive at the age of forty;" and this manifestly because it opposed his wish, which he, in the same sentence, proceeded to declare, by adding that he "does now give and devise all his said servants to his wife, for and during her natural life, and after her death then said servants to be free." The will carefully excepts the negroes from the other property whenever it is spoken of as passing beyond his wife and children, if any. All the interest in the negroes which is bequeathed at all is, by the will, given to the wife and children, and by the codicil to the wife alone, and in every instance where other legatees are necessarily named they are expressly excepted as not to be included in the bequest. With the evidence furnished by these facts it would seem difficult to suppose the clause in the codicil, for the punishment [**11]  of fugitive servants, designed for the benefit of those other legatees. It is however contended that a more general intent of the testator will be defeated by any other interpretation. But we do not perceive that the least violence is done to any such general intent. If indeed there be assumed a general intent to give all the property after his wife's death to the other legatees, that would be defeated; but this is assuming the precise matter of controversy. We regard the leading intent of the instrument to be, that his wife should enjoy all his estate for her life, and that after her death the other legatees should enjoy it all except the negroes, and this will not be deranged or defeated with regard to any thing else except the particular specific article of property which is to be disposed of according to specific directions. It is no objection to a bequest or disposition of one item of property, that the testator designed all the rest of his estate to go in a different direction. It is only where, by gratifying a particular intent as to the part, you defeat a more general and more important disposition of other parts, that the particular or minor intent must yield. Where both [**12]  

 [*402]  may be gratified there is no conflict, and consequently no necessity to yield either.
Various parts of the will, we think, indicate a particular intent to confine to Mrs. Jones the whole benefit which, by the will, is disposed of, either for the services of the negroes or the proceeds of their sale. By giving effect to this intent we do not disturb any purpose of the will to give to the wife a life estate in every thing else than the fugitive slaves, and to the other legatees the whole personal estate bequeathed to them after the wife's death.
It has been strongly urged that the bequest in relation to the negroes is to be regarded as a legacy, and that the forfeiture of freedom and sale defeats its operation and causes it to lapse and fall into the residuum of the estate, and then pass, with other property, to the trustees.
We cannot so regard it. The idea of a lapsed legacy can only be connected with some thing or object which, failing by some cause to reach the legatee, is received by some other person, generally the residuary legatee, if there be one. What is the object or thing in this case? Not the freedom of the servants, because that cannot pass to a residuary [**13]  legatee; nor the services of the servants, because they were never bequeathed to a specific legatee who is not capable of taking. The fugitive negro was to be sold, and the immediate contest is, to whom the proceeds belong. If these proceeds can be regarded as a lapsed legacy it must be in consequence of the failure of a previous bequest of them. But that previous bequest is the precise matter of inquiry, and if ascertained, determines the difficulty, not by reason of its being a case of lapsed legacy, but because, finding the first legatee, we find one capable of taking. Again, we cannot regard the residuary clause relied on as capable of passing any interest in these fugitive slaves, even if it could be considered as a case of lapse legacy, inasmuch as the will has so carefully and repeatedly excluded the negroes from the residuum, which he designed to pass to his collateral relations, by saying, in so many words, in not less than four different instances, when referring to his personal estate, "except my slaves."

 [*403]  Being of opinion, for these reasons, that the whole interest in the negroes sold was given to the appellant, it is quite unnecessary to examine the various [**14]  other points raised in the argument. Let the judgment be reversed, and judgment be entered for appellant for costs.
JUDGMENT REVERSED.
ARCHER, J., dissented.  

12 of 46 DOCUMENTS 

GEORGE BELTZHOOVER vs. JOHN YEWELL 

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 G. & J. 212; 1840 Md. LEXIS 10 

December, 1840, Decided 

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

This was an action of assumpsit brought on the 29th April 1837, by the appellant against the appellee. The declaration counted for work and labor, care and diligence, and divers materials--use and occupation of certain stables and buildings of the plaintiff; matters properly chargeable in account--goods sold, money counts, and upon an insimul computasset.

The defendant pleaded the general issue and limitations, non-assumpsit in fra, &c., and actio non--on which issues were joined, &c.

At the trial of the cause, the plaintiff to support the issue on his part, offered in evidence to the jury an account, and proved the sale and delivery of the articles charged, comprising items for the yearly rent of a stable, at $ 50 per annum, commencing 12th July 1829, ending 12th July 1835, and for another stable from 2nd November 1829, to 2nd November 1835, at same rate, and of another stable from 23rd March 1830, to 23rd March 1835 at same rate, and for another stable from 24th April 1832, to 24th July 1835--and also an account from 31st January 1834, to July 1835, for men's board--salt and candles--vinegar and whiskey for horses.

The defendant [**2]  then offered the following receipts:

Baltimore, August 19th, 1834.

Rec'd from Geo. Beltzhoover, agent, fifty dollars on account.

$ 50.

John Yewell.

Baltimore, Oct'r 20th, 1834.

Rec'd from Geo. Beltzhoover, agent, fifty dollars on account.

$ 50.     John Yewell.

Received from G. Beltzhoover, agent, fifty dollars on acc't.

December 11th, 1834.

$ 50.

John Yewell.

Rec'd from G. B. thirty dollars on acc't. March 21st, 1835.

$ 30.     John Yewell.

Mr. George Beltzhoover, will please pay Messrs. C. Hoffman & Co. seventy-three dollars and ninety-seven cents, and charge to account of,

Yours, &c.

John Yewell.

Baltimore, April 15th, 1835. Endorsed, C. Hoffman & Co.

Baltimore, June 23rd, 1835.

Rec'd from G. Beltzhoover, agent, thirty dollars on account.

$ 30.     John Yewell.

Rec'd of G. Beltzhoover, agent, twenty-five dollars on acc't.

Baltimore, July 18th, 1835.

$ 25.

John Yewell.

The plaintiff then prayed the court's opinion to the jury, that such receipts took the plaintiff's claim out of the statute of limitations, for the period between the 1st January and [**3]  the 27th April 1834, which direction the court (ARCHER, C. J. and PURVIANCE, A. J.,) gave. The defendant excepted.

The verdict and judgment being against the defendant, he brought the case by appeal to this court.  

DISPOSITION:
JUDGMENT REVERSED AND A PROCEDENDO AWARDED.  

HEADNOTES:

An acknowledgment, to take a debt out of the statute of limitations, if not made in express terms, must be evidenced by facts, satisfactorily shewing the admission of the debtor, that the debt had not been paid.

A payment made on account of a running account of long standing, of which the debtor had never been furnished with a copy, or otherwised apprised of the entries contained in it, is not sufficient to warrant the court, so to apply the payment to the debt, as to pronounce the statutory bar removed. It should be left to the jury to say, on account of what indebtedness the payments was made.

To revive the items of an open account which are barred by the statute, by a payment in part, or payment on account, it is necessary it should appear that, the payment was made on those items, or that the debtor with full knowledge of the charges barred by the statute, made the payment recognizing their validity.  

COUNSEL:
By RICHARDSON and R. JOHNSON for the appellant, and

By TYSON for the appellee.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*214]  DORSEY, J., delivered the opinion of this court.
A receipt on account for a sum of money paid, does not per se mean, that the payment was made in part satisfaction of an account current, much less does it mean, that the payment was made in part satisfaction of an open account kept by the creditor against the debtor. It means nothing more, than that it is a payment on account of some debt due from the payer, to him receiving. What that debt is, is a matter of fact to be found by the jury, after the testimony in the cause in which the question arises, has been submitted to their consideration.
It is not an inference of law, or a matter of fact, so conclusively established by proof, that the court would be warranted in assuming the [**4]  application of the payment to the debt, whereof proof had been given, and pronouncing the statutory bar to its recovery thereby removed. Evans vs. Davies, 3 E.C.L. 202, and Dodson vs. Mackey, 8 E.C.L. 377. That we have ascribed to such a receipt its true meaning, we think is not only sustained by its import in the ordinary transactions of business, in which it is so generally and indefinitely used; but by its legal interpretation when referred to in the law books.
In 2 Leigh's Nisi Prius, 1265, under the head of part payments on account, in shewing the effects of such payments, in taking claims without the statute of limitations, amongst the many cases referred to on that subject, there is not one of them, 

 [*215]  where the cause of action was an account current; but the author treats of the payments which he classifies under that head, as indiscriminately applicable to every species of debt, whether on bill, bond, note or otherwise. If the word account, in the receipts in question, means an account current, to whose account current does it refer?--to that kept by the plaintiff, or the defendant? Each may and ought to keep such an account [**5]  of the transactions between them. Is it not in such case, much more probable, that the party paying, would recognize the account kept by himself, and design that the payment should be credited against the amount due thereon, for which he knows himself the debtor, than the account kept by the creditor, which the debtor has never seen, and is wholly ignorant of the charges it may contain.
But suppose there be but one account to which the payment could be applied; and that one kept by the creditor, (the contents of which however had never been communicated to the debtor,) and the debtor knowing, that for articles recently furnished by the creditor he owes him a larger, makes payment of a less sum on account; what acknowledgment of indebtness can be rationally inferred from such a payment? Can his act be tortured into an admission, that he then stands indebted to his creditor for every article with which at any period of his life, he might have been properly chargeable? notwithstanding, that previous to such payment, in contemplation of law, he is presumed to have made payment in fact for every article beyond the statutory bar, and by lapse of time to have lost the receipt, or evidence [**6]  by which the payment might be established? Such admission too, covering items of the account, (if such were contained in it,) as well of eighteen as of three years standing. All the modern decisions and views which have prevailed in the courts of justice, both of England and of this country, for many years past, are opposed to the decision of the county court made in the case at bar, which if sustained, would be productive of as much mischief, and as affectually defeat the design of the statute, as any case to be found in the pages of its judicial history.

 [*216]  The acknowledgment of a debt to take it without the statute, if not made in express terms, must be evidenced at least by facts, satisfactorily shewing the admission of the debtor, that the debt had never been paid. Upon no principle of reason or justice, can such an inference be deduced, from the simple fact of a payment made on account, of a running account of long standing, of which the debtor had never been furnished with a copy, or been otherwise put in possession of a knowledge of the entries which it contained. The inconsistency and injustice of drawing such an inference against a debtor, making general payments [**7]  on account, is demonstrated by the case now at bar, in which the court was called upon to assume the correctness of the plaintiff's account current, shewing a debt of nearly two thousand dollars, and withholding all credit for the numerous payments which had been made, and which the plaintiff himself afterwards admitted upon the record, that his claim with the many years interest, which the jury may have allowed him upon it, did not exceed the sum of two hundred and four dollars and thirty-two cents.
To revive the items of an open account, which are barred by the statute, by a payment in part, or part payment on account, which are the same thing, it is necessary that it should appear, that the payment was made on those items, or that the debtor having full knowledge of the charges in the account, to which the statute was a bar, made the payment, recognizing its validity. The payment too, must be applied by the debtor, not the creditor. For although the creditor, on the omission of the debtor to do so, may apply the payment in part satisfaction of the debt, or that part of it which is barred by the statute, yet such payment and application will not relieve the balance of such debt [**8]  from the operation of the statute. Mills vs. Fowkes, 35 E.C.L. 175.
For the reasons assigned, and on the authorities referred to, we think the county court erred in withdrawing from the consideration of the jury, the determination of the fact, on account of what indebtedness, the payments specified in the receipts were made, and in determining, that the unsatisfied portion 

 [*217]  of the debt barred by the statute of limitations, was revived by the receipts, and therefore reverse their judgment.
JUDGMENT REVERSED AND A PROCEDENDO AWARDED.  

13 of 46 DOCUMENTS 

STATE, USE OF SUSANNA HICKLEY, ADMINISTRATRIX OF CATHARINE HICKLEY, vs. D. STEWART AND J. I. GROSS, EXECUTORS OF JOHN GROSS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

12 G. & J. 456; 1842 Md. LEXIS 14 

December, 1842, Decided 

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

This was an action of DEBT, commenced on the 31st December, 1834, by the appellant against John Gross, deceased. The plaintiff declared on the bond of John Gross of the 27th April, 1837, conditioned for the due performance by him of the office of administrator of Sebastian Hickley, deceased. The defendant pleaded general performance. The plaintiff assigned breaches, when, without rejoinder, the cause was referred to WILLIAM G. READ and JOHN J. LLOYD, with power to choose a third in case of difference, and to decide all matters in controversy between S. H., administratrix of Catharine, and John Gross, administrator of Sebastian Hickley, under a rule of court.

The arbitrators returned the following award:

"STATE of MARYLAND, use Susanna Hickley, administratrix, with the will annexed of Catharine Hickley, vs. JOHN GROSS. We, William G. Read and John J. Lloyd, referees by Baltimore county court, in the above named 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 and proofs, do award and determine, that the [**2]  said defendant, John Gross, is indebted to the said plaintiff, in manner and form as the said plaintiff has declared against him; and we do further award and determine, that judgment for the plaintiff be entered in the said case, for the debt and damages in the declaration and costs, to be released on the payment of the sum of three thousand two hundred and seventy-five dollars and twenty-five cents, with interest from the date hereof, and costs, till paid. Given under our hands and seals this 20th day of July, 1838.

WILLIAM GEO. READ, (Seal.)

JOHN J. LLOYD,     (Seal.)"

Which said award is thus endorsed, to wit: "Service of copy admitted.     D. S. for J. Gross.

At September term, 1838, the defendant objected to a confirmation of the award, and prayed the court to set aside the same, for the following reasons, to wit:

1st. Because the said award decides matters not in controversy between the parties in this, to wit: that on a matter finally decided by the Court of Appeals of this State, on an appeal between the present parties, the said court, before the date of the reference under which the said award was rendered, finally decided that the said defendant [**3]  was wholly free and discharged from said matter of claim, and in no wise liable to said plaintiff, for or on account of the same, as will appear by a copy of the opinion of the Court of Appeals in said case, herewith filed, and prayed to be considered as making a part of this objection.

2nd. Because the said arbitrators, in making the said award, went contrary to law, in this; that as the said matter, as before stated, was so finally decided by said Court of Appeals, the same was not, and could not be considered as embraced by the terms of said reference.

3rd. Because said award is in other particulars contrary to law.

At May term 1840, the death of John Gross was suggested, and at January term 1841, the present appellees were brought in by attachment, and appeared to the action.

At the hearing of the motion made to set aside the award, the defendants offered in evidence the record of the Court of Appeals, in the case of John Gross, appellant, and Susanna Hickley, administratrix de bonis non of Catharine Hickley, appellee, which record in the Court of Appeals, it is agreed, may be read as evidence in the trial of this case in the Court of Appeals, as by agreement [**4]  filed. "Hickley, administratrix de bonis non of Hickley vs. Stewart and others, executors of J. Gross. In Baltimore county court, September term 1841. It is agreed in this case, that the record of the case in the Court of Appeals, of Gross vs. Hickley, administrator of Hickley, on appeal from the orphans court of Baltimore county, be read in the Court of Appeals, upon the argument of the appeal in this case, to have the same effect and operation as if now inserted in the record, and transmitted as a part of the transcript to the Court of Appeals."

The defendant further offered in evidence the affidavit of David Stewart, duly taken on the 25th October, 1839; that at the time of the reference in this case, he the said David Stewart did not consider that the credit of $ 3,006.75, given the said John Gross, as administrator of Sebastian Hickley, in his account as administrator, settled in the orphans court of Baltimore county on the sixth day of July, 1829, was a matter in dispute in this cause, as the same had been passed upon and allowed by the Court of Appeals of Maryland, at its December term 1835, as a proper credit in the accounts of the said administrator; and the said defendant [**5]  further made oath, that he intended the said reference to embrace other items in controversy, altogether exclusive of the credit above mentioned, and that upon this view of the subject, he informed his client of the reference, and particularly, that the aforesaid item was not again to be contested before the referees.

The defendant further offered in evidence the statement of the arbitrators, John J. Lloyd and William George Read:

We state, that when the said cause was before us as referees, the plaintiff claimed for an item of $ 3,006.70, for which said John Gross, in his administration account, as administrator of Sebastian Hickley, deceased, had obtained credit in July, 1829, without having paid it. On the other hand the defendant's counsel contended, that that item was not open for our examination, because the opinion and decree of the Court of Appeals of Maryland, in the case of Gross, administrator c. t. a. of Sebastian Hickley vs. Susanna Hickley, administratrix, &c., on appeal from the orphans court, was conclusive as to it, and that it was not submitted to us in the above cause. The evidence in relation to said item was taken, subject to said objection and exception [**6]  of the defendant's counsel. On consideration, it was decided by us, as referees, that although the said opinion and decree of the Court of Appeals were entitled to our highest respect and consideration, yet as that decree remanded the cause for further proof in the orphans court, and was in a different suit, and as evidence was before us on this point, which was not in the record before the Court of Appeals, by which new evidence it was perfectly clear to us, that said John Gross had not in fact paid the said sum of $ 3,006.70, at the time he so obtained credit for it in his administration account aforesaid, but only paid at that time $ 500, and afterwards, on the 11th July, 1830, he paid on account of it the further sum of $ 500, and afterwards, on 2nd February, 1833, he paid the further sum (on said account,) of $ 1,066.89, and no more; and it further being proved to us, that in the settlement made between said Gross, as administrator of Sebastian Hickley, with William Hickley, on 20th January, 1833, (paper A,) that said William Hickley acted on the belief that said John Gross had only obtained credit on his administration accounts of Sebastian Hickley's estate for what he had actually [**7]  paid, and that in said settlement, the fact of this item of $ 3,006.70, or part of it, was still outstanding against said estate, was not taken into consideration, we the said referees, in making up our said award, charged said John Gross with the debt of $ 3,006.70, and also $ 100, (the reason for which we do not now recollect, though we were satisfied at the time, that said additional charge of $ 100 was correct, and suppose now it was on account of the difference of interest from July, 1829, when Gross got credit for it,) and in said award we credited said Gross with the payments which he had in fact made on account of said $ 3,006.70, to wit, with $ 500 paid in July, 1829; $ 500 paid on 11th July, 1830, and $ 1,066.89, paid on 2nd February, 1833, and also charged and credited various other matters, which we understand, it is not material here to state. It was also in proof before us, that a certain receipt, (or receipts, as Mr. Read thinks,) which, in the aforesaid opinion of the Court of Appeals, was treated as in the possession of and belonging to said John Gross, did not belong to him, but was the property of and in the possession of John I. Gross, as the administrator of the [**8]  above named William Hickley.

JOHN J. LLOYD,

WILLIAM GEORGE READ.

7th October, 1841.

And proved the truth thereof by the oral examination of said Lloyd.

The plaintiff then offered in evidence by John J. Lloyd, one of the arbitrators, that it was not his habit to state the reasons for his awards on the face of the awards, unless the parties requested it before it was known by them how it was to be decided, and that when he did not state the reasons on the face of the award, it was not his habit to disclose the reasons after the award was rendered, not because he was unwilling that they should be known, but because he did not think it just to give the party against whom it was made such an advantage, after having taken the chance of an award in his favor. That in the present case, the counsel for the defendants had called on witness and Mr. Read to give them a statement of the grounds on which the award was made, and they had declined assigning therefor the reasons above stated, but both witness and Mr. Read stated to them that they were willing to give such a statement if the counsel on both sides consented to it, or if the court should direct it. After this [**9]  the written statement was made in order to prevent delay, in case the said Lloyd and Read should be absent, and it was handed to the counsel, subject to the same objections as if the arbitrators had been on the witness' stand. On its being arranged between the court and counsel that we should go out and make the statement subject to exceptions, we read the written statement as his testimony, and proved that when the said reference took place, the said William George Read and John J. Lloyd were attorneys of this court, have been, and still are.

The plaintiff further read without objection the affidavits of George Gordon Belt and John 1. Gross, heretofore filed by the plaintiff in this cause:

"THE STATE OF MARYLAND, use of Susanna Hickley, administratrix, with the will annexed of Catharine Hickley, vs. DAVID STEWART AND JOHN I. GROSS, executors of John Gross. In Baltimore county court, September term, 1841. Be it remembered, that on this eighteenth day of September, in the year eighteen hundred and forty-one, George Gordon Belt, in open court, made oath that he instituted the aforegoing suit as counsel and attorney for the plaintiff, and negotiated and agreed upon the reference [**10]  thereof with David Stewart, Esq., now one of the defendants, but then the counsel of John Gross, the deceased; that at the time of the reference, deponent believed that all matters of account against the defendant, John Gross, as administrator of Sebastian Hickley, and all matters or claims whatever against him as such administrator, embraced by the pleadings in the cause, and including the item of $ 3,006.75, mentioned in the deposition of David Stewart, Esq., heretofore filed in this cause, were referred to and open to the examination of the arbitrators selected by the parties; that he so informed his client, through her father and agent, Lewis Gross, whilst the parties were negotiating the reference, and before it was yet made; that it was never intimated to him by David Stewart, Esq., or any other person, that said item or claim of $ 3,006.75, was not a matter or claim in dispute in this cause until the trial thereof before the arbitrators, nor then otherwise than by the allegation and argument of counsel; that the decision of the Court of Appeals in the said deposition of David Stewart, Esq., referred to, was final and conclusive. Deponent further says, that if it had been intimated [**11]  to him that said reference was not general, but was exclusive of said item of $ 3,006.75, said reference never would have been assented to. Deponent further says, that much testimony in addition to that before the Court of Appeals, and in explanation of parts of it, was adduced before the arbitrators, applicable to the said item of $ 3,006.75 by the plaintiff, and as he believes by the defendant, and that said item was fully tried and argued upon the law and upon the merits by both parties, before the arbitrators, but deponent does not know the items of charge embraced in the award."

The deposition of John I. Gross states, "that he was a witness at the trial of the above cause before the arbitrators, and attended several meetings; that upon one occasion, when deponent was present, John Gross, the defendant, Lewis Gross, the father of Mrs. Hickley, and acting for her, and Andrew Shorb and others, were also present; that in the course of the proceedings an altercation sprang up between John Gross and Lewis Gross, and that afterwards, in frequent conversations with this deponent, and in reference to said altercation, the said John Gross told this deponent that all matters in dispute [**12]  were left to the arbitrators to be settled. Deponent further says, that on the occasion above mentioned, the matter in relation to Shorb's debt was examined into before the arbitrators, and was one of the subjects before them."

To all which offers of evidence by the defendant, when made the plaintiffs objected as soon as the offer was made, and then objected to the admissibility of the affidavit of David Stewart, upon the following grounds:

1st. That said affidavit was inadmissible in evidence for the purpose of controlling or altering the terms or construction of the agreement of reference, and rule of reference, under which the above cause was referred to arbitrators.

2nd. That said affidavit was inadmissible in evidence for the purpose of proving that any matter of difference embraced by the said agreement and rule of reference, under which the said cause was referred as aforesaid, was not submitted to said arbitrators by said agreement and rule of reference.

The plaintiff also objected to the admissibility of the affidavit of the arbitrators, upon the following grounds:

1st. That said statement of the arbitrators, verified by the affidavit of said Lloyd,  [**13]  was inadmissible generally as evidence on the hearing of this motion.

2nd. That said statement, verified by the affidavit of said Lloyd, was inadmissible as evidence for the purpose of showing in what manner said arbitrators had made up their award, and what items of claim were embraced in it.

3rd. That said statement, verified by the affidavit of said Lloyd, was inadmissible in evidence for the purpose of showing the grounds of the decision of said arbitrators as to any claim embraced by their said award.

4th. That said statement, verified by the affidavit of said Lloyd, was inadmissible in evidence for the purpose of proving that the said arbitrators committed any error in law in making their said award, or that there was any error in law committed by said arbitrators in said award in allowing any claim embraced by said award.

But the court (ARCHER, C. J., and PURVIANCE, A. J.,) were of opinion that the deposition of David Stewart was admissible, and that so much of the deposition of John J. Lloyd, Esq., as stated the subject matter of the award filed in this case and the character of the items of which it was composed, was admissible; and also that part of said [**14]  deposition of John J. Lloyd which show the claim of the plaintiff and the denial of the defendant, that said claim was within the submission, is also admissible for the purpose of showing that the arbitrators had in their award decided on a matter already, before the reference finally adjudicated, and not within the submission; to which opinions of the court and to each and every of them, and to their reception of the affidavit of D. Stewart and J. J. Lloyd for the purpose aforesaid, the counsel of plaintiff excepted.

The paper marked A, referred to in the aforegoing exceptions, is as follows, to wit:

________________________________________________________________________________
DR.  William Hickley, in account current with John Gross,	
Baltimore.	
			Amount.	Interest.	
1829,	Oct. 20	To cash paid att'y. Stewart	$ 200 00	
	  "	" cash lent you,	60 00	
	  "  23	" cash lent you,	100 00	
		  Interest 3 years and 3	
		   months on $ 360,		70 20	
	Nov. 14	To cash paid officers' fees, &c.	15 84	
	  "  5	" cash lent you,	100 00	
		   Interest 3 years and 2	
		   months on $ 115,		21 85	
1830,	Jan. 27	To cash paid insurance,	10 40	
		" cash paid do. High and	
		   Low Streets,	100 00	
		" cash paid,	2 50	
		   Interest 3 years on $ 100,		20 16	
	July 11	To cash lent you,	30 00	
		" cash paid Shorb's note,	500 00	
		   Interest 2 years 6 months	
		   on $ 530,		79 50	
	Augt. 30	To cash paid,	1 50	
	Sept. 21	To 1 pannel for tomb stone,	100 00	
		" 4 tomb stones at $ 20,	80 00	
		   Interest 2 years and 4	
		   months on $ 180,		25 34	
	Dec. 2	To cash lent you,	15 00	
		" cash paid ground rent,	9 37	
		   Interest 2 years and 1	
		   month on $ 24,		3 07	
1831,	Nov.	To cash paid White and	
		   Chase for rent,	87 50	
		   Interest 1 year and 2	
		   months on 87,		6 09	
1832,	Augt. 31	To cash lent,	200 00	
		   Interest 4 1/2 months,		4 50	
		To cash lent,	150 00	
		   Interest 1 1/2 months,		1 12	
	
			$ 1,762 11	231 83	
To amount of interest to date,	231 83	
	
			$ 1,993 94	
Amount of interest on $ 2,607 for 3	
 3 years and 3 months, paid to Shorb,	247 66	
	
			$ 2,241 60	
	
CR.	
1829,	Oct. 20	By cash, Cathedral money,	$ 3,447 00	
		   Interest for 3 years and	
		   3 mos. at 6 per cent.	672 17	673 17	
	
			$ 4,119 17	
			2,241 60	
	
Due W. Hickley,	$ 1,877 57	
To error in calculation of interest on $ 2,607	260 71	
	
E. E.   Due W. H.	$ 1,616 86	
________________________________________________________________________________

 [**15]  

And thereupon, after the evidence had been offered, which is stated or referred to in the aforegoing bill of exceptions, and upon the hearing and consideration by the court here, of the said evidence, and of the exceptions taken on behalf of the defendants to the award filed in this cause, it is considered by the court here, that the award aforesaid, be and the same is hereby set aside, and held entirely as void, and of no force or effect. The plaintiff appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

An appeal will lie from the judgment of the county court setting aside an award.

Where a cause had been referred to arbitrators, with power to decide all matters in controversy between the plaintiff and defendant, and the arbitrators had returned an award, subject to no exception upon the face of it, upon a motion to set the award aside, the court will not receive parol proof to control or alter the terms of the submission, nor the depositions of the arbitrators to show the character of the items of which the award was composed, or that they had decided upon a matter before the reference finally adjudicated, and so not within the submission.

Where the county court set aside an award, and their decision upon appeal is reversed, there being no objection to the award on its face, nor any thing in the record to impeach it, this court will enter judgment in conformity to it.  

COUNSEL:
By MCMAHON, for the appellant--

The 1st exception taken in this cause relates to the admissibility of the depositions of David Stewart and John J. Lloyd. And the appellants will contend, that the court below erred in receiving said testimony, and especially in receiving it for the purposes stated in said objections, or any of them.

The 2nd exception relates to the decision of the court below, setting aside the award, which decision, the appellants will maintain, was erroneous, and in support of their allegation of error, will contend for the following propositions:

1st. That the reference in this case gave the referees the power of deciding upon all claims or demands [**16]  involved in, or within the scope of the action referred, and all matters in controversy between the parties, and especially upon the propriety and justice of the allowance claimed and given in the accounts of said John Gross, as administrator of Sebastian Hickley, (as settled in the orphans court,) for the alleged payment of the debt due to Shorb by said Hickley.

2nd. That the extent and effect of said reference could not be in any degree qualified or restricted, nor the right of the referees to decide upon the justice of the said allowance for Shorb's debt, as a matter in fact in controversy between the parties, in any respect affected by the mere undivulged impressions or belief of Gross, or his counsel, as to the extent of the reference, even if the evidence of the same were admissible.

3rd. The decree of this court was not final and conclusive, so as forever to debar the appellant in this case from controverting the right of said Gross to the said allowance made him for Shorb's debt, in his accounts, as settled in the orphans court; and that either, upon the trial of the action on the bond in Baltimore county court, or of the matters referred before the referees, it was [**17]  competent to said appellant, notwithstanding said decree, to controvert Gross' right to said allowance.

4th. That whether said decree was or was not final, the said appellant might, at the trial of the action on said bond, have objected, that the same was not final, and was entitled to have that question tried and decided; that the question, as to the effect of said decree, was open to contest, and was in fact, a matter in dispute; and that the said action, and all matters in controversy having been referred, the decision of the referees upon the effect and conclusiveness of said decree, was final and conclusive, (and above all, in a case where the referees were attorneys or legal arbitrators,) and that the court below had no right to review or correct their decision, on that or any other question that arose in the trial before the referees, even if erroneous, there being nothing on the face of the award disclosing any such error.

5th. That even if the arbitrators exceeded their authority in disallowing the allowance for Shorb's debt, the court below erred in setting aside the whole award.

By J. JOHNSON and G. M. GILL, for the appellees, who moved to dismiss the appeal,  [**18]  and maintained the converse of the appellant's propositions.

Upon the motion to dismiss the appeal, they insisted--

1st. That at the time when the appeal was prayed and taken, there was no final judgment of Baltimore county court, and that the judgment appealed from was interlocutory, and not final.

2nd. That it was in the power of Baltimore county court to re-instate the said cause, and direct the same to be tried as other causes are tried in Baltimore county court, and it does not appear whether the same was so re-instated or not; the appeal having been taken from the judgment of that court, setting aside the award.  

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

OPINION:

 [*468]  BY THE COURT--
Let the judgment of the county court be reversed, and judgment be entered upon the award for the appellants.
JUDGMENT REVERSED.  

14 of 46 DOCUMENTS 

THE TAX CASES UNDER THE ACT OF MARCH, 1841, CHAP. 23.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

12 G. & J. 117; 1841 Md. LEXIS 10 

December, 1841, Decided 

PRIOR HISTORY:
 [**1]   APPEALS in the tax causes under the act of March session, 1841, ch. 23.

By the act of 1841, chap. 23, an act for the general valuation and assessment of property in this State, and to provide a tax to pay the debts of the State.

It was enacted by the first section, "that all real and personal property in this State, all chattels real and personal, all goods, wares and merchandizes, and other stock in trade at home, or not permanently located elsewhere; the interest or proportion in all ships and other vessels, whether in or out of port owned by persons resident of this State; all debts secured by or due on judgment, decree, mortgage bond, bill of exchange, promissory note from insolvent debtors, (except debts due for goods sold and delivered after the passage of this act, and bank notes,) all stocks or shares owned by residents of this State in any bank, institution or company incorporated in other State or territory; all debts due to residents of this State by solvent debtors residing out of this State, except debts due for goods sold and delivered after the passage of this act; all investments in securities or stocks of other States, made or held by residents of this State;  [**2]  all public loans and stocks whatsoever (except those created or issued by the United States,) owned or held by residents of this State; all stocks or shares in any bank, institution or company incorporated by this State, and all other property of every description whatsoever, shall be valued agreeably to the directions of this act, and shall be chargeable according to such valuation with the public assessment; PROVIDED, that nothing herein contained, shall be construed to authorize the assessment of any tax upon--

1. Property belonging to the United States, to this State, or to any county or city in this State.

2. Nor to any incorporated, literary or charitable institution, nor county schools.

3. Nor houses for public worship or burying grounds.

4. Nor the crop and produce of lands in the hands of the producer, or his, her, or their agent.

5. Nor provisions for the use and consumption of the person to whom the same shall belong, or his or her family.

6. Nor plantation utensils.

7. Nor the working tools of mechanics and manufacturers, moved or worked by hand, and the produce of their respective occupations whilst in their possession, or the possession [**3]  of their agents.

8. Nor wearing apparel.

9. Nor fish, at the time fishermen may be employed in catching, salting and packing the same, or while they remain in their possession, or that of their agents, unsold.

10. Nor to household manufactures.

11. Nor judgments, bonds, mortgages, promissory notes or other securities, belonging to any bank or other incorporated institution, the capital stock whereof is made subject to taxation by the provisions of this act.

12. Nor to any goods, wares, merchandizes or other property belonging to persons not residents of this State, in the hands of factors in this State, for sale.

By the 33rd section of this act, it was declared, that upon the argument of any appeal under this act, "neither party shall be permitted to discuss any point involving merely a question of value or of regularity, or any other question of fact merely which may appear to have been acted on by the levy court, commissioners or appeal tax court, as the case may be; but the proper subject matter of such appeal, shall be the right of the General Assembly to subject to valuation and assessment for the support of government, property which is hereby made [**4]  subject thereto, and the right of the General Assembly to exempt from valuation and assessment, property which is hereby exempted, and to make such provision for such valuation, assessment and exemption as is herein prescribed, and the conformity or otherwise of valuation, decision or other proceeding objected against, with the provisions of this act."

Under this act, the appeal tax court of the city of Baltimore proceeded to value and assess the capital stock of the Union Bank of Maryland, and also to value and assess its real property in this State, including the banking house of the said bank, and also its furniture and fixtures in the banking house. This bank held as proprietor, various houses and lots other than its banking house. It appeared from the record, that the stock of the said bank belonged in part to various persons not residents of the State of Maryland, but residents of other parts of the United States, and of foreign countries.

That another portion of said stock belonged to various citizens of this State, and to certain incorporated literary and charitable institutions, viz: the Baltimore Female Orphan Asylum; the Benevolent Society of Baltimore; the Marine [**5]  Charitable Society; the Medical and Chirurgical Faculty of Maryland; the Baltimore General Dispensary, and the Saint Andrew's Society. From such assessments all the stockholders respectively, and the said Union Bank of Maryland, appealed to this court.

It also appeared, that certain stock held by the Baltimore Insurance Company, in the Mechanics Bank of Baltimore; in the Chesapeake Bank; in the Union Bank of Maryland; in the Merchants Bank of Baltimore:

That certain stock held by the Baltimore Fire Insurance Company, in the Mechanics Bank of Baltimore; in the Farmers and Merchants Bank; in the Bank of Baltimore; in the Union Bank of Maryland; in the Merchants' Bank, and in the Farmers and Planters Bank:

That certain stock held by the Chesapeake Bank of Baltimore, in the Mechanics Bank of Baltimore; in the Bank of Baltimore; and the Citizens Bank of Maryland; and in the Commercial and Farmers Bank of Maryland; in the Union Bank of Maryland; in the Merchants Bank:

That certain stock held by the Firemens Insurance Company.

The Maryland Insurance Company.

The Merchants Fire Insurance Company.

The Neptune Insurance Company.

The Patapsco Bank of Maryland.  [**6]  

The American Insurance Company.

The Farmers and Planters Bank.

The Farmers and Merchants Bank.

The General Insurance Company.

The Maryland Insurance Company.

The Merchants Bank of Baltimore.

The Baltimore and Susquehanna Rail Road Company.

The Neptune Insurance Company.

The Powhattan Manufacturing Company.

The Western Bank.

The Baltimore Life Insurance Company.

The Union Insurance Company, and

The American Life Insurance Company.

In the Mechanics Bank of Baltimore; the Farmers and Merchants Bank; the Marine Bank; the Chesapeake Bank; the Bank of Baltimore; the Citizens Bank of Baltimore; the Commercial and Farmers Bank; the Franklin Bank of Baltimore; the Union Bank of Maryland; the Merchants Bank; the Western Bank, and the Farmers and Planters Bank. The Farmers and Merchants Bank being holders of 1711 shares of its own stock:

Was valued and refused to be taxed by the appeal tax court aforesaid, and from which refusal, the State in the name of the said court, appealed to this court.

It further appeared by the record in these causes, that George M. Gill was assessed upon mortgages (an account of which he [**7]  had rendered,) to amount of $ 7,000, from which he claimed to be exempt from taxation, because he owed a larger sum on mortgage, and that under the bill of rights he could only be taxed upon his actual worth, while in fact he was taxed upon all his real and personal property, including mortgages to him, without deduction for the sum due by him on mortgage, and from which he appealed to this court.

It also appeared from the same records, that Charles F. Mayer was assessed on debts due to him secured by mortgage of real property, and on bank stocks held by him, he contending that his mortgage claim was not taxable, the mortgagor being in respect of the mortgaged estate alone taxable. From this judgment of the appeal tax court of the city of Baltimore, he appealed to this court.

It also appeared as aforesaid, that the Washington College was assessed, on the college lot, buildings, and furniture, and that Dr. Samuel K. Jennings, who had a judgment against the said college, was also assessed. It was admitted that Dr. Jennings had advanced for the erection and furniture of the college about eleven thousand dollars, and to enable him to borrow money on the property of the institution,  [**8]  the professors of the college confessed the judgment to him, and he contended that the property being taxed, is as much, as in justice ought to be claimed, the judgment and the property on which it is dependent being identical. From this judgment the college and Dr. Jennings both appealed.

It also appeared as aforesaid, that the Savings Bank of Baltimore was in possession of certain bank stocks and other securities, viz: stocks in banks incorporated by this State, turnpike road stock and mortgages, which were assessed--the Savings Bank, appealed.

It further appeared, that Daniel Atler and various other stockholders of the American Life Insurance and Trust Company, (an institution incorporated by the State of Maryland,) not residents in Maryland, were assessed upon their capital stock therein, from which they severally appealed.

It also appeared, that the Philadelphia, Wilmington and Baltimore Rail Road Company, were assessed by the commissioners of Harford county, viz: To the several parcels or tracts of land held and occupied by the said company from the Gunpowder Falls to the Susquehanna river, containing together 200 acres, valued at $ 2,000. To the houses and other [**9]  improvements on the road, and at Havre de Grace, valued at $ 15,000. The rail road track within the limits of Harford county, valued at $ 95,000. The steam ferry boat at Havre de Grace, valued at $ 15,000; in all $ 127,000, on which the tax was levied under the act of 1841. The company appealed from said decision.

The resident and non-resident stockholders of the Farmers and Merchants Bank of Baltimore, and the said bank as in the case of the Union Bank of Maryland, were assessed, and appealed from the same to this court.

Similar appeals were taken by all the stockholders in the cases of

The Mechanics Bank of Baltimore.

The Bank of Baltimore.

The Marine Bank of Baltimore.

The Commercial and Farmers Bank of Baltimore.

The Citizens Bank of Baltimore.

The Merchants Bank of Baltimore.

The Farmers and Planters Bank of Baltimore.

The Western Bank, and

The Chesapeake Bank; to this court.

In their argument, the Bill of Rights of Maryland and various acts of Assembly were referred to, viz:

13th Section, Bill of Rights.--That the levying taxes by the poll is grievous and oppressive, and ought to be abolished; that paupers ought [**10]  not to be assessed for the support of government; but every other person in the State ought to contribute his proportion of public taxes for the support of government, according to his actual worth in real or personal property within this State; yet fines, duties or taxes may properly and justly be imposed or laid with a political view, for the good government and benefit of the community.

By the act of 1821, ch. 131, entitled, an act to incorporate a company to make a turnpike road from Boonsborough to Hagerstown, and for the extension of the charters of the several banks in the city of Baltimore, and for other purposes; it was recited in the preamble to be the interest of the State, that a turnpike road leading from Boonsborough to Hagerstown, in Washington county, should be made, and it is represented to the Legislature that the banks hereafter mentioned are willing to make the same, if an extension of their several charters be granted to them as they were heretofore extended. Therefore, Be it enacted, &c., (after making provision for building the turnpike.)

7th section. That on, &c., and annually thereafter, the president, directors and company of the aforesaid banks,  [**11]  shall pay to the Treasurer of the Western Shore of Maryland, the sum of twenty cents on every hundred dollars of the capital stock of each bank actually paid in, or which may hereafter be paid in, and any of the said banks neglecting to make such payment for the space of six months after the same shall have become payable, shall thereby forfeit their charters, which shall then be considered null and void, and no longer continue under the provisions of this act.

8th section. That the charters of such of the aforesaid banks as comply with the provisions and conditions of this act, shall be renewed and continued until the year 1845, &c.

9th section appropriated all sums of money received under this act, to be a fund for the establishment of free schools.

10th section pledged such funds inviolably for the establishment of a general system of free schools throughout the State.

11th section enacted, that upon any of the aforesaid banks accepting of and complying with the terms and conditions of this act, the faith of the State is hereby pledged not to impose any further tax or burthen upon them during the continuance of their charters under this act.

Act of 1831,  [**12]  chap. 296, sec. 19. Extract from the charter of the Delaware and Maryland Rail Road Company, made part of the charter of the Philadelphia, Wilmington and Baltimore Rail Road Company. "And the shares of the capital stock of said company shall be deemed and considered personal estate, and shall be exempt from the imposition of any tax or burthen, by the State's assenting to this law, except upon that portion of the fixed works of said company which lie within the State of Maryland, and that any tax which shall hereafter be levied upon said section, shall not exceed the rate of any general tax which may at the same time be imposed upon similar real or personal property of this State for State purposes."

By the act of 1834, ch. 274, the acts incorporating the several banks in the city of Baltimore, whose charters were extended by the act of December session, 1821, chap. 135, were upon their respective compliance with the provisions of this act, declared to be severally extended to wit, as follows, &c.

2nd section. That in order to their (the said banks,) respective enjoyment of the benefit of this act, the said corporations shall, on the first day of January in the year 1836,  [**13]  and annually thereafter, respectively pay to the Treasurer of the Western Shore, upon their respective capitals, now or that shall hereafter be paid in, the sum of twenty cents upon every hundred dollars of said capitals respectively; and shall also pay to the Treasurer in two equal yearly instalments, computed from the passage of this act, their respective proportional parts according to and in the combined ratio of their respective capitals paid in, and of the time for which their charters are hereby respectively continued beyond the 1st day of January, 1845, the sum of $ 75,000, the aggregate of the assessments hereby fixed upon the capitals of the said corporations, it being however understood, that said charge of twenty cents upon said capital is not additional to the charge as prescribed by the 7th section of the act of 1821, chap. 131, as to the terms of said act.

3rd section. If any of said corporations shall fail to pay said charge of twenty cents on every hundred dollars, for the space of six months after the same shall be payable as aforesaid, this act as to the corporations so in default, shall be null and void.

4th section. Same as 3rd section in relation to [**14]  non-payment of instalments under 2nd section.

SECTION 5. And be it enacted, That if any of said corporations shall, by or in any proceedings whatsoever, at law or in equity, attempt to call in question or to dispute, or to procure to be so called in question or disputed, the validity in any respect, or to any extent, of any acts that have been or may be passed, either during the present session or during any future session of the Legislature of Maryland, incorporating any bank within the limits of the city of Baltimore, or to attempt to restrain or in any wise interfere with the exercise of the corporate powers that shall be purported to be granted by any such act of incorporation, then this act as to the said incorporation so attempting or procuring, shall be null and void.

Act of 1835, ch. 142, entitled, An Act relating to certain banks in the city of Baltimore.

WHEREAS, by the eleventh section of an act of Assembly, passed at December session in the year eighteen hundred and twenty-one, chapter one hundred and thirty-one, the faith of the State was pledged to certain banks in the city of Baltimore, upon certain terms and conditions therein specified, not to impose [**15]  any further tax or burthen upon them during the continuance of their charters under that act; and whereas, it is equitable that the banks subsequently chartered by the State of Maryland, should stand on equal footing with those banks--Therefore,

SECTION 1. Be it enacted by the General Assembly of Maryland, That the faith of the State be, and it is hereby pledged, to impose no further or other tax or burthen upon any banks incorporated since the year eighteen hundred and twenty-one, or which may be hereafter incorporated, than such as may be expressed in their respective charters, and such as without violation of the pledge aforesaid, may be imposed on the banks which complied with the provisions of the aforesaid act of eighteen hundred and twenty-one.

SEC. 2. And be it enacted, That the municipal authorities of the city of Baltimore, shall not have power to impose or collect from any bank incorporated after the passage of the said act, or which may be hereafter incorporated, or upon the stock held therein, any tax which they may not lawfully, and shall not equally impose upon and collect from the banks, or upon the stock in the banks which have complied as aforesaid, with [**16]  the terms and conditions of the said act of Assembly.

SEC. 3. And be it enacted, That in the said act of eighteen hundred and twenty-one, it was not, nor is it the intention of the General Assembly of Maryland, to exempt from taxation and equitable contribution, to the common burthens for State purposes, the property, stock or dividends severally held in or derived from any bank in this State, by any person or persons whatever, but that the true intent and meaning of the pledge given by the said act of Assembly, was to limit the taxation upon the franchises only by the banks therein mentioned.

In the Court of Appeals the parties entered into the following agreement, to wit:

It is agreed that the appellant Banks, to wit:--The Union Bank of Maryland, The Bank of Baltimore, The Mechanics Bank of Baltimore, The Commercial and Farmers Bank of Baltimore, The Marine Bank of Baltimore, and The Farmers and Merchants Bank of Baltimore, commonly called the old Banks, were chartered previous to the year 1821; and that the new Banks, to wit:--The Merchants Bank of Baltimore, The Farmers and Planters Bank of Baltimore, the Citizens Bank of Baltimore, and the Western Bank of Baltimore,  [**17]  were chartered since the year 1830, the respective periods of the incorporation of all the aforegoing Banks appearing by reference to their charters.

It is admitted that the old Banks have duly accepted and complied with the terms and conditions of the act of 1821, chap. 131, the manner of which acceptance appears by the paper marked A, herewith filed; and have also accepted and complied with the provisions of the act of 1834, chap. 274; and it is also admitted, that taxes have always since the incorporation of said Banks been levied and assessed upon their real and personal property, in all the cities and counties of this State, in the same manner as upon property of the same kind belonging to individuals, and that said taxes have always been paid by said Banks, up to this time. And it is further admitted, that said Banks did not at the time of the enactment of the act of 1841, chap. 23, nor have they at any time since, paid or redeemed their notes or other obligations in specie.

J. MEREDITH,

G. L. DULANY, for Appellants.

B. C. HOWARD,

A. CONSTABLE,

I. N. STEELE, for Appellees.  

DISPOSITION:
Affirmed.  

HEADNOTES:

The State has the power to exempt from taxation particular items of property, to the extent proposed in the act of March, 1841, chap. 23; as also in the charters of the Baltimore and Susquehanna Rail Road Company, act of 1827, chap. 172, sec. 20, and the Philadelphia, Wilmington and Baltimore Rail Road Company, act of 1831, chap. 296, sec. 19.

The 7th and 11th sections of the act of 1821, chap. 131, are to be regarded as securing the banks from further tax or charge for their franchise or banking privilege, but not as exempting the property belonging to such banks, or the shares of stock therein held by individuals, from taxation.

The property of a bank being represented by the shares of stock therein, both cannot be taxed; and therefore, when the tax is imposed on the stock in the hands of share holders, the property of the bank, real or personal, cannot also be taxed.

The stock of the banks in Baltimore in the hands of share holders was rightfully taxed, but the appeal tax court erred in taxing the real and personal property of the same banks.

The banks in the city of Baltimore, incorporated before and after the year 1821, are in the same condition, as to the exemption of the banking privilege from taxation--at all events, the act of 1835, chap. 142, must have relieved the case of all doubt as to the banks claiming under that law.

Non residents of the State are liable to the tax in respect of stock held in the banks of this State, as well as residents here.

It also results, that as the stock is the representative of the property of a company, the exemption of the one must be considered as the exemption of both, unless the exemption be made on the ground of selection, to show which is intended to be taxed to the exclusion of the other.

In the case of The Baltimore and Susquehanna Rail Road Company, act of 1827, chap. 72, sec. 20, the stock is expressly exempted, and the whole object would be defeated by taxing the property; the mortgage executed to the State, cannot exempt the property mortgaged from taxation in the hands of the company mortgagor.

In the case of the Philadelphia, Wilmington and Baltimore Rail Road Company, the Legislature, by the same act (1831, chap. 296, sec. 19,) which exempts the stock, reserves the right to tax the fixed and permanent works of the company, the tax on the property thus excepted from the exemption is proper on the ground of selection.

The tax in that case has been imposed according to the exception; the bed of the road, the rails, buildings and steam boat being within it; the principle of valuation adopted is proper; taxing the buildings, steam boats and rails, as of the value they bear, irrespective of their being portions of a rail road, and taxing the land as land, and not as of increased value by reason of its being used as a rail road.

The charitable and literary institutions excepted in the act of 1841, are properly considered as exempted.

The exemption of the act of March, 1841, chap. 23, also protects from taxation all "houses of public worship and burying grounds," but not bank stock or other property held by or in trust for religious institutions, whether incorporated or otherwise.

Shares in the hands of stockholders in the Insurance Companies being taxed, the stock held by the companies as part of their property cannot also be taxed.

A bank, as in the case of The Farmers and Merchants Bank of Baltimore, being the holder of its capital stock, is not liable to be taxed thereupon.

A mortgage in the hands of the mortgagee is liable to be taxed as an item of his property--though all his other property, a part of which was mortgaged, is also taxed, and he cannot claim to deduct the sum he owes, from the sum due to him on mortgage.

A literary institution whose property is exempt from taxation, confessing a judgment to enable the plaintiff in the judgment to borrow money for it, does not exempt such judgment in the hands of such plaintiff from being taxed. Protection to the institution, does not protect those who deal with it.  

COUNSEL:
DULANY on the part of the appellant Banks insisted--

1.  [**18]  That the old banks having accepted of, and complied with the terms and conditions of the act of 1821, chap. 131, a contract was created by the 11th section thereof on the part of the State "not to impose any further tax or burthen" upon said banks during the continuance of their charters under the 8th section of said act, and that this exemption from taxation extends to all the property of said banks, real and personal.

The act of 1841 is void as respects the old banks; it is in direct opposition to a contract entered into by the State with them. The State had agreed to impose no further burthens on them. She might lawfully make this contract, and for a consideration exempt them from taxation, and she cannot repeal the grant. New Jersey vs. Wilson, 7 Cranch, 164. Ib. 2 Peter Con. Rep. 457.

A partial release of the taxing power may be exerted for value. Providence Bank vs. Billings and Pittman, 4 Peter, 561.

The 11th section of the act of 1821 is a contract, and valuable to the State. A charter is a contract; a franchise is property. Canal Co. vs. Rail Road Co. 4 G. & J. 1. Regents of University of Md. vs. Williams, 9 G. & J. 365.

The banks had the power to contract [**19]  with the State; they had a capacity to contract. What right does the contract bestow? What are the extent of its exemptions? The banks are entitled to the exemption. Its language is clear, brief and comprehensive. It is perfect and absolute in its terms. No further tax or burthen is to be imposed. The act of 1841 is a direct violation of the act of 1821. Light and darkness are not more opposed--one bestows an immunity, the other takes it away. It is in fact so clear, that it is difficult to make a question on it. It is said this exemption only applies to the franchise, but those words are not found in the law. The truth lays on the surface, and need not be burrowed for. For all rules of construction are out of this case; the words of the act are plain, unambiguous and of easy meaning. Dwaris on Stat. 40, 47.

The act of 1821 exempts the banks from further tax. The act of 1841 imposes a tax of 20 cents in the hundred dollars. The exemption is general--no limitation, and the words must have some effect. After a franchise granted, it could not be taxed; once given, it cannot be re-called; but the power to tax is the power to destroy.

In this State no property is liable to taxation;  [**20]  persons are liable to be taxed in respect of property. 13th section of Maryland Bill of Rights. Property is referred to, to graduate the tax laid on the individual. Immunity from tax is itself a franchise and a personal privilege. The recitals of the preamble of the act of 1821, shows that it was merely to extend several charters. The preamble does not disclose the entire design of the contracting parties. The school fund and the exemption from further tax are not mentioned in it. The old banks are clear of the taxing power until 1845; and the act of 1841 is void as to them. Then who constitute the banks? Who the contracting parties to this agreement with the State? Who is exempted from burthens in futuro? The stockholders. A bank is neither separate from, exclusive, nor independent of its stockholders. A contract with the banks is necessarily one with their stockholders. The consideration is paid by them out of their funds, which entitles them to the exemption. The exemption under the act of 1821, is a personal franchise conferred on the contracting parties. It relates to the whole body of stockholders. The banks were required to accept the act of 1821, and until accepted by the proper [**21]  party, no extension of their charters. Then who made the act of acceptance? Was it the banks as distinct from the stockholders? No, it was the stockholders as distinct from the bank. It was an acceptance by the assembled stockholders, which was acceptance by the banks. The Legislature has determined that the terms, bank and stockholders, as to this power, are identical. Where there is deliberate purpose to make a grant, it is construed most favorably for the grantee. 4 G. & J. A grant to a body is to all the members of it. Providence Bank vs. Billings & Pittman, 4 Peters, 562.

A tax upon the stock is a tax upon the social character. I maintain the banks cannot be taxed ae nomine, nor the stockholders, which are the bank.

2. That the 1st and 45th sections of the assessment act of 1841, chap. 23, does impose upon the old banks, a further tax and burthen, in violation of the said contract, and is therefore void as against the provisions of the Constitution of the United States.

3. That if the said assessment law, so far as it imposes a further tax upon the old banks, should be declared void, for the reason aforesaid, then the said act of 1841 is equally invalid, so far [**22]  as it imposes an additional tax upon the new banks, as it thereby deprives the new banks of the immunity from further taxation, granted to them by the 1st section of the act of 1835, chap. 142--which immunity from further taxation is itself a franchise, and when once granted cannot again be taken away. But if it could, the appellants will further contend, that according to the true construction of the said acts of 1841 and 1835, it was not the design of the Legislature to burthen the new banks with any additional tax, which would not equally apply to the old ones.

The 3rd section of the act of 1835, is a legislative declaration after the contract made. That act is nugatory as to the act of 1821. No interpretation can be given by the Legislature to the act of 1821. That is a judicial power. The act of 1835 does not depart from the equity of 1821. It was not the design to tax the new banks--those created since 1821--if those prior could not also be taxed. Canal Co. vs. Rail Road Co. 4 Gill & John. 5.

4. That the imposition of a new tax of 20 cents on every one hundred dollars' worth of property, upon both the new and old banks, in addition to the tax heretofore paid by them,  [**23]  is unequal and oppressive, and in violation of the 13th section of the Bill of Rights.

This would make 40 cents in the hundred dollars to stockholders, while the rest of the community pay 20 cents. A double tax is unequal and unjust.

5. That the taxation of the stock of foreign or non-resident stockholders of said banks, is against the Bill of Rights, and therefore void.

This tax is against the 13th section of the Bill of Rights of Maryland. Osborn vs. Inhabitants of Danvers, 6 Pick. 100.

Both the person and property must be in the State before the taxing power attaches. Great Barrington vs. County Commissioners of Berkshire, 16 Pick. 572.

I. N. STEELE, Deputy Attorney General, CONSTABLE and HOWARD, for the Appeal Tax Court as appellee, contended--

1. That at the time of passing the general assessment law of 1841, there was no contract existing between the State and the banks or any of them, or the stockholders therein, or any of them, by which any of the banks or stockholders can claim an exemption from the taxation imposed upon them by the said act of 1841.

2. That the contract between the State and the old banks, if there be any contract, extends [**24]  only to an exemption from further "taxes or burthens" of the corporate privileges of banking; and does not exempt the property, either real or personal of said banks, or the individual stockholders therein.

The act of 1821 is a contract; yet we construe it as a law; or we construe it as a will; we look to the law or the will for the intent. It is not to be construed most favorably for the grantee. In construing laws we have a right to look to the occasion which produced them; the practice and usage under them. They are not to be enlarged by implication. Exemptions from taxes must arise from distinct legislative powers. Providence Bank vs. Billings & Pittman, 4 Peters, 560, 561. Charles River Bridge vs. Warren Bridge, 11 Peters, 546-7-8.

The taxing power is vital and essential to all communities. It is a power retained from necessity; not to be surrendered nor yielded by implication. What is exempted and clearly given, is allowed, but no more. Dartmouth College, 4 Wheat. 699, 700. Portland Bank vs. Apthorp, 12 Mass. 252.

A consideration need not appear for a law passed in favor of a corporation. Ang. & Ames, 265. 2 Harr. & J. 80.

In construing the act of 1821, and [**25]  determining its nature, we may look back to the occasion of passing it. 8 T. Rep. 468, 472. 11 John. 77. 1 N. Y. Laws, 1801, 556.

The words, shall not be taxed by any law of this State, held in New York a total exemption from taxes.

But here the franchise only is exempted. The word further in this act imports similarity. It compels us to look back--no tax ejusdem generis can be laid. 1817, chap. 156. 4 Wheat. 316. 1835, chap. 142, sec. 2. 1821, chap. 192.

The act of 1834 is in effect a re-enactment of the act of 1821. Two Legislatures granted the same privileges, on the same principles.

When before a charter expires, it is renewed or extended to a more distant period, from the moment it is accepted it is a new grant. The old grant is merged, and the bank then exists under the new law. Such was the effect of the act of 1834. It calls for a tax from the year 1836, though the banks existed under 1821 until 1845, and they are now paying under the act of 1834, what is called the school fund.

As to the 2nd branch of the 2nd point of the appellee, the right of the State to impose a tax on the stock of resident stockholders. The same meaning is to be attached to the [**26]  word bank in the 2nd and 11th sections of the act of 1821. The term bank, as there used, does not refer to stockholders. It treats with them in the aggregate as a bank, and so contracts with them. 7 Dana, 338. The right to tax a bank is distinct from the right to tax stockholders. 1 Nott & McCord, 527. 2 Baily Rep. 656.

The case of 4 Wheat. 316, gives an exception to the general rule of exemption.

A tax upon stock is paid by the individual owner, and not by the bank.

3. That even if the contract should be construed to exempt the real and personal property of the old banks, and the property of the stockholders therein, yet such exemption does not extend to the new banks or those chartered since 1830; and moreover, that the power of revocation, in certain cases, in these charters, reserves to the State the power of passing the general assessment law.

4. That the imposition of a tax of 20 cents upon every $ 100 worth of property, upon both the old and new banks, under the said assessment law, is neither unequal, or oppressive, nor in violation of the Bill of Rights.

5. That taxation upon property within this State, wherever the owners may reside, is not against [**27]  the Bill of Rights.

The 13th section of our Bill of Rights is a limitation of the power to tax, and not a grant of the taxing power. It is not forbidden to tax non-residents. 4 Wheat. 428. 4 Peter, 564. 1 Nott & McCord, 527.

There was no period when the real property of non-residents was not taxed. 1781, chap. 4. 1785, chap. 83.

MEREDITH, for the Banks.

The banks repelling the tax stand on different grounds. Those before 1830, nine in number, stand on the ground of contract created by the act of 1821. The stockholders occupy the same ground. Those since 1830 place their defence on the act of 1835, which they say, is a contract or equivalent to a contract--a grant of an immunity as extensive as that yielded to the old banks by the act of 1821.

In regard to the old Banks four questions include the whole controversy--

1. The meaning and true interpretation of the contract of 1821?

2. If that contract amounts to a total exemption or relinquishment of all power of taxation, was the Legislature of Maryland competent to conclude it?

3. Was the contract in full force when the act of 1841 passed, or was it affected by the act of 1834?

4. If in full [**28]  force, did the act of 1841 impair it? and I conclude from this, that if the act of 1841 did impair it, it was void.

I do not propose to argue the second question. It is no longer open. It is decided by the State of New Jersey vs. Wilson, 7 Cranch. No struggle can distinguish that case in principle from my second proposition. New Jersey parted with the power of taxation over certain lands in her territory as effectually as the Colonial Government of the same had parted with it. In the case of the Providence Bank, the same principle was maintained. Where a valid contract has passed between a State and a corporation, the courts will not say it is not competent to a State to relinquish the power of taxing for a valuable consideration. Where is the objection to the exercise of this power? What is an exemption? It is a franchise; it is an immunity. An immunity from taxation is no more nor less than a franchise. All charters, to all companies, are exemptions. Franchises conferred are a part of the Eminent Domain. It is said this is a tremendous power. But is that an argument to a court of justice? Possibility of abuse is no argument to establish the non-existence of a power. All power [**29]  is discretionary; it may be illy directed. The responsibility is on the Legislature. They may call on their courts to correct all abuses of power. The decisions are conclusive on this point.

First Question. What is the meaning and interpretation of the eleventh section of the act of 1821? What creates the contract on which we rest? It is the grant of a total exemption, whether of the franchise, or of all the property held by the corporations in this State. Our opponents say it merely exempts the franchise. They admit to some extent at least, the power has been relinquished. To what extent I am now about to discuss. It is a question of great importance--of constitutional law always important--the decision of which may seriously affect the financial concerns of Maryland. It also affects important interests of corporations and individuals. You are not to look to the present condition of the State, though compelled to summon to her assistance all her aid. If she has the right, let her have all the benefit to redeem her violated faith; but I trust a still greater stain may not be affixed to this State, by again violating her faith upon another sacred point.

The eleventh section [**30]  of the act of 1821 contains a contract. In a statute we are to be governed by the intent on its face. We collect the intent from the words of plain, unequivocal import. Where there is no ambiguity you proceed no further. Ambiguous words may drive you to other laws. If the language is significant, the courts may not go out of it in search of intention. Dwar. on Stat. 9 Law Library, 51. In the absence of express words, or a strong implication, the court will not presume a grant. With these rules to guide us let us come to the language of this eleventh section. It pledges the faith of the State, on the banks complying with that law, not to impose any further tax or burthen on them. The whole stress of the argument turns on the meaning of the word further in this connexion. What is it in common parlance? No further injury--does that mean that one will do no further injury of the same kind? Rather is it not--no further injury of any kind. This word is used for additional. It is often used as a substitute, for additional--for other, in that sense I apply it. It is said further burthens refer to burthens of the same species, and that the latter words are to be supplied. It is said the contract [**31]  to exempt is not to be extended beyond that interpretation. To which we reply, the road was agreed to be constructed, and was constructed, and a school tax agreed to be paid for the extension of the charters, with the clause of exemption--an extension for twenty years with an exemption, provided the banks would build the road and pay the school tax--and we must look to the act itself, and not to the votes and proceedings of the Legislature which led to its adoption, for its true meaning. The construction given to the word further leads to absurd conclusions. None could anticipate that the Legislature would impose further burthens of the same kind, to the price paid for those extended charters. The contract is admitted to be inviolate. None could anticipate that the Legislature would encroach on the Constitution. As to any argument derived from the practice of the bank, and their payment of other taxes--if this was wrong, acquiescence in the wrong cannot make the act of 1841 a constitutional exercise of power.

A tax under the Bill of Rights must be uniform, and must be imposed for political purposes.

Third Point of Appellant. The act of 1834 is prospective in its provisions.  [**32]  It contains a grant from the expiration of the charter under the act of 1821. It protects the banks and recognizes the act of 1821. It gives an equivalent for banks relinquishing the faith of the State, not to object to further grant of banking privileges in Baltimore. The act of 1835, is a recognition of the existence of exemptions under the act of 1834, and extends them to the new banks. If the exemption of 1821 is total, constitutional, unaffected by the act of 1834, then, by the act of 1841, imposing a tax on the real and personal property of those banks, and their stockholders, is the contract of 1821 affected? As regards the banks themselves, there can be no question about it. The act of 1821 was a contract between the State and the banks. If the exemption was total, the real and personal property of the banks come within it--upon its true construction both are exempted. If the exemption be partial, there is an end of the cause.

What is a bank with reference to the capital of the institution? The capital stock is under the sole control of the directors. The stockholders have no control there; they are only entitled to dividends, profits made by the capital. Whatever portion [**33]  of the capital a stockholder has paid, it must endure to the end of the charter. He has only residuum. The corporation is a trustee for the stockholders, for each and for all. An agent with power to contract; to bind the stockholders collectively. All its acts are those of an agent, and they enure to the benefit of every and each stockholder. The tax of 1841 is on property. The capital stock of a bank includes all its property; each stockholder has only a residuary interest. The exemption then protects capital stock or it affords no protection at all. The act of 1841 taxes such capital. The Legislature so understood it. Now the power to exempt is contested, yet the Legislature claimed that right in 1821. If it exists, the act of 1841 is an infraction of it, and to say that a tax on property is not a tax on stock, and hence no infraction of the exemption, is an evasion unworthy of the State. It destroys the whole value of the exemption. 7 Dana, 338.

The intention of the Legislature as to the new banks, is manifested in the act of 1835, chap. 142, the preamble and first section. The ruling principle was to bring about equality between them and the elder institutions. It is said [**34]  the act of 1821 is repealed; we say it is irrepealable. An executed contract which cannot be touched. 13 Connec. 87, 95.

With regard to non-resident stockholders, the language of the thirteenth section of our Bill of Rights is as explicit as words can well be. The person taxed must be in the State. The property and person must both reside in the State. That concurrence is essential to the taxing power. The acts adverted to by my opponents do not impose taxes on non-residents. It does not appear that in their application, they included non-residents. In the Kentucky case the stock of non-residents was not held liable to tax, and the policy of taxing them in Maryland has been greatly exaggerated. It would hardly diminish the capital of the State. For if foreign capitalists are not taxable, they would be induced to throw in more funds here, of which the public would reap advantage in another form. The act of 1841, chap. 23, sec. 17, imposes a tax on non-resident stockholders, and obliges the banks to pay it. This is making one man pay the debt of another. Makes the bank assume the validity of the law, pay on the strength of it, and take the chances of recovery back. A regulation [**35]  which has no sanction under our Bill of Rights.

J. MASON CAMPBELL for the Chesapeake Bank.

After referring to the 13th section of the Maryland Bill of Rights, maintained, that our constitution did not contemplate taxing property or persons beyond the State. The situs must be within the State. Jurisdiction, and the right to tax, were co-extensive, and the State could not tax beyond its jurisdiction. The stock of non-residents in our chartered banks, hence, could not be taxed.

Next in point of fact, a double tax has been imposed upon the banks. All their real and personal property is taxed, and the shares of the capital stock are also taxed. Now with reference to the charter of these companies, the manner of their creation and organization, a tax upon their property, and the shares of stock in them, is in point of fact a double tax. The dividends of such institutions are no tests of intrinsic value. These depend on temporary circumstances. There may be no dividends. The purchaser, to determine the value of stock, looks behind the shares; he looks at that of which the shares are the representation--the property of the corporation. He regards the general condition and value [**36]  of all the property, and from these deduces value of shares. He considers shares and property as identical, and not two distinct subjects of property of different values. They combined have but one value. The stock is the representative of the value of the whole property of a corporation. Every corporation has a distinct object, no matter what. When the Legislature creates it, the capital is paid in, but it is soon converted into the objects for which it was created. The money is transmuted into the objects of the corporation. Let a rail road for instance be wound up--that is a test. What is the subscriber's right. Make a dividend among share-holders, and each would get one-twenty thousandth part of a road. Money value of stock must be dismissed from our ideas. 4 Peter, 562.

In such cases there is no new creation of property; it has only changed hands. Individuals have surrendered their money contributed it; put it into a common reservoir--where is the property? There exists in such case but one species of property? Who has the actual worth? In this respect a corporation is the similar of a partnership--one flows from the law, the other from the act of the party.

The power [**37]  to exempt from taxation is not expressly granted to the Legislature; but the taxing power is fully given as to persons and property within the State; to exempt them is but the repression of that authority. The State has all power over the subject but what is denied, and to make a case of want of power to exempt, the denial of such power must be shown in the constitution. New Jersey, Massachusetts and Connecticut, all exempt particular subjects from taxation. It is a question entrusted to legislative discretion. 7 Cranch, 165. 2 Pick. 403. 7 Pick. 110.

The power to exempt, frequently exercised by the Legislature of Massachusetts. 1779, 80; 1794, chap. 33; 1794, chap. 66; 1796, chap. 17.

The act of this State, of 1821, chap. 191, contains many exemptions from the taxing power; the soldiers' lands in Allegany, in their hands or in the hands of their descendants, were exempted.

Upon the appeal of the APPEAL TAX COURT from the refusal to assess certain property of the Baltimore and Susquehanna Rail Road Company. "It was admitted, that the rail road company "had conveyed to the State of Maryland all its lands and "tenements, capital stock, estates and securities, and goods [**38]  "chattels, property and rights, now or at any time hereafter to "be acquired; and the nett tolls and revenues of the company, "as an indemnity to the State against the obligations under "which the State has come, on account of it, amounting "to $ 2,227,151.65, and the interest payable by the State "thereon.

"It is further admitted, that at the time of the passage of "the tax act of 1841, there was a large sum due by the company "for such interest paid by the State on its account; that "such sum on the 1st December, 1841, amounted to "$ 279,590.84."

Upon the appeal by the same court against the Chesapeake Bank, it was agreed that the record should be amended by a statement of the manner in which the stocks held by the bank (the assessment of which was refused below,) are owned by it, whether as its property or as securities for monies loaned by it. If held in the latter capacity, the State does not claim to tax it.

Upon the appeal of the same court against the Neptune Insurance Company, it was agreed, that the stockholders in this company have been individually taxed for their shares of the capital stock of the company, and that the stocks sought in this case to be taxed,  [**39]  are the property of the company absolutely.

Upon a similar appeal against the American Life Insurance and Trust Company, it was agreed, that the stockholders therein had been individually taxed for their shares of the capital stock of the company, and that the stocks sought in this case to be taxed, are the property of the company absolutely.

STEELE, D. A. G., on behalf of the State in those cases where the Appeal Tax Court had refused to tax stock in certain corporations belonging to certain other corporations, as corporate property. As to the stock owned by the Susquehanna Rail Road in the Citizens Bank of Baltimore, he maintained that the mortgage by the company to the State of all its funds did not alter the question. The debt is due the State, and the tax is beyond the debt. The property mortgaged is not the State's, she has only a lien on it; and he maintained--

1. That the bank stock exempted from taxation by the official tax court, is not included within any of the exceptions of the 1st section of the act of 1841, chap. 23, and is liable to be taxed under that act. The terms, judgments, &c., or other securities belonging to any bank or other incorporated institution,  [**40]  the capital whereof is taxed, did not exempt the Susquehanna Rail Road Company; that company was not one of the "other incorporated institutions" designed to be exempted. Those words in this clause allude to those other institutions expressly mentioned in the first section of the act of 1841, as incorporated literary or charitable institutions, county schools, &c., and hence a rail road company was not within the excepting clause. The Legislature had in view either those other corporations named in the law, or corporations of a kindred character with the banks; neither does bank stock come under the head of other securities in that connexion; it did not mean to except bank stock belonging to any bank or other company. 10 G. & J. 308.

2. Upon the true construction of the act of 1827, chap. 72, the said bank stock is not exempt from taxation. It was not invested for the purposes of the company. By the 20th section of the charter, the object of which was the construction of a rail road from the city of Baltimore to the river Susquehanna, it was declared that, "that the shares of the capital stock of the "said company shall be deemed and considered personal estate, "and shall be exempt [**41]  from the impositions of any tax or burthen, "by the State's assenting to this law."

Under this clause the company cannot claim exemption from tax except on their capital stock. If the same property exists in two distinct forms, an exemption from tax in one form does not exempt it in the other form. Bank stocks are not shares of or in rail roads, hence it cannot be exempted. In Wildman vs. Wildman, 9 Ves. Jr., 177 a distinction was taken between a transfer of stock and payment of money to a married woman. It survives to her. The interest in stock is nothing but the right to receive the dividends perpetually.

3. The Legislature had no power to except the property of the appellees from taxation.

J. MASON CAMPBELL for the Susquehanna Rail Road Company, insisted upon the converse of the points raised by the State, and maintained, that from the Bill of Rights in 1776 to 1841, no tax laws had passed in Maryland without exemptions--contemporanea expositio, forti issime est in lege.

By the act of July 1779, chap. 6. An act for Naturalization. Section 6, it was enacted, that no tax should be imposed on any foreigner, tradesmen, artificers and manufacturers, coming into this [**42]  State and taking the declaration aforesaid, or his property, for the term of four years after his arrival.

By the act of March 1780, chap. 25. A supplement to the act for the assessment of property within this State. The taxes might be paid in money, certificates, or in cattle.

By the act of 1788, chap. 7. The Legislature loaned Amelung, a glass manufacturer in Frederick county, who had in his employment three hundred and twenty persons, one thousands pounds, and granted him an immunity from taxes for six years.

By the act of 1792, chap. 71. An act for valuation of real and personal property within this State. Various exceptions were made from the taxing power.

The act of November 1793, chap. 79 excepts, property belonging to this State, or the United States; houses for public worship; burying grounds; property belonging to any county, college or county school; crop and produce of lands in the hands of the cultivator; provisions for family use; plantation utensils; working tools of mechanics and manufacturers; wearing apparel; goods, wares and merchandizes; all home made manufactures in the hands of the makers; all stills; all ready money; all grain and tobacco;  [**43]  all licensed vessels above twenty tons burthen, from valuation and assessment. And there are further exceptions in the acts of 1797, chap. 89; 1803, chap. 92; 1812, chap. 193. There has never been a general tax law without exemptions of some sort; and see 3 Bland, 253, 258, 264. The fact of exemption has gone hand in hand with the taxing power. I refer to this case particularly, for to every one acquainted with the thorough manner in which the Chancellor examines and exhausts every subject he takes up, it is unnecessary for me to say that he has collected all the laws on this subject. Treble taxes were laid on non-jurors. Under the 13th section Bill of Rights, the Legislature has exercised ordinary, extraordinary, and exempting powers of taxation. They have a right to discriminate with a political view. This makes an exemption. Taxes and punishments are followed often by penalties and bounties. Penalties and bounties are incidental to sovereignty. Religion was to depend on individual efforts, and hence no property so applied was exempted. And when a great political object was to be achieved through the rail road company, at private expense, another exemption was granted.

This [**44]  property ought not to be taxed, because the State is owner as mortgagee.

CONSTABLE and HOWARD in reply for the Appeal Tax Court cited--12 Mass. 252; 11 Peters, 644, 659; 4 Peters, 168.

This case involves the question, whether mortgagors having thrown the legal title on the mortgagee, can also cast with it the burthen of taxation. It is a new principle, and it seems to us an invasion upon the law of mortgage, and the relations of the parties. The mortgagor is entitled to his interest without deduction, and the mortgagor who continues to reap the profits ought to pay the taxes. This court cannot foreclose the mortgage and cut off the mortgagor's rights. 6 Connec. 230; 7 Connec. 339.

Upon the appeal of the Appeal Tax Court, as representing the State, in the refusal of that court to tax various stocks held by corporations, banks, and insurance companies, whose capital stock had been taxed--

STEELE, D. A. G., for the State.

1. The State does not claim to tax stock held by the banks as a security for debts due them, but maintained that all other stocks held by them did not come within the exceptions of the act of 1841, chap. 23, sec. 1, and are liable to taxation [**45]  under that act.

2. The tax in question is not a double tax, and therefore no violation of the 13th article of our Bill of Rights.

MCMAHON, for the Western Bank.

This corporation holds property as agent for individual stockholders, and the State cannot tax the principal and agent at the same time. The agent may present the question if the principal is taxed. He may show who ought to be taxed, or that it has been laid upon the other party. If twice taxed, the stockholder may raise the question. Where the court cannot see the fact, they will permit the corporation to show the existence of a double tax, and repel it. Is there any such principle as a double tax in the Bill of Rights? This we deny. If I sell my title to an individual, and take his note, and yet hold my property, I am not to be taxed as holder of the property, and also upon the note. A double tax is a tax falling twice on same interest. 2 Kent, 331. All taxes should be equal. Equal taxes are demanded by our Bill of Rights. It denies the right to a double tax in all cases. Acting on the same property in any mode it is wrong. In the case of a hogshead of tobacco in the warehouse, represented by a certificate,  [**46]  which is a sort of currency, the evidence of its deposite, the tobacco and certificate cannot both be taxed. The declaration in the Bill of Rights, that every person ought to contribute according to his actual worth, means, must so contribute. This is the organic law; not a discretionary power, but a binding rule. A tax on the stock is a tax on the whole property of the corporation, and it is not to be re-taxed as capital. The stock includes all the property. The stockholders represent the whole property united, hence the corporation and share-holders are not both taxable. The Legislature by their exemptions show they did not mean to impose a double tax. They did not tax debts due the bank, which might be laid on an amount far beyond the capital--that would include the credit also. Hence a large amount beyond capital is expressly exempted. The representative and the thing represented cannot both be taxed.

MAYER, for the Neptune and the American Life Insurance and Trust Company.

For all the purposes of property, a court of law will regard a corporation as a mere association of individuals. Where justice requires it, the courts will resolve a corporation into its individuality.  [**47]  Corporations for the purposes of convenience, are authorised to sue in certain forms. In the creation of a corporation the State parts with no portion of her sovereignty. By that act her sovereignty is not impaired; nor is its property to be treated, as other, than the property of individuals. 4 Peters, S. C. 546, 562. 5 Cranch, 61. 7 Wheat. 553. Hence a tax on stock and corporate property is a double taxation, and not admissible.

The non-residence of the stockholders of the American Life and Trust Company exempts them from taxation. 16 Pick. 573.

HOWARD for the State maintained, that as to all stock purchased after the passage of the act by the companies, the tax thereby imposed could not be considered a double tax. The stock had been previously taxed, and the tax imposed upon the same stock in the hands of a new proprietor, cannot be treated as a double tax.

GEO. M. GILL upon his appeal--maintained in this case, the tax was levied upon all his possessions for State purposes, without any regard to his actual worth in real and personal property, with no deductions for large sums due by him on mortgage, while the sums due him in that mode were assessed; that the same [**48]  rule being observed both in the county and city taxes of Baltimore, it fell upon him in fact in a three-fold ratio. No such practice was legal under our Bill of Rights. Standing upon the act of 1841 alone it might be defended, but under the 13th section of our Bill of Rights, every citizen must contribute only according to his actual worth. Now actual worth can only be ascertained by deducting what a citizen owes from what he possesses. The words actual worth are of the most essential import in this clause, and give a peculiar meaning--a controlling meaning to the whole clause. Actual worth is contra-distinguished from imaginary or fictitious worth. It was a general system laid for the support of government, not a license or a temporary rule, but a general tax to pay debts; and I maintain, that the sums due on mortgage should be deducted from the sums claimed on mortgage, to and by each citizen, otherwise fictitious, and not actual worth is taxed.

STEELE, D. A. G., replied. The State looks to the ownership of each species of property. Money due on mortgage is taxed in the hands of the creditor. It is property which produces an annual profit. The law does not tax the worth of a [**49]  citizen, but the specific property of which he is owner, without any reference to his liabilities. In this view the act of 1841 is no violation of the Bill of Rights.

DULANY for the Washington College and Dr. Samuel K. Jennings, maintained--

1. That the tax imposed upon the Washington College by the assessors, is wholly unauthorized by the act of 1841, chap. 23, on the contrary, the first section of said act, and in the proviso thereof, colleges are exempted.

2. The tax upon the judgment against the college property, confessed in favor of Dr. Jennings, was for the benefit of the college itself; and that the money obtained thereupon was applied to the erection of the college, and that therefore the tax upon the said judgment is virtually a tax upon the college itself, which it will have to pay, and is therefore unauthorized by the said act, for the reasons aforesaid.

STEELE, HOWARD and CONSTABLE for the Appeal Tax Court, maintained--

1. That the Legislature had no right to exempt the property of Washington College from taxation.

2. That the judgment of Dr. Jennings against said college, is taxable under the act of 1841, chap. 23; he standing upon the facts [**50]  disclosed in the record as an ordinary judgment creditor of the college, and their being no exemption in said act given to creditors of incorporated literary institutions.

Upon the appeal of the Savings Bank of Baltimore, that bank filed the following statement:

To the Appeal Tax Court:

The Savings Bank of Baltimore appeals from the return of the assessors, and claims to be exempt from taxation on the property in the possession and care of said bank, on the ground that being merely a bank of deposit, having no stockholders or fixed capital, is itself free from liability to taxation on its deposites, and consequently is exempt from taxation on property which is merely lodged with it as collateral security for its loans, or held as investments of deposites, subject to be withdrawn at pleasure; which loans and investments are merely the representatives of the deposites.

The bank also objects to the assessment of property in its name, on the ground that said property being temporarily held as security for loans, and not owned by the bank, is property assessable to the individuals to which it belongs; to which individuals it is fairly to be presumed, (as the bank conceives,  [**51]  ) it must have been assessed.

The bank considers itself as only bound under the law to return a list of foreign stockholders, none of which it has, having in fact no stockholders.

J. CUSHING, President S. B. B.

November 30th, 1841.

Upon this appeal, MCMAHON for the bank filed the following points:

The appellant will contend, that the decision of the tax court assessing the stocks held by it as securities is erroneous, and ought to be reversed.

1. Because, as the stocks are held by the appellant as securities for money lent, the party pledging the stock to secure the loan, is within the contemplation of tax act, the owner of the stock, and liable to the tax on it, and not the pledgee, the appellant, who is only liable, if at all, on his loan.

2. That the appellant being an institution incorporated solely for the purpose of receiving and investing deposites made by individuals, and the securities which it holds being mere investments of such deposites, for the benefit of the depositors, are liable under the act to a tax on their deposites, (being money at interest,) and that therefore, the tax on the securities which are taken to secure its investments [**52]  of said deposites, operates as a double tax on the depositors, and is contrary to and forbidden by the Bill of Rights of this State; and also by the intent and equity, if not the letter of the exceptions of the first section of the tax act.

Upon further consideration, however, the counsel for the Savings Bank dismissed this appeal, and the questions raised were not argued or decided.

In the case of the appeal of the Philadelphia, Wilmington and Baltimore Rail Road Company vs. The Commissioners of Harford county, the parties by their counsel filed the following agreement as a part of the record in that case:

"The Philadelphia, Wilmington and Baltimore Rail Road Company was formed by an agreement of union, duly made and entered into between the following corporations, to wit: The Baltimore and Port Deposite Rail Road Company, "The Wilmington and Susquehanna Rail Road Company," and The Philadelphia, Wilmington and Baltimore Rail Road Company (of Pennsylvania.) This agreement of union was made on the day of its date, under the authority claimed under, and in pursuance of the directions of the several acts of Assembly therein recited; and was entered into after the primary [**53]  meetings of stockholders as required by said several acts; and was certified and recorded as required by said several acts. A copy of said agreement is herewith produced as a part of this statement, marked exhibit A. Copies of said several acts are also herewith filed as a part of this statement, marked exhibit B.

"The Baltimore and Port Deposite Rail Road Company was incorporated by the act of 1831, chap. 288, of the General Assembly of Maryland, which act and the several supplements thereto, are intended to form a part of this statement. The Wilmington and Susquehanna Rail Road Company, (one of the parties to said agreement marked A,) was formed by an agreement of union, duly made and entered into on the 18th April, 1835, between the Delaware and Maryland Rail Road Company, and the Wilmington and Susquehanna Rail Road Company, (of Delaware,) in virtue and in strict pursuance of the several acts in said agreement of union recited; and was certified and recorded as directed by said several acts, a copy of which last mentioned agreement of union, herewith filed as a part of this statement, marked exhibit C. The said corporation, the Delaware and Maryland Rail Road Company, was [**54]  incorporated by the act of 1831, chap. 296, of the General Assembly of Maryland, which act and the several supplements thereto, are intended to form a part of this statement. The Wilmington and Susquehanna Rail Road Company (of Delaware,) was incorporated by an act of the General Assembly of the State of Delaware, passed on the 18th day of January, 1832, which act and the several supplements thereto, are intended to form a part of this statement, copies of which are herewith filed, marked exhibit D. The Philadelphia, Wilmington and Baltimore Rail Road Company (of Pennsylvania,) was originally chartered by an act of the General Assembly of the Commonwealth of Pennsylvania, approved on the 2nd day of April, 1831, by the name of "The Philadelphia and Delaware County Rail Road Company," which, by a supplement to said act, passed the 14th day of March, 1836, was changed to the corporate name of "The Philadelphia, Wilmington and Baltimore Rail Road Company," which said acts, and the acts supplementary thereto, are intended to form a part of the statement, copies whereof are herewith filed, marked exhibit E.

"The map, herewith filed, marked exhibit F, is a correct and complete profile [**55]  of the rail road of the Philadelphia, Wilmington and Baltimore Rail Road Company, in its whole extent, and is intended to form a part of this statement. That portion of said Rail Road which lies west of the Susquehanna River, that is to say, between the city of Baltimore and the River Susquehanna, lying partly in Baltimore county and partly in Harford county, was made and constructed, (prior to the agreement of union, of which exhibit A is a copy,) was owned in severalty, by Baltimore and Port Deposite Rail Road Company. That portion of said rail road which lies east of the Susquehanna, and between that river and the divisional line between the State of Delaware and the Commonwealth of Pennsylvania, was made by the Wilmington and Susquehanna Rail Road Company, and (prior to the said agreement of union, of which said exhibit A is a copy,) was owned in severalty by said last mentioned company. Previous to the consolidation of the Delaware and Maryland Rail Road Company and the Wilmington and Susquehanna Rail Road Company, (of Delaware,) into one company, the line of the road which the said corporation, "The Delaware and Maryland Rail Road Company" was authorised to make, was that part [**56]  of said road which lay east of the Susquehanna, and between the river and the divisional line between the States of Maryland and Delaware; and that part of said road which the said corporation, "The Wilmington and Susquehanna Rail Road Company (of Delaware,) was authorised to make, is that part of said road which lies between the divisional lines of the States of Maryland and Delaware, and the commonwealth of Pennsylvania. Each of said last mentioned corporations, prior to their consolidation, had commenced the location and construction of their said several parts; but at the time of the union under the agreement, of which exhibit C is a copy, neither part was completed; but the whole was completed by the Wilmington and Susquehanna Rail Road Company, after the agreement of union, of which said exhibit C is a copy. The river Susquehanna is passed over by the use of a steamboat belonging to the appellant, and used by the appellant for the sole and exclusive purpose of transporting persons and property across said river from shore to shore, from the terminus of the rail road track, on the other shore--said steamboat is specially constructed for its use in connection with said rail road,  [**57]  and has rails laid on its upper deck, which are so constructed that the said rails are placed in juxta-position with the rail road track of the rail road; when the boat is in place for use in connection with the terminus of the road on either shore, on that, cars are received upon the said deck of said steamboat from the rail road track on one shore, and passed over the river by the said steamboat--and on to the rail road track on the other shore from off said boat, as the means of passing cars, &c., across the river; and prior to the agreement of union, of which exhibit A is a copy, was owned jointly, but in unequal parts, by the Baltimore and Port Deposite Rail Road Company, and the Wilmington and Susquehanna Rail Road Company, and was managed and kept in repair at the joint expense, in the proportion of their respective interest therein, by the said last mentioned two companies. The said steamboat before and since the said agreement of union, of which exhibit A is a copy, usually remained, and still usually remains, in a dock constructed in the Susquehanna river, by protecting piers projecting from the Harford shore, when not actually in use; which dock is within the limits of Harford [**58]  county. That part of said road which lies east of the divisional line between the State of Delaware, and thence extending to the city of Philadelphia, was, prior to the said agreement of union, of which exhibit A is a copy, constructed and owned in severalty by the said corporation, called, The Philadelphia, Wilmington and Susquehanna Rail Road Company, (of Pennsylvania.) The The principal office of the appellant, (ever since the agreement of union, of which exhibit A is a copy,) for the transaction of the business of said company, has been established and held in the city of Philadelphia, at the eastern terminus of said rail road. The stated meetings of the board of directors, by the terms of said agreement of union, are to be held alternately at Wilmington and Philadelphia. There are offices at Philadelphia, Wilmington and Baltimore, at any one of which transfers of stock may be made. The stated meetings of the stockholders are to be held in the city of Wilmington. Prior to said agreement of union, the principal office of the Baltimore and Port Deposite Rail Road Company was held in the city of Baltimore. All the corporate funds and capital stock of said appellant have been expended [**59]  and consumed in the location and construction of said road, and in the construction of such works and improvements as were necessary and expedient to the proper completion and use of said road, and in the purchase of cars and machinery of transportation, &c., necessary and indispensable to the completion and use of said road; and that the said company has not, at any time, since the said agreement of union, owned or held, and does not now own or hold any estate, real, personal or mixed, other than what forms a part of, or necessarily appertains to, the construction and completion of said road, and its works and improvements, and in the purchase of cars and machinery of transportation, &c., necessary and indispensable to its use; and that over and beyond its actual capital, it was found necessary to raise by loan a large additional amount for the purposes aforesaid, and which amount has been so applied. The appellant has been assessed under the said act by the assessors of Harford county, whose assessment was confirmed, on appeal, by the commissioners of Harford county, with the sum of $ 127,000, as shewn by the valuation filed in this case. The several parcels or tracts of land, valued [**60]  at 200 acres, at $ 10 per acre, as held and occupied by said company from the Gunpowder Falls to the Susquehanna River, lie within the limits of Harford county, and consists of the land held and occupied by said company, portions of which were acquired under condemnations for the use of said company under the provisions of the said act of 1831, chap. 233, and other portions of which were acquired by agreement with the owner for the bed, water stations, depots, and ticket offices of said company. The title acquired in each case of agreement with the owner being consummated by deed of bargain and sale to the president and directors of said company and their successors, in the ordinary terms of a conveyance in fee. The houses and other improvements on the road and at Havre de Grace, are the depots, ticket offices, and water stations, of said company, within the limits of Harford county. The rail road track iron, within the limits of Harford county, valued at $ 95,000, consists of the rails actually laid down and in use as the track of said rail road, within the limit aforesaid. And the steam ferry boat at Havre de Grace is valued at $ 15,000, is the steamboat hereinbefore mentioned, used [**61]  as aforesaid, for the sole and exclusive purpose of transporting persons and property across the river Susquehanna, from the terminus of the rail road track on one shore, to the terminus of the rail road track on the other shore, in the manner hereinbefore mentioned, said steamboat is, and continually since its use as aforesaid, has been duly enrolled and licensed at the Custom House in Baltimore, according to the act of Congress. The capital stock of the appellant, under the agreement, is divided into 45,000 shares of $ 50 each; and which stock is held by various persons, many of whom reside in the State of Maryland, and others of whom, and a large majority of whom reside in other States, and in Europe, and was so held at the time of said union. The stockholders residing in the city of Baltimore in Maryland had actually been assessed to the extent of the stock by them respectively held, no objection being taken to said assessment, nor any appeal prosecuted therefrom, no assessment has been made on the stock of any of the stockholders residing in Harford county or Cecil county, if any reside there, nor on the stock of non-resident stockholders.

OTHO SCOTT and W. SCHLEY, for the [**62]  P., B. and W. Rail Road Company.

The appellants, in support of the appeal in this case, and to shew that it, in its corporate capacity, is not liable to be assessed in respect of said land and other property, or, if liable to be assessed at all, not to the extent, or on the principles on on which said assessment was made, intends to rely upon the following points--

1. That by the act of March session, 1841, chap. 23, no property of any description was intended to be burthened, directly or indirectly, with the imposition of a double tax.

2. That by the same act, the capital stock of the appellant, (if not exempt from taxation,) is made liable to the tax thereby laid, and is to be valued and assessed in the names of the respective stockholders, and as the individual property of said stockholders; which stock fully and effectually represents the rail road of the appellant, and all necessary works therewith connected and indispensable to its use; and so represents the said land and other property assessed by the said assessors to this appellant, in its corporate capacity; so that if said assessment be not corrected, the said property will, in effect, be subjected to a double [**63]  tax, contrary to the intention of said act, and against the principles of the Bill of Rights.

3. That the said rail road and its necessary works therewith connected and indispensable to its use, are vested in the appellant, in its corporate capacity, in trust, for public use and subject to the right of the public to use the same, in the manner and on the terms prescribed by law, so that the appellant, in its corporate capacity, has no beneficial ownership in said road, as real property corporeal, and is not liable to the payment of any tax assessed thereon, as real property corporeal; and therefore is not liable to the assessment made in its name by the said assessors.

4. That the appellant has no beneficial right of property in said rail road and its necessary works therewith connected and indispensable to its use, except the right to demand and receive the tolls thereby allowed, for the transportation of passengers and property over and along the same; so that if the said appellant, in its corporate capacity, is liable to be assessed at all in respect of its property in said road, it ought to be assessed not with the value of the corpus of said road or any part of said [**64]  corpus, but in respect of the value of its franchise, or incorporeal right to demand and receive tolls as aforesaid.

5. That the appellant, if taxable at all, is taxable only, under the provisions of said act, in the city of Baltimore; inasmuch as its principal office is there established, and the western terminus of its road is in that city also.

6. That the assessment was made upon an erroneous principle, in this, to wit: that whereas, said land, houses and other improvements, and rail road track iron, are permanently united and co-exist, as a rail road with necessary works indispensable to its use; yet the said assessors, for the purposes of valuation and assessment, have separated the said rail road and works into parts, and have valued the original constituent materials of said rail road in severalty; which is calculated to work partial injustice in its results, and is contrary to the provisions of said act.

7. That the said appellant, in its corporate capacity, if liable to any assessment in respect of its permanent and fixed works within this State, is only liable to be assessed in respect thereof, at the value of the land thereby occupied, qua land; and wholly [**65]  independent of the value of said permanent and fixed works accruing from such improvement of said land.

8. That upon the true construction of said act of 1841, chap. 23, the appellant, in its corporate capacity, is not made liable to any tax or assessment in respect of its rail road and necessary works therewith connected, and indispensable to its use as a rail road, either as supposed owner of the corpus of said rail road and its works, or as owner of the franchise to demand and receive tolls, or in respect of its fixed and permanent works, in their improved condition; or in respect of the land occupied by said rail road and its works, at its rate of value qua land; or in any manner, or to any extent.

9. That upon the state of facts in this case, the said steamboat is not subject to assessment by the assessors of Harford county; and that the said assessment in this respect is erroneous, and unwarranted by law.

They cited 13 Serg. & Low. 334; 2 Barn. & Ald. 501, 571, 646; 4 Paige, 386.

STEELE, D. A. G., HOWARD and CONSTABLE, for the Commissioners of Harford county, maintained--

1. That the exemption from taxation of the shares of the company incorporated by [**66]  the act of 1831, chap. 296, is void, as being against the declaration of rights and the Constitution of the State of Maryland, whether such exemption be claimed by the company incorporated by that act, or any other company formed by an union or junction with it.

2. That such exemption, if good, was not by any subsequent act of Assembly transferred to or vested in the appellant.

3. That if such exemption be not void, yet the reservation to the State of the power to tax the permanent and fixed works of the company, which are within the limits of Maryland, justifies and sanctions the imposition of the tax which is the subject of the present appeal.  

JUDGES:
Appeals were argued before BUCHANAN, C. J., STEPHEN, ARCHER, DORSEY, CHAMBERS and SPENCE, Judges. DORSEY, J., dissenting.  

OPINION:

 [*156]  BY THE COURT--
Ordered and adjudged, that the appeals of the resident and non-resident stockholders of the Union Bank of Maryland, (ante 121,) be affirmed, except as to certain incorporated literary and charitable institutions, and the Union Bank, which were reversed.

 [*157]  That the appeals taken in the name of the Appeal Tax Court, (ante 121, 122,) and from  [**67]  the refusal of that Court to assess certain stocks held by the Baltimore Insurance Company, and other insurance companies and banks in the corporations there enumerated, and by the Baltimore and Susquehanna Rail Road Company in the Chesapeake Bank, be affirmed.
That the appeal of Geo. M. Gill, (ante 122,) be affirmed.
That the appeal of Charles F. Mayer, (ante 122,) be affirmed.
That the appeal of Washington College, (ante 123,) be reversed.
That the appeal of Dr. Samuel K. Jennings, (ante 123,) be affirmed.
That the appeals of Daniel Atler, and various other stockholders of the American Life Insurance and Trust Company, be affirmed.
That the appeal of the Philadelphia, Wilmington and Baltimore Rail Road Company, (ante 123,) be affirmed.
That the appeals of the resident and non-resident stockholders of the Farmers and Merchants Bank, and the other banks enumerated, (ante 123, 124,) be affirmed.
DORSEY, J., dissented from the judgment of this court, affirming the appeals taken in the name of the Appeal Tax Court, (ante 121, 122,) in all cases in which that court had refused to assess the stock held by the insurance companies and [**68]  banks, either in their own, or other corporations.  

15 of 46 DOCUMENTS 

DAVID WHITEFORD vs. CORNELIUS BURCKMYER AND ESTELL L. ADAMS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 Gill 127; 1843 Md. LEXIS 10 

December, 1843, Decided 

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

This was an action of assumpsit, brought on the 9th October 1840, by the appellees against the appellant, who pleaded non-assumpsit. At the trial the following exceptions were taken:

1ST EXCEPTION. The plaintiffs to support the issue on their part offered in evidence to the jury the following bill of exchange and protest:

"$ 1500. W. B.     Baltimore, 1st January, 1840.

Ninety days after date, please pay to the order of David Whiteford, fifteen hundred dollars, which charge as advised to account of     Your obedient servant,

NICHOLAS U. CHAFEE.

To Messrs. Blum & Cobia, Merchants, Charleston, S. C."

(Endorsed,) D. Whiteford. Pay to order Messrs. C. Burckmyer & Co. Th. Phenix. The last endorsement had been erased before the trial.

UNITED STATES OF AMERICA, City of Charleston, State of South Carolina. On the sixth day of January, one thousand eight hundred and forty, &c., at the request of Messrs. C. Burckmyer & Co., I, A. C. Smith, notary public, exhibited the original draft or bill, a copy thereof on the other side, to Messrs. Blum & Cobia, and demanded their acceptance thereof; to which they replied,  [**2]  we decline accepting for want of advice. I forwarded notices to the drawer and endorsers under cover, to Th. Phenix, Esq., cashier of Western Bank, Baltimore. Therefore I, the said notary, at the request aforesaid, have protested, and by these presents do protest against the drawer of the said draft or bill, the endorsers and all others concerned, for, &c. Thus protested at the city of Charleston, &c. In testimony whereof, I, &c.

A. C. SMITH, Not. Pub.

And then proved the hand-writing of the drawer and endorser, and their partnership as stated in the declaration; and proved by Mr. Hall, that he was a clerk in the Western Bank in 1840, and that "N. A., January 11th, 1840," on the books of said bank, is in his hand-writing, and means notice of non-acceptance received on that day, but said witness did not remember either to have received from any one, or delivered to any one, any notice of protest for non-acceptance of the bill upon which this suit was brought. And then offered to prove by Mr. Taylor, that he was the runner of the Western Bank in 1839 and 1840, who, on his examination in chief, stated, that to the best of his knowledge, he had a notice of protest for Whiteford [**3]  and Chafee, which he took to Whiteford, the defendant, at his store, who told him to take it to Chafee, and that he took it to Chafee's dwelling and gave it to some of the females of the family, Chafee being then absent at his place of business, his distillery; that witness delivered all notices for Chafee at Whiteford's store, either to Whiteford himself, or a clerk in his store; that all but this one were left there. This witness thought, was left in January, 1840; what time in that month he could not say. Witness told Whiteford they were notices of protest for drawer and endorser.

On cross examination, witness stated, that he had not read these notices, nor did he know what their contents were; that he made no memorandum of the time when he left them, nor of the fact of doing so.

The plaintiffs then called Thomas Phenix, cashier of the Western Bank, as a witness, who stated, after the bill was returned in October 1840, he took the bill and protest to Whiteford and asked him for payment; that Whiteford expressed great surprise, and said he had no notice of protest for non-payment. Witness replied, the bank had none either, but you had notice of non-acceptance; to which [**4]  Whiteford replied, yes, I might have had that, and objected to payment for want of notice of protest for non-payment. Whereupon, the counsel of defendant asked said witness if he had never stated, that he, witness, had given this notice to said Whiteford, who replied he never had said so. Whereupon, the counsel for defendant proposed to ask said witness, in order to discredit him by other witnesses, and to show his statements at other times to have been at variance with his evidence now given; whether said witness, after suit brought, had not called upon Whiteford to induce him to settle this bill, and whether said Whiteford did not at that time state to said witness, that he was not liable for said bill, because he had never received any notice whatever of protest, either for non-acceptance or non-payment, and that said witness replied, Mr. Whiteford, you are mistaken, I gave you the notice myself; to which Whiteford rejoined, you never did, nor did any one else. To the admissibility of which question the counsel objected, and the court (PURVIANCE, A. J.) refused the said question to be put to the witness in the manner above stated. The defendant excepted.

2ND EXCEPTION. The [**5]  plaintiffs and defendant having given in evidence the facts and circumstances stated in the first exception, which it is agreed shall form part of this, the defendant proved that the bill in question was discounted by the Western Bank, and by them transmitted to the plaintiffs, their agents at Charleston, for collection; and also proved that said bill was returned to the bank with the following letter:

Charleston, September 26th, 1840.

To T. Phenix, Cashier,--We herewith return you this protested draft of N. U. Chafee, on Blum & Cobia, for $ 1,500.

(Signed,)     BURCKMYER & CO.

And also, gave in evidence the following letter, written by order of the bank to the defendant:

Western Bank, September 30th, 1840.

Sir,--Blum & Cobia's note, $ 1,500, upon which you are endorser, has this day been returned unpaid, to which you will please attend. Respectfully,     W. B. BERRY.

By order, Th. Phenix, Cashier.

(Endorsed,) Mr. D. Whiteford. Present.

Whereupon, the plaintiff in order to shew an interest in the bill in question in the plaintiffs, or that they were in possession thereof at the time suit was brought, offered in evidence the following [**6]  letter, written to the bank:

Charleston, October 7th, 1840.

Mr. T. Phenix, Baltimore. Dear Sir,--Your favor of 30th ultimo and 2nd inst. are at hand, returning Chafee's draft on Blum & Cobia, $ 1,500. This draft was regularly noted for non-acceptance, and the drawer and endorser furnished with notice of the same. Our young man laid it away in our chest, where it was overlooked; but as Messrs. Blum & Cobia had not, nor have had since, any funds of the drawer, we do not think much of the honor of the indorser who would take advantage of an oversight, when no loss has accrued to him thereby. We presume, according to strict mercantile usage, we are responsible to you, but only when you have proceeded against the draft, and obtained from the parties all you can; the balance, if any, we will have to make up. We therefore return you the draft, with protest for non-acceptance. For the purpose, however, of settling this unfortunate business, if you can make a compromise with them at once, and yield up a part, we will make up the deficiency at once. We remain yours, respectfully,

C. BURCKMYER & CO.

Neither Messrs. Blum & Cobia, or Messrs. Caldwell & Sons, have any property [**7]  of Mr. Chafee's.

To the admissibility of which, defendants objected, but the court overruled the objection, and allowed the evidence to go to the jury. The defendants excepted.

3RD EXCEPTION. The plaintiffs and defendant, to support the issue on their parts, having offered in evidence to the jury the facts stated in the previous bills of exceptions, which it is agreed shall form part of this, the defendant called a witness who proved, that Thomas Phenix stated to Mr. Whiteford, the defendant, in a conversation in February 1841, that he, said Phenix, had served the notice on said Whiteford himself: and also proved that said Phenix was not in Baltimore from the 9th to the 15th January, 1840, and that a letter mailed in Charleston on the 6th January, 1840, would have reached Baltimore on the morning of the 11th of that month. The plaintiff, in order to corroborate the evidence of T. Phenix, then called Mr. McMahon and Mr. Collins to prove prior statements by Phenix to them, and after suit brought, and before February 1841, of his conversations with Whiteford, of which he has testified, to confirm his testimony in relation to them. To which the defendant objected, but the court [**8]  allowed the evidence to go to the jury. The defendant excepted. (This exception was abandoned at the trial.)

4TH EXCEPTION. The plaintiffs and defendant, having given in evidence the facts stated in the preceding exceptions, which it is agreed shall form part of this, the defendant further proved by two witnesses, that they were clerks of N. U. Chafee, not living in his house, in January 1840, and that they never saw, knew or heard of any protest, or notice of protest, of the draft now in suit, for either non acceptance or non-payment, until September or October 1840. The plaintiffs then offered to prove, that shortly after the time when these notices must have been received, Chafee called at the Western Bank and stated to witness, that notwithstanding the protest for non-acceptance, the bill would be paid at maturity. To the admissibility of which statements by said Chafee, in order to affect in any way the draft in this cause, the counsel for the defendant objected, but the court overruled the objection, and allowed the evidence to go to the jury. The defendant excepted.

The plaintiffs and defendant having given in evidence the facts and circumstances as stated in the foregoing [**9]  exceptions, which it is agreed shall form part of this, the defendant then proved what is stated in the foregoing agreement:

It is admitted, that a letter leaving Charleston by the mail of the 7th January 1840, would have reached Baltimore on the morning of the 11th, before 9 o'clock, and that defendant is, and always has been, a resident of Baltimore, and that the 11th January 1840, was Saturday. And also, that Thomas Phenix was absent from Baltimore during the 10th, 11th, 12th, 13th and 14th January 1840, and proved by said Phenix, that he never saw the notices of protest for non-acceptance, and proved by Berry, Hull and Mason, clerks in said bank, that they never saw said notices, and know nothing of their delivery. The defendant further proved, that this bill was discounted by the Western Bank, and was by them sent to plaintiffs, their agent at Charleston, for collection, and was returned to said bank in the following letter. (See letter of 26th September 1840 ante 132.) The plaintiff then gave in evidence the following letter from plaintiffs to the Western Bank. (See letter of 7th October 1840, ante 133.) The defendant then proved, that when this draft was discounted, Charleston [**10]  was paying specie, and Baltimore funds, including notes of the Western Bank, were seven per cent. below specie; that it would cost about one per cent. to transmit specie from Charleston to Baltimore; that drafts in January 1840, were sold by the plaintiffs in Charleston, on the Western Bank of Baltimore, at three per cent. discount; that is, $ 970 in Charleston purchased a sight check on Baltimore for $ 1,000. And also proved by Herman Perry, that on the 15th January 1840, he bought a draft on Charleston in Baltimore, at sixty days, at par. The defendant then proved, that there was a great difference between the price of sight and time drafts; and there was no regular rate of exchange from Baltimore to Charleston; and that one per cent. was a fair rate of exchange on a bill drawn from Baltimore on Charleston; and further proved by T. Phenix that when he discounted said bill, he charged one per cent. over and above the legal rate of interest, as exchange and not as interest or usury. The defendant also proved he had merely endorsed this bill for Chafee's accommodation. It is also admitted, that the testimony as to Chafee's declarations to Phenix was taken, subject to exception as to [**11]  its admissibility to affect this defendant; but that it was offered in evidence after the evidence offered by the defendant, by Chafee's clerks, to prove that they never saw or heard of any such notice, and to show that Chafee had never received it.

The defendant then made the following prayers to the court, and the plaintiffs submitted the following modification thereof:

1. That the defendant in this case being an endorser of a bill of exchange, drawn upon a party in another State, and there protested for non-acceptance, was entitled to strict notice of the presentment of such bill and the protest thereof.

2. That such notice is not sufficient if given by a stranger to the bill, but could only be given by one of the parties to such bill, or by a duly authorised agent of one of the parties to such bill.

3. That a notice given by Mr. Taylor, unless authorised by some of the parties to said bill to give the same, was not sufficient notice.

4. That the evidence given by Taylor is not sufficient to shew that strict notice was given to Whiteford, of the protest for non-acceptance of the bill of exchange in controversy in this suit, and that evidence of a waiver [**12]  of notice is not sufficient to maintain the present declaration, if the jury believe that Whiteford received no consideration from Burckmyer & Co., the plaintiffs, or from any other person for said bill.

5. The defendant prayed the court to instruct the jury, that if they believe that a letter leaving Charleston by the mail of the 7th January 1840, would have reached Baltimore on the morning of the 11th January 1840, before 9 o'clock; and if they further believe that defendant was always a resident of Baltimore, then plaintiffs are bound to prove that notice of demand on and refusal of acceptance by the drawee, was given to defendant on said 11th January 1840, or upon the first business day thereafter.

6. That in order to enable the plaintiffs to recover, they must satisfy the jury that a demand of the bill was made of the drawees, and acceptance refused by them, or one of them, and notice thereof sent to the defendant by the first or second mail which left Charleston for Baltimore, after the demand and refusal of acceptance, or if no notice was sent to defendant from Charleston by any of the parties to the bill, nor by the agent of any of them, but the only notice sent from [**13]  Charleston was transmitted to T. Phenix, the cashier of the Western Bank, then that said Phenix or some agent of said bank, or some other party to the bill, or some agent of such other party, at some time not exceeding a day after the receipt of such notice by said Phenix, gave notice of such demand and refusal to defendant, and the burthen of proof is upon the plaintiffs to shew such notice given, and unless the jury are satisfied from the evidence, that notice was given to defendant within one day after the arrival of such notices at the Western Bank, plaintiffs cannot recover in this case.

7. If the jury believe that the Western Bank of Baltimore were the holders and owners of the bill on which this suit is brought, at the time it was so brought, the plaintiffs cannot recover in this case, although this suit was brought in their names, by order of the bank.

8. That in order to entitle the plaintiffs to recover, they must show either a demand for payment of the bill from the drawee, and refusal by him to accept, or notice of demand and refusal to defendant, or waiver of such demand and notice.

9. If the jury believe that the true rate of exchange between Baltimore [**14]  and Charleston was in favor of Charleston at the time this bill of exchange was discounted, that the agreement to take, and taking one per cent. for exchange, over and above the legal rate of interest, is usurious, and the said bill is void, and plaintiffs cannot recover in this case. (Abandoned at the trial.)

10. That all the testimony offered by the plaintiff, with reference to the acts and declarations of Chafee, are inadmissible to charge the defendant in this cause.

11. That there is no evidence in the cause to shew a proper legal notice of protest for non-acceptance, to the defendant in due time.

12. That in order to entitle plaintiffs to recover, there must be evidence of a demand of payment of the bill, when the bill in controversy became due, and notice of the refusal to pay the same.

13. If the Western Bank, at the time they took the bill of exchange now in controversy, did ask and take a higher rate of exchange than was currently paid for good bills of exchange on Charleston, it is usury, and the plaintiffs are not entitled to recover. Abandoned at the trial by counsel.

14. That the protest offered in evidence, is no proof of notice of presentment,  [**15]  for non-acceptance and refusal to accept; having been duly and legally sent from Charleston to Baltimore.

Qualification by Plaintiff of the Defendant's sixth Prayer.

"But the fact that such notice was given to the defendant, may be established by circumstantial or presumptive evidence, as well as by direct proof; and the protest for non-acceptance offered in evidence, the proof by the witness Taylor, of the actual delivery of certain notices of protest to the defendant, as stated by said witness, and the conversations of the defendant with the witness Phenix, as proved by said Phenix, furnish evidence from which the jury may infer, that such notice as is above mentioned, was given to the defendant."

The plaintiff then prayed the court to instruct the jury, that the proof offered by the plaintiff, of the delivery by the witness Taylor, at the residence of Chafee, the drawer of the notices of protest originally taken to the defendant, and of the acts and statements of the said Chafee, in relation to the same, as proved by the witness Phenix, being offered in reply to the proof offered by the defendant, by the witnesses Benson and Brummell, to shew that such notices never [**16]  were delivered to, or received by said Chafee, is admissible to prove that said Chafee did receive said notices, and that they were notices of protest for non-acceptance, relating to the bill sued on; and that such proof is evidence in connection with the protest for non-acceptance offered in evidence, the proof by the witness Taylor, of the actual delivery of said notices in the first instance to the defendant, as stated by said witness, and the conversations of the defendant with the witness Phenix, as proved by said Phenix, from which the jury may infer, that such notice as is mentioned in the plaintiff's fifth prayer, was given to the defendant; or is at least evidence from which the jury may infer, that said notices, which according to the proof of the said Taylor, the witness, was originally taken by him to the defendant, and afterwards by the defendant's directions, were taken by said witness, and left at the residence of said Chafee, were notices of protest for non-acceptance of the bill sued on in this case, or that it is at least, evidence to confirm the testimony of the witness Taylor.

Whereupon the court (PURVIANCE, A. J.) granted the first, second, third, fifth and [**17]  eighth, prayers of the defendant, and the sixth with plaintiff's qualification, and also granted the plaintiff's prayer, and refused the other prayers of the defendant. The defendant excepted.

The verdict and judgment being against the defendant, he appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

It is a sound rule that before a party can discredit a witness by proof of his having made statements at variance with his testimony, the witness whom it is intended to impeach, should first be afforded a full and fair opportunity to recollect, by calling his attention to dates, names, or other attendant circumstances, as connected with the matter about which he is to be charged with having made different statements; but in the matter of the testimony which it is proposed to contradict, or in the manner of arriving at it, a party will not be allowed to violate any positive rule of evidence.

It is not permitted to ask a witness any fact which fancy or idle curiosity may suggest for the purpose of disproving it by another witness; nor is it proper to ask a witness, with the same view, of a fact proper in itself to be proved in the cause, if the only knowledge of such fact has been obtained through a source which the rules of evidence do not recognize as competent.

It is a rule of evidence, subject to very few and well defined exceptions, that a party cannot offer in evidence his own declarations in relation to the subject in controversy.

Where a question proposed to be asked of a witness involves several distinct members, the court is not bound to select from it such members as might be admissible, if unaccompanied by the others with which it is connected, and say that such particular portions of the testimony are proper.

A letter written by the plaintiffs in the cause to a third party, unaccompanied with other proof, is like their verbal declarations to him; and where it was intended to establish that the letter contained a certain enclosure, the party to whom it was addressed, and who received it, being a competent witness, is the best evidence to establish the fact.

In an action by an endorsee against the endorser of a bill of exchange, the drawer is a competent witness to prove that he had received notice of non-acceptance, and his declarations to a third person are not therefore the best evidence of that fact.

Where an agency is established, it is generally true, that an admission of an agent while in the execution of his agency, is admissible to charge his principal.

To entitle an appellant to a reversal for error in instructions, he must make good all the propositions contained in his motion, however numerous they may be.

The necessity for plain and satisfactory proof as to the time of service of notice of non-acceptance, where that is material, has always been insisted on; it may be proved by circumstantial testimony, but the circumstances must point not to notice at some time, but to notice on the day when the party had a right to expect and receive it.

Where several witnesses are examined, the testimony of any one of them may be selected from the mass of proof with which it is connected, and made the subject of an instruction.

A party may waive the privilege of claiming notice of protest, as he may any other right which the law has secured to him.

Under an allegation of notice of protest to an endorser in the declaration, the plaintiff may show a waiver of the right by the defendant.

It is the privilege of a party to raise any question of law arising out of the facts of the case, and to demand the opinion of the court distinctly upon it.

If the opposite party believes that other facts not embraced in the hypothesis assumed, are properly calculated to justify an application for other and different instructions, he has the equal privilege of asking an opinion on the additional facts, but not the privilege of controlling and modifying the hypothesis of his antagonist, nor annexing modifications to it against the consent of the party moving it.

Where the holder of a bill of exchange, in Baltimore, sends it to a distant place, as Charleston, S. C., for acceptance, and it is not accepted, the plaintiff, in an action against an endorser, must show presentment for acceptance and refusal, and notice duly transmitted from Charleston to the endorser by mail, or if the notice to the endorser was sent by mail to the holder in Baltimore, that he delivered it within one day after the arrival of such notice in Baltimore, and the burthen of proof is on the plaintiff to show such notice given.

Where the language of an instruction is calculated to bias the mind of the jury upon a contested matter of fact, it is error.

Where the entire and exclusive interest in a bill is vested in the holder thereof, he cannot institute an action upon it in the name of another party.

Possession of a note endorsed in blank will enable the party having it to maintain suit, except mala fides be proved.

Courts of justice will never enquire in such cases, whether a plaintiff sues for himself or as trustee for another, nor into the right of possession, unless on an allegation of mala fides.

Blank endorsements may be filled up at the moment of trial.

If a bill has been transferred by endorsements, all of them in full, it can only be sued on by the special endorsee.

A bill payable to bearer, or a bill payable to order endorsed in blank, will pass by delivery and bare possession, is prima facie evidence of title.

If an agent receive a bill with all the endorsements in full, and the last in full to his principal, the agent cannot sue in his own name, or if the endorsements are in blank, and he were to fill it up to himself or his principal, it could not be sued on in the name of a stranger.

Since the act of 1825, ch. 35, any holder with a blank endorsement may now sue in his own name, but that act cannot be construed to extend the right of action to one who has no interest in the bill, either as holder or owner.

It is a settled principle, that the court will not instruct the jury that there is no evidence of a material fact, if there be any evidence whatever tending to prove it.

An admission of notice by a defendant endorser is evidence, on which the jury may find notice, in due time, and in due form.

An action will lie upon notice of presentment, and non-acceptance of a bill of exchange, without waiting for demand of payment at the maturity of the bill.

The holder is not bound to present a bill payable on a certain day after date, for acceptance, unless he be an agent to get it accepted, or to collect it. If it be presented, and acceptance is refused, it is dishonored, and immediate notice must be given to the parties who are to be charged.

The act of 1837, ch. 253, was designed to extend the credit which, by the courtesy of commercial nations, had been given to the certificate of a notary public.

The certificate of a public notary had been received as prima facie evidence of the presentment by him for acceptance or payment, and of his protest of the bill for non-acceptance or non-payment.

The act of 1837, ch. 253, extends this doctrine as well to inland as to foreign bills or notes, as to notice sent or delivered in the manner stated in the protest.

It is not necessary that notice of protest be sent by mail, and a party is not bound to be more expeditious or certain than the mail.

Notice, if sent by mail, need not be enclosed to the address of the party to be charged. If it be received by him in due time, he cannot object to the mode of conveyance.

Where the protest does not show notice of dishonor transmitted to the party to be charged, that fact may be supplied by other proof.

The rule which excludes hearsay evidence is as obligatory in repelling and discrediting testimony, as in conformatory.

The declarations of a person who is a competent witness cannot be offered in evidence merely because they are in reply to the testimony of other witnesses.

A party may group into one instruction as many and as complicated facts as he pleases, to assume his testimony will prove, and ask the court to instruct the jury on the legal result of that mass of facts, but if amongst the enumerated facts there be such as it is not competent for the jury to act on, he must fail in his application.

Where the instruction given, authorised the jury to find one of three alternate and distinct propositions of fact, without saying which, it is error. It would be impossible for them to ascertain whether they were thereby authorised to find the first, second or third alternation.

If counsel present to the court a complicated and involved statement, which it will be difficult for the jury to understand distinctly, it will be a sufficient ground upon which the court should refuse to give a direction in the terms asked for.  

COUNSEL:
By WALSH and RICHARDSON for the appellant, and

By MCMAHON for the appellee.  

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

OPINIONBY:
CHAMBERS 

OPINION:

 [*139]  CHAMBERS, J., delivered the opinion of this court.
Of the numerous questions arising on this record for our decision, the first is whether the testimony which the defendant proposed to offer, and to which the plaintiff objected, as stated in the first bill of exceptions, was admissible. It is certainly a sound rule, that before you can discredit a witness by proof of his having made statements at variance with his testimony, you must first afford to the witness whom it is intended to impeach, a full and fair opportunity to recollect, by calling his attention to dates, names or other attendant circumstances connected with the matter about which he is to be charged, to have made [**18]  different statements. But in the matter of the testimony which it is proposed to contradict, or in the manner of arriving at it, the party will not be allowed to violate any positive law of evidence. It is not permitted to ask a witness any fact which fancy or idle curiosity may suggest, for the purpose of disproving it by another witness; nor is it proper to ask a witness with the same view, of a fact proper in 

 [*140]  itself to be proved in the cause, if the only knowledge of such fact has been obtained through a source which the rules of evidence do not recognise as competent.
It is an unbending rule of evidence, subject to very few and well defined exceptions, that a party cannot offer in evidence his own declarations in relation to the subject in controversy; and to ask a witness to repeat what a party interrogating him has said, although such interrogatory be accompanied with a declaration of his purpose to contradict the answer, might often lead to the introduction of evidence as effectually destructive of this rule as if no such purpose were avowed as a motive for it. In the testimony proposed to be given and which the court below allowed to be asked, were certain declarations [**19]  of the defendant himself in relation to the fact then in controversy. We think the court properly refused to permit the defendant to give evidence of his own declarations that he was not liable, and had not received notice of protest, nor do we think, as one of the counsel has suggested, that where a question is proposed to be asked of a witness, which involves several distinct members, the court is bound to select from the question such members of it as might be admissible if unaccompanied by others with which it is connected, and say that such particular portions of the testimony are proper.
The second exception raises the question whether the plaintiff's letter of 7th October 1840, was admissible evidence. By an agreement of counsel, it is admitted the letter was written and addressed by the appellees, but there is no proof of the time when it was written; none that it was received by the person to whom it was addressed, or that it did in fact enclose the bill of exchange. Waiving however these objections we cannot distinguish between the statements reduced to writing in this letter, and the same statements by the same persons at the same time and under similar circumstances,  [**20]  made verbally. If the person to whom the letter was addressed had been called to prove that the appellee, plaintiffs below, had made to him the same declarations verbally, it would have 

 [*141]  been in direct violation of that admitted rule of evidence which prohibits a party from testifying in his own case; and in this case the facts shew that it was made evidence in despite of another principle, which requires the best evidence the nature of the fact affords. T. Phenix, the person to whom the letter was addressed, by whom the note was received if sent with the letter, was a witness in the cause, and was competent to prove all that the letter itself is said to have been designed to prove. We think the letter was not therefore admissible.
The third exception has been abandoned, and we therefore have only to affirm the opinion expressed in it.
We differ with the court below in the opinion expressed in the fourth bill of exceptions. Chafee was a competent witness in the cause, and his testimony upon oath was better evidence for any purpose, or in any view, than the testimony of his declarations derived through a third person. The appellees' counsel endeavored to evade the [**21]  force of this objection, by insisting that Chafee must be regarded as the agent of the appellant, the defendant below, who for that reason could be charged upon his agent's admissions. If an agency be established, it is generally true that an admission of the agent while in the execution of his agency, is admissible to charge his principal. But the only authority which by possibility can be claimed for the witness Chafee, was an authority to receive the notice of protest sent to appellee.
Admitting for the argument, that there was such an authority, his declarations made at the bank at a subsequent time, and in reference, not to the notice to appellant, but to himself, could not be regarded as being in the execution of such authority.
In the fifth exception, the court below was called upon by the appellant, the defendant below, to instruct the jury on fourteen different points. The court gave instructions on five of these points as asked for. To one of them the appellee, plaintiff below, proposed a modification, and it was given with the modification annexed. One instruction was asked for by the appellee, which was given.

 [*142]  The appellant's counsel has [**22]  rightly abandoned the two points raised on the question of usury, and the remaining questions present themselves for decision.
The first in order contains two distinct propositions of law, one that Taylor's testimony was not sufficient to prove notice of protest; the other that proof of waiver of notice would not support the action if the appellant received no consideration.
To entitle an appellant to a reversal for error in instructions, he must make good all the propositions contained in his motion, however numerous they may be. Hence the prudence of presenting a single and explicit point to the consideration of the court.
If the first of the two propositions before us had been presented singly, we should say it was sustained. The amount and importance to the community of negotiable paper, has occasioned a system of law as applicable to it, peculiar in many respects. Its apparent strictness has been found by long experience a necessary preventive to serious mischief. The necessity which introduced it, continues to demand an exact conformity to its terms. In no department of this system is there required more unyielding compliance with its rigorous demands, than in regard to [**23]  notice of protest. Certain technical rules as to the time and manner of serving it have been adopted, and no question about consequent loss or otherwise, or about abstract notions of justice or equity, can be started with the view to exempt a party from their observance. It is admitted that it was necessary in the present case, that notice of protest should have been served on the appellant not later than on Monday, the 13th January 1840, on the hypothesis most favorable in this respect to the appellees; that is, assuming that notice of protest was addressed under cover to T. Phenix. The necessity for plain and satisfactory proof as to the time of service has always been insisted on. Certainly it may be proved by circumstantial testimony, but the circumstances must point not to notice at some time, but to notice on the day when the party had a right to expect and receive it. In 1 Stark. Rep. 314, the proof was on one of two days, but the court held it 

 [*143]  not sufficiently certain. Here Taylor says it was "some time in January."
It has been urged that the testimony of one witness cannot be selected from a mass of testimony with which it is connected, and [**24]  be made the subject of such an instruction. It well may, and doubtless often does happen, that a fact is satisfactorily proved to the jury by the testimony of several different witnesses, each testifying to distinct parts of a transaction, when the evidence given by either one, would not prove the fact. Still we do not perceive the propriety, or principle or authority, of restraining a party from attacking the evidence of either of the several witnesses as to its sufficiency. He may be able to impeach, contradict or explain the testimony of the others, and thus make it quite important to have the legal effect of the one witness declared by the court. If he fails to contradict it in any part, or if the opposite party apprehends mis-conception on the part of the jury from such an instruction, the effectual remedy is at hand by asking an instruction on the whole testimony taken together.
But although this first proposition is tenable, the court correctly refused to give the fourth instruction asked for, because the second proposition involved in it could not be sustained. We hold it clear, as well upon principle, as from adjudged cases, that a party may waive the privilege of claiming [**25]  notice of protest, as he may any other right which the law has secured to him. The authorities cited in the argument shew that this is regarded as settled law elsewhere, and in the late case of the Farmers Bank vs. Duvall, 9 G. & J. 31, this court assumed such to be the law in Maryland, although the objection was urged then, as it is now, that the declaration expressly alleged notice.
The next question we are to consider in this exception is, whether there be any thing of which the appellant can complain in reference to the giving of the sixth of the instructions asked for by him. We hold it to be the privilege of a party to raise any question of law arising out of the facts of the case, and to demand the opinion of the court distinctly upon 

 [*144]  it. If the opposite party believes that other facts not embraced in the hypothesis assumed, are properly calculated to justify an application for other and different instructions, he has the equal privilege of asking an opinion on the additional facts, but not the privilege of controlling and modifying the hypothesis of his antagonist. To allow this, would often defeat a most important right. The illustration may [**26]  be found in the case before us. Assuming, as the appellant's sixth instruction does, that the appellee would rely on proof of presentment and notice of non-acceptance, and not on a waiver of notice, it is not denied that it contained the law of the case, correctly asserting that notice must be proved as therein stated, and that the burthen of proof was upon the plaintiff in the cause. The assertion of this proposition was of no sort of importance to the appellant, unless he could satisfy the jury, that the plaintiff below had failed to exhibit the proof which the court declared it to be necessary for him to produce. He thereby virtually denied the existence of such proof. It would therefore be manifestly suicidal for him to subjoin to the instruction asked for, the further opinion of the court that the jury might, in the facts enumerated in the modification, find the proof required. In effect it makes the appellant to ask the court to say to the jury, "the plaintiff cannot recover without a certain description of proof, but the facts in evidence may be regarded as such proof." No party can be coerced into such an attitude. If the proposition asked for is not justified by the evidence,  [**27]  or is not in accordance with the court's opinion of the law, they may refuse it altogether, or they may state in what respects they dissent from it, but the opposite party has not the right to annex modifications to it against the consent of the party moving it. Although the exception does not explicitly state this as one of the grounds on which it was taken, yet the generality of its terms will include this as well as every other ground of complaint. We think the court were wrong therefore in declining to give the sixth instruction without the modification. We think too, that the language in which that modification was expressed, was calculated to lead the jury to a conclusion which 

 [*145]  the court certainly could not have designed to influence. "The proof by the witness Taylor of the actual delivery of certain notices of protest to the defendant," these expressions might readily be regarded by the jury as evincive of a decided opinion that Taylor had proved an actual delivery of notice to defendant, and yet it is very manifest that this was one of the contested facts in the cause, upon which of course the jury should act without the slightest bias from the court.  [**28]  
In the seventh instruction, the court informed the jury that if the suit was brought in the name of the plaintiffs below by order of the Western Bank, it was not sufficient to defeat the action to shew that the bank was the owner and holder of the note at the time the suit was instituted.
Assuming the language used to import the entire and exclusive interest in the bill and its possession, we do not concur in that opinion. The authorities produced by the appellee's counsel, and the principles deduced from them are not denied. Possession of a note endorsed in blank, will enable the party having it to maintain suit, except mala fides be proved. Courts will never enquire whether a plaintiff sues for himself or as trustee for another; nor into the right of possession, unless on an allegation of mala fides; and blank endorsements may be filled up at the moment of the trial. None of these propositions can govern this case. It is a principle of universal application, that actions at law are to redress wrongs or enforce rights. The quantum of the injury or the value of the rights may not be weighed, but to complain of an injury inflicted, or a right violated, when that [**29]  injury was exclusively inflicted on another, or the right exclusively the property of another, without any interest in the plaintiff, would certainly be an anomaly in the law. None such is found in the particular department we are considering. If a bill has been transferred by endorsements, all of them in full, it can only be sued on by the special endorsee. Story on Bills, 230, 231, sec. 207, 208. Why is it so? Certainly for the reason that as no interest in such a bill can pass by delivery alone, the entire interest in legal contemplation remains in the last endorsee, and all others are strangers in interest.

 [*146]  A bill payable to bearer, or a bill payable to order and endorsed in blank, will pass by delivery, and bare possession is prima facie evidence of title; and for that reason possession of such a bill will entitle the holder to sue. The law is not changed by any consideration of the character of parties as principal or agent. If an agent receive a bill with all the endorsements in full, and the last in full to his principal, the agent cannot sue in his own name; or if the endorsements are in blank, and he were to fill it up to himself or his principal,  [**30]  it could not be sued on in the name of a stranger. Some interest must appear. It may be said that where all the endorsements are in full, the last endorsee may sue for the use of the actual holder. True he may, and this confirms the principle we assert, the endorsee being the legal plaintiff.
In the case before us the appellant, the defendant below, claimed that by the evidence, it appeared that the plaintiff in the action had received the bill merely as agents for the Western Bank, to whom they had returned the bill prior to the suit, and that the bank continued to be the owners and holders of the bill. The case of Clark vs. Pigot, 1 Salk. 126, has much analogy to the present in principle. There Clark having a bill payable to himself or order, put his name upon it, leaving a vacant space above, and sent it to his friend J. S., who got it excepted. Upon suit brought by Clark against the acceptor, it was objected that J. S. should have brought suit and not Clark. It was held that J. S. might have made himself endorsee by filling up the blank to himself, and then the property in the bill would have passed to him, and he alone could have maintained the action;  [**31]  or he might act as servant to Clark, (of which his failure to fill the blank was regarded as proof,) and thus leave the property of the note and the right of action in Clark. It would seem that striking out the name of T. Phenix, and returning the bill by the appellees to the Western Bank, would be at least as strong evidence of their acting as agents for the bank in the present case. The legal interest in such a bill, payable to order with full endorsements, can pass only by endorsement, and the person holding it, though for full value, has 

 [*147]  but an equitable interest, which the court will protect to the same extent as it does the equitable interests of those for whose use actions are instituted upon choses in action not negotiable.
The decisions in this court have been in perfect consistency with these views.
In Hudson vs. Goodwin, 5 H. & J. 115, it was held that a plaintiff was not entitled to recover on a promissory note payable to order, because the endorsement was in blank, although he might have filled it up at any time before verdict. The same point was ruled in Day vs. Lyon, 6 H. & J. 140.
In Kiersted vs. Rogers, 6 H. & J. 282, [**32]  it was held that a blank endorsement might be filled up by the holder at the time of the trial; that if filled up and made payable to himself, the holder must sue as endorsee, but if not filled up he may sue in the "name of the endorsee," meaning of course, for the use of the holder. In that case the endorsements were in full, and the last of them to the plaintiff, who had endorsed their names in blank, but had retained the bill, or at all events held it at the institution of the suit; and the court say the plaintiff had not parted with any interest in the bill by the act of endorsing it in blank.
The act of 1825, ch. 35, passed since these cases were decided, provides that no judgment shall be set aside because of the endorsement being in blank, and in effect gives to a plaintiff all the advantage from a blank endorsement which he could derive from an endorsement in full, so far as his right of action is effected. Any holder therefore with a blank endorsement, may now sue in his own name, but the act of 1825 cannot be construed to extend the right of action to one who has no interest in the bill, either as holder or owner.
In Bowie use of Ladd, vs. Duvall, 1 G. & J. 175, [**33]  the note was given by Duvall to Bowie, and by him endorsed in full to Ladd. The suit was in the name of Bowie for the use of Ladd. The court after referring to the statute of 3 & 4 Anne ch. 9, which put promissory notes and bills of exchange on the same footing, say, "when a bill of exchange is endorsed in full, all the legal interest is transferred to the endorsee, and he alone 

 [*148]  is qualified to maintain a suit." And it was held accordingly, that Ladd should have been the legal plaintiff, and could not support the suit in the name of Bowie for his use. Yet if Ladd had endorsed his name in blank, and transferred the note to a third person, there can be no doubt, without reference to our act of 1825, that such third person, being the holder of the note, might have sued in his own name and have filled up the blank endorsement at the trial, making it payable to himself, or without filling the endorsement might have sued in the name of Ladd for his use. But that in such a case as the one last mentioned, to wit, a blank endorsement and delivery of the note by Ladd to a third person, a stranger not having any legal interest in the [**34]  note, either by the terms of the endorsement or by the possession of the note, could have maintained the suit in the name of such stranger, we cannot agree. And such is the hypothesis of the instruction asked for in the case at bar, and which for the reasons assigned, we are of opinion the court should have granted.
The tenth instruction was upon the admissibility of the acts and declarations of Chafee, in regard to which we have given our views in discussing the fourth exception. We will only add, that there appears to be no act of Chafee, in evidence, except his going to the bank, and we have treated the exception therefore as if it were an objection to his declarations. If any act of his affecting in any manner the issue in the cause had been the subject of the exception, we should consider it as properly admissible by any competent witness, as any other fact.
The court properly refused the eleventh instruction asked for. It is a settled principle that the court will not instruct the jury in such unequivocal terms, if there be any evidence whatever tending to prove the issue.
The declarations of the appellant to T. Phenix had been given in evidence; they were [**35]  to be weighed by the jury. The counsel seemed to admit, and the authorities certainly shew, that admission of notice is evidence on which the jury may find notice in due time and in due form. Vide 7 East. 237. 28 

 [*149]  Eng. Com. Law, 401. 33 ditto, 337. 41 ditto, 427 and 790. 1 Leigh 448. And 23 Wendel Rep. 379, Tebbets and Pearce vs. Dowd.
We think the court below properly refused the twelfth instruction. It can no longer be considered an open question, whether an action will lie upon notice of presentment and non acceptance of a bill of exchange, without waiting for demand of payment at the maturity of the bill. The holder is not bound to present a bill, payable on a certain day after date, for acceptance; unless indeed he be an agent to get it accepted or to collect it. 5 Dow & Ryl, 374, Van Wait & Woolley. 3 B. & C. 439. Chit. on Bills, 300. If it be presented and acceptance is refused, it is dishonored and immediate notice must be given to the parties who are to be charged. 1 Peters, S. C. Rep. 25, Bank of Washington vs. Triplett & Neale. 26 U.S. 25, 1 Peters 25, 7 L. Ed. 37, [**36]  Townley vs. Sumrall. That the drawer or endorser may forthwith be sued upon the protest without waiting for demand of payment, is abundantly settled by the long list of authorities cited in argument, to which others might be added if there were any conflicting decisions, which we do not find to be the case. Vide Story on Bills, 367, sec. 21, and the authorities there cited.
In the case in the late General Court, reported in 1 H. & J. 187, Phillips vs. McCurdy, the neglect to give notice of the non-acceptance was a sufficient ground on which to sustain the opinion of the court.
The fourteenth instruction presents the question whether the protest is of itself any proof that notice had been "duly and legally sent from Charleston to Baltimore."
The act of 1837, ch. 253, was obviously designed to extend the credit, which by the courtesy of commercial nations had previously been given to the certificate of a notary public. That certificate had been received as prima facie evidence of the presentment by him for acceptance or payment, and of his protest of the bill for non-acceptance or non-payment. This was of course on the ground, that in every [**37]  commercial community this officer would be worthy of faith and credit, or at least would be so considered until the contrary was made appear by disproving his assertion. The act of Assembly has wisely carried 

 [*150]  out the same presumption by saying first, that this doctrine should so applied thereafter as well to inland as to foreign bills or notes, and secondly, that such protest should be prima facie evidence that notice has been sent or delivered in the manner therein stated. This act of Assembly is to be so construed, as to effect the obvious purpose of its enactment. It is not necessary that notice be sent by mail. The legal presumption is, that where there is a regular daily mail, it affords an early conveyance and a safe one, and a party is not bound to use one more expeditious or certain, but he may do so, and surely it would be no cause of exception to the regularity of the notice, that it was received in advance of the mail. Neither is it necessary, however it may be prudent, that the notice if sent by the mail be enclosed to the address of the person to be charged. If a party be willing to hazard the receipt of notice by his correspondent, and the due attention [**38]  of the correspondent to the service of the notice, he must abide the result. But if the party to be charged receive the notice in due time, he cannot object to the means which the owner or holder of the bill has employed. The act of Assembly seems so to regard the matter, where it puts the case of a protest which "shall state that notice has been sent or delivered to the party or parties to such note or bill, and the manner of such notice." This protest states the "notices were forwarded to the drawer and endorsers under cover to T. Phenix, &c." The notices were sent to the drawer and endorsers; the manner of sending them was by enclosing them under cover to T. Phenix, Baltimore. If therefore the name of Phenix had never been upon the note, as by the admission now put on the record is found to have been the fact, we should hold there was no force in the objection, that the notice was not sent to the parties, considering the act of 1837 to apply to a case in which a notary shall certify that he has sent notice to a party under cover, addressed to a third person. In this case there was evidence before the jury tending to shew that the appellees were acting [**39]  as agents for the bank without any actual interest in the bill, and the appellant has based some of his motions for instruction on this theory. 

 [*151]  Consistently with this assumption, it was quite in conformity with their duty as agents, to send, or cause the notary to send, the notices to the principal. Vide 3 Bos. & P. 599, Haynes vs. Birks. and 8 B. & C. 387, Firth & Thrush. This would make a clear case within the act.
It is true that in these cases, the entire object designed by the act is not effected, to wit, the service of the notice on the parties to be charged, or the equivalent fact of putting a notice separately addressed to each into the post office, but that result ensues, because the parties have not availed themselves of the advantage the act gave them. Their neglect to do so, will require the further proof to the jury, that the person to whom the notary enclosed the notices, had served them in due time. This instruction does not meddle with that link in the chain of testimony; it is not made a question whether notice was duly sent to the party to be charged, but to Baltimore, and that question was in our opinion properly [**40]  decided by the court.
The only remaining matter for consideration, is that involved in the instruction given at the instance of the appellees, and in regard to most of which, our views have been already expressed.
In this bill of exception, it is carefully stated that Chafee's declarations were offered in reply to the testimony of other witnesses, but we cannot agree that this obviates the difficulty which is fatal to their admissibility. If the facts were as Chafee's declarations stated them to be, it was competent and necessary to call him to prove them, and the rule which excludes hearsay testimony, is as obligatory in repelling and discrediting testimony, as in confirmatory. The court therefore erred in presenting such testimony to the jury as the foundation, in any degree, upon which to find a verdict. A party may group into one instruction as many and as complicated facts as he pleases to assume his testimony will prove, and ask the court to instruct the jury on the legal result of that mass of facts, but if amongst the enumerated facts there be such, as whether from a total failure of evidence tending to prove them, or from having been ruled out of the cause, or for [**41]  other reason, 

 [*152]  it is not competent for the jury to act upon, he must fail in his application. And if on appeal, this court shall determine any fact in such hypothesis to have been improperly allowed to go to the jury, the decision of the court below granting such prayer must be dissented from. We find in this instruction also, the objectionable manner of putting the testimony of Taylor before the jury, which has been alluded to when speaking of the "modification" to the sixth instruction. We should feel ourselves compelled to dissent from the opinion of the court below as expressed in this instruction, for the reason that they were authorised to find one of three alternate and distinct propositions of fact, without saying which. The instruction is, that the jury may infer that "notice was given to the defendant, or at least that the notices taken by Taylor, by direction of defendant to Chafee's residence, were notices of protest for non-acceptance of the bill sued on," or at least might regard it as "evidence to confirm Taylor." The great point in contest, was due notice, vel non. If the evidence was legally sufficient to find for the plaintiff on [**42]  that point, and the jury believed it, they might find accordingly, and the instruction thus covered the whole case.
The second assumes that the testimony might not be legally sufficient to authorise a verdict on the point of notice to defendant, but it would authorise the jury to identify the paper spoken of by Taylor, and which being identified, formed one item in the proof of notice, but still left open the important question of when that notice was served. The third proposition is, that the evidence may be regarded to confirm the testimony of Taylor. But assuming Taylor to be sustained, and the jury satisfied that Taylor was perfectly accurate in what he had said, yet he had not said that he gave due notice to the defendant, and the jury might believe he had served a notice, and that it was of the dishonor of the bill sued on, and yet consistently with this, they might think it was not proved to be on the 11th January. We do not think that such an alternate series of propositions should have been presented to the jury with an opinion that they might find some one of them. It 

 [*153]  would be impossible for them to ascertain whether they were thereby [**43]  authorised to find the first or the second. The sole purpose of instructing the jury, is to aid and enlighten them in their duty, so far as it is competent for the court to assist them. If counsel present to the court a complicated and involved statement which it will be difficult for the jury to understand distinctly, it will be a sufficient ground upon which the court should refuse to give a direction in the terms asked for. It is much to be desired, that propositions for the court, or for the jury, should be as precise and distinct as possible. Few instances will be found in which a transaction however ramified in its details, may not be reduced into something like elementary and distinct parts or points, each readily to be comprehended by minds of ordinary intelligence.
It may be proper to remark, that amongst the errors we have noticed, there are some, which of themselves would not have been deemed of sufficient influence in the decision of the cause below, to require this court to reverse the judgment and send the case back; but there are others of such substantial importance as to induce us to reverse the judgment and award a procedendo.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  [**44]  

16 of 46 DOCUMENTS 

WILLIAM RICHARDSON vs. MICHAEL STILLINGER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

12 G. & J. 477; 1842 Md. LEXIS 17 

December, 1842, Decided 

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

On the 29th May, 1841, Michael Stillinger filed his bill on the equity side of Baltimore county court, alleging, that on the 6th October, 1840, he sold to William Richardson a lot of ground in the city of Baltimore, &c., for the sum of $ 3,560, to be paid one-third in cash, two-thirds in six and twelve months, with interest; that Richardson made the cash payment, and executed his two obligations for the credit payments; that the note at six months is long since due and unpaid, though payment has been often demanded. Prayer for a decree for a sale and payment of the balance of the purchase money. A subpoena was issued, and the appellant appeared to the cause, but neglecting to file an answer, a commission was ordered and issued on the 14th September, 1841. The sale was proved, and the notes of the appellant for the purchase also proved, and filed with the commission on the 15th September, 1841. On the 22nd of that month, the cause was moved to the Court of Chancery, on the application of the complainant. On the 24th September, 1841, the Chancellor (BLAND,) decreed a sale. On the 11th January, 1842, the defendant appealed to this court.  

DISPOSITION:
DECREE [**2]  REVERSED.  

HEADNOTES:

By the well established practice of the Court of Chancery, no cause is ready for hearing, until the commission under which testimony has been taken, has been returned to the chancery office, and there remained for the period of one entire term.

By the rules of Baltimore county court, the commission and testimony must remain in court for the period of twenty days before the case is ready for hearing.

Where a commission was sued out on the 14th; returned on the 17th; removed to the Court of Chancery from B. county court on the 22nd, and a decree passed on the 24th of the same month, the decree was prematurely passed under the act of 1820, chap. 161.

The general rule is, that a court of equity is not to be resorted to for redress where full and complete remedy may be obtained at law.

There are some subjects over which courts of law and equity exercise concurrent power: such as fraud and matters of account.

Where plain, adequate and complete remedy may be had at law, a court of equity ought not to be resorted to.

If the personal estate of a deceased vendee is sufficient to discharge the vendor's equitable lien for a balance of unpaid purchase money, due for land sold, the real estate ought not to be sold for that purpose.

A bill in equity can be filed to enforce the vendor's lien, only when the complainant has exhausted his remedy at law, or where he avers such facts as will show, that he cannot have a full, complete and adequate remedy at law.

In requiring a vendor to exhaust his legal remedies, or show that he has none before proceeding in equity to enforce his equitable lien for the unpaid balance of the purchase money, he is not required to proceed by ejectment to re-possess himself of the land sold; nor by way of attachment or fieri facias to seize and sell the land sold by him in the hands of the vendee.

A court of equity never requires a complainant to do a nugatory act, nor an act which may impair his equitable rights.

A sale by a vendor of the land sold to his vendee by execution, would be subject to all judgments, liens and outstanding equities, existing anterior to the date of the judgment against such vendee, and upon which the execution issued.  

COUNSEL:
By MURRAY for the appellant.

No counsel appeared for the appellee.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*478]  STEPHEN, J., delivered the opinion of this court.
This case originated on the equity side of Baltimore county court, and was removed to the court of Chancery in virtue of an act of Assembly, passed for that purpose in the year 1824, chap. 196, and by a rule of the court of Chancery, passed in the following year, it was to be proceeded in, heard and determined, in like manner as if it had been originally instituted in that tribunal.

 [*479]  By the well established practice of that court, it is understood, that no cause is ready for hearing, until the commission under which testimony has been taken, has been returned to the chancery office, and there remained for the period of one entire term. According to the rules of Baltimore county court, the commission and testimony must remain in court for the period of twenty days, before the case is ready for hearing. The commission in this case, it appears, was issued on the 14th day of September, 1841; was returned on the seventeenth [**3]  day of the same month. The cause was removed to the court of Chancery on the 22nd September, 1841, and the decree passed in that court on the twenty-fourth of the same month. The act of 1820, chap. 161, under which the commission in this case issued, provides, that the commission which shall be issued for the taking of testimony to support the allegation of the bill, "shall be issued, proceeded in, and returned in the same manner, and the testimony taken and returned under it, shall have the same effect as if issued and returned in the usual way, on answer, general replication and issue, and the court shall proceed to a final decree, in the same manner as if the defendant or defendants had appeared and put in their answer." Under this view of the case, it appears that the decree of the court below was passed prematurely, and before the cause stood regularly for hearing before that jurisdiction, according to the provisions of the act of Assembly, and its established practice in such cases. The decree of the Chancellor was therefore erroneous, and ought to be reversed.
It was also contended by the appellant, that the appellee had full and adequate remedy at law, and therefore, should [**4]  not have resorted to a court of equity for relief. Whether, under the circumstances of his case, a court of Chancery was the proper forum to administer justice for the wrong of which he complained, is a question of no inconsiderable magnitude, in point of principle, and is not entirely free from difficulty. The general rule no doubt is, that a court of equity is not to be resorted to for redress, where full and complete remedy may be obtained at law; and that of most of the judicial controversies 

 [*480]  between man and man, a court of law is the proper tribunal to take cognizance. At the same time, it must be admitted, that there are many questions arising in the administration of civil justice, the decision of which belongs exclusively to a court of equity, as the appropriate jurisdiction. It is likewise true, that there are some subjects over which a court of law and equity exercise a concurrent power, such as fraud and matters of account. Conformably to this view of the line which separates the two jurisdictions, and which ought always to be maintained inviolate; the Congress of the United States, in organizing the judiciary department of the Federal Government by the act [**5]  of 1789, provided, "that suits in equity shall not be sustained in either of the courts of the United States, in any case where plain, adequate and complete remedy may be had at law." This is the rule adopted by the Federal courts in the administration of equity jurisprudence, and it would seem to be the true doctrine which ought to prevail wherever the principles of law and equity are administered by separate, distinct and independent jurisdiction as different parts of the same system. In 2 Henning & Mumford Rep. 146, that distinguished jurist, Judge Roane, speaking upon the subject of the relative powers of courts of law and equity, holds the following impressive and emphatic language--"considering the natural and progressive tendency of the jurisdiction of the chancery to encroach upon that of the common law courts, and thus not only to lose the advantage of jury trial, and viva voce examinations, but also to give a man the benefit of his own testimony, that jurisdiction, however salutary and valuable, should not be extended to the overthrow of the jurisdiction of the courts of common law, nor ought the land-marks established by this court in relation to this subject,  [**6]  lightly to be departed from." So in the 4th volume of the same reports, page 470, the Chancellor for the superior Court of Chancery for the Richmond district, speaking upon the subject of his own jurisdiction, expresses himself in the following terms: "If the law affords an adequate remedy in this case, the application to this court is improper; but if the law does not, this is then the 

 [*481]  proper court." Again, in 471, he says--"the true course for a Chancellor is never to interpose, if the matter can be adjusted at law, and the best interest of the people requires that this rule should be adhered to." These are some of the views which seem to prevail in the courts of a sister State, upon this important and interesting subject; and they are not novel in their character, but in perfect consonance, it is believed, with those which have always been entertained by our own tribunals.
In the case of Pratt vs. Vanwyck's Ex'rs., 6 G. & J. 495, the learned judge who delivered the opinion of the court in the course of his reasoning, lays down the following principle: "If the vendor can, by any proceeding at law, recover the amount due him, chancery never interferes [**7]  to enable him to assert his equitable lien. His remedy at law must be first exhausted, or it must be shown that none exists there. For the support of which doctrine he refers to 1 Johns. Ch. 308. That was a bill to enforce the vendor's lien, who had conveyed the legal title, after an ineffectual attempt to recover the purchase money at law, against the personal representative of the vendee, who pleaded plene administravit to the suit, and the plaintiff being unable to prove assets in her hands, took judgment for assets in futuro, for the amount of his claim, and the costs of suit. In that case Chancellor Kent says--"The failure of the personal estate is sufficiently shown in the first instance, and there is nothing to gainsay it; and I shall accordingly decree a sale of one-third of the house and lot towards satisfaction of the note;" the one-third of the house and lot being the thing sold, for which the note was given. If the complainant was entitled to go into equity in the first instance, to enforce his equitable lien, the failure of the personal estate was in that case a matter of no importance in the assertion of that right. In the case of a mortgage,  [**8]  where the creditor is under no obligation to look to the personal estate of his deceased debtor, the personal representative need not be made a party. See 2 H. & G. 94, 97. In 6 G. & J. 107, this court seem to have entertained the 

 [*482]  same views as to the liability of the personal estate in the first instance, and that was a case where the legal title had been retained by the vendor, who had only given a bond of conveyance. The court there say--"In the event of the personal property proving insufficient to pay the complainant's claim, the land would have to be sold for the purpose of paying the purchase money." Again, they say in the same case--"For such excess the complainants would have clearly a lien for the purchase money, and could recover it by a sale of the land, unless the administrator has assets wherewith to discharge and pay the purchase money." The irresistible inference of course to be deduced from those principles was, that if the personal fund was sufficient to discharge the equitable lien, the real estate could not be sold for that purpose. These views of this court are sustained by the very respectable authority of Sugden on Vendors [**9]  , 394, 395, where he says--"On sale of the estate, the purchase money becomes a debt, payable out of the purchaser's personal estate, and the equitable lien ought, it is conceived, to be extended to only so much of the purchased estate as the personal estate is insufficient to answer. The vendor has not an original charge on the estate, but only an equity to resort to it, in case the personal estate prove deficient." If this doctrine be correct, and it is cited with approbation by Cross on Law of Lien, 77, 98, it proves to demonstration, that the personal estate of the purchaser is the primary fund for the payment of the vendor's claim, and that the real estate is only to be auxiliary to it as a secondary fund, when the personal estate shall prove inadequate. A bill in equity can therefore be filed to enforce the vendor's lien only, when the complainant has exhausted his remedy at law, or where he avers in his bill such facts as will show, that he cannot have a full, complete and adequate remedy at law. In requiring the vendor to exhaust his legal remedies, or show that he has none, before proceeding in a court of equity to enforce his equitable lien for the unpaid balance of purchase [**10]  money, we are not to be understood as requiring him, where such a remedy is open to him, to proceed by ejectment to re-possess 

 [*483]  himself of the land sold. A recovery in such an action is no adequate remedy for the recovery of the money due. Nor do we require the vendor by way of attachment or fieri facias, to seize and sell the land purchased, in the hands of the vendee. A court of equity never requires a complainant to do a nugatory act, nor an act which may probably work injustice, or impair his equitable rights. Such a seizure and sale could only transfer the interest of the vendee, at the date of the judgment, or of the issuing or levying of the attachment, and would be subject to all judgments, liens, and outstanding equities, existing against the vendee anterior to that time. All such secret or known equities would remain unimpaired by such a judicial sale. The benefit resulting to the vendor by the sale, might not, therefore, be commensurate with his equitable lien, and he would afterwards come with an ill grace into a court of equity, (if indeed he could come at all,) seeking to sell the original entire interest of the vendee in the property, and thereby annihilate [**11]  the title of a purchaser acquired under a judicial sale, made at his, the vendor's instance, and for his benefit.
There are two cases which have been decided in this court, to be found in 10 and 11 Gill & John. the first at page 387, the last at page 103. These were cases marked by peculiar circumstances. The vendors in both cases were out of the State, and beyond the jurisdiction of our courts of law, after the purchases were made, and in the first case, the vendee, previous to his departure, had conveyed all his estate, of every description, in contemplation of marriage, to the separate use of his intended wife, to whom he was afterwards actually married. In this case the decree of the Chancellor dismissing the complainants bill was reversed by the Court of Appeals: the bill of complaint taken pro confesso, and the land decreed to be sold for the payment of the purchase money. In the second and last case, the bill charged that the complainant had no means of obtaining the money due for the land sold, except by enforcing his equitable lien; an order of publication was passed and published, and the Chancellor dismissed the bill, on the ground, that he had no jurisdiction,  [**12]  because the complainant 

 [*484]  had a remedy in a court of law. The Court of Appeals reversed the decree of the chancery court, and remanded the cause for further proceedings. In neither of these cases was there that plain, adequate and complete remedy at law, which would oust the jurisdiction of a court of equity, and therefore, the equitable lien was properly enforced, to compel payment of the purchase money. In the present case, it does not appear that any obstacle existed to preclude or render unavailing a legal remedy for the recovery of the purchase money; and therefore, the court of Chancery had no jurisdiction to administer relief.
DECREE REVERSED.  

17 of 46 DOCUMENTS 

SAMUEL MOALE AND OTHERS, vs. E. S. BUCHANAN AND OTHERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 G. & J. 314; 1840 Md. LEXIS 21 

December, 1840, Decided 

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

The bill in this case was filed on the 8th day of June 1831, by Samuel Moale and Reverdy Johnson trustees, and Robert Lemmon & Co. and others, creditors on their own behalf, as also on behalf of other creditors of, &c.; and alleged that E. S. Buchanan, being the ostensible proprietor of Warren Factory, and carrying on trade and commerce under the name of The Warren Factory, and being largely indebted unto R. L. & Co., to wit, in the sum, &c., and also to, &c.--for the purpose of gaining indulgence for payment of said claims, and an extension of time for payment thereof, did propose to grant and convey to trustees, all the property hereinafter mentioned, as a security for the payment thereof, and the said proprietors of the said Warren Factory, and the persons composing the said trading establishment, made said proposals in writing, dated the 14th day of July 1829, signed by their solicitors and agents, accompanied by a statement in writing, comprising and showing, to the said creditors and your complainants, all the property and effects, which they propose so to grant and convey to the trustees for the said creditors and your complainants as aforesaid, among [**2]  which said property, are all those two lots and parcels of ground, and the Factory and buildings thereon situate in Pratt street in the city of Baltimore, which proposition, and property mentioned in the said statement which accompanied said proposition, and which proposition, was accepted by your complainant's creditors as aforesaid, and by the other creditors of Warren Factory in writing, and the extended credit on the said debts, on the faith thereof actually granted; but for greater certainty your complainants herewith file a true copy of the said proposition and statement, which they pray may be deemed a part of this their bill of complaint, the original whereof, now in the possession of your complainants, and ready to be produced, &c. Your complainants further state, that E. S. Buchanan, R. S. Buchanan and others, for the purpose of inducing the creditors of the Warren Factory, to accept the said proposition, and to grant time and indulgence to the said proprietors, and partners of Warren Factory according to the terms of the proposition of the 14th July 1829, did agree to grant and convey to trustees aforesaid, certain property which belonged to them individually, and which [**3]  is mentioned in said statement, and among which are the said lots and factory on Pratt street aforesaid, as a further security for the payment of the claims of your complainant's creditors as aforesaid, and the others, creditors of Warren Factory, which security your complainant's creditors and others as aforesaid, creditors of Warren Factory, agreed to and did accept in writing. Your complainants further state, that the said E. S. Buchanan and others, with the true intent of fulfilling the terms of the said proposition and statement of the 14th July 1829, did by a certain deed of trust, bearing date the 17th day of July 1829, grant and convey to the said Samuel Moale and Reverdy Johnson, all those tracts of land, lots, &c., described in the deed of trust, for the use and trust therein mentioned, &c.; that the Pratt Street Factory mentioned in said statement, was built and erected on the following described two pieces or parcels of ground, to wit, all that lot, &c., covered with the buildings and improvements, called the Pratt Street Factory, and had been before, and at the time of the said proposition of the 14th July, was used as a Factory; that said Moale and Johnson, the trustees,  [**4]  had actual and entire possession of the said Pratt Street Factory, and the lots of ground upon which it was built, on or about the 1st day of October 1830, and on or about the 8th day of October, in the year last aforesaid, had the same insured as property belonging to the trust mentioned in the agreement and deed of trust aforesaid; that from the date of the said deed of trust, they and the other creditors of Warren Factory, were under the impression, that both the said pieces or parcels of ground on which the said Pratt Street Factory was erected, had been conveyed by the said deed of trust of 17th July 1829, to the said Moale and Johnson, according to the terms of the said agreement of the 14th July 1829, and under that impression, the said Moale and Johnson took the possession of it as aforesaid, with the consent of the said grantors of the said deed, (except Samuel S. Buchanan, who objected to the said deed by reason of his minority when he executed the same, and only on that account,) and held the possession thereof until some time on or about the 1st day of December 1830, when the same was sold under a decree of Baltimore county court to H. W. Evans, and which said sale was [**5]  afterwards rescinded by said court on account of an outstanding life estate, and the mistake in the said deed as hereinafter mentioned; that by omission, mistake and accident, one of the said pieces or parcels of ground upon which the said Pratt Street Factory was so erected, to wit, the piece of ground conveyed, &c., was not included by the said deed of trust of the 17th July 1829, as was intended by said grantors, and grantees, but from mistake, accident or omission, was left out of the same, contrary to said agreement of the 14th July 1829, and the contract of the said creditors as aforesaid. Your complainants further state, that Edmund Didier, and the president and directors of the Marine Bank of Baltimore, creditors of the said Warren Factory, have each of them obtained judgments against the said E. S. Buchanan, Er. S. Buchanan and R. S. Buchanan, in Baltimore county court, and have caused four writs of fi. fa., dated on or about the 11th May 1831, to issue on said judgments, and have delivered said writs of fi. fa. to the sheriff of Baltimore county, to be levied upon all that piece or parcel of ground conveyed as aforesaid, by, &c., No. 756, and the said sheriff on the 31st [**6]  May 1831, levied said writs of fi. fa. on the said piece or parcel of ground, and by virtue thereof, hath actually advertised the said piece or parcel of ground for sale on the 22nd June 1831, and intends to sell the same to satisfy said judgment; that E. S. B. is dead, and E. S. B. and others, are her heirs at law; that S. S. B. is a minor, and said deed not effective as to him. Prayer for a conveyance for the ground omitted in the deed of trust, and for further relief--for an injunction against the Marine Bank and Edmund Didier, enjoining further proceedings at law, and for subpoenas.

With the bill of complaint were exhibited the deeds for the lots 691 and 756, to Elizabeth Buchanan, and also exhibit No. 4, as follows:

R. Proposition on the part of James A. Buchanan, as agent of the Warren Factory, a deed of trust of all the property to be executed for the payment of such of the notes already given by said Factory, and two borrowed and endorsed by them as may be renewed for twelve months, payable afterwards in monthly payments, with a provision, that the present agent is to have the management of the property, until there be a default in this agreement, and that such of [**7]  the creditors as agree to a trust, are to be first paid, subject of course to the existing mortgages. Signed S. Moale, R. Johnson, for proprietors of Warren Factory--14th July 1829.

The proposition is accepted, signed by the complainants and various creditors. Another exhibit filed with the bill was as follows, viz:

S. State of Warren Factory in July 1829; 8208 spindles in two cotton mills with, &c., and after enumerating various articles of personal property, debts, &c., with a valuation of each, and a statement of annual profits, then dwelling house $ 25,000--warehouses in Light street $ 70,000--Factory Pratt street $ 35,000, &c. &c.

Exhibit No. 5, was a copy of the levy under the fi. fa. on lot No. 756, on Pratt street in the city of Baltimore, at the suits of Edmund Didier, and the Marine Bank.

On the 8th June 1831, the Chancellor, (BLAND,) ordered subpoena and injunction as prayed by the bill.

The answer of E. S. Buchanan, Robert S. Buchanan, William B. Buchanan and wife, admitted that E. S. Buchanan, deceased, was the proprietor of the Warren Factory, carrying on trade under that name; was indebted to the complainants and others; that J. A. Buchanan was [**8]  the general agent of said Factory; that the Warren Factory, being unable to meet its engagements for the purpose of obtaining indulgence for payment of the said debts, and an extension of time for payment, did propose to grant and convey to trustees, all the property thereinafter mentioned, as a security for the payment of said claims, and the said proprietor of Warren Factory made said proposal in writing, dated on the 14th July 1829, signed by the said Samuel Moale and Reverdy Johnson, their solicitors and attorneys, acting for them, and which said written proposals was accompanied by a statement in writing, comprising and showing to the said creditors and complainants, all the property and effects which they proposed to convey to trustees, for your said complainants, and the other creditors of the Warren Factory; and these defendants admit, that the said proposal and statement of property were accepted by the said creditors; and the extended credit on the said debts actually given; that the proposal, statement and acceptance, filed with the bill are true copies; they admit, that the lots of ground, and factory and buildings thereon situate on Pratt street, were proposed to be given [**9]  to said trustees, and were included in the statement accompanying the written proposals as an inducement to the said creditors to accept said proposal, and grant the indulgence asked for by the Warren Factory; that these defendants for the purpose of inducing the said complainants's creditors aforesaid, and the other creditors of the Warren Factory, to accept the said proposal of the 14th July 1829, and to grant time and indulgence to said proprietors of Warren Factory, did agree to grant and convey to trustees, certain property which belonged to them individually, and which is mentioned in said statement, and among other property the said lots of ground, buildings and Factory on Pratt street aforesaid, mentioned in the said bill of complaint, as a further additional security for the payment of said debts or claims, and which was accepted as aforesaid; that for the purpose of complying with their said agreement, and in fulfilment of the terms of the said proposal and statement of the property therein mentioned, did by their certain deed of trust of the 17th July 1829, grant and convey to the said Samuel Moale and Reverdy Johnson, all the land therein mentioned; that the Pratt street [**10]  Factory mentioned in said statement, was built and erected on the said two lots or parcels of ground mentioned in said bill, to wit, &c.; that before the 14th July 1829, the said two lots were so built upon and used, and that said trustees took possession on or about the 1st October 1830; that these defendants were under the impression and always believed, that the said Pratt street Factory, and the said lots of ground on which the same is erected, had been conveyed by the deed of trust of 17th July 1829, to said Moale and Johnson, according to the terms of said proposal, and the said complainant's creditors and other creditors, were under the like impression and did so believe, and that the omission to include it arose from accident and mistake upon the part of the grantors of said deed of trust. The answer saved throughout, the interest of S. S. Buchanan, arising from his infancy and dissent, and also admitted the judgments of E. Didier and the Marine Bank of Baltimore.

The answer of the Marine Bank, denied the making of the proposition on behalf of the Warren Factory to its creditors, or that it was accompanied by any statement in writing, as set forth in the bill; or that [**11]  the said two lots were included, or that said proposition was accepted by all the creditors of said Factory. That answer admitted the deed of trust, but denied, that E. S. B. and others, intended to do more than execute said deed, and that the Factory did not cover the said two lots. The defendants do not know, and cannot admit, that the said Moale and Johnson had possession of said property, and denied the alleged accident or mistake. The answer also admitted the minority of S. S. B., and their judgment against the grantors of the deed of trust; the levy under fi. fa. and design to sell; that said deed as to them is void, and will not be enforced in equity. That as creditors subsequent to that deed without notice, they have a vested right in said property, and claim to enforce their judgment, &c.

The answer of Edmund Didier, set up various objections to said deed, but as those defences were not considered by the Court of Appeals, it is not deemed necessary to insert them further than as disclosed above in the answer of the Marine Bank. This defendant claimed as a judgment creditor.

The answer of S. Smith Buchanan, admitted the intention to convey both lots by his co-grantors,  [**12]  but relied on his infancy as a bar to any recovery against him.

On the 23rd February 1833, upon the petition of the complainants, the Chancellor (BLAND,) authorised the examination as witnesses for the complainants of E. S. Buchanan, R. S. Buchanan and W. B. Buchanan, subject to all legal exceptions.

A commission was issued, under which a variety of proof was returned. The complainants proved their deed of trust, and offered evidence of the omission and mistake. The judgment of the Marine Bank was rendered the 7th October 1830, and was against R. S. Buchanan and E. S. Buchanan. That of Didier was dated 1st April 1831, and against the same parties. It was admitted, that E. Didier had received from the trustees, Moale and Johnson, the dividend on his claim equally with the other creditors of the trust fund--19th May 1834, $ 1,321.37, 13th June 1834, $ 333.46.

At March 1839, the Chancellor (BLAND,) dissolved the injunction and dismissed the bill, being of opinion, that the alleged mistake as set forth in the bill, was not sustained by proof sufficiently strong and clear; that the deed of 17th July 1829, cannot be corrected to the prejudice of the defendant creditors, who [**13]  were not shown to have had notice of its having been executed under any mistake, and that if it were corrected as prayed, so as to embrace an additional amount of property, it could not be deemed valid and available against the defendant creditors, who are not shown to have assented to, or become parties to it.

The complainants appealed to this court.  

DISPOSITION:
DECREE REVERSED IN PART AND CAUSE REMANDED.  

HEADNOTES:

E. (carrying on business under the name of W. Factory,) being indebted, proposed to his creditors in writing, signed by his agent, as follows: "A deed of trust of all the property to be executed for the payment of such notes already given by said Factory," &c., as may be renewed for twelve months, payable afterwards, in monthly payments. This proposal was accompanied by another paper, headed, State of Warren Factory, and included in its recitals among other property, "Factory Pratt Street." It was accepted by some of his creditors, and a deed of trust executed. It appeared that the Factory Pratt Street, was situated on two lots of ground, which belonged as well to E, as his brothers and sisters; but the deed of trust in which the brothers and sisters united, by mistake omitted one of those lots, contrary to the expectation and intention of the grantors, trustees, and creditors. Before the discovery of this mistake, two creditors of the grantors obtained judgments at law against them, one before, and one after, the date at which the trustees took possession of the Factory Pratt Street--upon a bill filed to reform the deed of trust, add the omitted lot, and enjoin the judgment creditors from proceeding at law against that lot. It was held, that the judgment creditor who had obtained a lien at law before the trustees took possession, and without notice of the original contract, might proceed at law to enforce such lien; but that as the other judgment creditor had received a dividend from the trustees, he thereby became an equitable party to the deed, and could not, under any aspect, enforce his judgment in opposition to the agreement on which the deed was founded. Upon these principles, the deed was decreed to be reformed, in conformity with the original contract.

A paper signed by a party proposing to convey all the property, cannot be connected by parol with another paper not signed, for the purpose of designating the property designed to be conveyed, and thus escape the prohibitions of the statute of frauds.

An agreement to be within the statute of frauds, cannot be partly in writing and partly in parol. It must be entirely in writing, and signed by the parties or their authorised agents.

Parol evidence may however so connect two papers, as to be evidence, that they both related to and formed parts of one contract.

An agreement entirely by parol and in part performed, may be specifically executed; part performance taking the case out of the statute of frauds.

So where there was an agreement to convey two lots to trustees for creditors, in consideration of indulgence and extension of credit, void under the statute of frauds, taking possession of the property under the contract, and granting the indulgence, is such a part performance of the agreement, as will induce equity to execute it specifically.

Trustees who hold property under a deed for the benefit of c. q. t., have such an interest, as will enable them to enforce the agreement on which the deed was founded.

It is no objection to the execution of a contract, on the ground of part performance, that it is partly in writing, and partly by parol.

The opinion of Sir William Grant, 7 Vesey Jr. 217, controverted and denied.

There are many cases, in which parol evidence at the instance of a complainant, may be received to rectify a contract, and execute it specifically as rectified.

A contract which creates a specific lien on real property, has a superior equity to the general lien of a subsequent judgment.

An infant is not bound by his deed. 

COUNSEL:
By N. WILLIAMS, S. MOALE and R. JOHNSON for the appellants, and

By MCMAHON and RICHARDSON for the appellees.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*322]  ARCHER, J., delivered the opinion of the court.
There is no agreement in writing within the statute of frauds for the transfer of any lands to trustees in this case. The proposal R designates no land, or property to be conveyed. It proposes to convey all the property, without designating what property. To make it an agreement within the statute of frauds, it cannot be connected by parol evidence with schedule S. An agreement to be within the statute of frauds, cannot be partly in writing, and partly in parol. It must be entirely in writing, and signed by the [**14]  parties to be charged, or their authorised agents, and if proposal R, had referred to schedule S, without further explanation, it would have been difficult for both conjointly to have said, that the parties had agreed to convey all the property in schedule S, to trustees; because that paper contained a schedule of other property, than property owned by the Factory, and the proposal R, was only made in behalf of the Factory. The parol evidence however, when connected with proposal R, and schedule S, leaves no doubt on our minds, but that it was agreed between the Warren Factory, and the owners of the city property, (including the Pratt street Factory, embracing both lots, as well the lot included in the deed of 17th July 1829, as the lot excluded,) and the creditors of the Warren Factory, that all the property in schedule S, should be conveyed to the creditors of Warren Factory, if they would grant the time asked for in proposal R, to meet the responsibilities due them.
It is clear in our minds, that it was not the design of the parties to reduce the entire agreement to writing. The proposal R, was made to show the terms of the deed, and the extent of indulgence asked.  [**15]  

 [*323]  The schedule S, was made to show the general condition of the Factory, so as to induce the creditors to grant the indulgence, and what property, individual and otherwise, was intended to be conveyed; but it was unintelligible, without oral explanations, as to the property intended to be conveyed. Besides, it is in proof, that the individual owners of the city property had agreed to convey the property mentioned in the schedule, but neither proposal R, or schedule S, refer in any manner to their agreement; nor are they in any manner bound by any thing contained in either paper; yet the parties acted throughout on the writings, and oral agreement.
The agreement then exists, partly in writing, and in partly parol. If the agreement were entirely in parol, and were in part performed, it would be specifically executed; the part performance taking the case out of the statute of frauds.
Now has there been such a part performance here? The deed was executed on the 17th July 1829, and the proof is, that possession was delivered, as well of the property included in the deed, as the property omitted, about the 1st October 1830; and that on the 8th October 1830, insurance was affected [**16]  thereon.
Possession to be available must be in part performance, and must be referrible to the contract, and not to a distinct title. Sugden, 136. It is true the trustees took possession in virtue of the deed, but all parties believed, that the deed was in pursuance of the contract, so that the possession taken by the trustees, was both under the deed and the contract. The trustees were not named in the written proposition, but were agreed upon by the parties, and the deed having omitted the controverted lot through mistake, when they obtained possession, Chancery would consider them in possession under the contract, holding an interest therein, as trustees, for the benefit of the cestui que trust, and having an interest in the enforcement of such contract. We conclude therefore, that the part execution was referrible to this contract, and not to a different or distinct title.
But the agreement was partly by parol and partly in writing. 

 [*324]  That can make no difference where part performance is relied upon, as is clear upon authority. 14 Johns. 33. 3 Brown Ch. 149. 1 Sch. & Lefr. 37, and there would be reason for giving as much,  [**17]  if not more weight, to evidence partly in writing, than if it were all by parol, because a greater probability of truth and certainty.
As to the mistake in the deed of July 17th, there can be no doubt. It is proven, that the grantors all agreed to convey the property left out of the deed; that the creditors acted upon the faith that it would be conveyed. That the parties believed it had been conveyed; that the grantors delivered it over with the other property to the trustees, and that it was sold under a decree of a court of equity at the instance of the trustees, and that while in their possession it was insured, and that the mistake was not discovered until the purchase under the decree disclosed the fact. All these facts prove the mistake so clearly as to leave us no room to entertain a doubt about the matter.
The parties have ineffectually attempted to execute this contract, the deed of 17th July having left out a part of the property agreed, and intended to be conveyed by the mistake, to which we have adverted, and the complainant's seek to rectify the mistake, and specifically enforce the agreement. It is supposed, that by the established principles of Chancery, this object [**18]  is not attainable; and that the evidence ought not to be let in, to show the mistake in the executed contract, where the complainant is seeking to enforce the contract; because it would controvert the statute of frauds, and charge a party with the sale of lands by an agreement not in writing; but if the party have so far executed the contract, by putting the complainant in possession, so that it would be a fraud upon them, to insist that their agreement was not in writing, a case is presented not within the statute of frauds, so that the statute is not contravened by letting in the evidence, and such it would seem was the opinion of Lord Redesdale, who although he held the doctrine that a complainant on a bill for a specific performance of a contract in relation to land, could not offer evidence of a mistake in the agreement, and have it executed 

 [*325]  as rectified, still thought that the contract might be executed, where there was such a part performance as took the case out of the statute. 2 Sch. & Lefr. 39. Had the agreement been entirely by parol, and a part performance, the complainant would have been entitled to relief. Shall he be in a worse situation [**19]  by having attempted to reduce the whole agreement into the form of a conveyance, if he shall make an omission in the conveyance, by mistake of an essential part of the agreement? This is not the case of a party resting solely on a written contract for the sale of lands, and who seeks to reform it by parol, and as reformed to have it executed. But the complainant rests on possession, amounting to such a part performance, as withdraws his case from the operation of the statute, and then there would be nothing to distinguish it from the ordinary case of a complainant going into Chancery to reform a contract on the ground of mistake. In 7 Ves. 217, Sir William Grant however, declares, that though the instrument does not contain the terms, it must in contemplation of law be taken to contain the agreement, and that parol evidence of mistake or fraud can only be offered by a defendant to rebut an equity; but that it cannot be offered by a plaintiff, first to falsify the instrument, and then to substitute an agreement to be executed by the court. He seems to consider it a universal principle, applicable to all cases of agreements, whether under the statute of frauds or [**20]  not. This doctrine has been repudiated in this country by Chancellor Kent, who has shown many cases in the reports, where the complainant has been permitted to offer parol evidence of mistake, and where the instruments have been rectified. 2 Johns. Ch. 599.
Henkle vs. Royal Exchange Assurance Company. Baker vs. Paine, 1 Ves. 456. 1 P. Wms. 60. 2 Atkins 31. Prece. in Ch. 309. 3 Ves. 356, 2 Ves. 377, 5 Ves. 601, 1 Ves. 400. 2 P. W. 464. Dick. 294. 5 Ves. 593, 2 Ves. 565. 1 Eq. Cas. Abr. 820, Pla. 1. 1 P. Wms. 279--and he accordingly received parol evidence, at the instance of the complainant, rectified the contract, and specifically executed it. 2 Johns. Ch. 535. 4 Johns. Ch. 144. These opinions of Chancellor Kent 

 [*326]  have met the decided approbation of Mr. Justice Story, as will be seen by reference to his commentaries, 1 Vol. 175, note 1. In these opinions we accord, perceiving no just reason why the evidence should be admitted to rebut an equity, and not be received [**21]  to enforce an equity.
Possession was delivered to the trustees about the first of October 1830. Didier recovered judgments against E. Buchanan and R. Buchanan, in April 1831. Didier issued a fi. fa. on this judgment, and levied it on the lot in controversy, and the question arises, whether the equity of the complainants is not superior to his. If there were no evidence in the cause, calculated to shew that he had assented to the contract and deed of trust, we still think, the equity of the complainant the superior equity, as a judgment creditor he had no specific lien on the property. But the creditors acquired a specific lien in virtue of the contract and the delivery of possession under it to the trustees. If Didier acquired a lien in virtue of the fi. fa. and levy thereon, it was subsequent to the lien of the complainants. But there exists other grounds upon which he must be postponed to the complainants. He has in fact made himself a party to the deed. He has accepted a dividend with the rest of the creditors; and having done so, must be considered as affirming the deed, and the contract upon which it was executed. A contrary opinion would give [**22]  him an unconscientious advantage over the other creditors; on this branch of the subject he might have placed himself in a more favourable attitude, had he when seeking to enforce his judgment, offered to surrender the dividend acquired under the deed, if in truth he had never been a party to the contract or deed.
With regard to the right of the Marine Bank to resist the specific execution of this contract, we remark, that the complainant dates his equitable interest in the controverted lot from one of two periods, first, from the day where possession was delivered to the trustees, or secondly, from the date of the deed of 17th July 1829. If from the former period, the complainants have no priority, for as they are seeking to defeat the lien of the Marine Bank, the onus lies on them to show that the 

 [*327]  judgment was posterior to the date of the delivery of possession. This should be clearly shown to the court before we could enjoin the execution on the judgment of the Bank. Now the judgment of the Bank is proven to be on the 7th of October 1830, and the date of the delivery of possession is uncertain; it is stated to be about the 1st of October of that year.  [**23]  This is too uncertain; it may have been on any day from the first to the eighth of October inclusively, and still be about the first of October. If the equitable interest of the complainant existed cotemporaneously with the deed of July 17th, still it was a latent and secret equity unknown to the Bank, or not proven to be known to them, until after the rendition of the judgment in favour of the Bank.
Objections have been taken to the contract and deed, and it is alleged, they are both fraudulent and void. It becomes unnecessary to determine this question, because they are valid in any aspect against parties thereto, and Didier, who by his acceptance of dividends under the deed, has become a party thereto. Having determined that the Marine Bank, having a preference, has liberty to pursue her execution against the controverted property, there is nothing in her case which would demand of us a judgment on the validity or invalidity of the contract or deed.
From what we have said in the former part of this opinion, it will be observed, that we consider Messrs. Moale and Johnson as interested in this contract, and of course in its enforcement, and therefore do not consider [**24]  there is any objection on the ground of parties.
We therefore think that relief should be decreed to the complainants to the extent of their prayer, except as against S. S. Buchanan, who was an infant at the date of the deed and contract, and except as against the Marine Bank, in relation to which, the injunction heretofore issued, should be dissolved, and the said Bank and the said S. S. Buchanan should be allowed their costs in the Court of Chancery and in this court.
DECREE REVERSED IN PART AND CAUSE REMANDED.  

18 of 46 DOCUMENTS 

JOHN S. STILES et. al. vs. SARAH BROWN et. al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 Gill 350; 1843 Md. LEXIS 29 

December, 1843, Decided 

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

The bill of John S. Stiles, of the city of Baltimore, and of William P. Maulsby, trustee, filed on the 2nd July, 1840, for the benefit of the creditors of said Stiles, stated: that sometime about the year 1827, a judgment having been rendered against J. S. S. in Baltimore county court, for the sum of $ 1,000, or thereabouts, he requested a certain Stewart Brown to become his surety on an appeal bond, for the purpose of carrying said cause to the Court of Appeals; and at the same time he borrowed from said Brown his promissory note for the sum of about $ 1,900, and for the purpose of indemnifying the said B. for his said suretyship, and of securing the payment of the said note so borrowed, he conveyed to the said B. several lots or parcels of land lying and being in the City of Baltimore, and six shares of stock in the Temascaltepec Mining Company of Baltimore; that several, if not all, of the said shares of stock were sold by the said Brown, in his life-time, but for what prices or sums your orators do not know, except two shares, which sold for the sum of $ 1,265, as stated by said B.; and that said lots or parcels of ground were also sold,  [**2]  partly in the life-time of the said B. and partly since his death; that the complainants have no accurate knowledge of the amount of money realised by said sales, but are fully convinced that it largely exceeds the amount of the said judgment and note; and, that a considerable sum is now due and owing to your orators, who further state that, sometime in the year 1835, John S. Stiles made application for the benefit of the insolvent laws of Maryland, and that William P. Maulsby has been duly appointed permanent trustee for the benefit of the creditors, and has given bond, with security, according to law; that the said S. B. departed this life sometime in the year 1832, intestate, and that letters of administration have been granted to Sarah, George, and John N. Brown; that said administrators, though often requested, have wholly refused and neglected to render to your orators any account kf the monies received by the said S. B., for the said stocks and for said lots or parcels of ground, and to pay over the balance now remaining in their hands after payment of the said judgment and the promissory note, &c.

Prayer that subpoena may issue to said administrators, &c., and that complainants [**3]  may render a full, true and perfect account of all and singular the monies received by the said B., in his life-time, or by the said administrators, or any or either of them, since his death, from the sale of said stock and property before mentioned, and that a decree may pass ordering and requiring said administrators to pay over to your orator, William P. Maulsby, trustee, as aforesaid, such balance as upon a fair settlement of accounts may be found due, and that such other and further relief may be granted in the premises as to justice and equity shall seem meet, &c.

The answers of Sarah, George, and John N. Brown, administrators of Stewart Brown, admitted that said Stiles made application for the benefit of the insolvent laws of Maryland, as stated in complainants bill, some time in the year 1835; but they do not know, and do not admit, that said Maulsby has been duly appointed permanent trustee for the benefit of the creditors of said Stiles. They admit that said S. B. departed this life some time in the year 1832, intestate, and that letters of administration have been granted to these defendants. They also admit that the said John Stiles, by deed of mortgage, dated 24th [**4]  May, 1827, conveyed to said S. B. five lots of ground situate, &c. numbered 21, 24, 44, 55, and 59, for the purpose stated by complainants in their bill; and that by another deed, dated the 31st of July, 1829, said Stiles further conveyed the said lots to said S. B., with power to sell and dispose of the same absolutely, and the proceeds to apply, first to the payment of the said S. B. the amount due to him on the judgment mentioned in said mortgage, and for the payment of which the said S. B. had become surety, and of the sum of money lent and advanced by said S. B. to said Stiles, and secured by said mortgage, and the surplus, if any, to pay over to said Stiles, or his assigns. They admit that three of said lots were sold in the life-time of said S. B.; but they allege that if said Stiles has no accurate knowledge of the amount of money realised by said sales, as stated in complainants bill, it is because he has forgotten his own acts, and not because said S. B. failed to render an account thereof to him; for they further allege that it appears by the records of Baltimore county court, that on the 9th of October, 1829, the said Stewart Brown and John S. Stiles, by deed of that date,  [**5]  conveyed to William D. McKim the lots 21 and 24, above mentioned, the said S. B. receiving $ 400 consideration therefor. That on the 10th of October, 1829, the said S. B. and J. S. S., by deed of that date, conveyed to John Kirby the southernmost moiety of lot No. 44, above mentioned, S. B. receiving $ 260 consideration thereof; and that on the 10th October, 1829, the said S. B. and J. S. S., by deed of that date, conveyed to William H. Stewart the northernmost moiety of said lot number 44, S. B. receiving $ 260 consideration therefor. These defendants allege that they have no accurate personal knowledge of the state of accounts between said S. and said B. in the life-time of said B., but they believe the said S. to have been largely indebted to the said B. at the time of his death. They allege that after the death of the said S. B. said S. filed his bill in this honorable court against the widow, heirs, and administrators of said B., alleging that said S. B. by his bond of conveyance, dated the 23rd of November 1830, bound himself to convey to said S. two pieces or lots of ground, that is to say, the remaining lots of these above mentioned, to wit, the lots number 55 and 59, on said [**6]  S. paying to said B. a promissory note of even date with said bond, drawn by said S. in favor of said B. or order, for $ 2,700, bearing interest, payable at four months after date. That said S. in his said bill further alleged that more completely to secure the payment of said promissory note said S. and his wife executed to said B. a mortgage of a tract of land in Queen Anne's county, Maryland, called Marsh's Chester Farm, all of which, &c. These defendants further allege that on the application of said S. in said bill, and with the consent of the defendants thereto, and upon the allegation of said S. therein, that he was indebted to the administrators of S. B. the sum of $ 2,700 on said note, a decree was passed adjudging and ordering that on payment by said S. to the trustee in the said decree named, or to the said administrators, or on bringing into this court, to be paid to them, the sum of $ 2,700, with interest thereon, and the costs of the suit, the said John S. Stiles should have, hold, &c.; but in case said sum of money, with interest and costs, was not paid before the 1st of November 1833, then said trustee was ordered and directed to sell said property for the purpose of [**7]  settling and paying the same, &c. These defendants further allege, that although said Stiles, in his said bill, admitted that he was indebted to the administrators of S. B. in the sum of $ 2,700, yet that defendants have never claimed said amount from him, but that they have always limited their demand to the sum of $ 1,450, which they believe to have been justly due and owing from said S. to said B. on the promissory note of said Stiles, for that amount, dated 11th October 1832, drawn in favor of said S. B., which note they file, &c. These defendants further allege, that after the passage of said decree, to wit, on the 8th day of August 1833, the said Stiles and his wife, and the said George Brown, as trustee, by deed of that date, sold another of the above mentioned lots of ground, to wit, number 55, to John Patterson, for the sum of $ 750, of which $ 150 were received by said Stiles and $ 600 by said G. B., in part liquidation of the said sum of $ 1,450; and that said deed expressly admits that said Stiles was indebted to the representatives of S. B. in said sum of $ 1,450, as will appear by reference to a copy of said deed, which, &c. These defendants further allege that after [**8]  crediting said S. with said sum of $ 600, a considerable amount still remained due, and said Stiles entirely failing to pay the same at the time limited by said decree for the payment of the same, said trustee proceeded to sell the other lot of ground, to wit, lot number 59 above mentioned; that he sold the same for the gross sum of $ 910; that the sale thereof was duly reported to and ratified by this honorable court.

In relation to the Temascaltepec mining stock, these defendants say they know nothing thereof, except from some loose memoranda contained upon a paper found among the papers left by the said Stewart Brown, and which paper is herewith filed, marked, &c. From this memoranda it appears that said S., to secure his note for $ 1,995, due the 26th May 1828, transferred six shares of said stock to said S. B.; that on the 12th day of September 1828, one of these shares was sold for $ 620; on the 29th day of September 1828, another was sold for $ 645; on the 4th October 1828, one was returned to J. S. S.; and on the 25th February 1829, another was given to said S. to be sold, he to keep $ 150, the balance to be paid to S. B. It does not appear whether said Stiles ever sold [**9]  said share of stock, or paid any part of the proceeds thereof to S. B. From memoranda on another part of said paper it further appears that on the 30th September 1828, the said S. B. held as security for the note of John McFadon, dated the 29th September 1828, at ninety days, for $ 666, two shares of Temascaltepec mining stock, viz: one of those of said Stiles', and one transferred by Margaret McFadon; and that on the 25th March 1829, two shares of stock were transferred to Margaret McFadon; whether one of them shares was the property of said Stiles, and if his, what it produced, these defendants do not know. It does not appear what became of the remaining share or shares of stock transferred by said Stiles to said Brown; and defendants do not know whether said share or shares were returned to said Stiles or sold by said Brown, or whether they still remain in the name of said Brown; but they allege that said stock, about Nov. 1829, became perfectly worthless in the market, and has so continued ever since; and they think it probable that it was so considered both by said Stiles and Brown. They allege that there is now standing in the name of Stewart Brown some shares of said stock,  [**10]  and that they are ready to transfer a share or shares thereof to said Stiles, or to his permanent trustee, whenever ordered to do so by this honorable court. They allege that they never heard of any claim or demand on account of said stock by said Stiles until a long time, that is to say, about six years after the death of said S. B.; and they further allege that said Stiles having, long after the transfer of said stock to said Stewart Brown, given his said note to said Brown for $ 1,450, as above alleged, and having after the death of said Brown deliberately signed a deed setting forth that he was indebted to the representatives of said Stewart Brown in that sum, shows satisfactorily that complainants can have no fair claim against the representatives of said Stewart Brown, for or on account of said stock, but that all accounts between said Stiles and Brown must have been settled between them in the life time of said Brown, and the above amount of $ 1,450 have then been ascertained to be due, &c.

With this answer the various exhibits referred to in it were filed, and after proof taken, the cause was referred to the auditor, who, with other accounts, reported account B, viz:

 [**11]  

________________________________________________________________________________

DR. John S. Stiles in acc't with Sarah Brown, George Brown	
and John N. Brown, admin'rs of S. Brown,	
1832,	Dec. 13th,	To his note due this day,	$ 1,450 00	
		By this sum paid by sale of pro-	
		 perty, 8th Aug. 1833, interest	
		 having been paid,	600 00	
	
			850 00	
		Interest from 8th Aug. 1833, to	
		  15th July 1835: 1 y. 11 m. 7 ds.	98 74	
	
			948 74	
		By proceeds of sale in Stiles vs.	
		 Brown and others, in this court,	
		 15th July 1835, and defendants	
		 answer,	$ 834 53	
	
			114 21	
		Interest from 15th July 1835 to	
		 28th Oct. 1841 : 6 ys. 3 ms.	
		 13 ds.	43 08	
	
		Balance due to the defendants	$ 157 29	
________________________________________________________________________________

Which was ratified by the Chancellor, (BLAND,) 3rd March 1842, who also decreed that the said balance should be paid the defendants, out of the insolvent's estate, by the trustee, if the assets were sufficient to pay the same.

The complainants appealed to this court.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

Where the court perceives from the mutual allegations of the parties, and from the evidence adduced in the cause, that they had stated and settled an account between themselves, they cannot claim a decree to account.

A complainant seeking to investigate ancient accounts, will have his case subjected to severe scrutiny; although he is not to be visited with all the consequences of laches; while on the other hand, the defendant's evidence may receive a more indulgent consideration. The time at which the claim is advanced, and a failure to prosecute it against original parties, while they were alive, are circumstances calculated to create suspicion against such a claim, and in a doubtful case strengthen the defences which the representatives of such original parties may set up.

Where the parties settle and adjust their mutual claims, and one gives the other a note for the balance due, this forecloses an enquiry into all antecedent transactions, unless upon the ground of error or fraud.  

COUNSEL:
By ALEXANDER for the appellants, and

By BROWN and BRUNE for the appellee.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*356]  ARCHER,  [**12]  J., delivered the opinion of this court.
It has been admitted by the counsel for the appellant, that if we should believe from the mutual allegations of the parties, and from the evidence adduced, that they had stated and settled an account between them, the appellants cannot claim a decree at our hands. This admission is in strict conformity with the rules of equity governing bills to account.
In our enquiry into this question, we cannot forbear to remark that the account now sought at the hands of the defendant, is of transactions not of recent origin, but of an antiquity, which if it do not in point of law subject the party to be visited with all the consequences of laches, yet necessarily subjects his case to a severer scrutiny, and the defendants evidence to a more indulgent consideration. The time, too, at which this claim is sought to be enforced--several years after 

 [*357]  the death of the party with whom the transactions were had, who if living, it is reasonable to believe, might have explained what at this distance of time has thrown difficulties over the transactions complained of; and the failure during the life-time of the defendant's intestate to institute this [**13]  proceeding, are circumstances calculated to throw suspicion over the claim of the complainant, and in a doubtful case would strengthen the defences which might be set up in behalf of the defendant.
The testimony, however, in the record leaves us no room for reasonable doubt on the subject. On the 11th of October, 1832, John S. Stiles passed his note to Stewart Brown, payable four months after date, for fourteen hundred and fifty dollars. A bill was filed by Stiles, (at what time the record does not show,) alleging that he had given a mortgage to secure Brown the payment of the sum of $ 2,700, and praying a decree for the re-conveyance of the property mortgaged upon payment of the debt; and the Chancellor decreed, on 13th July, 1833, the payment of the money and re-conveyance of the property, and in case of a failure to pay the money that the mortgaged property should be sold. Afterwards, on the 8th of August, 1833, George Brown, the trustee in said chancery suit, John S. Stiles and wife, unite in a deed of a lot of land in the city of Baltimore to John Patterson, in which deed the decree above referred to is recited, and it is further recited that at [**14]  the time of passing the decree, viz, on the 13th July, 1833, the sum of $ 1,450 only was owing to Stewart Brown's representatives from John S. Stiles, which it is recited is known to and admitted by Brown's administrators. Here is a clear and solemn recognition of a settlement of accounts, and an adjustment of claims. Only the sum of $ 1,450 was due to Brown. The parties correct the error in the decree by their mutual admissions, and assume the amount of the note of October 11th, 1832, as ascertaining the balance due. But independent of this clear recognition of a settlement and adjustment of the claims of the respective parties, the letter of Stiles, of the 23rd February, 1837, in which he promises to call and adjust the balance, is strongly confirmatory of the idea of a settlement 

 [*358]  between the parties, and entirely negatives the hypothesis that the representatives of Brown are either largely indebted to him, or indebted to him at all. By the testimony which the record furnishes we feel ourselves led conclusively to the opinion that the parties settled and adjusted their claims by the note of 13th October, 1832. This of course forecloses an enquiry [**15]  into all antecedent transactions, unless upon the ground of error or fraud, and we perceive no evidence of either in the record. If it be true that some of the shares of the Temascaltepec mining company remained in the hands of Brown unsold, which had been transferred to him as a security for a loan, we may fairly infer, the proof showing they were worthless in December, 1829, that they were left, on the settlement of October, 1832, when the note was given for $ 1,450, in the hands of Brown, with consent of Stiles. They were then worthless and would be of no use to any one.
Upon the whole case, therefore, after bestowing our best reflections upon it, we entertertain the opinion that account B, as reported by the auditor, reaches the justice of the case, and as this account has been made the basis of the Chancellor's judgment we affirm his decree.
DECREE AFFIRMED.  

19 of 46 DOCUMENTS 

WILLIAM J. COLE vs. ANTHONY ALBERS AND THEODORE RUNGE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 Gill 412; 1843 Md. LEXIS 36 

December, 1843, Decided 

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

The bill in this cause was filed on the 11th February, 1841, by William J. Cole, and alleged that before the 1st September, 1839, Charles Brecht, of the city of Baltimore, merchant, was indebted unto Albers and Runge, of Baltimore, as copartners, and various other persons in said city, in large sums of money, was actually insolvent; and which insolvency was known to said Albers & Runge; that on the day above mentioned C. B. formed a copartnership with one Frederick Uthoff, also of said city, and that the said C. B. then had a stock of goods of some value, which passed to himself and the said copartner, and that the said partnership took upon themselves the debts of the said C. B.; that at the time said partnership was formed the said F. U. had a capital of $ 3,240, the whole of which was paid to Albers & Co. on account of their said claim against C. B., whereby the claim of A. & Co. against C. B. was reduced to $ 1,286.62, and the new firm of B. & U. was rendered actually insolvent when they commenced business, but which was kept secret from the then creditors of the said C. B. & Co.; that on the 2nd December, 1839, C. B. & Co., then being actually [**2]  indebted to A. & Co. in the sum of $ 4,753.08, including the above balance of $ 1,286.62, and no more, and being then actually insolvent, and intending to give the said Albers & Co. an undue, illegal and improper preference, and in fraud of the rest of their creditors made to the said A. & Co. a bill of sale for all the goods, merchandise and furniture then remaining, standing and being in the store No. 95, in Baltimore street, and then in occupation of the said B. & U., as is therein specified, and also of all the outstanding promissory notes and other evidences of debt belonging to them, or either of them, and all future proceeds and avails arising from sales of the goods of said store, for the professed consideration of the sum of $ 10,000 in hand paid, when, in truth and in fact, no such sum of money, nor any part thereof, was paid, and there was not any other consideration than the above mentioned balances of account, and that the said pretended consideration was inserted further to deceive and defraud their creditors, and to give to the said A. & Co., an undue, illegal and improper preference. The said bill further alleged that on the 1st September, 1840, or about that time,  [**3]  the said F. U. and the said T. R., (their respective partners C. B. and A. A., then being in Europe, where the said A. A. now resides,) contriving and intending how further to injure and defraud the creditors of C. B. & Co., agreed together that the said T. R., by virtue of the bill of sale herein before mentioned, should take possession of and sell and dispose of the goods, &c. of C. B. & Co. to a very large amount, and in fact of nearly the whole thereof, for the purpose of paying the said balance so due as aforesaid; and that about that time the said F. U. actually delivered to the said T. R. goods, &c. to the value, as per invoice, of $ 7,959.97; that the greater part of the said goods so delivered by the said F. U. to the said T. R. were not in fact included in the said bill of sale; that the said F. U. also delivered to the said T. R. divers promissory notes, of persons names unknown, and that on the 17th September, 1840, the said F. U., and on the 6th October, 1840, the said C. B., applied for relief under the insolvent laws of Maryland, and that on the 8th of January, 1841, the complainant was appointed trustee for the benefit of their creditors, and gave approved bond, with [**4]  security, as such; that complainant being advised that the payment of the said sum of $ 3,240, by B. & U. to A. & R., and the execution of the said bill of sale and delivery of goods, &c., was illegal, fraudulent and void, after his appointment as aforesaid, made application to the said T. R. to pay to him, as trustee as aforesaid, the said sum, &c., and deliver up, &c., in order that he might make distribution among the creditors of the said B. & U., but that the said T. R., contriving and intending how further to injure and defraud the complainant and the creditors of the said B. & U., pretends that the said sum of $ 3,240 was rightly paid by B. & U., and that the bill of sale, &c. rightly made and delivered to A. & R., and refuses to pay, &c. Prayer for subpoena; answer to bill and various specific interrogatories; for an account; that the bill of sale may be declared fraudulent and void; that A. & R. may be decreed to pay and deliver up the money, property and effects in their hands of the said insolvents; that their claim as creditors may be forfeited for their collusion with the said B. & U. to obtain an undue preference, &c.

The answer of Albers & Runge alleged that prior [**5]  to the 7th August, 1837, C. B. was a partner of the firm of Rhodes, Eicke & Co., which carried on business in Baltimore, till that day, when it was dissolved, and B. then commenced and carried on business on his own account in said city. The business in which the said B. was almost exclusively engaged was selling by retail silk piece goods, of which the defendants were importers; that B. applied to the said A. to send to Europe large orders for silk piece goods, to be imported by him, and to be settled for on their arrival, either by the payment of their cost in cash or in some other satisfactory way, an engagement frequently made by those in the retail trade with importing merchants who enjoy a credit abroad; that B. also applied to A. to sell him goods on credit, and to lend him money when he stood in need of it, all of which said A. was perfectly willing to do for the assistance and accommodation of the said B., if he could be made safe in so doing, and it was accordingly agreed between them that the said A. would accommodate the said B. in the way he wished, provided said B. would secure him by executing a mortgage or bill of sale on his stock of goods, outstanding debts, furniture,  [**6]  &c., and with the understanding that the sum of money to be advanced, including goods sold to Brecht, was at no time to exceed the sum of $ 10,000; and in the month of August, 1837, the said B. & A. applied to a magistrate to prepare a bill of sale. In conformity with the above agreement said bill of sale was drawn up, and executed on the 16th August, 1837, and recorded; and said bill of sale appears on its face to have been made for the consideration of $ 10,000, paid by said A. to B., but there was at the time when it bears date only the sum of $ 716 56/100 actually due from B. to A.; said Albers had, however, at that time sent out orders for goods for account of B. to the amount of $ 3,563, which arrived early in the month of October following, and were then delivered to said B. without further security than said bill of sale. It was the intention of said bill of sale, and was expressly so agreed upon between the parties thereto, that it should stand as a security for the sum then due, as well as for all subsequent debts which might become due from said B. to said A. to an amount not exceeding $ 10,000 at any one time. From that time said A., relying upon the security afforded by [**7]  said bill of sale, gave extensive credits to said B., both by selling him goods and loaning him money; that on the 1st January, 1838, said A. took T. R., who had been his clerk since 1st January, 1836, into partnership with him, and soon after said A. sailed for Europe, where he has ever since remained; that early in the year 1839, B. proposed to take U. into partnership with him, who was his clerk and bookkeeper, provided he U. would put into the concern a capital of $ 3,000; said U. assented and succeeded in obtaining said amount, as these defendants have been informed and believe, from his father, who deposited four thousand Rex dollars to the credit of said U. with a house in Breman; at the request of said U. these defendants drew a bill for that amount, at the then current rate of exchange, making $ 3,240, which by order of said U. they passed to the credit of said B. on the 30th July, 1839, and on the 1st September, 1839, said U. in pursuance of the above agreement, entered into a copartnership with said B., under the firm of C. B. & Co.; at this time B. had a valuable stock of goods, which passed to the new firm; and defendants admit that the debts due to as well as by said [**8]  B. also passed to said new firm, which became entitled to receive the former as well as bound to pay the latter; that after the establishment of C. B. & Co. this defendant, T. R., thinking that the bill of sale above mentioned might not avail to secure the debts due by C. B. & Co. to Albers & Co., applied to said C. B. & Co., and requested them to execute a new bill of sale, which they did on the 2nd December, 1839; that said bill of sale, like the former, states on its face that it was made for the consideration of $ 10,000, but at the time of its date there was due from C. B. & Co. to Albers & Co., the sum of $ 6,418.73, and Albers & Co. had become responsible for C. B. & Co., by endorsing their paper to the amount of $ 2,264 more, making in all $ 8,682.73, at the date of said bill of sale; and it was the intention of said bill of sale, and was so expressly understood between the parties thereto, that it should stand as a security, both for the sum then due and for the notes on which said A. & Co. had become liable as endorsers as aforesaid, as well as for all subsequent debts which might become due from said B. & Co. to said A. & Co., to an amount not exceeding $ 10,000, at any [**9]  one time, and these defendants wholly deny that the object of either of said bills of sale was to give to said A., or the said A. & Co., an undue, illegal and improper preference, or to hinder, delay and defraud the rest of the creditors of the said B. or B. & Co.; that the object of both bills of sale was to give A. and A. & Co. a legal security for the important assistance which they rendered, first to B., and afterwards to B. & Co., and that the intention of the second bill of sale was merely to carry out, in good faith, the agreement originally entered into, and that there was no other consideration for said bill of sale than that stated. The answers then denied that the execution of the bills of sale, or the debts due to them, or the knowledge they had of the condition of the firm of C. B. & Co. were in any way kept secret by them from the rest of the creditors; that said bills of sale were duly recorded, which was notice to all the world; and that defendants had no knowledge or suspicion that said B. was insolvent. The answer then proceeded to set forth a variety of transactions between said partners, and first heard of insolvency of the firm of B. & Co., in February 1840, when [**10]  sued, examined their books and so found it; that on the 21st August 1840, said R. demanded of U. (his partner B. being then absent,) delivery of the goods conveyed by said bills of sale for the payment of their debts, said U. accordingly delivered up to him the said goods. The answers also denied that the greater part of the goods as aforesaid, delivered to the defendants, was not included in said bill of sale, on the contrary, that all of said goods were in the possession of B. & Co., at the time of the execution of said last mentioned bill of sale, and were included within it, except a few pieces, amounting to about $ 270 in value.

The defendants then set forth in extenso the accounts between the parties, with a great variety of details and exhibits, and denied all manner of fraud or collusion.

A commission was then issued, under which was proved:

The bill of sale of 2nd December 1839, from C. B. & F. U., for and in consideration of the sum of $ 10,000, in hand paid by A. A. & T. R., granted, bargained and sold to A. A. & Co., &c., "all the goods, merchandize and furniture, now remaining, standing and being in the store No. 95, in Baltimore St., and now in the occupation [**11]  of us the subscribers, trading under the firm of C. B. & Co., that is to say, 250 pieces of silk goods, &c., as also all the outstanding debts, promissory notes and other evidences of debt, belonging to us, or any one of us, and all future proceeds and avails arising from sales of the goods of said store;" and provided, that in case I the said C. B. & Co., their, &c., shall well and truly pay to the said A. & Co. the said sum of $ 10,000, with interest for the same, on or before the 2nd March 1840. Recorded on the 4th Dec. 1839. The bill of sale of the 16th August 1837, from C. B. to Anthony Albers, was similar to that above, and was recorded on the day of its date.

Under the commission, the proceedings of C. B. & F. U., as insolvent debtors, were also proved, with a great variety of accounts, notes, letters, schedules of goods, accounts of sales, and accounts current, were also proved to show the condition of the house of C. B. & Co., before, and at the time of failure, and the claims of the defendants as their creditors.

The complainant, in offering the proceedings of the two insolvents, C. B. & F. U., before the commissioners of insolvent debtors, limited his offer.

1.  [**12]  To show that they had made such application, and the time of making it.

2. To his due appointment and bonding as trustee.

3. To affect the credit due to the said insolvents, who were both sworn as witnesses for the defendant, and who vary in their statements as such witnesses, so far as their answers to interrogatories before the said commissioners may affect them.

The defendant excepted to the admissibility of the said proceedings, as evidence for any other purpose than that stated in the complainant's offer.

The Chancellor, (BLAND,) on the 20th of January 1842, dismissed the bill with costs, being of opinion, that at the time of the execution of the deed of 2nd December 1839, by the debtors B. & U. to their creditors A. & R., that they had notice of the condition of insolvency of their said debtors, if they were then in fact in such a condition.

From this decree the complainant appealed.

The act of 1825, ch. 50, declared that no mortgage or deed of that nature shall operate, either in law or equity, as a lien or charge on any estate or property whatsoever, for any other or principal sum or sums of money, than the principal sum or sums that shall appear [**13]  on the face of such mortgage, and be specified and recited therein, and particularly mentioned and expressed, to be secured thereby, at the time of executing the same.

The act of 1834, ch. 293, entitled, "A further supplement to the act, entitled, an act relating to insolvent debtors in the city and county of Baltimore, sec. 1, enacted, that in all cases of applications hereafter to be made for the benefit of insolvent debtors, under the act to which this is a supplement, or any supplement thereto, all conveyances, assignments, sales, deliveries, payments, conversions, or dispositions of property or estate, real, personal or mixed, debts, rights or claims, or confessions of judgment that shall be made, or caused or allowed to be made, whether upon request or otherwise, by any applicant to, or in favor, or with a view to the advantage or security of, and with intent to prefer any creditor or creditors, security or securities of such applicant, when such applicant shall have had no reasonable expectation of being exempted from liability or execution, for or on account of his debts, without applying for the benefit of the insolvent laws as aforesaid, shall be deemed within the meaning [**14]  and effect of the sixth section of the act to which this is a supplement, to have been made with a view, or under an expectation on part of the applicant, of being or becoming an insolvent debtor, and with an intent thereby to give an undue and improper preference; provided, however, that the provisions of this section shall not apply as against any person or persons claiming, by virtue of any assignment or conveyance, for valuable consideration, from or under the creditor or creditors, security or securities, their heirs, executors or administrators, nor to any case where the said creditor or security shall appear not to have had notice of the consideration of insolvency as aforesaid of said debtor.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

To vacate a deed by the insolvent laws existing anterior to the act of 1834, ch. 283, the grantors, at the time of executing the deed, must have contemplated taking the benefit of the insolvent laws; otherwise, the deed could not therefore be condemned as made with a view or under an expectation of being and becoming an insolvent debtor, and with intent thereby of giving an undue and improper preference.

A deed made at the request of the creditor, prior to the act of 1834, was not within the meaning of our insolvent laws.

The act of 1834, ch. 293, so far it authorises the courts to vacate conveyances made in contemplation of insolvency, is a local law confined to the city and county of Baltimore, and does not apply to cases where the grantee had not notice of the insolvent condition of the grantor.

Where, after the execution of a deed of mortgage, the mortgagor lent money and sold goods to the mortgagee, and took notes for the payment of his debt, in semi-monthly instalments, this is evidence that he did not know his debtor to be in an insolvent condition.

The notice required by the act of 1834, to vitiate a conveyance is not a technical or constructive notice, but an actual notice derived from a knowledge of the condition of the grantor of such conveyance.

At common law a debtor has a right to prefer one creditor to another, and, independent of our statute in relation to insolvent debtors, may give such preference.

Evidence cannot be admitted which would have the effect of changing the character and legal operation of a deed.

When a deed purports to have been made on a monied consideration, it cannot be shown that money did not constitute the consideration; where a deed is impeached for fraud, and the consideration stated is money, it will not be allowed to set up a different consideration as marriage to support the deed.

Where the consideration stated in a mortgage is a sum of money in hand paid, and it is taken to secure that sum, evidence is admissible to show a part of the sum paid, and that it was to secure advances made, and to be made, to that extent. Such evidence would not affect the nature of the deed. It would still be founded on a money consideration.

Such evidence is also admissible to rebut the idea of fraud, by showing the same kind of consideration, differing only in amount, and the circumstances under which it assumed this shape.

The design of the act of 1825, ch. 50, was to prevent liens on property to the prejudice of creditors, for amounts and claims never contemplated by the parties at the time of the execution of their mortgage, of which the mortgage, by its terms, gave no notice.

A deed executed to cover a mortgage against all future liabilities of any and every description, which the mortgagor might incur or be responsible for to the mortgagee, would be within its provisions.  

COUNSEL:
By COLE and REVERDY JOHNSON for the appellant, and

By BRUNE and MCMAHON for the appellees.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*420]  ARCHER, J., delivered the opinion of this court.
The bill in the present case has been filed to vacate a deed of mortgage given by Brecht and Uhthoff to Albers and Runge, on the 2nd day of December, 1839, to obtain an account and payment for the goods and promissory [**15]  notes delivered over to 

 [*421]  Albers and Runge in pursuance of said deed, and for the payment over to the complainants of the sum of three thousand two hundred and forty dollars, with interest, which was applied by Uhthoff (in contemplation of a partnership to be entered into by him with Brecht) to the payment of a debt due by Brecht to Albers & Co.
The deed in controversy is alleged to be void as in violation of the insolvent laws, to be condemned at common law, and inoperative under the act of Assembly of 1825, ch. 50, entitled "An act to limit the operation and effect of mortgages."
There can be no pretence for considering the deed void by the insolvent laws existing anterior to the law of 1834, ch. 293, because, in our view, the evidence, taken in connexion with the answers, it is, by no means, satisfactory that the mortgagors, at the time of executing the deed, contemplated taking the benefit of the insolvent laws. The deed could not, therefore, be condemned as made with a view, or under an expectation, of being or becoming insolvent debtors, and with intent thereby of giving an undue and improper preference. Nor could it be set aside, within the [**16]  meaning of those laws, since the decision of this court in the case of Crawford & Selman vs. Taylor, being made at the request of the mortgagees.
It is, however, contended that the deed is void as being made in contravention of the act of 1834, ch. 293, which, so far as regards the present question, appears to be a local law, confined to the city and county of Baltimore. This law provides that although the transfer shall be made upon request, yet if the bargainor, at the time of conveyance, had no reasonable ground for believing that he would be exempt from execution or liability for his debts, without applying for the benefit of the insolvent laws, such conveyance should be considered as made with a view or under an expectation of being or becoming an insolvent debtor, and with intent thereby to give an undue and improper preference, provided the creditor obtaining the conveyance should appear not to have had notice of the condition of insolvency of such debtor.
Without stopping to enquire whether the debtors in this case had any reasonable expectation of exemption from liability 

 [*422]  or execution, on account of their debts, otherwise than by taking the benefit [**17]  of the insolvent laws, it will be sufficient for us to say that we are satisfied that the mortgagees had not notice of the insolvent condition of the mortgagors. Our belief on this subject is derived from the fact that money was loaned and goods sold after the date of the deed, and that notes were taken for the payment of their debts to the creditors, Albers & Runge, in semi-monthly instalments; all which circumstances would not be likely to have occurred if the mortgagors had been considered as insolvent, or in such a condition that they had no reasonable expectation of being exempt from liability or execution for their debts, except by taking the benefit of the insolvent laws. No inferences can be drawn, prejudicial to the mortgagees, from the examination of the books of the mortgagors, by one of the mortgagees, because, as far as the character of that examination is disclosed by the testimony we cannot perceive that it was calculated to impart information in relation to the condition of the firm either as to solvency or insolvency. We have no evidence that enquiries had been made into the extent of the assets of the mortgagors, or the extent of their liabilities, by enquiry [**18]  into which alone could any judgment have been formed, or any notice be attributed. And here we must be permitted to remark, that according to our construction of the act under consideration, the notice which is to vitiate a conveyance is not a technical or constructive notice, but an actual notice, derived from a knowledge of the condition of the mortgagors.
The next subject submitted for enquiry is the validity of this deed at common law. Its invalidity on the mere ground of preference, cannot, upon legal principles, be urged, for a debtor has a right to prefer one creditor to another by the common law, and independent of our statutes, in relation to insolvent debtors.
The consideration proved, if the proof be admissible, establishes clearly a good and valid consideration to support the deed. The evidence dehors the deed is that the deed of mortgage was made to secure advances made, and to be 

 [*423]  made, to the extent of $ 10,000. The consideration stated in the deed is $ 10,000, in hand paid; and it is averred the deed is taken as a mortgage to secure that sum. The only question, in this branch of the case, is whether this evidence is admissible. Evidence cannot be admitted [**19]  which would have the effect of changing the character and legal operation of the deed, as in the case of Hern & Soper, where a deed purports to be made on a monied consideration it cannot be shown that money did not constitute the consideration, because this would have the effect to change the character of the deed; and in Betts and the Union Bank, it was decided that where a deed is impeached for fraud, and the consideration stated is money, it will not be allowable to set up a different consideration, as marriage, to support the deed. In such a case the effect of the evidence, if admitted, would have been to change the deed from a deed of bargain and sale to a covenant, to stand seized to the use of the grantee.
In the case now before us the admissibility of the evidence would produce no such result. The bill admits, and it is fully proved, that a monied consideration existed for the deed. Advances had been made to the mortgagors, though not to the extent mentioned in the deed; so that the instrument would, in contemplation of law, be a deed of bargain and sale, standing on the consideration proved in the same way as it would be if standing on the consideration expressed [**20]  in the deed. In the case of Betts and the Union Bank, the evidence could not be received, because by the disproof of the consideration expressed, the deed had been rendered inoperative and void, and parol evidence of a different consideration could not be received to set up the deed thus impeached. But here the deed is not impeached or rendered inoperative and void, by the evidence offered, but the evidence is adduced to rebut any idea of fraud, by showing, not a different consideration, but the same kind of consideration, differing only in amount, and the circumstances under which it assumed this shape. And this, it will be perceived, was the view of the case of Betts and the Union Bank, taken by this court, in 9 G. & J. 91, and 10 G. & J. 248.

 [*424]  The design of the law-makers in the passage of the act of 1825, ch. 50, was to prevent liens on property, to the prejudice of creditors, for amounts and claims never contemplated by the parties at the time of its execution, and of which the deed, by its terms, gave no notice: as if a deed were executed to cover a mortgagee against all future liabilities of any and every description, which the mortgagor [**21]  might incur or be responsible for, to the mortgagee. Under such a deed, what would have prevented the mortgagee from purchasing up claims at a depreciation against the mortgagor, to indefinite amounts, and thereby acquiring priority, to the prejudice of creditors. A practice prevailed anterior to the act of 1825, ch. 50, of taking mortgages for specified sums of money, greatly below the value of the mortgaged premises, with a clause or clauses providing that the mortgaged premises should be held as a security for all future liabilities or advances by the mortgagee to the mortgagor, by which means the creditors of the mortgagor were defrauded, sometimes by fraudulent combinations between the mortgagor and mortgagee, or by the acts of the mortgagee alone, who, after the known insolvency of the mortgagor, purchased up liabilities of the mortgagor at depreciated rates, and held them as liens on the mortgaged premises for their nominal amounts; thus excluding a portion of the creditors from an equal dividend of the mortgagor's estate. Creditors becoming such after the date of such mortgage, were deluded and suffered loss, which no precaution could guard them against. Such transactions the [**22]  law was designed to meet; but not a case like this, where the amount is stated; where the world is apprised of its limits, and where the parties design to cover all advances which may be made, to the extent of the sum limited in the mortgage. In the mortgage now under consideration, no one could be deceived or prejudiced.
The views which we have above taken, disposes of the various questions raised in the case, and concurring with the Chancellor in his judgment, we affirm his decree.
DECREE AFFIRMED.  

20 of 46 DOCUMENTS 

ROBERT PORTER AND OTHERS vs. MARY ASKEW 

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 G. & J. 346; 1840 Md. LEXIS 24 

December, 1840, Decided 

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

On the 26th November 1834, Mary Askew, Robert Porter and others, filed their bill alleging, that Elizabeth Long of Baltimore county, was in her life time seized and possessed of a certain tract of land in said county, assigned to her as the only daughter and legal representative of a certain Elizabeth Long, one of the sisters of John Mercer Porter, whose land was partitioned, &c.; that the said E. L. died so seized and possessed in November 1834, intestate and without issue; that said Eliabeth Long, also, died seized of other land, which descended to her, on the part of her father, John Long, and which complainants are advised, vests in her, the said Elizabeth's heirs, of the blood of her father; that her other real estate will descend to and vest in her heirs, on the part of her mother, who was one of the sisters of John Mercer Porter; that said J. M. P. left as his heirs at law, E. Long, the present intestate, she being the daughter of a deceased sister; Mary Askew one of present complainants, another sister; Jesse; Benjamin; Robert; and Peregrine Porter, brothers, and Rebecca Porter a sister. That Robert is dead, since [**2]  the death of J. M. P., leaving complainants, Robert and Benjamin his heirs at law; that the bill then proceeded to show the death of all the other brothers and sisters of J. M. P., except Mary Askew the complainant, and the issue by them respectfully left, and to show who are the heirs at law of the said E. L. on the part of, and of the blood of the mother, who are entitled to the two lots which descended from her--first, Mary Askew in her own right, as aunt of the intestate, E. L., Robert Porter of Robert, and Benjamin Porter of Robert, &c., in right of and by representation from their deceased father Robert, an uncle of the said Elizabeth Long the intestate; also the children of Jesse Porter, another uncle of Elizabeth Long; and also the children of an aunt of said E. L., &c. The bill then alleged, that owing to the particular situation of the said two lots or parcels of ground, and the numbers of heirs that have an interest in the same, it is impossible to make a division or partition of the same without a most serious loss and injury; that the improvements on said pieces of property are in a most ruinous condition, and that a sale of the same would be much to the interest and advantage [**3]  of the parties, but that owing to the number of said heirs, and their various interests, no sale can be agreed upon among them. Prayers for subpoenas for a sale of the said two lots, and the proceeds to be brought into this court, to be distributed among the said heirs, according to their respective rights and interests, and for further relief.

The defendants answered the bill, admitting the facts--a commission was issued to divide the land. The commissioners reported, that it was incapable of division, and Baltimore county court, on the 15th May 1835, decreed a sale, with directions to bring the proceeds into court to be distributed under the direction of the court. The trustee proceeded to a sale, which was finally ratified on the 7th October 1835.

The cause was referred to the auditor, who under the instructions of the complainant's (Mary Askew's) solicitor, stated one account allowing her the whole proceeds of the land--the second account, allowed her one-fifth, and distributed the remaining four-fifths among the other parties in the cause.

On the 18th March 1837, Mary Askew petitioned the county court, alleging, that since the decree in this cause she had been advised,  [**4]  that she was the sole heir of Elizabeth Long, she being an aunt of the deceased, and the other parties named in the bill being cousins, and the act of descents having this clause, viz: "there shall be no representation among collaterals after brothers and sisters children." Prayer that the first account may be confirmed, and the proceeds ordered to be paid to petitioner.

On the 15th April 1839, the county court (ARCHER, C. J., MAGRUDER and PURVIANCE, A. J.,) confirmed account No. 1, and distributed the proceeds accordingly; from which order and distribution the other parties appealed to this court.  

DISPOSITION:
DECREE AFFIRMED WITH COSTS.  

HEADNOTES:

On the 15th April 1839, the county court passed an order, confirming the account of the auditor, distributing the proceeds of land, from which the parties interested took an appeal. The original decree was for a sale, from which no appeal had been taken; it was passed on the 15th May 1835. The Court of Appeals refused to examine into the validity of the original decree.

The act of 1820, ch. 191, sec. 4, declares that there shall be no representation among collaterals, after brothers and sisters children. The judicial interpretation given to that language, which is borrowed from the statute of distributions of 22 Car. 2, ch. 10, is, that brothers and sisters children, mean the children of the brothers and sisters of the intestate, and that there shall be no representation among collaterals after the children of the brothers and sisters of the intestate, who died seized.

L died seized, intestate and without issue; she left A, an aunt, and children of uncles and aunts. Held, that under the act of 1820, ch. 191, sec. 4, A was entitled to the whole estate.  

COUNSEL:
By R. JOHNSON for the appellants, and

By J. V. L. MCMAHON for the appellee.  

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

OPINIONBY:
SPENCE 

OPINION:

 [*349]  SPENCE, J., delivered the opinion of the court.
In this cause a decree was passed by the county court of Baltimore county, for the sale of the real estate of a certain Elizabeth Long, who died intestate, seized of real estate, for the purpose of making distribution of the same, among her heirs at law. After the ratification of the sale, made by the trustee, Mary Askew [**5]  , the appellee filed her petition to the court, alleging, that she was in law entitled to the whole fund arising from said sale. The cause was referred to the auditor, who stated two accounts; in one of which he awarded the whole fund, after deducting costs and charges, to Mary Askew, the appellee. In the second account, he allowed to Mary Askew, one-fifth part, and distributed the other four-fifths, among the children and heirs of Jesse Porter, Robert Porter, Rebecca Stone and Wesley Porter. Baltimore county court confirmed the auditor's statement and account No. 1, which awarded the whole fund to Mary Askew, and ordered the proceeds to be applied accordingly, and overruled account No. 2. From this order of the court, confirming the auditor's account, No. 1, and overruling account No. 2, this appeal is taken.
The first question to be decided in this cause is, who of these claimants are in law entitled to this fund, thus made by the sale of the real estate of Elizabeth Long.? This question arises under, and must be determined by, the provisions of the act of Assembly, passed December 1820, ch. 191, entitled "an act to amend and reduce into one system the laws [**6]  to direct descents."
The bill states that Elizabeth Long at her death, left as her heirs at law, Mary Askew, an aunt, and Robert Porter and 

 [*350]  others, children of uncles, and an aunt of Elizabeth Long, her heirs at law on the part of the mother of the said Elizabeth, and that the estate descended to said Elizabeth, on the part of her mother.
The question then is, does the aunt of the intestate, under the act of 1820, ch. 191, take the whole real estate, to the exclusion of the children of uncles and aunts of the intestate, or do they come in by representation, and participate with the aunt in the fund?
The fourth section of the act of 1820, ch. 191, contains this restriction, "provided that there be no representation admitted among collaterals, after brothers and sisters children."
It must have been the intention of the Legislature, by the language employed in this section, to limit representation among collaterals, to the children of brothers and sisters of the intestate. It seems to us that this interpretation is not only the rational and sound one, but that to give it any other, would almost entirely defeat its end, namely, to limit and restrict.  [**7]  We are the more persuaded of the correctness of this construction, because other tribunals have drawn the same conclusion, from language, if not identically the same, so nearly so, that we are unable to detect any substantial discrepancy.
The Stat. 22, Car. 2, ch. 10, commonly called the statute of distribution, contains this language, "provided there shall be no representation amongst collaterals after brothers and sisters children."
The courts in England have again, and again decided, that the meaning of this language is, the children of the brothers and sisters of the intestate. And we are at a loss to conceive of a more perfect analogy between any two cases, than this case, and the case of Bowers vs. Littlewood, 1 P. Wms. 593, presents.
The appellants' solicitor insisted in the argument of this case, that if Mary Askew was the sole heir, and only person entitled to the estate of Elizabeth Long, the intestate, the court had no jurisdiction to pass the original decree to sell the real estate, it not being a case in which the court had such jurisdiction 

 [*351]  under the provisions of the act of 1820, ch. 191, or any of its supplements;  [**8]  and that therefore, this decree was a nullity; of the correctness of this conclusion, notwithstanding the ingenious argument of the appellants' solicitor, we are not persuaded. This question is not now before this court. No appeal having been taken from the original decree, the legal correctness of that decree is not now before us for revision.
DECREE AFFIRMED WITH COSTS.  

21 of 46 DOCUMENTS 

PHALEN & MORRIS vs. THE STATE OF MARYLAND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

12 G. & J. 18; 1841 Md. LEXIS 2 

December, 1841, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the Equity side of Baltimore County Court.

On the 18th February, 1840, the State of Maryland exhibited its bill of complaint alleging, that heretofore, to wit, by an act of Assembly, passed at December session 1816, and entitled "An act to authorise a lottery or lotteries to raise a sum of money for the purpose of repairing, and raising a sum of money for the use of Washington College," and by two several supplements thereto, the one passed at December session 1821, and the other at December session 1823; and also by a further and other act of Assembly, passed at December session 1821, entitled "An act for the benefit of St. John's College," certain powers were conferred on the governments respectively, of Washington College on the Eastern, and St. John's College on the Western Shore, and among them the power to dispose of the schemes of lotteries thereby authorised; and that a certain Palmer Canfield, of the city of New York, in the year 1824, made contracts with the said governments severally, for the purchase or use and enjoyment, in whole or in part, of the lottery privileges granted them by the acts of Assembly aforesaid; and that the schemes by him submitted [**2]  for approval, and approved under said acts, being twelve in number, amounted in all to one million five hundred and forty-nine thousand seven hundred and sixty-five dollars, and that ten of said schemes, amounting to six hundred and eighty-seven thousand three hundred and sixty-five dollars, were drawn by himself or his agents, or by the Commissioners of Lotteries for him, and at his instance; and that the two remaining schemes, amounting to eight hundred and sixty-two thousand four hundred dollars, were either drawn by him or his agents, or if undrawn, are so by reason of the negligence, default and fraud of the said Canfield, in this behalf, who made sale of, and received the money for a large number of the tickets in said two last mentioned schemes, more than fourteen years since. The said State further sheweth to your honors, that the prizes in each of the schemes submitted by, and approved for, said Canfield aforesaid, and by him advertised, amounted to the sum which would have been raised by the sale of the whole of the tickets in such scheme, and that each and every ticket issued in each of said schemes, contained upon its face a stipulation that the holder should submit to [**3]  a deduction of fifteen per cent. from such prize as it might draw. And the said State also sheweth to your honors, that the whole sum of one hundred and sixty thousand dollars, authorised to be raised by the acts of Assembly aforesaid, with the expenses legally chargeable in addition, was raised by the said Canfield, under the schemes aforesaid, and certain other schemes, amounting to three hundred and eighty-three thousand seven hundred and forty-five dollars, drawn in fact on his account by Yates and McIntyre, of New York, and that the lottery privileges by said acts granted, were by him exhausted and extinguished. And the said State further sheweth to your honors, that the said Palmer Canfield, in addition to the schemes of lotteries by him submitted for approval, and approved, including those already stated to have been drawn in fact on his account, did advertise and draw in the State of Connecticut, through his agent, one Dana, of the firm of Paine, Burgess & Dana, certain other schemes of lotteries to an amount to the said State unknown, but believed and charged to be upwards of one hundred thousand dollars, purporting to be authorised by the acts of Assembly aforesaid, but which [**4]  were never by him or said agent submitted for approval, or approved, according to the requirements of said act in that behalf. And the said State further sheweth to your honors, that the only surety in the bonds required by the acts aforesaid to be given by the purchaser of the schemes of lotteries thereby authorised, and which were given in conformity by said Palmer Canfield, is either dead, insolvent, or resides without this State, and that no other person than said Canfield has given or tendered any bond as purchaser, or in any other capacity, under said acts, except Yates and McIntyre, for the amount drawn by them as hereinbefore stated. And the said State further sheweth to your honors, that the said State, on the 20th of November, 1829, recovered judgment against the said Palmer Canfield, for the sum of sixteen thousand five hundred and sixty-eight dollars, in the Circuit Court of the United States for the second circuit, in and for the Southern District of New York, in an action of assumpsit in said court, instituted on the last Monday of October 1828, after which, to wit, some time in the year 1833, the said Palmer Canfield died insolvent, leaving the said judgment wholly unsatisfied.  [**5]  And the said State further sheweth to your honors, that a certain Robert B. A. Tate, of the city of Baltimore, hath obtained letters of administration from the orphans court of Baltimore county, upon the personal estate of the said Palmer Canfield; and that on the 17th of February, 1840, an action of debt was instituted, and is now pending in Baltimore county court against the said Tate, as such administrator, upon the judgment aforesaid, by Michael McBlair, Samuel S. Dickinson and George Cooke, esquires, the said State's Commissioners of Lotteries. The said State also sheweth to your honors, that James Phalen and Francis Morris, partners under the firm of James Phalen and Company, falsely alleging themselves to be entitled to the lottery privileges granted as aforesaid, by virtue of pretended assignments thereof from the said Palmer Canfield, through a certain Felix Pascales, of New York, his pretended immediate assignee, propose and offer to draw, on the 18th of February, 1840, in the city of Baltimore, the scheme of a lottery authorised (as they aver in their advertisement thereof, which they have caused to be inserted in one or more of the daily papers published in the city of [**6]  Baltimore, and a copy of which is herewith filed, which it is prayed may be taken as part of this bill,) by acts of the General Assembly of Maryland, for the benefit of Washingington and St. John's Colleges, and which said scheme has never been submitted for approval, or been approved by the Commissioners of Lotteries. And the said State further showeth to your honors, that the pretended assignment aforesaid, from the said Canfield to the said Pascales, (who was the father-in-law of said Canfield, a doctor of medicine, in no wise acquainted with, or engaged in the lottery business, either at that time or before or after, and of narrow means,) was made, if at all, without consideration, and fraudulently, to defeat and delay the judgment aforesaid, and execution thereon. And the said State further sheweth to your honors, that the said Canfield had no power by the acts aforesaid, or the action under the same, of the governments of the colleges aforesaid, to make any assignment of his purchase from said governments, in the form which he is falsely alleged to have adopted, or in any other form; and that the said Canfield never did make any such assignment to the said Pascales, or if he [**7]  did, that the said Pascales never did make assignment to the said Phalen and Morris, of any interest derived by him in the premises from said Canfield, and that the said Phalen & Morris are not the assignees, in law or in fact, of any rights acquired by said Canfield, under his purchase aforesaid, or of any of said rights pretended to have been communicated by him to the said Pascales. And the said State further sheweth to your honors, that the said Felix Pascales, the pretended immediate assignee of the said Palmer Canfield, hath departed this life, and that no letters testamentary or of administration upon his estate, have been granted in this State. And the said State also sheweth that no power was conferred, or could or can be exercised, under the acts aforesaid, to propose or draw any scheme of a lottery purporting to be jointly authorised by the grants made severally as aforesaid, to Washington and St. John's Colleges. And the said State further sheweth to your honors, that Michael McBlair, Samuel S. Dickinson and George Cooke, esquires, the State's Commissioners of Lotteries for the present time being, believe that the scheme of a lottery, proposed and offered to be drawn as [**8]  aforesaid, is unauthorised by the laws of this State. In tender consideration whereof, and inasmuch as the appropriate remedy of the said State in the premises is in equity,--To the end, therefore, that the said James Phalen and Francis Morris, and Robert B. A. Tate, may full, true and perfect answers make, on their several and respective corporal oaths, to all and singular the premises, and that as fully as if thereto specially interrogated; and that by this honorable court it may be adjudged, ordered and decreed, that the said James Phalen and Francis Morris, and their agents and servants, be perpetually enjoined and restrained from proposing or offering to draw, or drawing or disposing of any scheme or schemes of lotteries, under and by virtue of the acts of Assembly aforesaid, and that the said State may have all such other and further relief in the premises as the case hereinbefore set forth shall in equity demand.

The said State respectfully asks that the court here do grant, as well the State's writ of injunction (pursuant to the direction of the 21st section of an act of Assembly, passed at December session 1828, entitled, "A supplement to an act entitled, an act to amend [**9]  the lottery system,") to the said James Phalen and Francis Morris to be directed, strictly commanding and enjoining them, their servants and agents, from proceeding in the drawing of the lottery by them offered and proposed to be drawn in the city of Baltimore, on the 18th day of February, 1840, and purporting to be so offered and proposed by authority of acts of the General Assembly, for the benefit of Washington and St. John's Colleges, till their right to draw the same can be determined; and also the State's writ of subpoena, &c.

Upon this bill the county court ordered an injunction to issue.

The joint and separate answer of James Phalen and Francis Morris alleged, that it is true as stated in said bill of complaint, that by the various acts of Assembly in said bill mentioned, certain lotteries were authorised to be drawn, in order to raise funds for Washington and St. John's Colleges, and by said acts the governments of said colleges were authorised, either to draw said lotteries or to sell the right of drawing the same to any other person or persons whomsoever. And these respondents further admit, that the right of raising the sums of money in said acts mentioned, was [**10]  duly and regularly assigned, for value received, to Palmer Canfield, of the city of New York. And these respondents further answering, admit, that said Canfield submitted for approval to the Governor and Chancellor of the State, the system of schemes of lotteries, amounting to a large sum nominally, and these respondents admit that ten of said schemes, amounting in the gross to the sum of six hundred eighty-seven thousand three hundred and sixty-five dollars, were drawn by said Canfield or his agents, but these respondents deny that any other schemes were drawn by said Canfield, and they also deny that tickets to any extent, in any other schemes, were sold by him or his agents; and they also deny that any of such tickets of the few which were sold, remains outstanding, unless they be in the hands of dealers who never paid for them, Canfield having redeemed all which were paid for. And these respondents further answering, admit, that the prizes in each of the schemes submitted by, and approved for said Canfield, and by him advertised, amounted to the sum which would have been raised by the sale of the whole of the tickets in such scheme, and that each and every ticket issued in each [**11]  and every scheme, contained upon its face a stipulation, that the holder should submit to a deduction of fifteen per cent. from such prize as it might draw; but these respondents expressly deny, that either one hundred and sixty thousand dollars, or any other sum exceeding thirty thousand dollars, was raised, either by said Canfield or by any person drawing lotteries under the aforesaid grants, so assigned as aforesaid to said Canfield, including the drawing of Yates and McIntyre and Francis W. Dana; but these respondents verily believe, that said Canfield made large losses by such drawings, never having sold one-third of the tickets in said schemes, and several very high prizes having been drawn by holders of said tickets sold as aforesaid; and in confirmation of this denial, these respondents state, that from the 1st of December, 1838, to the 1st of December 1839, schemes were issued by the Commissioners of Lotteries for this State, amounting to about five millions of dollars, from which they derived but about twenty thousand dollars; and further, that said commissioners require of the contractors for such schemes, merely an allowance of five per cent. upon the tickets sold, and [**12]  not upon the gross amount of the schemes. And these respondents utterly deny, that the lottery privileges by said act granted, have been exhausted or extinguished. And these respondents further answering, admit, that under such grants Yates & McIntyre drew several schemes, amounting in the gross to three hundred eighty-three thousand seven hundred and forty-five dollars, for which said Yates & McIntyre paid said Canfield eight thousand dollars, and no more; and they also admit, that Dana did draw one scheme, and no more, and that the gross profits were three hundred forty-eight dollars and seventy-five cents, and no more. Whether such last drawing took place on the approval of the Commissioners of Lotteries, these respondents do not know, and cannot therefore admit or deny. And these respondents admit, that no other security, except that given by Canfield and Yates & McIntyre, has been given, but aver that these respondents are ready and willing to file any bond with such satisfactory security as may be required by the proper authorities. And these respondents further answering, admit the recovery of the judgment of the said State in the manner and at the time stated in said bill of [**13]  complaint, and that said Palmer having been ruined by the loss upon the drawing of said lotteries, and other causes, died at or about the time stated, insolvent, not having satisfied said judgment; and they further admit, that letters of administration upon the estate of said Canfield, have been granted in Maryland to Robert B. A. Tate, the clerk of the Commissioners of Lotteries, who your respondents verily believe obtained said letters under the direction, and at the instance of said commissioners or their counsel; and they also admit the pendency of said actions of debt against said Tate, as is alleged in said bill. And these respondents further admit, that they did propose and offer to draw the scheme of a lottery on the 18th day of February, now last past, but they deny that they falsely alleged themselves entitled to do so by virtue of any pretended assignments, but on the contrary aver, that they are bona fide assignees for valuable consideration of the grants to said colleges, and they herewith state the dates and times of such assignments, which they are ready to produce and prove, when and where this court shall require. Palmer Canfield, on the 29th day of July, 1829, assigned [**14]  to Felix Pascales the said grants, in trust to sell the same, and from the proceeds thereof to pay a debt due to said Pascales, and another one to James Raymond, with interest on such debts; that said Felix died, having first made his last will and testament, bequeathing all his estate to his son, Cyril O. Pascales, and also appointing him executor of such will; that said Cyril advertised and sold such grants at auction, to Alexander G. Anderson, and on the 19th day of February, 1834, assigned and conveyed the said grants to said Anderson; that on the 22nd day of February, 1834, the said Anderson conveyed the same to James Raymond, of the city of Baltimore, and on the 13th day of December, 1838, the said Raymond, for full value, assigned and transferred the same to these respondents, and these respondents verily believe, that all of said assignments were fairly made, and for a valuable consideration. And these respondents further answering, admit, that the schemes by them proposed to be drawn, were not submitted for approval, or approved by the Commissioners of Lotteries, these respondents submitting that they were not by law bound to submit the same for approval to such commissioners,  [**15]  and these respondents well knowing that no scheme submitted by them would be approved. And these respondents further answering, deny, that the assignment made by said Canfield to Felix Pascales was fraudulent, or without consideration, or fraudulently or otherwise to defeat and delay the aforesaid judgment rendered against said Canfield, or any other judgment. And these respondents insist, that said Canfield had the power of transferring the said lottery grants, and that these respondents are the assignees of such lottery grants; and these respondents admit, that said Felix Pascales is dead, and that no letters testamentary, or of administration, upon his estate have been granted in Maryland. And these respondents pray to be henoe dismissed with costs.

After this, the cause was prepared for a final decree by admissions of facts and the filing of documentary proof, all of which, so far as is necessary to the understanding of the opinion and application of the principles decided in this court, sufficiently appear in the opinion delivered in this cause. At the final hearing, Baltimore county court (PURVIANCE, A. J.,) decreed that the defendants be, and are perpetually enjoined and [**16]  restrained from proposing or offering to draw, or disposing of any scheme or schemes of lotteries under or by virtue of the acts of Assembly in the bill in this cause mentioned.

From this decree the defendants appealed.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

By the act of 1816, chap. 89, the Visitors and Governors of W. College were authorised "to propose a scheme or schemes of a lottery for raising a sum "not exceeding, &c., clear of all expenses, and to dispose of, or sell all or "any of the tickets of said lottery or lotteries, and to draw the same, or to "authorise any other persons to draw the same," &c.

By the act of 1821, chap. 46, the V. and G. of St. J's. College were authorised "to propose a scheme or schemes of a lottery or lotteries for raising a "sum not exceeding, &c., and to sell such scheme or schemes to any persons "whatsoever, and the purchaser or purchasers thereof, are hereby "empowered to sell and dispose of the tickets in the said lottery or "lotteries."

Upon these acts it was held--

1. The assignees, of the V. and G. of the Colleges, of the franchises created by those acts, possessed no greater powers than their assignors.

2. The terms of those acts are unambiguous.

3. They communicate an authority to propose a scheme or schemes for raising a limited amount.

4. When the schemes for raising that amount have been proposed and drawn, the authority given by those acts has performed its office, whether the letter of the act or the legislative intent is regarded.

5. It was the intention of the Legislature, that the sum specified should be raised; it gave adequate means for its accomplishment; it was the duty of the owner of the schemes, in the exercise of his franchise, previously to drawing such schemes, to have sold all the tickets. In that mode was the amount authorised to be raised.

6. It being admitted that if all the tickets had been sold, in the schemes which have been drawn under the acts of 1816 and 1821, that a larger amount would have been raised than was authorised by them, the franchise thereby created was held to be exhausted.

The act of 1817, chap. 154, declaring the effect and construction of previous lottery grants, so far as to show under what circumstances those grants shall be deemed exhausted, must be regarded as of overwhelming influence in the decision of similar questions arising under grants made subsequent to its passage.

Where parties claim to exercise a lottery privilege, under a grant which in point of law is exhausted by proceedings under it, the parties so claiming and acting may be restrained by injunction.  

COUNSEL:
By G. R. RICHARDSON and R. JOHNSON for the appellants.

By J. MASON CAMPBELL and MCMAHON for the appellees.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*27]  DORSEY, J., delivered the opinion of this court.

 [*28]  It is admitted, that if all the tickets had been sold in the schemes, which have been drawn under the lottery grants in favor of Washington and St. John's Colleges, that a larger amount would have been raised than was authorised by the acts of Assembly under which the drawings took place. But it is insisted on the part of the appellants, that notwithstanding the competency of the schemes drawn (had all the tickets been sold,) to have raised the sum of $ 160,000, as authorised by the Legislature of Maryland, yet, that but a small portion of that sum was, in point of fact, realized, by reason of a great portion of the tickets remaining [**17]  unsold when the schemes were drawn, and by the loss of the wheel, in the high prizes coming up to the tickets which had been sold.
The first question, then, raised for our determination, is, have the lottery grants in question been exhausted by the drawing of lotteries, competent, upon the face of the schemes, to have realized the prescribed amount, or, as contended for by the appellants, are the owners of the privilege at liberty thereafter to continue their drawings, until, by the gain of the wheel or the sale of tickets, the specified amount shall have been actually raised?
But the act of 1816, chap. 89, and by the supplement thereto of 1823, chap. 193, the Visitors and Governors of Washington College are authorised to propose a scheme or schemes of a lottery or lotteries, for raising a sum of money, not exceeding eighty thousand dollars; and by the act of 1821, chap. 46, the Visitors and Governors of St. John's College are authorised "to propose a scheme or schemes of a lottery or lotteries, for raising a sum of money not exceeding eighty thousand dollars." The assignees of the franchise possess no greater powers than did the visitors and governors of these colleges [**18]  . The terms in which the authority is communicated to them, are clear and unambiguous, to wit, to propose a scheme or schemes for raising a limited amount; when the schemes for raising that amount have been proposed and drawn, the authority given has performed its office, according to the letter of the acts of Assembly by which it is conferred. And if we 

 [*29]  look to the legislative intent in passing those acts, the construction we give them is still more strongly fortified. But it is said that it was the design of the Legislature, that the sum specified should be raised. Doubtless, such was its intention. A failure to effect it was not within its contemplation. It had given adequate means for its accomplishment, had they been pursued in the contemplated mode. It was the duty of the owner of the schemes, in the exercise of his franchise, previously to their drawing, to have sold all the tickets. Upon this assumption only did the Legislature act. It did not design to confer a floating, gambling power, of indefinite duration, which should expand and contract with the gain or loss of the wheel. But the amount to be raised (in the absence of all subsequent legislation, providing a [**19]  different mode of raising it, as for example, by the consolidation system, or any other mode that might be prescribed,) was to be obtained by a sale of all the tickets embraced by the scheme, in the manner it prescribed. That such was the legislative intent, we think apparent on the face of the lottery grants before us, but is clearly deducible from all prior and subsequent enactments upon the subject.
In requiring bonds to be given for the payment of prizes, it cannot be doubted that the Legislature believed it had provided ample security, in this respect, for the owners of prize tickets; upon no other terms would it have made the grants in question. What are the provisoes upon which those grants were made by the acts of 1821, chap. 46, and of 1821, chap. 224? They are, that the purchaser or purchasers of such scheme or schemes, shall before the sale or disposal of any ticket or tickets in said lottery or lotteries, give bond to the State of Maryland, in the penalty of one hundred and sixty thousand dollars, to be approved by the Governor and Council, conditioned that he or they will well and truly apply so much of the money arising therefrom, within twelve months after the [**20]  drawing of the said lottery or lotteries shall commence, as will satisfy the fortunate adventurers for prizes drawn by them, and defray the necessary expenses incurred in the management 

 [*30]  thereof. It is too clear for argument or doubt upon the subject, that by the condition of those bonds, the obligors are no further bound than for the money arising from the sale of tickets. What then is the irresistible inference of the intention of the Legislature in making these grants? It is, that to warrant the drawing of a lottery, there must have been a sale of all the tickets in the scheme. Such being the apparent intention of the Legislature, upon every principle of sound construction we are bound to give an accordant interpretation to its acts. To give to those lottery grants the exposition which has been claimed for them by the appellants, that the schemes may be drawn at the will of the purchaser, as soon as any portion of the tickets are sold, would impute to the Legislature a design to grant an almost interminable license to the most reckless, fraudulent system of gambling that could well be practised upon the thoughtless and unsuspecting. The inducement to such a system of gaming [**21]  is too obvious to be overlooked. The purchaser after the acquisition of the grants, would have everything to gain, and could lose nothing. In the almost infinite series of schemes which he might draw, no tide of ill luck that could be anticipated, could prevent the filling of his coffers by unrighteous acquirements. The gain of the wheel in every scheme drawn was all his own; its losses were thrown on the owners of the prize tickets. He might gamble indefinitely at the risk of others; of his own, nothing was put to hazard.
That we have construed correctly the acts of Assembly in question, we think demonstrated by the first section of the act of 1810, chap. 154, which declares, "that in all cases where lotteries have been heretofore authorised, under which power is given to raise a particular sum of money by one or more lotteries, and the managers may have drawn a lottery or lotteries, the scheme of which purported to raise the sum authorised to be raised, that in all such cases the power and authority given to raise money thereby" is completed, and the power to draw any other lottery or lotteries under the same authority, at an end. If such were the legislative design in all previous [**22]  like 

 [*31]  enactments, upon what recognized principle of sound construction can you give a different interpretation to the acts of Assembly now under consideration? And even conceding, as was slightly intimated in the argument, that this retrospective, declaratory law, is unconstitutional and void as to prior lottery grants, which otherwise would be differently construed, yet in all subsequent similar legislation, such a declaration of the will or intent of the Legislature must be regarded as of overwhelming influence, in the construction of its acts, and such is the case before us.
Believing the lottery privileges, created by the acts of 1816, chap. 89, and 1821, chap. 224, and 1821, chap. 46, to have been exhausted by the schemes which have already been drawn under said acts, we deem it unnecessary to examine the other questions which have been discussed in this cause.
The decree of Baltimore county court, perpetuating the injunction issued in this case, is affirmed.
DECREE AFFIRMED.  

22 of 46 DOCUMENTS 

THE STATE OF MARYLAND, USE OF WASHINGTON COUNTY, vs. THE BALTIMORE AND OHIO RAIL ROAD COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

12 G. & J. 399; 1842 Md. LEXIS 12 

December, 1842, Decided 

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

This was an action of Debt, instituted by the appellants on the 1st February, 1841, in the debet and detinet, for the sum of one million of dollars.

The plaintiffs claimed to recover the sum declared for, under the 5th section of the act of 1835, chap. 395, passed on the 4th June, 1836, entitled, "an act for the promotion of Internal Improvement." The 1st section of which enacted:

"That if the Chesapeake and Ohio Canal Company and the Baltimore and Ohio Rail Road Company, in general meeting of said corporations, respectively assembled, shall approve, assent and agree to the several provisions of this act, so far as they are applicable to said corporations respectively, and shall severally communicate said approval, assent and agreement, under their corporate seals, and the signatures of their Presidents, to the Governor of this State, on or before the 1st day of August next, the Treasurer of the Western Shore of Maryland shall subscribe to the capital stock of each of said corporations, the sum of three millions of dollars, and pay for the same in the manner, and upon the conditions hereinafter mentioned; and from the date of the [**2]  said subscription, the stipulation heretofore made by the Baltimore and Ohio Rail Road Company, and so much of the act of Assembly heretofore passed, restricting the said company from proceeding with the construction of its rail road in the valley of the Potomac River, above Harper's Ferry, until after the C. & O. C. C. shall have finished its canal to Cumberland, or otherwise, or the time limited by law for its being completed to said town shall have elapsed, as imposes said restrictions, or is inconsistent with the provisions of this act, be null and void, and the said rail road company may thenceforth proceed with the construction of its work pari passu with, but without preceding the construction of the said canal or its works in the said valley, where the said rail road and canal, or then works, will be in juxta position; and, &c.

SEC. 5. And be it enacted, That the said treasurer shall be, and he is hereby authorised and directed, to pay from time to time, upon the requisition of the president and directors of said companies respectively, after six months notice, not exceeding one million of dollars to each of said companies, in any year, in the whole not more than three [**3]  millions of dollars to each of them, out of the money which he shall receive as the par or sum of the State's stocks or bonds that may be issued or disposed of, for the purpose of providing the amount of subscriptions aforesaid, to the stocks of said companies, and that the said several subscriptions and payments for the said stock of each of the said companies are hereby authorised and directed only upon the condition, that none of the rights and remedies of this State, under any contract now subsisting between the State and either of said companies, shall be in anywise impaired, waived, relinquished or affected by reason of this act, or of any thing that may be done by either of said companies, in consequence thereof; and the said treasurer shall not make any payment aforesaid, for subscription to the stock of the Baltimore and Ohio Rail Road Company, until after a majority of the directors appointed therein on behalf of this State, shall have certified to the treasurer in writing, supported by the oath or affirmation of a majority of said directors, that they sincerely believe in their certificate and statement, that with the subscription by this act authorised to be made to said [**4]  company's stock, and with the subscription which the city of Baltimore may have made by virtue of an act, passed at December session of the year eighteen hundred and thirty-five of this Assembly, or that independently of any subscription by any other public authority than the city of Baltimore, as aforesaid, and of the cities of Pittsburg and Wheeling, and exclusive of any loan secured to it, exclusive of all future profits and debts due by the company on interest, the said Rail Road Company in their opinion have funds sufficient to complete the said rail road from the Ohio river, by way of, and through Cumberland, Hagerstown and Boonsborough, to its present track near to Harper's Ferry; and it is hereby declared to be, and made the duty of the said company to, and they shall so locate and construct the said road, as to pass through each of said places; which certificate of said directors shall be accompanied by an estimate or estimates of one or more skilful and competent engineers, made out after a particular and minute survey of the route of said road by him or them, and verified by his or their affidavit, shewing that the whole cost of said work will not be greater than the amount [**5]  of funds the said directors shall certify to have been received by said company, and applicable to the construction of the said road; Provided, that if the said Baltimore and Ohio Rail Road Company shall not locate the said road in the manner provided for in this act, then and in that case they shall forfeit one million of dollars to the State of Maryland, for the use of Washington county.

The plaintiff declared upon the act of 1835, and alleged, that the defendants had not so constructed and located their road as to pass through Cumberland, Hagerstown and Boonsborough, as directed by the said 5th section. Errors in pleading were waived.

The defendants pleaded--1st. Nil debet.

2nd. That since the last continuance, the Legislature of Maryland had passed the following law, to wit:

An act to repeal certain parts of the act, entitled, an act for the promotion of Internal Improvement, passed at December session eighteen hundred and thirty-five, chapter three hundred and ninety-five.

SECTION 1. Be it enacted by the General Assembly of Maryland, That so much of the fifth section of the act, entitled an act for the promotion of internal improvement, passed June four,  [**6]  eighteen hundred and thirty-six, chapter three hundred and ninety-five, as makes it the duty of the Baltimore and Ohio rail road company to construct the said road, so as to pass through Hagerstown and Boonsborough, be and the same is hereby repealed; and that the forfeiture of one million of dollars, reserved to the State of Maryland as a penalty, in case the said Baltimore and Ohio rail road company shall not locate the said road, in the manner provided for in that act, be and the same is hereby remitted and released, and any suit instituted to recover the same sum of one million of dollars, or any part thereof, be and the same is hereby declared to be discontinued, and of no effect.

SECTION 2. And be it further enacted, That the State of Maryland hereby reserves the right, if after the completion of the said rail road to the Ohio river, the Legislature should deem it expedient to require the said Baltimore and Ohio rail road company to construct a lateral road or branch from some convenient point of the main stem up the Antietam valley to Hagerstown; provided, the said lateral or branch road can be constructed at a cost not exceeding the sum of three hundred and fifty thousand [**7]  dollars, including damages for the right of way.

And thereupon pray judgment, if, &c.

The parties then filed a statement of facts, with an agreement, that the county court might enter a judgment pro forma for the defendants. The questions decided by the Court of Appeals render it unnecessary to publish the statement of facts.

The county court rendered final judgment for the defendants, and the case was brought to this court upon appeal by the plaintiffs.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

The proviso in the 5th section of the act of 1835, chap. 395, "that if the said Baltimore and Ohio Rail Road Company shall not locate the said road in the manner provided for in this act, then and in that case they shall forfeit one million of dollars to the State of Maryland, for the use of Washington County," though assented to by the Company, does not constitute a case of contract, but a case of penalty, subject as to its enforcement to the will and pleasure of the Legislature.

It is a rule in the exposition of statutes, that the will of the Legislature is to be regarded, and carried into effect, so far as they keep within the limits prescribed to them by the constitution or fundamental law.

In ascertaining such will or intention, the rule is, that if divers statutes relate to the same thing, they ought to be all taken into consideration in construing one of them.

It is a rule in the construction of statutes, that all which relate to the same subject, notwithstanding some of them may be expired, or are not referred to, must be taken to be one system, and construed consistently.

The words of a statute are to be taken in their natural and ordinary signification and import; and if technical words are used, they are to be taken in a technical sense.

The term forfeit, in common parlance, strongly implies penalty. It is not the language of convention or contract, but is mandatory in its character.

Although the right of expounding laws belongs to a different department of the government than the Legislature, still the sense of the Legislature, subsequently expressed upon the subject of laws of doubtful import, is a circumstance not entirely to be disregarded.

An act of charter of incorporation is nothing more than an offer until consummated by acceptance.

Where by act of Assembly a penalty or forfeiture is created for the benefit of a particular county of the State, it is competent for the Legislature to release or remit it after the forfeiture has occurred.

Such a releasing act is not an ex post facto law, nor a law impairing the obligation of contract.

A county is an integral part of the State, or portion of the body politic, and money received by her, would belong to her as public property, in her public political capacity, to be applied exclusively to the public use.

A county, as a member of the political family, has a right to participate in the legislative council of the State, but the will of the majority, when expressed according to the forms of the Constitution, is obligatory upon her, and to that will, as the rule of her conduct, she is bound to submit with becoming deference and respect.

A county is one of the public territorial divisions of the State, established for public political purposes, connected with the administration of the government--the money it receives in that character is public property, to be used for public purposes only, and not for the use of its citizens individually. In that relation they would have no immediate interest, and could assert no title.

No penalty incurred during the continuance of a law can be enforced after its expiration or repeal, without a saving clause or special provision to that effect.

A contract made by the State, for the use and benefit of one of its counties, is not within the preview of that part of the Constitution of the United States, which prohibits a State from passing any law impairing the obligation of contract, so far as to prevent the Legislature from releasing it at pleasure, or discontinuing an action brought for its enforcement in the name of the State.

To declare an act of a co-ordinate department of the government an unwarrantable assumption or usurpation of power, because it is a violation of a constitutional provision, is an exercise of the judicial office of a grave and delicate nature, which never can be warranted but in a clear case. 

COUNSEL:
JERVIS SPENCER, for the appellant, contended--

1. The act of 1835, chap. 395, sec. 5, by force of the words, "Provided, that if the said Baltimore and Ohio Rail Road Company shall not locate the said road in the manner provided for in this act, then and in that case they shall forfeit one million of dollars to the State of Maryland, for the use of Washington county"--the same accepted by the company is a contract. The case 4 G. & J. 128, shows the rules on this subject. The words "approve, assent and agree to," in the first section of the act of 1835, as the condition to give effect to the whole act, make a contract on the part of the appellees.

2. Washington county is a party to that [**8]  contract she is really and beneficially interested. It is for her peculiar benefit. It resembles an agreement made between A and B, for the benefit of C, who may sue suo jure. A consideration need not be paid by the beneficiary. A benefit moving to the Rail Road Company is sufficient to bind her at law. And there is a consideration as to Washington county. The relation between her and the State, is like that of parent and child. The State, as parent, is the guardian of the counties. No consideration, however, is necessary in this action. The rules of construction are generally applied alike to all descriptions of contracts. 4 Gill & John. 151. The case of Green vs. Biddle, 8 Wheaton, 1, is conclusive upon the question at bar. The act of Kentucky, attempting to overrule rights vested under the compact between Virginia and that State, was held void.

Where a trust is created for the benefit of a person, though without his knowledge at the time, he may affirm the trust, and enforce its execution. Neilson vs. Blight, 1 John. Cas. 208.

An assignment may be made of a contract without consideration. The State may assign at pleasure to Washington county, and that county pays a consideration,  [**9]  for she pays a tax under the act of 1835, or rather, is liable to pay it. If the State had not interposed under the act of 1840, no question could have been raised under the act of 1835.

3. The forfeiture in the act of 1835 is in no sense a penalty. It is not for any criminal or prohibited act amounting to a public offence. It is not introduced in terrorem, but is a sum to be paid for using the license given by the act, as a compensation to the injured party. Green vs. Biddle, 8 Wheat. 89. 2 Poth. Oblig. Evans' notes, 81.

4. That by the use of the license by the company, Washington county acquired a vested right in the sum stipulated to be paid. Whittington vs. Polk, 1 Harr. & John. 246. Providence Bank vs. Billings & Pittman, 4 Peters, 561. Canal vs. Rail Road Company, 4 G. & J. 142.

5. That to take away this right from Washington county would be inequitable, unjust, and contrary to the first principles of the social compact; and therefore the act ought to be so construed, if possible, as to avoid that result, and it may be so construed by confining its operation to whatever right this State had, if any. The State might release her own power over the matter, leaving [**10]  in force the right of the county. McMechen vs. Mayor, &c., of Baltimore, 2 Harr. & John. 41. Calder and wife vs. Bull and wife, 3 Dallas, 387. State of New Jersey vs. Wilson, 7 Cranch, 166. Fletcher vs. Peck, 6 Cranch, 130. Town of Pawlet vs. Clark, 9 Cranch, 335. Hampshire vs. Franklin, 16 Mass. 84. 1840, ch. 260. Moseley Rep. 43. Winch vs. Kirley, 1 Term Rep. 358. Legh vs. Legh, 1 Boss. & Pull, 447. Carter vs. United Ins. Co. 1 J. C. R. 463. Owings vs. Piet & Low, 5 G. & J. 134. 1 Wheat. 233. Eels vs. Finch, 5 John. Rep. 193. Andrews vs. Beecker, 1 John. Cases, 411. Wardell vs. Eden, 2 John. Cases, 121. Kiersted vs. State, use of Costello, 1 G. & J. 231.

6. If otherwise construed, it is repugnant to the State Constitution, and void.

7. In the same view it is repugnant to the Constitution of the United States, and void.

PRICE, in continuation, for the appellants--

The case is of importance from the amount involved, the dignity of the parties, and the novelty of the questions. It affects Washington county, an important member of the State, on the one hand, and one of the most extensive chartered companies of the State, on the other. The State exercises authority [**11]  over both, and all must notice that the inquiries here are of grave interest. We are obliged to go down deep into the foundation of civil government, and it is fortunate for all, that we may here examine them calmly. In this place, government is no mystery, each citizen may enquire into it. I prefer a claim of right on behalf of Washington county, one of perfect obligation. The court have no favors to confer. They must declare the right. The history of our right is brief. The claim grows out of the act of 1835. A grant of three millions was made by the State, on condition, to the appellees; a part of the condition was to construct a road through Washington county; another condition was a forfeiture of a million of dollars to Washington county, in case the road was not constructed. To this was superadded the necessity of consent by the appellees--the appellees assemble and approve and agree to the provisions of the act of 1835. This was done in the form and manner prescribed. An agreement was made as declared by the act of 1835. You cannot withdraw that stipulation from the law, and so destroy its symmetry. It was a general scheme. It contained grants to general schemes of improvement.  [**12]  All parts of the State were to share and participate. The act was full of compensation and compacts from first to last. There was no provision of that act which could be carried out independently; they were interlaced, each the consideration of the other. No compensation was granted, but as the co-relative of some other provision in the same act. See the 8th section. None should begin until all were ready, and this affected several schemes of improvements. A million of dollars was held sacred, and faithfully pledged to internal improvements on the Eastern Shore, at any rate. This is a compact--bargain if you like. The basis of a scheme of burthens and benefits to be distributed. Hereafter the Eastern Shore may claim her million. Such bargains are fair, if open, and equitably conducted. People may so agree. It is a partnership of profit and loss, and included in one contract. Modern legislation is full of such compacts. Maryland covenanted as to the Western Lands, and on this condition came into the Union. She was first guarantied. So as to slaves, which affected both representation and direct taxation under the Constitution of the United States. Communities rally on such points, and [**13]  there is no want of morality in the mode of settling the question. Baltimore is not the whole State. The act was to benefit her, and hence the equivalents given. It was all right, if adjusted openly and honorably. If wrong, the Baltimore and Ohio Rail Road Company is not here to read us homilies. She obtained her three millions as the equivalent of other grants. She cannot chide this as sectional or sordid legislation. She was to agree to it, and all its provisions. She might refuse and defeat the law. It depended upon her assent to become a law. That assent perfected the act of 1835. The law was not passed in haste. It was proposed. The Legislature adjourned in April, and re-assembled late in May. The members went home--saw their constituents--held a sort of family council--came back, and thus sanctioned the act of 1835. They even proclaimed the mode in which they would levy taxes, if necessary; they awarded compensation in various instances. All considerations as to the moral of the act apply with equal force to both parties here. The same principles must apply throughout. The Legislature of 1835 had no design to perpetrate a fraud, or to practice a joke, and no disguise. Her proposals [**14]  were accepted. They proposed a duty to be performed towards Washington county. Its failure was accompanied with a forfeiture. The means of discharging that duty were provided. The Legislature could do no more for Washington county, yet the possible departure of the Rail Road from Maryland was anticipated, and now that company is as much bound to pay, as to go on with her great work.

What did the Legislature intend? Intention and construction are synonimous. We do not enquire what the B. & O. R. R. intended. Can it be said as respects W. county, that this act was a fraud and a jest? Take that stipulation away, and the system of contemplated improvements is destroyed. This is the worst sort of repudiation. If you can take away this million, why not the entire loan? Why not repudiate the bonds given to R. R. company? There is no compensation proposed to Washington county for the loss of the road. The company went into Virginia, and there expended large sums of money, which cannot be recalled. This is submitted to, and Virginia compels them to go on, and not to enter their State west of Cumberland. How was it that Virginia exacted such results? It looks like contrivance. It was asked [**15]  for as a means to use before the Legislature of Maryland. They made a case of vis major. I do not make the charge, but it looks like it, and when I speak to the morals of this controversy, I am at liberty at all points of the case, and the conduct of the parties concerned.

Is the act of 1835 a contract or not? A State may contract by legislation, with a State, individual, or a corporation. This rule is admitted on all hands. Legislation and contract are different in their natures. The Legislature contract for the State, and not for the Legislature. In contracts they act as agents for the State. A contract as guarantied by the Constitution of the United States. A contract binds per se. A State cannot break a contract. It is sacred from State power. The act of 1835 embodies terms of contract between the State and the B. & O. R. R. Co. Is the stipulation in favor of Washington county, a contract or not? Grant that it is a contract, and there can be no further difficulty in this case. Washington county is a party to that contract. The R. R. company was required to agree; upon that condition the Treasurer subscribed to the stock of certain companies. The premium in favor of W. county [**16]  was not a new thought in 1835. That county was always regarded in the system of Maryland improvements. The assent of the company made a contract. Neilson vs. Blight, 1 John. Cas. 205. Moses vs. Murgatroyd, 1 J. C. R. 129.

The county may avail herself of the contract, though not made with her. 1 Kent Com. 391, 392.

The prohibitory clause in the Constitution of the U. States extends to contracts, with trustees, for third parties, though the trustee is not benefitted.

Maryland proposed a contract by the act of 1835. Canal vs. Rail Road Company, 4 G. & J. 129.

The assent makes a contract. The company assented without qualification to the contract as tendered her. It covers all the stipulations in that law, and makes an entire contract. Was there any consideration for it? If accepted under seal, it is a specialty, and imports a consideration. So if the acceptance made a contract. 2 Black Com. 345.

There was a grant of three millions, which is consideration, and enough too. This was received and held by the company. The law forms the contract, and shows its terms. It was made by the Legislature as the contracting party. The statute is a specialty. Com. Dig. Tit.  [**17]  Debt A, No. 1, No. 4. 1 Saunders Rep. 38. Cro. Chas. 513.

No consideration necessary to create a trust declared on the face of the instrument, making the trust. 24 Law Lib. 56.

Here there was a consideration of damage to W. county, from failure of road through the county. Old roads and improvemements destroyed. It is a meritorious motive, property destroyed should be paid for.

The penalty imposed by the act of 1836, is not for a political offence, nor for a criminal act, nor in terrorem. It arises upon contract, and is stipulated damages, intended to be paid. The act of 1840, chap. 260, confirms this idea. It uses the words, remit and release; hence, the penalty had accrued, or it could not be released.

In the construction of laws, we ask what the intention of the Legislature was? Plowden, 465. 2 Evan's Poth. 79, 81, 82, 83.

It is then stipulated damages, and all is recoverable or nothing. There is no power to break the contract. The Legislature did not intend to do more by the act of 1840, than release public rights; more is a nullity. It is violence and not law. This is a vested right, and not to be disturbed. It is contrary to natural justice to impair our [**18]  contract. The Legislature cannot interfere; it cannot unmake a contract. The sovereignty is limited; we have a written constitution, and not an absolute government. All is compact. Every power comes from agreement. Regents University of Md. vs. Williams, 9 G. & J. 408, 409.

It is against the social compact and natural justice, to take away vested rights. Town of Pawlit vs. Clarke, 9 Cranch, 292.

To dismiss a suit is a judicial power. Calder vs. Bull, 3 Dallas, 387.

The act of 1840 is against the Constitution of the United States. An act rescinding a contract is repugnant to it. Fletcher vs. Peck, 6 Cranch, 136.

Statutes are not retrospective. The law giver cannot alter his mind as to a vested right. Dartmouth College vs. Woodward, 4 Wheat. 576.

Grants are construed as contracts executed or executory. Regents of University vs. Williams, 9 G. & J. 365.

Then, as to the power of the trustee to strike off the suit in a court of law. This is traditional law. The courts will protect the rights of equitable plaintiffs against a legal plaintiff; will examine into the right, and that established, they will not disturb it. The assignee uses the name of the assignor,  [**19]  as an incident of the transfer, and courts protect assignments. Can a naked trustee, a party in that interest, dismiss the suit? Here the State is a mere trustee, and we have no remedy but in her name.

NELSON for the appellee--

The defence to the claim asserted under the act of 1835, arises under the act of 1840, chap. 260, a repealing law. It is clear, if the act of 1840 be a legitimate exercise of power, the judgment below must be affirmed. The act of 1840 repeals the proviso of the 5th section of the act of 1835; remits the forfeiture, and dismisses the suit which had been brought under the act of 1840, hence no pretence of right of recovery now. By the charter of the B. & O. R. R. Co., 1826, chap. 123, the road was to be commenced in two and finished in ten years, to connect Baltimore with the Ohio river. The charter was adopted by Virginia in 1827, and continued to 4th July, 1838. By the act of 1827, chap. 104, sec. 3, a subscription was authorised of half a million of dollars, on condition that the road should pass through Frederick, Washington and Allegany counties. By the act of 1831, chap. 251, the Legislature released the company from the obligations of the act [**20]  of 1827. By the act of 1835, chap. 127, she authorised Baltimore to subscribe three millions of dollars to this work, and Baltimore, in 1836, subscribed her three millions. The act of 1835, chap. 395, passed on the 4th June, 1836, contains the conditions on which that act is to go into operation, and it was assented to by the company on the 18th July, 1836. Virginia, in 1837, authorised a subscription of $ 302,100, by her board of public works. By the act of 1837, chap. 314, 29th March, 1838, Maryland proposed a modification of the act of 1835, in view of further action on the part of Virginia. The act of 1837 never was accepted. The act of Virginia of 1838, chap. 159, extended the time of construction to 4th July, 1843, and also subscribed a sum of $ 1,058,420. In October, 1838, the directors of B. & O. R. R. Company communicated their estimates upon oath. The act of 1837 proposed to commence at Cumberland and proceed west.

In 1840, to September term Washington county, brought a suit to recover this penalty, which was dismissed.

On the 1st February, 1841, she brought a second suit in Frederick county, and on the 10th March, 1841, the act of 1840, chap. 260, was passed.

The [**21]  right to repeal such laws lies at the foundation of government. It involves no question of integrity any where.

Under this state of facts, I propose to maintain three propositions:

1. That the proviso of forfeiture in the act of 1835, imposes a penalty, and is not in the nature of contract.

2. If a penalty, the Legislature could, and did remit it by the act of 1840.

3. If a contract, the Legislature was competent to release it, and did release it by the act of 1840.

What is forfeiture? The act need not be criminal which is followed by forfeiture, or it may be criminal only because it is prohibited. In 1806 Congress prohibited intercourse with St. Domingo. The law declared vessels there trading subject to condemnation. Public policy demanded this. The forfeiture was penal--it was for a violation of law. Penal forfeiture is a punishment annexed to some illegal act, some violation of sovereign power. Is the act of 1835 a contract, or does it impose a penalty? The State is bound by her contracts. These are inviolate. Again, test the act of 1835 by the rules of interpretation.

The terms are, "then, and in that case they, the company, shall forfeit one million [**22]  of dollars." This is for a violation of a prescribed duty. It depends upon the execution of a public duty. It is a penalty prescribed for non-performance of a public duty. The acts of 1837 and 1840, treat this as a penalty, and that of 1835 furnishes a rule for its own interpretation. It was the duty of the company to pursue a particular route. The Legislature, when dealing with contract in the act of 1835, 9th sec., use clear language, as stipulate, agree and bind, and so in other laws, and these terms stand in opposition to forfeiture--forfeiture is used where a penalty was designed.

Then as to the assent required of the B. & O. R. R. Company to the act of 1835; does that make a contract? The company assented to the act as they found it. They agreed to the law in form, manner and substance, as it was enacted. The assent does not make a contract where there was none previously--none proposed. The penalty may be repealed without violating the charter or impairing the contract with the company. 9 G. & J. 388.

There is no bounty but to Washington county. All the other grants are for equivalents, payment of interest, indemnity. Interest and principal are both to be paid. But [**23]  the county demands the money without any equivalent. She proceeds to enforce a penal forfeiture.

Then as to the effect of the act of 1840, chap. 260, operating upon the penalty of the act of 1835. It remits it; releases the penalty. If it be legal, the penalty is gone. If a penalty, and not matter of contract, the right is gone. 9 G. & J. 388.

The corporation is a private one; but the grant was for a public benefit alone, and of course is under public control. This position is well maintained every where. 2 Black Com. 436, 437. Penalties are to be recovered in popular actions. Where there is an informer, the King can only remit before action brought, but Parliament may at any time. 1 Sir Wm. Black. 451.

The Legislature may repeal the penalty at any time. The power to remit resides in the sovereign will, the Legislature. Public interest and police regulations are confided to the Legislature. 1 Cranch, 103, 104. 5 Cranch, 281. 6 Cranch, 329, 203. 2 McCord, 1.

If the law be repealed, the party is not punishable. The law must remain in the same state at time of action instituted, as at time of judgment. 2 Bayley, 564. 1 Missouri, 235.

The State is a trustee for [**24]  Washington county, and may dispose of the penalty at pleasure. She may take the money of any county before or after it is due. She may alter its direction, or release it at pleasure, before or after judgment. A county is but a part of the political power of the State.

The Legislature may repeal penalties and defeat judgments founded upon them. Breeze, 114. 1 Marsh. 465. 1 Stew. Alab. 347. 2 Stew. Alab. 160. Adam New. H. 61.

Suppose the act of 1835 imports a contract, is the repealing law constitutional?

The cases cited could not apply. Much here depends on the character of the parties. The power of repeal relates to that character. It is not the case of a citizen of Washington county. But it is the community of Washington county in their public character as public agents--as political corporation. Its power is not inviolable. This is not a case within the Constitution of the United States in regard to contracts. A county is created for municipal and political ends; to promote general interests in a particular mode, but it has no being independent of the State, who creates and may annihilate it. 9 Cranch, 43. 4 Wheat. 629, 659, 693, 694. 1 Missouri, 239. 13 Wendell 337,  [**25]  325.

The case of the Mayor and City Council of Baltimore, vs. Robert Lemmon, June term 1838, by which the auction duty law, taking away the fund from the city and transferring it to the State was sanctioned, forecloses this question and fully sanctions the act of 1840.

F. A. SCHLEY also for the appellees--

The act of 1840 was passed deliberately, and is not to be assailed lightly. If the constitutionality of that act is doubtful, this court will maintain it. 6 Cranch, 128.

If doubtful on that point, it is a controlling principle in favor of the act. 4 Peters S. C. 549. 3 Dallas, 394. 1 Bald. C. C. R. 74. 3 Sumn. 120. 2 Gallison, 554, 5.

Many cases of contract have been decided not to be within the Constitution of the United States. 4 Wheat. 643, 644. Bald. Con. Views, 141. 4 Peters, 563. 3 Peters, 289.

A contract to be within the protection of the Constitution of the United States, must be express; an implied contract is not within it.

But in the act of 1835, which was for the general improvement of the State, there was no contract in the particular case relied on. The assent to the whole law does not make a contract in any case except where the act [**26]  intended to make a contract. The rules which relate to the construction of statutes sanction these views. Dwarris on Stat. 707. 8 Barn. & Cres. 74. 5 Rep. 119.

In the 5th section the language is, you shall forfeit. This indicates penalty. The enormous sum is in terrorem. It is not a vested interest as in contract. It is also a forfeiture to the State, and in statutes the word forfeiture is ever used in connexion with fine and penalty. The act of 1840 unlocks the legislative mind, and shows that penalty only was designed by the act of 1835. Then again, if a contract, it is with the State, and the power which originated, may release it. Washington county paid no part of the consideration. The commissioners who assert the right to the fund here, are but arms of the State; a public corporation; a political body. Establish them to be a municipal corporation, with public powers, and there is an end of the question. In the case of the dissolution of a public corporation, Chancery interferes only to protect private property under its care. Angel on Corp. 8, 40. 9 G. & J. 397.

The community of Washington county could not use this money without legislative direction. The forfeit was [**27]  to Maryland. The use and application of the fund must still be defined. How would the county take this money from the Treasury?

The delegated power to sue may be revoked by the Legislature at any time before judgment. 2 Bayley, 584. 3 Wheat. 319. 10 Wheat. 289, 304.

The levy courts or commissioners of counties can only receive money by authority of law. All their powers are express, and all subject to legislative revocation.

R. JOHNSON also for the appellees--

1. The act of 1835 constitutes a penalty.

2. If a penalty, then under the control of the Legislature.

3. If a contract, then the party for whose use the contract was entered into is not a party to it; or if a party, has no such interest as is protected by the Constitution of the United States, or State of Maryland, or the first principles of the social compact.

4. If a contract, then at law under the control of the Legislature of Maryland, because of the public character of the c. q. use--Washington county--without question so far as that county is concerned.

Is the proviso a penalty? If so, as contradistinguished from contract, it is not denied to be within legislative control. Is it penalty [**28]  or contract? To determine this the whole law must be examined; anterior and subsequent legislation enquired into. The whole range and history of this particular legislation may be regarded to determine the legislative intent. 1 Wheat. 116.

I propose first to look at the history of the enterprise which creates the claim now asserted. Maryland and Baltimore saw that the tendency of internal trade was out of her territory. Both were deeply interested in its increase, and in 1827 they started upon an untried enterprise. The act of 1826, chap. 123, sec. 14, prescribes the powers of the appellee's incorporation and its objects. It was to construct and keep in repair a rail road. Immediately after its passage the company sent to Virginia, and on the 8th March, 1827, obtained a similar incorporation. Virginia and Maryland both looked to the Ohio river. An authority from Pennsylvania was also necessary, and on the 27th February, 1828, it was also obtained there. By each State a limitation of time was affixed, within which to undertake and complete the work. Undertakings of this character were then in their infancy. This was the first great enterprise, and it looked to the achievement of [**29]  a work co-eval, with the formation of our government; a connexion by some mode of the Atlantic and Western waters, which was to bind us together as a single nation.

The State commenced with a subscription of half a million of dollars. Individuals subscribed three millions, and we are yet to be informed that either had a local habitation in Washington county. The line of the route was prescribed. The choice of route with the Ohio Canal Company. The work went on, and came up to 1835, when further means were essential. The benefit of the road no longer doubted, neither the capacity to make it. But where are the means to come from? $ 240,000 per annum were now at hazard, lost, if the rail road did not go on. Now the State came into a family council to furnish means to complete both works; not to save Washington county? Did the Legislature, in 1835, believe or not that it would take three millions of dollars to accomplish each undertaking, and then give a million of dollars to Washington county? Would they raise the money for that county? What to be done with it when raised? How to be applied? There was no authority to apply it without law. The money could be neither distributed nor [**30]  paid. What lawful use could be made of it. Washington county is incorporated for political objects; a civil institution with no general powers. Did Maryland legislation put it into her power to arrest the work of improvement forever? Did it make a contract with that county out of the power of the Legislature? If out of the State's power now, it was equally out of her power one day after the passage of the law. If Washington county is a party, and had an interest in that contract, she had it from the acceptance of the law.

By the act of 1825, chap. 180, a board of public works was created. It was the parent of many ills. The 21st section authorised a large sum to drain the low lands on the Eastern Shore, and complete plans for opening the navigation of certain of our rivers in that part of Maryland. Who ever dreamed that this could not be repealed? A grant for specific improvements, specific appropriations for specified objects, to be made by officers of the State. The Legislature used the language of contract. The faith of the State was pledged. If possible to give validity to the act, the State seemed bound to give it, and bound to hold the grant exempt from legislative control,  [**31]  and the counties on the E. S. were just as competent in that case as Washington county, under the act of 1835, to demand it. Yet it has not been so treated at any time.

By the act of 1835, the Legislature prescribed a route for the rail road company, through Cumberland, Hagerstown and Boonsborough. It was made the duty of the company so to locate their road as to pass through all those points, and a failure to do this in the manner provided for in that act, forfeited one million of dollars to W. county. Washington county was not the only county concerned in the matter. The provision is more extensive than her territory, and hence no contract for her benefit peculiarly. She had no interest in the Cumberland part of the road. Now to have avoided Cumberland, would just as effectually have fixed the forfeiture as passing by W. If this is contract, no other interpretation can be given to it. You must consider, and comply with the whole law. It is the whole route which constitutes the prescribed duty.

After a minute consideration of various other sections of the act of 1835, the counsel proceeded to inquire to whom the duty of locating the road through the places designated was [**32]  due. The county had no right to prescribe it. The franchise exists only by virtue of the sovereign power of the State. It was sovereign power communicated to the subject, competent to make contract, or enter into the stipulations of the act. The whole error in the argument on the other side is, in supposing the State not a party interested in the performance of the prescribed duty. If Washington county could not release, the State could; else we should have a public duty without the power of modification. Why was there not a direct forfeiture to Washington county? She was capable of taking, and yet it was not given to her. Why was the State interposed? If the duty is let off, the penalty is. The million forfeit would not come out of the coffers of the rail road company. Then it was bankrupt. State aid alone could maintain her. Washington county, it is said, comes into the family compact--family councils. For what? To get her payment from individual stockholders? No. Their payment was to come out of Maryland; out of the three millions which the State then proposed to give the company.

The authority of a sovereign to withdraw a gift until it is actually received, is settled in the [**33]  case of the Canal and Rail Road Co., 4 Gill & J. 1. U. S. vs. Morris, 10 Wheat. 301, 304.

The State may legislate on the subject of remedies. So the right of arrest is under State control. The penalty is a remedy for the performance of a contract; for the performance of such a contract as existed under the law with the rail road company. 4 Wheat. 200.

The destruction of a penalty does not affect a contract. That remains in full force wherever the duty to perform remains. There may be acts of wrong, accompanied by forfeiture, recoverable in particular modes. The modes may all be altered without affecting the forfeiture. Fines, penalties and forfeitures are often the readiest mode of enforcing laws, and if the right to modify them at discretion is abandoned, government is stripped not only of its most effective powers to enforce, but also of its right to exercise mercy. The power of mercy exists in all civilized countries. If it exists as a power, it must be in the government, as a government: in that which may create the forfeiture. The right to secure performance of duty is clear; it as part of the one sovereignty. It is not denied that government may release all forfeitures,  [**34]  and yet, though this is a forfeiture--so called in terms--with all its incidents, the argument is that all here rests upon the will of Washington county. 10 Wheat. 292.

I maintain there is no contract here which Washington county could have enforced in a court of justice, and if a contract, the power of Maryland was competent to change it in this case.

Under the Constitution of the United States, those powers in which the States have no concurrence, are all vested in the general government. There are also cases in which the States share the power with the United States. There is, however, a large mass of public powers not touched by the constitution of the general government. Usury, gaming, marriage. All contracts existing under the State laws, are regulated at the discretion of the States. What contracts shall be binding is exclusively between the States and their own citizens. 4 Wheat. 629.

It must be property or something of value, which the party claiming may go into a court of justice to enforce as a right of property, or claim as a thing of value. This is the sort of contract covered by the Constitution of the United States. Could Washington county enforce this [**35]  contract in that aspect? If the act of 1835 had remained in one sense, it might have been done as in the name of the State. Why may Maryland sue; because she becomes a party on the happening of the contingency. Washington county could not sue Maryland. The distinction is as between the obligation of a contract, and the remedy to enforce it. Does there exist a contract binding with reference to the general law, as between Washington county and the State. This is necessary, a consideration is necessary in all cases of contract. The mere moral undertaking is not the subject of remedy. Gifts inter vivos are not enforced in a court of justice. 2 Gill & John. 208, 206.

As between Washington county and the State, there was no consideration, no duty moved from the one to the other. Nothing passed, and hence no contract as between them within the Constitution of the United States.

Was there a consideration in fact? Did the State, by the act of 1835, lose dominion over the subject, by which the million of dollars were to be forfeited. The intent was, that if the route specified was abandoned, the money was to go into the Treasury. The forfeiture is to the State. The legal dominion [**36]  is in the State. So the legal control. Why not payable to Washington county. It might not be for the interest of the State, that the original route should be followed.

What is the character of the claim between the State and Washington county? Did she give any thing for it? Did she lose any thing to obtain it? There was a time when loss of trade and travel was a cause of action, but not so now in such cases as this. The grant is founded on natural love and affection. The State acts as parens patrioe. It is a gift in all its terms--reasons. No consideration--no contract. The stock belonged to the State, and remained with her until after the period of forfeiture. The Baltimore and Ohio Rail Road Company could only pay to the State.

Is the form of the grant, by act of Assembly, so conclusive that its consideration cannot, under the circumstance of this case, be enquired into? If it be so, how have various rights been waived in Maryland as to rail roads? Turn to the pension act; resolutions to pay for services rendered. Who doubts the right to repeal, whether granted in the form of an act or resolution? The acts of 1785, chap. 17, and 1813, chap. 17, were passed in the language [**37]  of contract, and changed. It is of no consequence about the form, so long as the dominion remains in the State, and though in form contract, yet unexecuted. The State may change it.

Funds for free schools in all the counties of the State, have been modified in every form at the pleasure of the Legislature, and the power has never been doubted. 1821 chap. 131, sec. 10. 1836, chap. 220. 1837, chap. 285. So of the surplus funds set apart for sinking fund. 1832, chap. 175, sec. 9. 1838, chap. 390, sec. 4. 1839, chap. 33. 1839, chap. 40. The power not questioned, though not expedient. New counties have grown up, and their funds have been distributed anew at the pleasure of the General Assembly.

Then if contract, was it a contract out of the legislative power, because of the Constitution of the United States?

The object of that clause was not to grant power. It is a limitation of the State's power over contracts but in one particular. No binding contract can be interfered with. It is, that the obligation of a contract shall not be impaired. The word obligation is essentially involved in this consideration, that contracts may be touched, modified, impaired, but of such as creates [**38]  an obligation that is not to be impaired.

Who is a party to this supposed contract? Washington county. What sort of a party is she? She is an agent merely to exercise certain conferred powers. Her wants are public. So of her objects. They co-exist with the county. The interference of the State in the local matters of her counties, are matters of history. 1650, chap. 8. 1695, chap. 13. 1773, chap. 10. 1748, chap. 15. 1789, chap. 29. Resolutions of convention of 1776. 1832, chap. 312. 1826, chap. 148. At no period was the absolute power of the State to change the counties at her will and pleasure doubted. The charter of W. county might be annulled. Then this suit could not be maintained. Where is the limitation of this power?

What are its qualifications and exceptions? It is that they cannot interfere with the prior acquired property of the corporation. This is true in some respects, though it is only to be found in the opinions of Judge Story. 9 Cranch, 42.

In cases of mis-user and non-user, the Legislature may, under proper limitations, secure the property for the use of those for whom, and at whose expense it was originally purchased. This is all. The object of the [**39]  use in such cases is local as for the county. 4 Wheat. 663, 644, 668, 694, 695. In 661 the doctrine is stated, and is conclusive of this case. 13 Wendell, 337. 1 Breeze, 315, 120. Missouri Rep. 238, 239. 2 Peters, 411. 3 Peters, 389. 4 Peters, 503. 8 Peters, 100.

JOHN SERGEANT in reply--

The county of Washington and the Baltimore and Ohio Rail Road Company are the parties in interest here. By the act of 1829, chap. 21, sec. 3, the commissioners of that county are made capable to sue, and hold all kinds of estate, property and effects. See also the 4th section.

I begin with the act of 1840, chap. 260, what is there remitted, is a penalty to the State.

By the act of 1837, chap. 314, sec. 4, the forfeiture of one million of dollars under the act of 1836, is "for the benefit of Washington county." Now this is not the penalty released by the act of 1840, so far as concerns that county.

By former Legislatures the construction of the B. & O. R. Road was deemed an injury to W. county, though beneficial to the State and Baltimore, and hence they provided this benefit for her. The million of dollars was introduced into the act of 1835, chap. 395, seriously, deliberately,  [**40]  designedly, by the Legislature and Rail Road Company, and is not to be treated lightly. It was plainly promised to us for protection. We came in under that banner. The State gave us a right to her banner, and permission to use it. The nature of the question invests it with the greatest dignity. On one side, the champion is the Rail Road Company. We champion the rights of the citizen and of the Constitution of the United States. There are two great guaranties. One is political; the other is of civil rights. Judicial right spreads over all beings, whether corporate or individual. It is a protection from attainder, and ex post facto laws; and of the great moral rights which the citizen has independent of political regulations, by force of the law of contract. What is meant by contract? It is not defined. The law of contract is in the heart of man. He knows a promise is made. He knows he ought not to break it. What is the whole business of life, except political arrangement and crime, it is contract. It is all contract. To do or not do a particular thing as promised, is contract. There is no exception in the prohibition of the Constitution of the United States. We do not mean to make a [**41]  moral exception in that instrument. The obligation of man to man is to be preserved. The provision in the Constitution of the U. S. is as extensive as contract, express or implied. In Fletcher & Peck was a case of implied contract. An implied contract not to resume a grant. What a singular oversight it would have been, if not so. The inhibition would have been nugatory. Implied contracts arise out of every transaction between human beings. Implied contracts to pay. So through the business of life, it is occupied with implied contracts. There is no exception either of thing or person. Whatever can make a contract is protected. Can any repudiate that instrument? The rule is universal as to the fruits of contract. If it sounds in penalty, the penalty as fruits, may be recovered in part or in the whole. It is no answer to the Constitution of the United States to say, that this sum claimed is penalty. Is it due by contract? This is the great guaranty in the Constitution. Valid contracts, and an independent judiciary, shed a mass of happiness. In a despotic government these are not tolerated. The safety is in an independent judiciary. It has no power to annoy, it has hardly the power of [**42]  self-defence. But it dispenses the duties and obligations of contract, and so enforces the Constitution.

Courts of justice are obliged to enforce the law. They have no choice. If entitled they will give the claim. If not a constitutional claim, or the law of doubtful application, it must be a bona fide doubt; not a doubt hunted up or searched after: none of that. The courts are to examine calmly and fairly. If a real doubt exists, the courts have nothing to do with the consequences. What consequences are more fearful than arbitrary power? Better, far, that all rail roads should be torn up--all canals destroyed--better that we should go back to our ancestors, than under color of good, we should do deliberate wrong. The argument for doing good from necessity has sometimes prevailed in all countries. It has established arbitrary power, armies, navies and conscripts, and spread ruin over many lands.

A Constitution is a blessing and protection to the rights of mankind. Let us not forget we have this blessing. Every deviation from it has a tendency to wrong. The courts must protect the clause which preserves contracts, liberally in favor of civil rights, not pair it down until [**43]  nothing is left. It is for all the people, like the bounties of Providence for the good or evil--just or unjust--let no man intercept it. Give it a free course. Let it be appreciated by all. It is not a political regulation. It is far above any such. The right of appeal controls it. Suppose it may destroy a road? There are instruments of destruction not so intended, but built for good. It may be, that all other towns than Baltimore may be destroyed. Many incalculable losses may come. What then? is the road to be stopped. The question may come, who is to be drowned--you or I? Then comes the law of self-defence with its consequences.

The distinctions we contend for arise on the whole instrument. Security from crime may be provided for, but contracts are not to be impaired. Crime is left to the State without other exception. But contract is without her power, has no exception, else the State power had been unlimited. What sounds in contract is also sacred. Contracts are to be fairly construed according to the intent of the parties; as what an act means, or is fairly understood to mean. Then here there is something to be released, an outstanding something. There is an evil tendency [**44]  abroad in relation to contracts, against which a moral sanction ought to be applied. This is the moment when

"Ease would retract, vows made in pain,

Pain would retract, vows made in ease."

Repudiation is the ugliest word in our language. Even the power of Congress is not decided as to vested rights.

The Supreme Court has exclusive jurisdiction over constitutional questions. Therefore its authority is to give law on this subject. On local laws it defers to this Honorable Court. But as to the Constitution and Treaties, that court has the conservative power.

Does the act of 1840 impair the obligation of contract? If it does, it is void. Void to that extent, no further. It may be good in part and bad in part. If the act merely gives up State rights, it is valid. If it does what is imputed to it, it is void. The penalty spoken of in 1840 is not in the original law. It speaks of a penalty to the State, and not of one, for the use of the county.

By the settled rules of construction, unjust consequences are to be avoided if possible; and crime, by assent, by adoption, is a new idea.

The criminal power of a State is without control. It is plenary. What is [**45]  its nature? It does not act by contract. It imposes proprio vigore. Crime does not exist by agreement to contract and be punished, but is compulsory. There can be no agreement to do a public wrong. This is void. Individual will makes a contract between individuals. Corporations must be alive to the law of the land and measure of justice. The character of the party is immaterial. The State may contract. So of the county and the company. The act of 1835 authorised Washington county to contract. It conferred on her the power to become a party to this contract. The State and the rail road company put her there, and hence the act must be expounded most favorably to Washington county.

Whatever will make a contract with individuals, will also make one with corporations, being within the scope of their charter. The rules are the same as respects parties. Here are parties all competent to contract. The consent given under the act of 1835, was by all the corporators in the rail road. They were authorised to act by that law. The whole power of the corporation was exerted.

The first party in point of order was the State. She may contract within constitutional limits. She has as much [**46]  power as any ordinary corporation. This power is not derived from the Constitution. It is a moral power. There is a distinct independent capacity to legislate and to contract. The power of legislation is in the people. It is given to a majority. It is an artificial power by a grant conferred. Nature does not grant the power of legislation. Power is sagacity, strength and wisdom. Hence ten men more powerful than ninety. We substitute an artificial for a natural rule where all are equal. The power to contract may lodge with the political power, as in the case of treaties, though not necessarily so. To contract is a moral power. Hence law may be altered, but contracts cannot be, but by the judgment of a court of competent jurisdiction or by agreement. The contract and the rights under it are the same. The forum to enforce is immaterial; where a third interest arises no two can dissolve, though they did create the obligation. It is admitted, the county may take and hold. Then as to the million, it is asked, what is to be done with it? The county was to have it by law--by the authority of the State, and with the consent of the company. Can the company then escape from its recovery? Such [**47]  is the contract. You will not resume it. This is an inference of justice. What is to be done with the fruits of the suit, is a subsequent question, and we need not deal with it. That question was not considered when the law was passed.

The assignor of a bond cannot defeat his grant. A contract of A with B, for the use of C. What is the right? Where is the equity? In C, who has the beneficial interest. There was a subject matter for a contract, and mutual equivalents. In a legal sense, an act of a Legislature may be, or may become a contract. Then when is an act a contract? When it is proposed by one, and accepted as proposed by the other. Then it is a contract, and does not rest on the criminal jurisprudence of the county to enforce its obligations. The breach is civil in its nature. The forfeiture is civil. To enforce it, a contract is counted upon. In a certain event the forfeiture accrues. The breach is non-payment. Debt and damages are recovered.

An act may operate per se, or by means of the acceptance of another party. Private charters are contracts. The Legislature may grant or refuse them. Why are they beyond the reach of the Legislature? Because they are contracts.  [**48]  They may be charters for public purposes, as for education, where the spread of a good thing is a good principle. 9 G. & J. 395.

Constitutional alterations in contracts are by agreement, consent, mutual agreement. One cannot be compelled to become a corporator. Hence a charter and its supplements are all contracts. This act is in form a contract. What is the import of the paper deposited with the State? It is the bond of the company to fulfil the act of 1835, and all its stipulations. This is contract, and it is so by universal law. Correspondence to and fro in commerce makes contract. This necessity exists every where by implication. The most important contracts are made by assent, and though not in language, yet by assent. The secret power behind which a party shelters himself, and thus becomes false to his pledge, we call by bad names. He who alleges that he has a reserved, undisclosed equity, fails in a court of justice. No such reservation is permitted. The acceptance is co-extensive with the offer. Each provision becomes matter of contract. They have sealed this with their corporate seal. No power exists to alter it, and you will award it to us without the act of 1840. Two [**49]  parties have undertaken to alter the contract. The third was absent. The absent has been presumed to be in the wrong. Suppose a donor was to transfer property to himself for the use of his child. This is perfected, and Chancery would uphold it. So here. All is done that was required to be done under the act of 1835. A million for Washington county, not for the State, nor for her use. The act is conclusive evidence that it could not be passed without this provision. In substance, a contract in which what is done, could not be done by the Legislature, except through the medium of contract. It could not have so bound the company. Assent gives it all its efficiency.

The act of 1840 is an ex post facto law, and void.

The duty under the act of 1835 is a prescribed duty, with a license on terms to take another direction. The injury is to Washington county, so is the act. Compensation should be made then. There is nothing new in this. It is a legal and appreciable consideration.

If the act does not mean this, what does it mean? I propose to give it a serious construction and its true signification. It is said to be all for the State. That the county is a creature of the State.  [**50]  Then why not so said? It is said the reserved power of the State does the act complained of. It is not reserved in the act. None of the acts so declare, but on the contrary. Justice cannot remove this away by force; power may. If the State can release the sum, then how for the benefit of Washington county? She is sure of being taxed. Sure of damages from a different construction of the road. But is that what was meant? The plain import of the words, for the use, cannot be broken down. The argument which destroys this law is repudiation. It escapes the plain justice of the law. Once go wrong, and there is no end of the error. As respects the State this is not a judicial question, but a political one, and of a fluctuating character. We hold on to the impartial administration of justice.

The terms of the law are to be construed according to their appropriate and legal sense. It is contrary to all rules to imply what is fatal to the contract. You may imply all that is essential to give it effect. So in an executory contract. An inconsistent proviso in the body of an act is void. Those terms had a settled, legal meaning. All so understood them. The company may not now urge any other [**51]  construction. The contract is not less valid because under seal. Its object is to maintain the truth of the case. The State has none of the properties of a trustee--none of his rights. Has no controling power. Is only a quasi trustee. She is merely to facilitate a recovery. This is the whole trust. It is like the use of real estate in trusts of modern creation. The trustee is not to interpose any hindrance. By assignment of a chose in action, you may use the assignor's name, and the law will protect you. The right to the beneficial interest gives the right to use the name.

The person named in a contract is the party to it. The State is bound to make a special act for the use of the money. So of infants and femes covert. A deposit made for the benefit of the latter, with the concurrence of her husband, can he take her property from her? The disability of coverture removed, she will take it. Suppose Washington county cannot use it. Still it is hers, and this does not affect the right.

Before the act of 1840, how would the State have counted upon a breach of contract? Not in criminal penalty. The State could not prevent the recovery of the money. If the State cannot recover [**52]  now, what hinders it but the act of 1840. If it hinders, it impairs the obligation of contract. There is no other bar. Then that act is void. The argument terminates here, unless the Legislature may extinguish or destroy the contract. Then the Constitution must give way, and be open to a new interpretation.

It is a hard bargain to fulfil on their part, now they have got all they wanted. The hardness of a bargain does not repeal the contract, a civil contract. Judgment is not a contract. It is in invitum. It is not a case between public and private charters. It is not a case of chartered rights. A public corporation may contract, may have property in possession and in action, may be plundered of its rights, and if so with impunity, not secure in its purchases.

It is said the county was created by the State, and therefore it follows, that its contracts may be violated. This I call a non-sequitur. Its contracts are like other contracts while it exists, and none can say the contracts are void. 9 Cranch, 994. 16 Mass. 84.

If the charter be altered or taken away, does the county lose its property? What follows? It is not to be presumed the Legislature will so act.

Where [**53]  a trust is formed and a c. q. t., the law will furnish trustees.

What is granted for the use of a county is for the corporators, its inhabitants. Here the proposition is to take the grant from them and give it to the rail road company.

The power of Congress over penal statutes bears no resemblance to it. The repeal of a criminal statute discharges the penalty, because it arises upon, from the statute. These are not questions of contract.

The State may set aside crimes, has a power over remedies, but cannot touch a contract. To destroy all remedy where a debt subsists, is wrong.

This is a release of a debt and a dismissal of a suit. The government of the United States may impair the legal contract, but it leaves the equitable one. So it is not destroyed as long as the equity remains in force.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*430]  STEPHEN, J., delivered the opinion of this court.
This is an action of debt, instituted in the name of the State of Maryland, for the use of Washington county, to recover the sum of one million of dollars, claimed by the county from the Baltimore and Ohio Rail Road  [**54]   Company, for an alleged violation of contract contained in one of the provisions of its charter.
In bar of any recovery in this suit, the appellee has pleaded, that nothing is due to the county; and also, the act of Assembly annulling the obligation and releasing the forfeiture, in virtue of which the said sum of money is alleged to be due.
The controversy between the parties is one of considerable magnitude, not only as regards the sum involved in the litigation, but on account of the aspect it has assumed, as a question 

 [*431]  involving grave considerations of constitutional law. The case has been argued with great legal learning and ability by the distinguished counsel employed to advocate the cause of the respective parties, and the court have derived no small degree of assistance in coming to the result at which they have arrived, from the light which has been shed upon the subject in the course of the discussion.
On the part of the appellant, it has been treated in the course of the argument as a clear case of contract, covered by a constitutional sanction, and therefore inviolable by legislative interference; on that of the appellee, it has with a confidence seemingly [**55]  and no doubt really, equally sincere, been treated as a clear case of penalty, and therefore subject to legislative control, and free from constitutional difficulty.
We have considered with that care and attention which the importance of the subject demanded, the arguments which have been urged on both sides of the question, and have come to the conclusion that, according to the true construction of the act of the Legislature from which the controversy has arisen, it is not a case of contract, the obligation of which has been impaired by legislative interference, but a case of penalty, and therefore subject, as to its enforcement, to the will and pleasure of the Legislature. It is a rule in the exposition of statutes, that the will of the Legislature is to be regarded, and to be carried into effect, so far as they keep within the limits prescribed to them by the Constitution or fundamental law, and in ascertaining such will or intention, the well established rule is, that "if divers statutes relate to the same thing, they ought to be all taken into consideration in construing any one of them." For this principle, see 6 Bacon's Abr. 382. And so far has this rule been carried, that [**56]  it is held to apply, although one of them may have expired. For which doctrine, see also the same book, 383, where it is said--"it is a rule in the construction of statutes, that all which relate to the same subject, notwithstanding some of them may be expired, or are not referred to, must be taken to be one system, and construed consistently." Adopting this rule in the case now before this court, as a legitimate 

 [*432]  test or standard by which to indicate the legislative mind, we think the inference will be found to be well warranted, that the duty imposed upon the appellee of locating the road through Cumberland, Hagerstown and Boonsborough, was intended to be enforced, not by the obligation of contract, but by the sanction of penalty alone. The language of the 5th section of the act of 1835, chap. 395, is as follows: "and it is hereby declared to be and made the duty of the said company to, and they shall so locate and contruct the said road, as to pass through each of the said places;" "Provided, that if the said Baltimore and Ohio Rail Road Company shall not locate the said road in the manner provided for in this act, then and in that case they shall forfeit [**57]  one million of dollars to the State of Maryland, for the use of Washington county." It is another well settled rule in the construction of a statute, that "the words are to be taken in their natural and ordinary signification and import, and if technical words are used, they are to be taken in a technical sense." 1 Kent's Com. 462.
Applying these principles of interpretation to the case before us, and we think the conclusion is well warranted, that penalty and not contract was in the contemplation of the Legislature when they enacted the fifth section of the act of 1835, upon which this suit has been instituted, in case of non-compliance with the requirements of the law, the company is to forfeit one million of dollars to the State, for the use of Washington county. The term forfeit, in common parlance, strongly implies penalty, and such appears to be the import ascribed to it by lexicographers of the highest respectability, in giving with precision and accuracy, the meaning of our language. Mr. Webster defines the word forfeit to be that which is forfeited or lost by neglect of duty, or in other words, a fine, a mulct, a penalty. The language, moreover, is not [**58]  that of convention or contract, but is mandatory in its character. It is the language of the creator to the creature, enjoining a duty to be performed, and imposing a penalty or forfeiture for disobedience or neglect. It is therefore, we think, in every view and aspect under which it could be considered, penal and not conventional, 

 [*433]  according to its sound and true interpretation. In this sense it appears to have been understood by the Legislature when they passed the act of 1840, chap. 260. In that act they say, "that so much of the 5th section of the act of 1835 as makes it the duty of the Baltimore and Ohio Rail Road Company to construct the said road so as to pass through Hagerstown and Boonsborough, be and the same is hereby repealed; and that the forfeiture of one million of dollars reserved to the State of Maryland as a penalty, in case the said Baltimore and Ohio Rail Road Company shall not locate the said road in the manner provided for in that act, be and the same is hereby remitted and released; and any suit instituted to recover the same sum of one million of dollars, or any part thereof, be and the same is hereby declared to be discontinued [**59]  and of no effect." In this law, the forfeiture to the State is emphatically termed a penalty, imposed for not locating the road as prescribed by the act of 1835, and although the right of expounding laws belongs to a different department of the government, and is not embraced within the sphere of the legislative power, still the sense of the Legislature upon the subject of laws enacted by themselves, when of doubtful import, is a circumstance not, we think, entirely to be disregarded. In speaking of the rule that several acts in pari materia, and relating to the same subject, are to be taken together and construed as one system, Chancellor Kent says--"the object of the rule is to ascertain and carry into effect the intention; and it is to be inferred, that a code of statutes relating to one subject, was governed by one spirit and policy, and was intended to be consistent and harmonious in its several parts and provisions." See 1 Kent's Com. 463, 464. Much stress was laid in the course of the argument upon the first section of the act of 1835, which requires the assent of the company to the provisions of that law, as indicating that the fifth section should be construed [**60]  to operate as contract, and not as penalty. The term assent, mentioned in that section, it was said, is a word peculiarly appropriate to contract, and not to penalty or forfeiture. This is certainly true as a general proposition, and need not be controverted 

 [*434]  to elude or avoid the force of the argument upon the present occasion. The assent of the company was essential to give to the law a binding and obligatory force; the principle being well settled, that an act or charter of incorporation is nothing more than an offer until consummated by acceptance, and in that sense and for that purpose it was manifestly used in the first section of the act. It was assented to in that sense alone which it ought to receive, according to its sound and genuine interpretation; and to give to the term a different import, would be a perversion of the purpose for which it was adopted. As a further proof that the fifth section ought to be construed as creating a penalty and not contract, it may be useful to refer to the ninth section of the same act, where the language of contract is clearly and unequivocally adopted. The terms there used are peculiarly appropriate for that purpose, and [**61]  are so expressive or significative of that intent, as to leave not a shadow of doubt upon the subject. The expression there used, "stipulate, agree and bind the said company," speak a language too explicit to be misunderstood, and remove every shadow of doubt as to the intent. Now is this the only instance in which the Legislature have spoken an unequivocal language, when they intended to bind the company by the solemnities or obligation of contract. In the third section of the act of 1827, chap. 104, expressions of similar import, are carefully used to create the obligations of contract instead of penalty; and that too in relation to the same subject, as the one embraced by the fifth section of the act of 1835, out of which this controversy has arisen, and if it was designed to deal with the company in the same manner, and to impose upon them the same duties and obligations, to be fulfilled under a similar responsibility in the 5th section of the act of 1835, it is difficult to conceive, why the appropriate language to execute that intent was abandoned, and terms of more equivocal import adopted. In the third section above referred to, after specifying certain conditions, upon [**62]  the performance of which, the Treasurer should be authorised to subscribe on behalf of the State, the Legislature insert the following proviso: 

 [*435]  "And provided also, that the President and Directors of the said company shall agree so to locate said road, that it shall go to, or strike the Potomac river at some point between the mouth of the Monocacy river and the town of Cumberland, in Allegany county, and that it shall go into Frederick, Washington and Allegany counties; and provided also, before such subscription is made, the President and Directors of the said company shall, in writing to be approved by the Attorney General, bind the said company to allow the State to subscribe for the remaining five thousand shares on the same terms, at any time during the session of the next General Assembly." Here it is not made the duty of the company to locate the road in a particular direction, under a forfeiture for non-performance or neglect, as in the 5th section of the act of 1835; but in the language of contract, they are made to agree so to locate it, that it shall go into Frederick, Washington and Allegany counties, and in reference to the State's [**63]  right of future subscription, it is still more apparent with what anxious solicitude the solemnities and binding efficacy of contract are preserved in the same section; upon that subject, the company was to be bound by a written instrument, which was not to be deemed satisfactory until it had received the sanction of the law officer of the State. It is moreover to be observed, that when at a subsequent period, it was found necessary, in consequence of a conflict of route with the canal company, to release conditionally the rail road company from their contract, as entered into by the act of 1827, the law by which they were discharged, holds the same language, and speaks of it as a condition or agreement from which they were released.
If then, the duty imposed by the 5th section of the act of 1835, was intended to be enforced by penalty, and not by contract, the next question to be considered is, were the Legislature competent to release the penalty in the manner they have done, by the act of 1840, chap. 260? In the exercise of such a jurisdiction, the Legislature are restrained by no constitutional prohibition. The releasing act could not be deemed an ex post facto law in the [**64]  sense of the Constitution, nor could it be 

 [*436]  considered as impairing the obligation of a contract; indeed it was not attempted to be impugned upon either of these grounds in the course of the argument, but was exclusively assailed upon the ground that the act of 1835 provided for a case of contract, and not penalty; and that therefore, the act of 1840 was a violation of the constitutional inhibition, forbidding the State Legislatures from passing any law impairing the obligation of contracts. The money being forfeited to the State as a penalty for the use of Washington county, one of the constituent elements of the State, the Legislature had an unquestionable right to remit it. Washington county is an integral part of the State, or portion of the body politic, and the money, if received by her, would belong to her as public property in her public political capacity, to be applied exclusively to the public use. As a county, she stands to the State in the relation of a child to a parent, subject in all respects to its jurisdiction and power, as well as entitled to the benefits of its fostering care and protection. As a member of the political family, she has a right [**65]  to participate in the legislative councils of the country; but the will of the majority, when expressed, according to the forms of the constitution, is binding and obligatory upon her, and to that will, as the rule of her conduct, she is bound to submit with becoming deference and respect. Several instances were referred to in the course of the argument, where it appears that a similar jurisdiction has been exercised by some of our sister States, but it is deemed unnecessary more particularly to refer to them. If then the act of 1840, releasing the penalty, was a legitimate exercise of power, and it was within the constitutional competency of the Legislature to pass it, what was the effect of that law upon the rights of the plaintiff, as to the further prosecution of her suit, and did it operate to bar the recovery of the penalty which was remitted by it? Upon that part of the case we think no doubt can be entertained, as all the authorities referred to seem to speak one uniform language upon the subject; they all agree that no penalty incurred during the continuance of a law, can be enforced after its expiration or repeal, without a saving clause or some 

 [*437]  special provision [**66]  to that effect. In 1 Kent's Com. 465, the principle is stated to be that, "if an act be penal and temporary by the terms or nature of it, the party offending must be prosecuted and punished before the act expires, or be repealed. Though the offence be committed before the expiration of the act, the party cannot be punished after it has expired, unless a particular provision be made by law for the purpose." To the same effect see 5 Cranch 281, 283, where Chief Justice Marshall, in delivering the opinion of the court says--"The court is, therefore, of opinion, that this cause is to be considered as if no sentence had been pronounced; and if no sentence had been pronounced, it has been long settled on general principles, that after the expiration or repeal of a law, no penalty can be enforced, nor punishment inflicted, for violations of the law committed while it was in force, unless some special provision be made for that purpose by statute." Many other authorities might be referred to in support of the same principle, but the rule seems to be so well settled, that it is deemed unnecessary to do so. If this, therefore, is to be deemed a case of penalty, and not one [**67]  of contract, the act of 1840 seems to operate as a complete bar to the plaintiff's recovery, and the judgment of the court below ought to be affirmed.
But supposing that the views heretofore expressed upon the merits of this controversy are not well founded, and that it is to be deemed a case of contract and not penalty; is it a contract coming within the purview of the Constitution of the United States, which prohibits a State from passing any law impairing the obligation of contracts, and was the act of 1840 therefore a nullity? In order to arrive at a just conclusion upon that subject, it is material to consider who are the contracting parties, and in what relation does the cestui que use stand to the legal plaintiff upon the record? The contracting parties are the State on the one part, and the rail road company on the other. The consideration of the contract were the franchises and privileges derived by the company from the State, and the cestui que use is one of the counties of the State, claiming an interest incidentally in her political character and capacity, 

 [*438]  in virtue of one of the provisions contained in that contract? The State, for reasons which [**68]  she deemed sufficient, has thought proper, by an act of her Legislature, to annul the contract and release the claim of the cestui que use, which this action has been instituted to enforce; and it is now contended on the part of the appellant in support of it, that such legislative act is a nullity, because it violates that great moral sanction of the Constitution, which declares, that no State shall pass any law which impairs the obligation of contracts. To declare an act of a co-ordinate department of the government an unwarrantable assumption or usurpation of power, because it is a violation of a constitutional prohibition, is an exercise of the judicial office, of a grave and delicate nature, which never can be warranted but in a clear case; but however painful and unpleasant the task may be, it is a duty enjoined upon the courts of justice sometimes to execute it, under the solemn sanctions of an oath, which they are not at liberty to overlook or disregard. In the case, however, which we now have to decide, we have no such duty to perform, because we think the Legislature have not transcended their constitutional limits in passing the act of 1840, by which they released the [**69]  claim of the plaintiff, and discontinued the action which was brought to enforce it. Washington county, by which the claim is attempted to be enforced, is one of the public territorial divisions of the State, established for public political purposes, connected with the administration of the government. In that character she would receive the money as public property, to be used for public purposes only, and not for the use of her citizens in their private individual characters and capacities. In that relation they would have no immediate interest, and could assert no title. She is one of the instruments of the government, invested with a local jurisdiction to aid in the administration of public affairs, and may be emphatically termed a part of the State itself. If then it be public, and not private property, it would seem to be completely at the disposal of the government, and the act of 1840 was nothing more than a rightful exercise of legislative power. In the forty-fourth number 

 [*439]  of the Federalist, a work of distinguished merit and ability, written principally by two eminent members of that convention of enlightened men, by whom the Constitution of the United  [**70]   States was formed, Mr. Madison, speaking of that principle contained in it, which prohibits the States from passing any bill of attainder, ex post facto law, or law impairing the obligation of contracts, uses the following language as indicating his understanding of the views of the convention when they adopted that prohibitory clause of the Constitution--"The two former are expressly prohibited by the declarations prefixed to some of the State Constitutions, and all of them are prohibited by the spirit and scope of these fundamental charters. Our own experience has taught us, nevertheless, that additional defences against these dangers ought not to be omitted. Very properly, therefore, have the convention added this constitutional bulwark in favor of personal security and private rights. In 2 Dall. 320, Judge Patterson, who was also a member of the convention by which the Constitution was formed, speaking of the import of the same constitutional restriction upon State legislative power, expresses himself in the following terms: "Over public property they have a disposing and controling power, over private property they have none, except perhaps in certain cases, and [**71]  those under restrictions; and except also what may arise from the enactment and operation of general laws respecting property, which will affect themselves as well as their constituents." In 2 Kent's Com. 275, Chancellor Kent says: "Public corporations are such as are created by the government for political purposes, as counties, cities, towns and villages, and the whole interest in them belongs to the public." In the Dartmouth College case, the Chief Justice, in delivering the opinion of the court, observed, that the provision in the Constitution never had been understood to embrace other contracts than those which respect property or some object of value, and confer rights which may be asserted in a court of justice. Dartmouth College was a private eleemosynary institution, endowed with a capacity to take property for objects unconnected with the government, and its funds 

 [*440]  were bestowed by individuals on the faith of the charter, and those funds consisted entirely of private donations. The corporation was not invested with any portion of political power, nor did it partake in any degree, in the administration of civil government. A contract of that kind [**72]  he held to be within the purview and protection of the Constitution. In 9 Cranch 43, 52, Mr. Justice Story, in delivering the opinion of the court, says: "In respect also to public corporations, which exist only for public purposes, such as counties, towns, cities, &c., the Legislature may, under proper limitations, have a right to change, modify, enlarge or restrain them, securing, however, the property for the use, of those, for whom, and at whose expense, it was originally purchased." In 9 G. & J. 365, 401, this court express themselves to the same effect, where they say: "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." Again, in page 397 of the same book, it is said: "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 [**73]  Legislature, and its members, and officers of the government for the administration or discharge of public duties, as in the cases of cities, towns, &c."
In 1804, the justices of the levy courts of the respective counties were incorporated, and all property belonging to any county, or appropriated to any county use or purpose, was vested in them for the benefit of the county; and by an act passed in 1829, chap. 21, commissioners are directed to be chosen biennially by the voters of the county of Washington, who are likewise incorporated, and in whom the same powers and privileges are vested, as were given to the justices of the levy courts by the act of 1804, and all property belonging to the county or appropriated to its use, is in like manner vested in 

 [*441]  the said commissioners. The money then for which this suit has been brought, if recovered, would be vested in this body corporate, as a public corporation, for public or county purposes, and would not be private property, belonging to the citizens of the county in their individual rights or private capacities. It would be held by the commissioners as public property given by the State, to be used only under legislative [**74]  authority, for public purposes, and be subject in their hands, in all respects whatsoever, to the controling power and jurisdiction of the Legislature.
It is a circumstance moreover worthy of consideration, as indicating the public character of these commissioners, and the official relation in which they stand to the government as public agents, that the act of incorporation provides, that in case of death, resignation, refusal to act, or removal from the county, the vacancy so occasioned, shall be filled by the Executive of the State, until a new election shall take place.
To put the question in a still stronger light, let it be supposed for the sake of the argument, that the one million of dollars had been appropriated as a forfeiture to the use of the Eastern Shore of Maryland, one of the two great divisions of the State, could it be contended with any semblance of reason or propriety, that a remission of the penalty by the State would not be a legitimate exercise of legislative power? Or to put the question in a still clearer point of view, suppose the money had been appropriated to the use and benefit of all the counties of the State, designating each of them by their [**75]  respective names, (which would be substantially to the use of the State,) could it be successfully maintained, that the government, if the public good required it, would have no right to remit the forfeiture? And if it could be lawfully done, where the interests of all would be involved, upon what principle of sound reasoning could it be urged, that the same power and jurisdiction would not exist, where the rights of one alone would be concerned? If the interest of Washington county could be merged in the public good in association with her sister counties, without a violation of constitutional law, where 

 [*442]  reasons of State policy required the sacrifice to be made upon the altar of the general welfare, it is difficult to conceive upon what ground of fair reasoning a similar power could be denied to exist, where her interest alone, in her separate capacity, should be offered up as a victim, to attain the same object. A jurisdiction which would be rightfully exercised in the one case, could not be wrongfully exerted in the other.
Under every view, therefore, which we have been able to take of this case, we think that the claim of the appellants is wholly groundless [**76]  and untenable, and that the judgment of the court below ought to be affirmed.
JUDGMENT AFFIRMED.  

23 of 46 DOCUMENTS 

THE SAVAGE MANUFACTURING COMPANY vs. Z. H. WORTHINGTON, EXECUTOR OF WILLIAM WORTHINGTON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 Gill 284; 1843 Md. LEXIS 25 

December, 1843, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the Howard District Court of Anne Arundel County.

This was an action of assumpsit, commenced on the 17th April 1840, by the appellee against the appellants and Amos A. Williams. The latter was returned non est, &c., and did not appear to the action.

The plaintiff declared, for that whereas the said Amos A. Williams, and the said the Savage Manufacturing Company (by its then agent, Amos A. Williams, in that behalf,) heretofore, to wit, on, &c., at, &c., made their certain promissory note in writing, bearing date the day and year aforesaid, and thereby then and there promised to pay, one year after the date thereof, to the said plaintiff, one thousand three hundred and sixty-six dollars and two thirds of a dollar, with legal interest thereon, for value received by the said Amos A. Williams and the Savage Manufacturing Company, the defendants in this action, and then and there delivered the said note to the said plaintiff; by reason of which premises, &c., and being so liable, &c. And also upon the common counts.

The defendant, the S. M. Co., pleaded non-assumpsit, on which issue was joined.

1st EXCEPTION. The plaintiff in order to prove the issue on his [**2]  part, offered in evidence the following promissory note, having first proved it to be signed and delivered by Amos A. Williams, as thereby appears.

SAVAGE, Anne Arundel County, March 11th, 1839.

"$ 1,366 2/3. One year after date, we promise to pay to Zachariah H. Worthington, executor of William Worthington, deceased, or order, one thousand three hundred and sixty-six dollars, and two-thirds of a dollar, with legal interest thereon, for value received.

AMOS A. WILLIAMS,

AMOS A. WILLIAMS,

Agent for Savage Man'ng Co."

Witness,--John G. Holland.

To the admissibility of which note in evidence, the defendants by their counsel objected, on the grounds that it does not sustain, but substantially varies from the declaration, which objection for the reason assigned the court, (DORSEY, C. J., WILKINSON and BREWER, A. J.,) overruled. The defendants excepted.

2ND EXCEPTION. The plaintiff to support the issue joined on his part, proved by the subscribing witness thereto, the execution and delivery of the above recited promissory note, at the same time declaring his intention in connexion therewith, to offer to the jury, the testimony on his part, hereinafter [**3]  mentioned and referred to, and therefore read the said note in evidence to the jury. The defendant, by the consent of the counsel and of the court, reserving his right to object to the admissibility of said note in evidence to the jury, until all evidence in relation thereto had been given to the jury. The plaintiff further proved by a competent witness, that several notes were given him within a few years past, for a considerable sum of money, which were signed in exactly the same manner in which the note sued upon in this cause is signed, and that one of said notes was paid him by the said company, in the year 1840, and that another note was given him for a considerable sum of money, which was drawn in favor of the said the Savage Manufacturing Company, or order, and signed by Amos A. Williams as the drawer, and that this note was endorsed on the back of the same, "A. A. W., agent for S. M. Co.;" and that said note was paid by said company, on or before the year 1840; and that said witness held another note drawn in his favor, by said A. A. W., in his individual capacity; that said witness was in the employment of the company, and had lived at the place where the works were situated,  [**4]  and had been familiar with the transactions of the said company for many years.

The plaintiff also offered to prove, and did prove by another witness, that a promissory note was signed by A. A. W., for a considerable sum of money, and was drawn in favor of the said the S. M. Co., and made payable to the order of the said company, which was endorsed in the following manner: "A. A. W., agent for S. M. Co.," and that said note was given to the sister of the witness by said A. A. W., as agent of said company; that he, the last mentioned witness, presented said note for payment to a clerk of said company, and that said clerk said he could not pay the same, until he made inquiries of the said company; that sometime afterwards, said witness called upon the said last mentioned clerk, who paid him the interest due on said note, and that said payment was made in the year eighteen hundred and thirty-nine or forty. And the plaintiff for the purpose of further proving the issue in this cause, shewed by yet another witness, that he had in charge a promissory note for a considerable sum of money, drawn and signed by A. A. W., payable to the said the S. M. Co., or order, and that said note was [**5]  endorsed, A. A. W., agent for S. M. Co., and which note was given to the brother of the witness by the said A. A. W., and that he, (the witness,) presented the same for settlement, and a portion of the same was paid by the said company within a short time past; and also offered evidence to the jury by competent witnesses, who had been debtors to the S. M. Co., that they had severally settled and paid to said A. A. W., as agent of the said company, their respective debts, and taken the receipts of said agent, signed, "A. A. W., agent for S. M. Co.;" and that they had never afterwards been called on by said company or its agents, for the payment of such debts.

The plaintiff also offered proof by a number of witnesses, that A. A. W., who signed this note sued upon, acted as the general agent of the company, at the place where its works are carried on, and that for fifteen or eighteen years, he the said A. A. W., had been considered, and up to the time when this note was given, was considered the general agent of said company, and transacted all their business as such of every kind, done at the place where such company's works are situated. The plaintiff also gave in evidence certain [**6]  deeds and proceedings in Chancery, which showed a conveyance of land under decree of the court to the S. M. Co., but as they are only inducement to certain parol proof, the reporter deems it unnecessary to insert the same. The deeds were dated in 1828, 1837 and 1838, and the decree in 1828.

And the plaintiff further proved, that the said A. A. W., negotiated, as agent of the said company, and purchased the lands mentioned in the said deeds to said company.

The plaintiff also, for the purpose of sustaining the issue on his part, offered in evidence by the subscribing witness to this note, sued on in this case, that he was called upon by the said A. A. W., to negotiate for the purchase of the land for which this note was given; that he (the witness,) applied to the plaintiff and negotiated with him in relation to the purchase of said land, and that said witness was under the impression, when called upon by said W., and during the term of his negotiation, and at the time when he applied to the plaintiff in relation to the same, and is now under the impression, that said land was to be, and has been purchased for the use and benefit of the said company, and that said witness [**7]  resided for many years at the works of the said company, and in its employment, and was familiar with its transactions; and that the said witness had previously been employed by the said A. A. W., as general agent for said company, to negotiate a purchase of other lands which were since conveyed to and are now held by the company, and the instructions of the witness in this purchase, were exactly similar to those in the former, he understanding at that time (although the name of the company was not used by the said A. A. W. at either,) that he was acting for the company. And the plaintiff further proved by said witness, that the object of purchasing the land of the plaintiff, as stated to witness by A. A. W., was to furnish wood and ore for a furnace, which was built on the lands of the company, which furnace was built by hands that were paid at the store of the company, by orders drawn on A. A. W., as agent of said company, in the same manner as the other hands or laborers of said company were paid. And further, that the said furnace after its erection was carried on for some time by said company.

And the plaintiff for the purpose of further sustaining the issue joined on his [**8]  part, offered the following extracts from a book offered in evidence by the defendants, as the minutes of the proceedings of the said company:

"Resolved, That to the agent in town be exclusively confined the financial concerns of the company, to whom alone is given the authority to sign and provide for the obligations of the company, and to attend to its pecuniary arrangements." And also the following:

Resolved, That Amos A. Williams be appointed general superintendent of the company's affairs at the factory, and from said book it appears that said resolutions were passed on the 3rd January 1842, by the said company. It was further offered in evidence by the plaintiff, that several houses had been erected on the lands of the S. M. Co. between the years 1837 and '39, under the superintendence of said A. A. W. as general agent, and that the iron made at the furnace was used in the company's foundry, and if the said furnace had been in successful operation it would have been of great benefit to the S. M. Co.

The defendants to maintain the issue on their parts, first offered in evidence the act of incorporation, passed December session, 1821, chapter 201, and the act supplementary [**9]  thereto, passed December session, 1825, chapter 169, and also gave in evidence the testimony of Thomas C. Miller, a legal competent witness, that he had been storekeeper, agent and a confidential clerk, at the works in this district of said defendants; that their works consisted of a cotton mill, grist mill, saw mill, machine shop, foundry, blacksmith and wheelright shops, and a country store, of which last he had the special charge; that he had been upwards of fifteen years so employed; that they had also made and sold bricks; that Mr. A. A. W. was during that time general agent of said defendants; his duties were to superintend the above operations of the defendants' works as aforesaid; that while so acting he did sometimes borrow money for the defendants' use, which was repaid; knows that A. A. W. had purchased land for himself; had purchased land of a Miss Dorsey; knows of this, his purchase from Worthington; the Savage Rail Road was made during his employment at the works; Mr. A. A. W., of his knowledge, borrowed some money of Miss Dorsey for which he gave a note, signed as agent of the defendants; the money was for his own purposes; he, Miller, paid the interest on it without [**10]  instructions from any one; the town agent instructed him not to pay it, but he paid it on his own responsibility; knows of Holland's claim against the company, the defendants is now in controversy; is upon a note signed by A. A. W., agent S. M. Co; knows for what the money in said note was borrowed; it was for the Savage Rail Road Company; said defendants have no interest in said rail road company; knows that defendants refused to have any thing to do with the furnace; knows that the furnace was not put in operation by the company; it was carried on by A. A. W., C. D. W. and Thomas Landsdale; it was built on the company's land; the hands were paid by A. A. W. at the store, by orders drawn by one Ludd, superintendent of the building, on A. A. W., agent S. M. Co.; A. A. W. also paid at same place the defendants' hands; the defendants had nothing to do with them; business transactions were also done of his at the same place; the hands were paid as other hands were, every two weeks; a separate pay roll for each department of defendants' concerns was made out, containing a list of hands, number of hands, rate of wages of each and total amount, then were added up and transmitted to the agent [**11]  in town; there never was a pay roll for the furnace, nor was the amount paid its hands ever transmitted to town; the superintendent of the building, Mr. Ludd, drew on A. A. W., agent, orders for the pay; they were never transmitted to the agent in town; no buildings other than the furnace were put on the company's land between the years 1837 and 1840; long before the furnace was put up, in the dry summer months there was a deficiency of the needful supply of water for the use of the cotton mill; the lands purchased of Snowden were for the possession of Hammond's branch, to be turned into the defendants' stream, which was done accordingly. By the cross examination of John Holland, the plaintiff's first witness, it was proved that since A. A. W's sickness, George Williams, the company's agent in Baltimore, paid one note for money borrowed of him; refused to pay another which is now in suit; did not know for whom the land was bought that was purchased of Worthington. The defendants also gave in evidence the charter of the Savage Rail Road Company, passed December session 1834. The defendants also gave in evidence the two books purporting to contain bye-laws and minutes of the defendants,  [**12]  after having offered evidence by one of the clerks and one of the corporation, that the said bye-laws and minutes, and the parts read in evidence, were the authentic bye-laws of said company and minutes, and the following parts and entries were read therefrom:

Extracts from the first book of minutes of the Savage Manufacturing Company:

Baltimore, 26th March, 1824. At a meeting of the S. M. Co. (a quorum being present) it was resolved, That A. A. W., the agent, be and he is hereby authorised to sign and endorse notes on behalf of the S. M. Co., for the purpose of borrowing from the Bank of Baltimore, a sum not exceeding $ 12,000, and to that end that he be authorised to use the name and seal or the name of said company, and also to sign or endorse notes for the renewal of such loan, so long as the said bank and company may consent and agree.

Extract from the second book of minutes:

Baltimore, March 5th, 1832. General rules for the government of the Savage Manufacturing Company:

1st. The agent at the factory shall superintend all the concerns of the company there; he shall collect the rents of the houses, &c. &c.; he shall manage and control the company's store;  [**13]  he shall govern and regulate the farm--and shall superintend the grist mill, saw mill, smith's shop, &c., with power to purchase wheat, beef, hay, corn, &c., necessary for the support of the establishment.

2nd. The agent at the factory shall furnish an annual written statement of all the accounts of money received and disbursed by him, and oftener if required by the company, in a plain and intelligible manner, distinguishing therein the affairs of the rents, the farm, the saw mill, the smith's shop, and the store and grist mill, and shall be and is hereby authorised to employ a clerk in his discretion, and to compensate him accordingly.

6th. At the regular meetings of the company, and at none others, authority may be given for sales and purchases, and for extending improvements or increasing machinery, not hereby delegated to the respective agents. The foregoing rules were unanimously adopted.

Baltimore, October 7th, 1833. At a quarterly meeting, the following resolutions were adopted:

"Resolved, That no further expenditures of any kind shall be made, nor expenses incurred in any department of the company's works, until the whole debt of the company is discharged,  [**14]  except for the conducting of the works in their present condition.

"Resolved, That as soon as the Baltimore and Ohio Rail Road Company shall have completed their road nearly to the company's ground, a passable wagon road shall be made by the company, so as to intersect the rail road. And the object of this present resolution is expressly declared to be, to negative any views or suggestions tending to the project of making a rail road."

June 8th, 1836. At a special meeting of the stockholders upon the representation of the agent in town, as to the importance of the purchase of a small piece of land, belonging to the estate of the late Thomas Snowden, which is to be sold at auction on the 14th of this month, it was resolved, that the agent at the factory, be and he is hereby authorised to purchase said land at what he may deem it worth.

The defendants also further offered in evidence by the testimony of Joseph Plummer, a competent witness, that John Holland had, in a conversation with him about said controversy with said defendants, said that he had loaned $ 500 to A. A. W.; that A. A. W. had paid him by a check on a bank in Baltimore; that subsequently in loaning him [**15]  other $ 500, told him he had not used the check, returned the check and received a note for $ 1000. Mr. A. A. W. was asked by Holland for security; A. A. W. offered him a mortgage of his lands bought of Dorsey; he said he would take the company (the defendants,) as security; A. A. W. signed the note accordingly as agent for defendants.

The defendants also gave in evidence the testimony of Chas. Marean, a competent witness, who said he had been in the employment of the defendants for six years, from July 1834 to September 1841; that he kept all the company's books in town under the direction of George Williams, the town agent; that the defendants never kept a bank account in their name; all bank accounts were kept in the name of George Williams, the town agent; never heard of the note offered in evidence in this suit until Mr. A. A. W. was taken sick; when town agent was sick or absent, he Marean had sole charge of the company's concerns; never knew of any transaction of this kind; had it been a transaction of these defendants, he certainly would have known it; he kept the account of the transactions of the company; accounts were made up of each department once a year; accounts [**16]  always made up in town; the company kept no bank account; he had nothing to do with A. A. W.'s accounts; A. A. W. drew the money for paying the hands; it was sent out some times by Miller or other trust-worthy persons; Miller made nearly all the purchases for the store; the furnace was not built by the company; no monies were ever sent out for that purpose; the money sent out was to pay defendant's hands; not to put up the furnace; whatever defendant's pay roll required, was sent out; every department's accounts were distinguished and separate; would know if the furnace account had been included; the furnace was complete and in operation a little while; there never was any thing in the accounts that included expenditures for the furnace; each pay list would shew its department of manufacturing; no agent for the furnace; no pay roll for it; the iron for the foundry was purchased in town and sent out; he would have remembered any drafts drawn in favor of the furnace.

On cross examination of Snowden, he testified that before the purchase of his land, George Williams, the town agent, came out and walked over the property; that he was paid for it by settling his bill and taking cash [**17]  for balance.

The defendants further to support the issue on their parts, gave in evidence the following bond of conveyance, having, on the cross examination of Tristram S. Dorsey, a witness thereto, proved that the same was signed, sealed and delivered by the plaintiff, as thereby appears, to wit:

"Know all men by these presents, That I, Zachariah H. Worthington, of Montgomery county and State of Maryland, are held and firmly bound unto Amos A. Williams, of Anne Arundel county and State aforesaid, in the full and just sum of eight thousand dollars, lawful money, to be paid to the said Amos A. Williams, or to his certain attorney, executors, administrators or assigns, to the payment whereof, I bind myself, my heirs, executors and administrators, firmly by these presents, sealed with my seal, and dated this 22nd day of April, in the year of our Lord one thousand eight hundred and thirty-nine.

"Whereas, the said Zachariah H. Worthington, as executor of the last will and testament of his father, William Worthington, late of Montgomery county aforesaid, deceased, did, on the eleventh day of March, one thousand eight hundred and thirty-nine, pursuant to the power and authority [**18]  vested in him by the last will and testament aforesaid, sell to the said Amos A. Williams, and contract and agree to grant and convey, or to cause and procure to be granted and conveyed to him, his heirs and assigns, all that part of a tract or parcel of land, lying and being in Anne Arundel county aforesaid, called Thomas and Elizabeth, whereof the above named William Worthington died seized, which is contained within the metes and bounds, courses and distances, following, that is to say, beginning for the same part at a stone planted, &c. In consideration of the sum of $ 4,100, one-third part whereof paid by the said A. A. W. to the said Z. H. W. before the execution of this bond, and the remaining two-thirds secured by two promissory notes, dated the aforesaid 11th March 1839, drawn by the said A. A. W. and the S. M. Co., to and in favor of the said Z. H. W., as executor of the said W. W., deceased, or order, for the sum of $ 1,366 2/3, each one of them payable at one year, and the other at two years after date, which notes bear interest; the receipt and payment of which said sum of $ 1,366 2/3, and the delivery to him of the two promissory notes above recited or referred to, the [**19]  obligor in this bond doth hereby acknowledge.

"Now the condition of the aforegoing obligation is such, that if upon payment of the residue of the purchase or consideration money, and interest secured by the above recited promissory notes, at the times limited by said notes for the payment of the same, the said Z. H. W. do and shall well and sufficiently grant and convey, or cause and procure to be granted and conveyed unto the said A. A. W., his heirs and assigns forever, the two parts of a tract or parcels of land above described, with the appurtenances, having first procured a ratification of such sale according to law, and that by such deed or deed of conveyance and assurance in the law, as shall or may be reasonably advised or devised, and required by the said A. A. W., his heirs or assigns, or his or their counsel; and if until such conveyance be made, perfected and delivered, or until default be made in the payment of the residue of the purchase money and interest mentioned, to be secured by the aforesaid promissory notes, or of some part thereof, at the times limited by said notes for the payment of the land, the said A. A. W., his heirs and assigns, be suffered and permitted,  [**20]  peaceably and quietly, to enter into, have, hold and enjoy the parts of a tract of land and premises, so as aforesaid sold and contracted, to be conveyed, with the appurtenances, without any manner of let or hindrance or interruption, of, from or by any person or persons, claiming legally or equitably, any estate or interest therein, or right or title thereto, through, by or under the within named William Worthington; then, and in those events, the foregoing obligation to be void and of no effect, otherwise to be and remain of full force and virtue in law.

ZACHARIAH H. WORTHINGTON, (Seal.)"

It was admitted by the plaintiff and defendants, that the note given in evidence by the plaintiff, is one of the notes referred to in the said bond of conveyance, and that it was given to secure the payment in part of the purchase money for the land therein described.

The S. M. Co., defendants, then moved the court for their opinion and direction to the jury:

1. That the promissory note offered in evidence by the plaintiff, is not the note of the said Savage Manufacturing Company, and that they are not legal parties thereto.

2. That if the jury find from the evidence that [**21]  no consideration passed from the plaintiff to the company aforesaid, then the said company are not responsible on the note offered in evidence as aforesaid, unless the jury further find from the evidence, that the said A. A. W. had authority to bind the company, by signing the said note as the agent thereof, or should find that there was a subsequent ratification or adoption of such signing by the company.

3. That if the jury find from the evidence that the note offered in evidence by the plaintiff, was given to secure the payment of the money therein stated, for a purchase of land made by and on behalf of A. A. W., then the said company are not bound therefor, the payment thereof, by reason of their legal incapacity to become a security for the fulfilment of the contract of another.

4. That if the jury find from the evidence that the note aforesaid, was given to secure the payment of the money therein stated, for a purchase of land made by and on behalf of A. A. W., then the said company are not bound for the payment thereof, unless the jury further find, that all the proprietors of stock in said company, by themselves or their authorised agents or guardians, assented to [**22]  become security for the fulfilment of the said contract of A. A. W.

5. That if the jury find from the evidence that the note offered in evidence as aforesaid, was given to secure the payment of the money therein stated, for a purchase of land made by and on behalf of A. A. W., then the said company are not bound for the payment thereof, unless the jury further find that the proprietors of two-thirds of the stock of said company in value and amount, assented that the said company should become security for the fulfilment of the said contract of A. A. W.

6. That if the jury find from the evidence that the S. M. Co. was, by Acts of Assembly, authorised to purchase and hold real estate and other property, for the purpose of carrying on manufacturing, as set out in said acts, and were also authorised by said acts, to appoint officers and agents in the prosecution of these objects; and further find that the said company did hold lands and other property, useful and convenient for their purposes, and did appoint A. A. W., as agent to superintend their operations; that such purchases, operations and appointments did not authorise the said A. A. W. to bind the said company to the [**23]  payment of the sum specified in the promissory note, which has been offered in evidence in this case; provided the jury shall further find that the whole and only consideration of said note was land sold, or intended to be sold by the plaintiff to the said A. A. W., and that the plaintiff took said note from him, with knowledge that the same was intended as in payment, or in part payment, or as a security for the payment in whole or in part of the purchase money for such land.

7. That if the jury find from the evidence that the S. M. Co. was, by Acts of Assembly, authorised to purchase and hold real estate and other property, for the purpose of carrying on manufacturing, as set out in said acts, and were also authorised by said acts, to appoint officers and agents in the prosecution of these objects; and further find that the said company did hold lands and other property, useful and convenient for their purposes, and did appoint A. A. W., as agent to superintend their operations; that such operations, purchases and appointment did not authorise the said A. A. W. to bind the said company to the payment of the sum specified in the promissory note, which has been offered in evidence [**24]  in this case; provided the jury shall further find that the whole and only consideration of said note was land sold, or intended to be sold by the plaintiff to the said A. A. W., and that the plaintiff took said note from him, with knowledge that the same was intended as in payment, or in part payment, or as a security for the payment in whole or in part for the purchase money for said land, unless the jury further find that the said A. A. W. was specially authorised by the said company to bind them by acts beyond the scope of his general agency, in the particular business carried on by the company, or should find that there was a subsequent adoption or ratification of such acts by the said company.

8. That if the jury find from the evidence that the S. M. Co. was, by Acts of Assembly, authorised to purchase and hold real estate and other property, for the purpose of carrying on manufacturing, as set out in said acts, and were also authorised by said acts, to appoint officers and agents in the prosecution of those objects; and further find that the said company did hold land and other property, useful and convenient for their purposes, and did appoint A. A. W. an agent to superintend [**25]  their operations; that such purchases, operations and appointment did not authorise the said A. A. W. to purchase lands for the company, without their special authority, either previously given or subsequently ratified or adopted.

9. That if the jury find from the evidence that the S. M. Co. was, by Acts of Assembly, authorised to purchase and hold real estate and other property, for the purpose of carrying on manufacturing, as set out in said acts, and were authorised by said acts, to appoint officers and agents in the prosecution of those objects; and further find that the said company did hold lands and other property, useful and convenient for their purposes, and did appoint A. A. W. an agent to superintend their operations; that such purchases, operations and appointment did not authorise the said A. A. W. to purchase lands on his own account, and bind the company as his security, for the payment of the purchase money, without their special authority, either previously given or subsequently ratified or adopted.

10. That if the jury find from the evidence that the S. M. Co. was, by Acts of Assembly, authorised to purchase and hold real estate and other property, for the [**26]  purpose of carrying on manufacturing, as set out in said acts, and were also authorised by said acts, to appoint officers and agents in the prosecution of those objects; and further find that the said company did hold land and other property, useful and convenient for their purposes, and did appoint A. A. W., as agent to superintend their operations; that such operations, purchases and appointment did not authorise the said A. A. W. to purchase lands on his own account, and bind the company as his security, for the payment of the purchase money, without their special authority, either previously given or subsequently ratified or adopted, and that there is no evidence in this case of any such special authority.

11. That if the jury find from the evidence that the S. M. Co. was, by Acts of Assembly, authorised to purchase and hold real estate and other property, for the purpose of carrying on manufacturing, as set out in such acts; and were also authorised by such acts, to appoint officers and agents in the prosecution of those objects; and further find that the said company did hold lands and other property, useful and convenient for their purposes, and did appoint A. A. W., as [**27]  agent to superintend their operations; that such purchases, operations and appointment did not authorise the said A. A. W. to purchase lands on his own account, and bind the company as his security, for the payment of the purchase money, without their special authority, either previously given or subsequently adopted and ratified, and that there is no evidence in this case of any such special authority, nor any evidence from which such authority can be legally inferred or implied.

12. That if the jury find from the evidence that A. A. W. was the agent of the company for superintending their operations as manufacturers, the burthen of shewing that the said A. A. W. had authority to bind them as a security, for the payment of the sum of money specified in the promissory note, which has been offered in evidence in this case, rests upon the plaintiff.

13. That if the jury find from the evidence that the note offered in evidence was given to the plaintiff to secure the payment of a portion of the purchase money, for land sold by the plaintiff to A. A. W., and that the said company had no interest in said purchase, then the plaintiff has no right to recover the amount of such note [**28]  from the company, although the jury should further find that the said A. A. W. was the agent of the company, superintending those works, grounds, and business as manufacturers of cotton goods, and carrying on other concerns auxiliary thereto.

14. That by the act incorporating the said Manufacturing Company, the objects of such incorporation is declared to be the manufacturing and vending cotton goods, and the carrying on of any other branches of manufactures in their discretion; and the said A. A. W. being shewn by the evidence to be their agent, that unless otherwise proved, his agency is limited to the business of the company, connected with or relating to the objects aforesaid.

15. That the contract for the land to secure the payment of the purchase money, of which the note offered in evidence was given, was the individual contract of A. A. W., and not the contract of the defendants, because the bond of conveyance executed by plaintiff for said land, is the only legal evidence of the character of said contract.

And the court (DORSEY, C. J., WILKINSON and BREWER, A. J.,) gave the directions as asked in the second, third, fourth, fifth, sixth, seventh, eighth, ninth,  [**29]  tenth, eleventh, thirteenth and fourteenth prayers, but refused the instructions asked for in the first, twelfth and fifteenth prayers. To which refusal of the court the defendants excepted.

The verdict and judgment being against the defendants, they appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

Z. sold to W. a tract of land, gave him a bond of conveyance, and received his promissory note signed by him, first in his own name, and secondly as agent for the S. M. Company. The latter was a manufacturing institution, and required land for its operations. The note not being paid, Z. brought his action against both; the Company only appeared; the declaration counted upon the note. The proof showed that the agent was the general agent of the Company; had bought other land for the use of the Company which it retained and paid for, and that the agent was in the habit of signing its notes as agent, which were paid by the Company. HELD: that the bond of conveyance was the only legal evidence of the nature and character of the contract, and that the purchase was made by W. on his own account; and as the Company was not authorised to become surety by its charter, the note was a nullity.

Where a note is executed by an agent before it is admissible in evidence, it is necessary to prove, not only his signature, but the authority by which it is made.

A bond of conveyance which recites that the obligor did sell to the obligee, and contract and agree to grant and convey to him, his heirs and assigns, a certain tract of land, acknowledging the receipt of the cash part of the purchase money from him, with the notes of the obligee, and another for the balance thereof, and stipulating until default should be made in the payment of the purchase money, that he should hold the land sold as aforesaid, demonstrates that the obligee made the purchase on his own account, and parol evidence is not admissible to contradict it in that respect.

Where by the terms of a charter a manufacturing company had no power to assume the responsibility of a surety, the note of such a company executed upon no other consideration than as surety, is void.

Parol evidence is inadmissible to prove that a grant made to one person was intended to be made to another.  

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

By R. I. BOWIE for the appellees.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*301]  STEPHEN, J., delivered the opinion of this court.
We think there was error in the opinion of the court in the first bill of exceptions. The principle appears to be well settled, that where a note is executed by an agent, before it is admissible in evidence, it is necessary to prove, not only his signature, but the authority by which it is made. Speaking of the action of assumpsit on promissory notes, Roscoe, in his treatise on evidence, 174, says: "The making of the note will be proved by proving the handwriting of the defendant, or if made by an agent, by proof of the handwriting, and authority of such agent.
After it was admitted by both plaintiff and defendant, that the note given in evidence [**30]  by the plaintiff was one of the notes referred to in the bond of conveyance, and that it was given to secure the payment in part of the purchase money for the land therein described, the defendants prayed the court to give several instructions to the jury, all of which were granted except the first, twelfth and fifteenth prayers; for the refusal to grant which, the defendants excepted.
It seemed to be conceded by the counsel for the appellants in the course of the argument, that the court below were right in refusing the twelfth prayer, it is therefore only necessary to decide upon the propriety of rejecting the first and the fifteenth.
The first prayer was, that the promissory note offered in evidence by the plaintiff, was not the note of the said Savage Manufacturing Company, and that they were not legal parties thereto. This prayer we think the court ought to have granted. It appears by the bond of conveyance (the execution of which was admitted by the parties,) that the purchase was made by Williams, on his own account. The conveyance was to be made to him and his heirs, and there is an express stipulation that he and his heirs shall quietly and [**31]  peaceably enjoy the property purchased, without any hindrance by the said obligor, or any person claiming under him. The purchase, therefore, being made by him on his own account, and the note being given to secure the payment of the purchase money, the note was invalid and a nullity, so far as the appellants were attempted 

 [*302]  to be bound thereby. It being conceded, that by the terms of their charter, they had no power to assume such a responsibility.
The fifteenth prayer, we think, also ought to have been granted. The bond of conveyance was the only legal evidence of the nature and character of the contract, and it demonstrated that Williams, and not the company, was the purchaser of the land therein specified. Parol evidence was not admissible to vary or contradict it in that respect, as seems to be clear upon authority. See Ros. Ev. J. 9, and 12 Johns. 77, where it is said, that parol evidence is inadmissible to prove that a grant made to one person was intended to be made to another. See also same book, page 488, where it is said, "that parol evidence is inadmissible to show that a lease executed in the name of, and reserving a rent to one [**32]  person, was intended for the benefit of another."
For these reasons we are of opinion that the judgment of the court below was erroneous, and ought to be reversed.
JUDGMENT REVERSED.  

24 of 46 DOCUMENTS 

NIMROD CROMWELL vs. THE STATE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

12 G. & J. 257; 1841 Md. LEXIS 18 

December, 1841, Decided 

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

Indictment against the appellant for an assault and battery, found at February term, 1841. At June term, 1841, the traverser suggested to the court in writing and upon oath, that he could not have a fair and impartial trial in Baltimore city court, and prayed a removal of the record to some adjoining county court. But the judges, (BRICE, C. J., NISBET and WORTHINGTON, A. J.,) no other proof being offered to them but the suggestion and affidavit aforesaid, refused to order the removal, upon which the appellant sued out a writ of error.

By the amended constitution, 1804, chap. 55, sec. 3, it is enacted, that if any party presented or indicted, &c., shall suggest in writing to the court in which such prosecution is depending, that a fair and impartial trial cannot be had in such court, it shall and may be lawful for the said court to order and direct the record of their proceedings in, &c., to be transmitted to the judges of any adjoining county court for trial, &c., provided that such further and other remedy may be provided by law in the premises, as the Legislature may direct and enact.

By the act of 1805, chap. 65, sec. 49, it [**2]  is enacted, that no prosecution now depending or hereafter to be instituted, shall be removed, unless after indictment being found, the person or persons against whom said indictment shall be found, shall suggest in writing, supported by affidavit or other proper evidence, that a fair and impartial trial cannot be had, that then it shall be lawful for the said court, in their discretion, to order and direct the record, &c., to be transmitted to the judges of the adjoining county court, before whom, &c.

By the act of 1809, chap. 138, sec. 20, where a party suggests by affidavit, that a fair and impartial trial cannot be had in the court where the indictment is found, "such court shall "order the record of the proceedings in said prosecution to be "transmitted to the court having criminal jurisdiction of any "adjoining county," &c.

By the act of 1840, chap. 211, passed 8th March, 1841, it was enacted, "that so far as relates to Baltimore city court, the 20th section of the act of 1809, chap. 138, entitled, an act, &c., be and the same is hereby repealed, and that the 49th section of the act of November session 1805, chap. 65, entitled, an act, &c., be and the same is hereby [**3]  declared to be in full force and effect, so far as relates to said Baltimore city court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

The reservation, "that further and other remedy may be provided by law in the premises as the Legislature may enact," contained in the act of 1804, chap. 55, sec. 3, a part of the amended constitution of this State, relating to the removal of criminal causes, was intended specifically to authorise a detailed system, prescribing, the "manner and terms," to be observed by parties entitled to the right.

The act of 1805, chap. 65, sec. 49, is not repugnant to the act of 1804, chap. 55, sec. 3.

It is only a plain and palpable contradiction of their enactments, that will induce the court to say that one act of the General Assembly violates another.  

COUNSEL:
By T. Y. WALSH for the appellant, who maintained, that the act of 1840, chap. 211, was unconstitutional so far as it invests the judges of the city court with discretion to refuse to remove a cause.

That the act of 1805, chap. 65, was also unconstitutional; that the act of 1804 was imperative on the courts, until the Legislature provided some other remedy for a party indicted, to aid him in and secure to him the privilege of removing cause. The act of 1805 was no remedy; it gave no relief to the prisoner; it was a restriction upon his rights under the constitution as amended in 1804.

By RICHARDSON, for the State--

I take no objection to this writ of error, that it was sued out before final judgment; before sentence. There is an important practical question involved in it, which we are desirous of having finally decided, and as speedily as may be.

If a broad privilege is confirmed by the act of 1804, I agree that it cannot be restricted by a single act of the Legislature. But is the 49th section of that act obligatory; mandatory upon the courts of original [**4]  jurisdiction, or is it merely permissive. It says, it shall and may be lawful for the courts to remove--is this imperative or discretionary? It must be discretionary, for the Legislature is authorised by a single act, without altering the constitution, to provide another and further remedy in the premises. What is such further and other remedy? A remedy for what? That the Legislature may impose some restriction is decided. 6 Harr. & John. 270. It means, that the Legislature may remedy the evils resulting from the change of the constitution as provided by the act of 1804, and hence the act of 1841 is clearly constitutional.  

JUDGES:
This writ of error was argued before BUCHANAN, C. J., STEPHEN, ARCHER, DORSEY, CHAMBERS and SPENCE, J.  

OPINIONBY:
CHAMBERS 

OPINION:

 [*259]  CHAMBERS, J., delivered the opinion of this court.
The court consider the case of Dashiell and the State, 6 H. & J. 268, conclusive upon this question. It is there said "the act of 1805 does not attempt to deprive the party of this right, but only points out the manner and terms upon which it shall 

 [*260]  be enjoyed. It is not repugnant to the act of 1804, but only directs in detail how the general provisions [**5]  of that act shall be carried into operation."
Without the aid of such decisive authority, it would require the most plain and palpable contradiction in the two enactments to force upon the court the conclusion, that the act of 1804 was violated by the provisions of the act of 1805, passed as it was by the same Legislature who adopted and ratified the act of 1804, thereby making it a part of the constitution, not only at the very moment when they had thus re-enacted it, but by the very act which was designed to carry out into full operation and effect the system which it was intended to introduce.
We are driven to no such imperative necessity, but are of opinion, that the reserved power to legislate further in the premises, was intended specifically to authorise a detailed system, prescribing the "manner and terms" to be observed by parties who are entitled to the right.
JUDGMENT AFFIRMED.  

25 of 46 DOCUMENTS 

EXECUTORS OF R. OLIVER vs. PALMER AND HAMILTON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 G. & J. 426; 1841 Md. LEXIS 34 

December, 1841, Decided 

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

The proceedings in this cause are partially reported ante 137, upon the motion to dismiss the appeal; but the court having decided to retain the cause, it is now reported with reference to the final decree.

On the 9th August 1837, the appellees filed their bill of complaint in Baltimore county court as a Court of Equity, against Robert M. Gibbs, Charles and Thomas Oliver, executors of Robert Oliver, the appellants, in which they state, that on or about the 18th June 1821, Lemuel Taylor, then of the city of Baltimore, being indebted unto them in a large sum of money, for money lent and advanced and paid by the complainants for him, drew an order in their favor for the sum of ten thousand dollars, on the firm of Robert and John Oliver, to be paid out of any funds they might have belonging to the said Taylor, after deducting all claims and demands the said R. & J. Oliver might have against him; that said order was presented to and accepted by the said R. Oliver, in the name of R. & J. Oliver, to be paid according to the tenor thereof, when the said R. & J. Oliver should be in possession of funds to pay, after deducting the amount of debt due [**2]  to them at that time by the said Taylor, and the further sums for which previous orders had been given to other persons by said Taylor, on the said R. & J. Oliver, as stated by the said R. Oliver, and said acceptance was noted in a book belonging to said R. & J. Oliver. That before the time of making the said order, the said Taylor had assigned, transferred and conveyed to the said R. & J. Oliver, certain real and personal property, claims and demands to a large amount, (but which amount is unknown to the complainants,) to secure the said R. & J. Oliver, for the debt due by Taylor to them, and which the complainants understood from the said R. Oliver, would be amply sufficient when the whole should be collected, to repay them, the said R. & J. Oliver, and the other orders so as aforesaid stated to have been drawn on them by the said Taylor, in favor of other persons, as well as the aforesaid order in favor of the complainants. That afterwards, J. Oliver departed this life, and subsequently, December 1834, the said R. Oliver also died, leaving a last will and testament, whereof he appointed the defendants, now appellants, executors, who have proved the same, &c. That the said R. Oliver,  [**3]  in his life time, although admitting the receipt of a large sum of money from the claim on the Spanish government, on account of the ship Warren and cargo, and from other sources--being a part of the property, claims and demands so assigned to them by Taylor, yet denied that it was more than sufficient to satisfy their own claim or debt due by Taylor, or was sufficient to pay any part of the debt due to the complainants, and refused to give any account of the debt due to the said R. &. J. Oliver, or of the previous orders to other persons, or of the true amount of the money so received by him. That since the death of the said R. Oliver, other large sums of money have been realized by his executors from claims under the French Indemnity Treaty, and other claims assigned as before stated. That the sums so received, were and are sufficient to pay and satisfy the amounts then due and owing to the complainants on account of the aforesaid order, after satisfying the said debt due from Taylor to R. & J. Oliver, and the other orders so given to other persons; and that sufficient assets have come to the hands of the defendants, as executors, to pay and satisfy the complainants. The bill alleged,  [**4]  that the complainant's debt was unpaid; that the executors after notice and demand being made on them by complainants, refused to pay them, or in any manner to account for the same. And the bill prays, that the defendants may shew the amount of the debt alleged to be due by Taylor to R. & J. Oliver, at the date of the order given by Taylor to, and in favor of the complainants. Also, the description, nature and value of the property, claims and demands so as aforesaid assigned by Taylor to R. & J. Oliver; and for an account, general relief and subpoena.

The order or draft addressed to R. & J. Oliver, directed them to pay the complainants "out of any funds you may "have belonging to me, (Taylor,) the sum of $ 10,000, after "deducting all claims and demands you may have against me "on any account whatever. On the payment of the above "mentioned sum of $ 10,000, Palmer & Hamilton will deliver to "you my two notes in favor of D'Arcy & Didier for $ 4,263.89 "and $ 4,288.19, and relinquish all claims against me. "Baltimore, 18th June, 1821. Signed, LEMUEL TAYLOR."

The subpoena requiring the defendants to appear on the first day of September next, (1837,) was returned endorsed "Summoned [**5]  Omnes."

15th November 1837, an interlocutory decree was signed by his honor Judge Purviance, A. J. of Baltimore county court, and a commission directed to be issued, which was issued and returned.

James Bosley, a witness sworn on the part of the complainants, proved the making and delivery of the order on which the suit is brought, and at the time of delivering this order, Taylor admitted the debt due from him to complainants was a just debt, and that he was bound to pay it.

3rd. That immediately after said order was given to deponent as agent of the complainants, he presented the same to R. Oliver, at his counting house for acceptance; that the said R. Oliver then agreed to pay the same when he should be in funds, after paying themselves first for the debt due by Taylor to them, and about $ 9,000, which he said Taylor had drawn orders for. *** That said R. Oliver further stated to deponent, that said Taylor was indebted to the said R. & J. Oliver in a considerable sum, but that he, Taylor, had given them large securities upon real and other property and claims, and that he, (R. Oliver,) had thought the real property or security would be sufficient to satisfy their [**6]  claim; but that in consequence of the depreciation at that time in such property, it might fall short; but at all events not more than $ 10,000, which, with the $ 9,000 of orders preceding that of the complainants, would have to come out of the Warren fund, or claim one of the assignments by Taylor to them, before the order of the complainants could be paid.

4th. That certain real property mentioned in complainants exhibit, being part of the real property conveyed by Taylor to R. & J. Oliver, was purchased by deponent of R. & J. Oliver, on the 25th March 1822, for the sum of 19,800, and the refusal of one of the executors of R. Oliver to pay the debt.

It will appear from the deed itself, that the conveyance of real property was made in trust to sell, for the purpose of reimbursing to R. & J. Oliver the value of 225 shares of the capital stock of the Bank of the United States at the time of effecting such sale.

Samuel Harris for the complainants, proves, that on the 23rd March 1822, sales of said stocks were made at one hundred and ten dollars per share.

David Hoffman for the complainants, proves, that R. Oliver was admitted by the commissioners under the Florida [**7]  Treaty, as a claimant on account of the ship Warren and cargo, to the amount of $ 50,000. That upon a final decree obtained by deponent for the seamen of the Warren, the amount recovered for them from all the assignees of the said fund which had been awarded by the commissioners under the Florida Treaty to said assignees, exceeded the sum of $ 40,000, and that upon the final adjustment of the portions to be paid by each of the assignees, it was found and admitted to be correct by the said R. Oliver; that he, as assignee, owed the seamen out of the amount so received by him, the sum of $ 17,636.09, which sum was paid by R. Oliver to deponent, on the 8th May 1832, and that as well as deponent remembers, the sum so paid him was somewhere about one-third of the entire sum awarded to R. Oliver.

Charles A. Williamson for the complainants, proves, that as paying officer in the Union Bank of Maryland, for the specific purpose of paying or settling the claims awarded under the French Indemnity Treaty, he paid to the executors of R. Oliver, between 16th June 1836, and 2nd April 1838, several sums of money, amounting in the aggregate to $ 15,762.69.

In answer to the libel of the seamen [**8]  of the Warren, R. Oliver admits, that he received under the Florida Treaty, for the interest of Taylor in the Warren and her cargo, the sum of $ 58,594.72, which was duly carried to the credit of the said Lemuel Taylor's debt as aforesaid, and his account charged with the expenses thereon.

The deed of assignment of the schooner Fawn and cargo, from Taylor to R. & J. Oliver, dated 18th June 1821, and purporting to be made in consideration of $ 20,000, at or before that time paid. It is upon this assignment, that under the provisions of the French Indemnity Treaty, the executors of Robert Oliver received the sum of $ 15,762.69.

At this stage of the cause, it was removed to the Court of Chancery on the 1st January 1839, &c.

8th January 1839, the cause was referred to the auditor with directions to state an account.

28th Jan. 1839, the auditor reported two accounts, A and B, in each of which he has ascertained and does so report, that there are funds in the hands of the executors of R. Oliver, out of which the order of Taylor in favor of the complainants ought to be satisfied.

In account B, which was adopted by the court, the auditor has charged the defendants [**9]  as executors, with the gross amount of indemnity allowed by the commissioners under the Florida Treaty, for the loss of the ship Warren and her cargo, as

________________________________________________________________________________
before stated and received, 6th June 1826,	$ 58,594 72	
	From this sum he has deducted:	
1.	For difference between the value of	
	225 shares of stock in the Bank	
	of the United States, and the pro-	
	ceeds of sale of real estate which	
	has been mortgaged or conveyed in	
	trust to secure the same,	$ 4,950 00	
	and interest thereon from the 25th	
	March 1822, (the day of sale,) to	
	8th June 1826,	1,249 87	
2.	For the amount of other drafts of	
	Taylor on Messrs. Oliver, which	
	were entitled to priority,	9,000 00	
	and interest thereon from 18th June	
	1820, to 8th June 1826,	3,240 00	
3.	For re-payment on account of wages,	
	&c. received by the crew of Warren,	17,636 96	
			36,075 83	
	
Making a balance in hand, 8th June 1826, of	$ 22,518 89	
 The claim of complainants is then stated:	
For principal of order,	$ 10,000 00	
For interest thereon from 8th June 1826, to 25th	
  January 1839,	7,578 33	
	
			$ 17,578 33	
________________________________________________________________________________

On the 8th February 1839, (December [**10]  term 1838,) the Chancellor (BLAND,) passed a decree ratifying the auditor's account B, and decreeing that the defendants pay "to the plaintiffs the sum of 17,578.33, with interest on $ 10,000, part thereof from the 25th day of January 1839, until paid, or brought into court, together with the costs of this suit, to be taxed by the Register."

From this decree the defendants appealed.  

DISPOSITION:
DECREE REVERSED.  

HEADNOTES:

The object of the Legislature by the first section of the act of 1820, ch. 161, was to provide a just, reasonable and expeditious mode of obviating the delays and difficulties to which complainants were subjected, by defendants disobeying the mandates of courts of equity, requiring them to appear and answer bills filed against them, so that in the event of the defendant's continuing disobedience, the complainant might have a remedy, as if an appearance and answer had in due time followed the order of the court.

The terms ex parte commission import, and the object of its issuing, as declared in the act of 1820, ch. 161, demonstrates, that it issues exclusively for the benefit of the complainant, and that he only under it is entitled to take testimony. It is issued to take testimony in support of the allegations in the bill.

Notice of the execution of such a commission, need not be given to the defendant.

So in cases under the act of 1820, ch. 161, sec. 1, the defendant is not entitled to notice of the time of taking the audit, it being exclusively made upon the proof on the part of the complainant.

At any time before final decree, if the defendant conforms to the requisitions of the law, and answers the complainant's bill, he is restored to all his privileges and means of defence, which are consistent with equity and good conscience.

Under an ex parte commission the defendant cannot cross-examine the complainant's witnesses; nor produce testimony for any purpose, nor can it be said of the complainant's proof when returned under the commission, that it is entitled to no greater weight than it would have been if taken after answer, denying all the allegations in the bill.

The complainant must offer such proof of the allegations in his bill, as would be exacted of him, if by the answer they were neither confessed nor denied.

When reviewing the decrees and orders of the Court of Chancery, this court is bound judicially to take notice of its general practice, and rules regulating the proceedings under which such decrees and orders were passed.

The act of 1820, ch. 161, was intended to enable a complainant to obtain a final decree in the same time that it could be obtained in the usual course, where the defendant had appeared and answered.

The third section of that act provides, that any defendant against whom an interlocutory decree shall be entered, under the provisions of the act, may appear and file his answer, &c., at any time before final decree--it contemplated an intervention of some reasonable time between the interlocutory and final decree.

Where a defendant files his answer, it is the practice of the Court of Chancery not to proceed to the passage of a final decree (but by consent,) until the commission returned has remained on file one entire term. The practice under the act of 1820, must conform to this. So the auditor's report must remain open and liable to exceptions, as in other cases.

The acts of 1825, ch. 117, sec. 2, and 1832, ch. 302, sec. 5, relate to all final decrees, as well those obtained under the act of 1820, as otherwise.

Where the proof taken in the cause shows he is entitled to relief in equity, the insufficiency of the averments of the bill can only be relied upon to defeat the claim, when excepted to under the act of 1832, ch. 302.

A conditional order drawn by T upon R, in favor of P, accepted payable when in funds, does not constitute a case for equity, because the funds had consisted of real property mortgaged, but which in fact at the time of filing the bill, had been sold and converted into money.

A bill for an insolated item, strictly legal in its character on one side, and three items of money had and received on the other, will not be sustained on the ground that it prays for an account.

T drew on O in favour of P., "out of any funds you may have belonging to me," for the sum of, &c. "after deducting all claims and demands you may have against me," (T) on "any account whatever. On the payment of the above mentioned sum, P will deliver you my two notes in favor of D, and relinquish all claims against me." R agreed to pay the same when he should be in funds, after paying himself first for the debt due by T, and about, &c., which T had drawn orders for." Held, that upon this acceptance an action at law could be maintained.

2. The words "on the payment" in the above order, do not constitute a condition precedent, but a condition of concurrent performance.

3. A decree founded upon the above order should be, that the defendant pay on delivery or tender of the notes, and release or deposit the money in court, to be paid over to the complainants on their filing in court the notes of T, and release to be delivered to the defendants. An absolute decree would be erroneous.

4. A bill founded on the above, should have tendered the notes in favor of D, and release, or offered to tender them. The law makes no presumption that they are in the hands of P, ready to be surrendered.

A bill of discovery should allege, that the facts of which the discovery is sought, are indispensable as proof to the complainant, and that he is unable to prove them except by the answer of the defendant.

The act of 1820, ch. 161, does not authorise a final decree upon bills of discovery, until the complainants, agreeably to the second section of that act, have obtained a decree pro confesso against the defendants.

The auditor's statement made upon proof in the record, if erroneous, should be excepted to under the act of 1825, or its errors will not as a general rule be reversed upon appeal.

A complainant in equity must allege in his bill, that he has done, or has offered to do, or is ready and willing to do, all that on his part is necessary to entitle him to the relief he seeks, or adequate reasons why he should be excused.

This court will not reverse the Chancellor's decree and pass a final decree in cases where it is not satisfied that it has all the proof before it to do full justice between the parties.

Where a bill is filed to affect a fund, in which different persons have an interest, all the persons interested therein should be made parties.  

COUNSEL:
BY ALEXANDER and R. JOHNSON for the appellants, who contended--

1. That the proceedings in the cause have been irregular; that is to say, that notice of the opening and execution of the commission issued under the interlocutory decree was not given to the defendants; that the commission when returned did not lie a full term after its return in court; that the auditor's report did not lie during the first seven days of the term succeeding the day on which it was filed, and that the final decree was passed in vacation.

2. That neither the case stated in the bill, nor the case attempted to be proved, shew any title in the complainants to the interposition of a court of equity. On the contrary, by their own shewing, they have ample remedy at law.

3. There is not sufficient [**11]  proof of the receipt by Robert Oliver or his executors, of funds out of which the plaintiffs' claim could be satisfied, nor if such proof of receipt by Robert Oliver existed, would it be admissible under the pleadings in this cause.

4. That it is not averred or proved, that the complainants have fulfilled the conditions which were, by the order itself, to be precedent to the payment of the money decreed to them.

5. That the decree is erroneous in directing payment by the defendants below to the complainants below, without requiring the complainants below to fulfil the conditions which, by their own shewing, ought to have been precedent to any such payment.

6. That Lemuel Taylor, the drawer of the order sued on by the complainants, has not been made a party to the bill.

7. That the bill contains no prayer for the decree actually rendered, or for any decree.

In support of their appeal from the order dismissing their petition, they will insist--

That the proceedings shew a clear case of surprise, which entitles the aggrieved party to demand that the decree shall be opened to let in their defence.

And by NICHOLS, W. SCHLEY and DULANY, for the appellees,  [**12]  who contended--

1st. That the proceedings in the cause have been regular and according to law; and herein as to the specifications of the appellants:

1st. That the interlocutory decree in the case was signed by Judge Purviance, properly, legally, and with due warrant of law.

2nd. That the commission to take testimony was issued, opened, and executed legally, and according to due warrant of law.

3rd. That the final decree in the cause was legally, regularly and properly passed.

And they will further contend, that even if it should be determined against them, that these are irregularities, yet that it is now too late for the appellants to make the objections.

2nd Point.--The appellees will contend, that the case stated in the bill does show a title in the complainants to the interposition of a court of equity.

3rd Point.--The appellees will contend, that it is shewn by the pleadings and the proofs, that Robert Oliver in his life time received monies or funds, part of the property placed in the hands of R. & J. Oliver, as a security for their own claim, and that the appellants, the defendants below, received as executors of R. Oliver, other funds or [**13]  monies, other part of the same property or securities in the hands of R. Oliver, for the purposes aforesaid; and out of these funds in the hands of the appellants, the claim of the complainants below ought to have been satisfied, and that there are assets in the hands of the said appellants to pay it.

And the appellees will further contend, that it is now too late for the appellants to make this objection, they having filed no exceptions in the court below, either to the report and account of the auditor, or to the sufficiency of the averments in the bill; or demurred on account of duplicity or multifariousness in the bill.

4th Point.--The appellees will contend, that the bill contains all the averments necessary and proper to be made by the complainants, to entitle them to the relief sought by them, and decreed by the court below. And they will further contend, that this is an objection to the sufficiency of the averments of the bill, and not now to be taken by the appellants, no exceptions thereto having been filed by them in the court below.

5th Point.--The appellees will contend, that the decree is not erroneous in directing the payment of money by the defendants [**14]  below to the complainants below, the complainants below having fulfilled all that was required, as shewn by their bill, to be precedent to such payment. But if overruled in this point, then they will contend, that this court will either amend the decree in this particular, or pass such a decree as they shall think ought to have been passed by the court below; and then the appellees will further contend, that they ought to be allowed the additional interest from which they were debarred by the auditor's report and account; to which exceptions were taken by them in the court below.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*436]  DORSEY, J., delivered the opinion of this court.
The first ground which has been urged for the reversal of the Chancellor's decree is, that notice of the opening and execution of the commission issued under the interlocutory decree, was not given to the defendants. On the part of the appellants it is insisted, that when a commission issues under an interlocutory decree, passed in virtue of the act of 1820, ch. 161, sec. 1, it is executed in the same manner, the testimony taken under it to have precisely the [**15]  same effect, as if the commission had issued, and the testimony been taken, after answer filed denying all the allegations in the bill, and general replication, and issue had been entered; and that the defendants had a right to appear before the commissioners, cross-examine the complainant's witnesses, produce and examine witnesses of their own, prove a receipt in full, or a release of the claim preferred by the bill, or give in evidence any matter of fact, which would defeat the complainant's right of recovery. To sustain the positions thus asserted, the appellants have referred to the case of Purviance and Dorsey, administrators of Dorsey, vs Barton's administrator, 2 G. & J. 311, as decisive upon the subject. This case according to our interpretation of it, decides none of the principles which it is alleged to have settled, not one of the questions now before us were presented to the view of the court, or were by it designed to be decided. The only question which the court was there called upon to determine was, whether under the first section of the act of 1820, ch. 161, after an interlocutory decree, a commission issued, and testimony taken, the Chancellor must [**16]  decree according to the testimony taken, or take the bill pro confesso, (as the Chancellor had done in that case,) and decree accordingly. And this court determined, that under the act referred to, the Chancellor 

 [*437]  had no authority to take the bill pro confesso; and therefore reversed his decree. It is true the court did reiterate the terms of the act of Assembly, but in reference to the aforementioned questions, they neither made, or contemplated making any adjudication. On the other hand the appellees contend, that conceding to the case of Purviance and Dorsey, administrators of Dorsey, vs. Barton's administrator, all the effect which is computed to it, it has been clearly overruled by the case of Grove vs. Fresh, 9 G. & J. 280. But for this construction of the court's opinion in Grove vs. Fresh, there is no foundation. None of the questions now presented were there brought to the view of the court, or considered by it, or intended to be adjudicated; no question as to the want of notice to the defendant of the time of taking testimony under the commission, or the making the audit, or as to the length of time the testimony thus taken should [**17]  remain in the Chancery court previously to a final decree, or as to the time the auditor's statement must remain in court, liable to exceptions, was suggested or decided by the court, in either of the cases referred to. The only precipitancy attempted to be shewn by the proceedings in the case of Grove and Fresh, was in the passing of the interlocutory decree. There, after the return of the commission, it remained as long in the Chancery court previous to a decree, as in any case it could be required to remain under any rule of the court.
Finding that we are untrammelled by any adjudged case, in deciding the questions raised on the true construction of the act of 1820, ch. 161, sec. 1, can the positions or any of them, hereinbefore asserted by the appellants, be sustained? In our opinion they cannot. The object of the Legislature in the section of the act referred to, was to provide a just and reasonably expeditious mode of obviating the delays and difficulties to which complainants were subjected, by defendants disobeying the mandates of courts of equity, requiring them to appear and answer bills of complaint filed against them. The design of the enactment was in the event of [**18]  the defendants continuing disobedience to the order of the court, to give to 

 [*438]  the complainant a remedy against him, as nearly as may be, as expeditious and effectual as if an appearance and answer had in due time followed the order of the court. It certainly never intended to reward the defendant for his contumacy, by giving to him all the advantages he could have derived from the most favorable answer that could have been made, and at the same time denying to the complainant all the benefit he would have derived under an answer confessing the matters charged in the bill. Such a construction would hold out to defendants a reward for disobedience of the orders of the court, and deprive the complainant of his unquestionable right of drawing from the defendant an answer upon oath, to every allegation contained in the bill. According to our construction of the act of Assembly, we think the Legislature acted wisely and with justice to both parties, in authorising an interlocutory decree against a defendant refusing to appear or answer, and an ex parte commission to take testimony in support of the allegations in the bill. The terms ex parte commission import, and the [**19]  object of its issuing, as declared in the act of Assembly, demonstrates, that it issues exclusively for the benefit of the complainant, and that he only is entitled to take testimony under it. It issues not for the taking of testimony generally in the cause, but in the language of the act of Assembly, for the taking of testimony to support the allegations of the bill. Why then should notice of the execution of the commission be given to the defendant? Indeed, to require it of the complainant would frequently impose upon him the continuance of much of the delay and difficulty which the act of 1820 was designed to obviate. For like reasons the defendant is not entitled to notice of the time of taking the audit, it being exclusively made upon the proof on the part of the complainant. Nor do we think a defendant has any reason to complain of being denied the privileges thus withheld from him. The moment he conforms, at any time before final decree, to the requisitions of the law, and answers the complainant's bill, he is restored to all his privileges and ordinary efficient means of defence, which are consistent with equity and 

 [*439]  good conscience. Should he obstinately hold out [**20]  and deny to the defendant the answer he is required to make, the disabilities under which he labours are the offspring of his own frowardness; a just visitation for his contumacy, and a necessary protection to the rights of the complainant. We deny then the doctrine so positively asserted on behalf of the defendant, that under the act of 1820, notice to the defendant is necessary to the execution of the ex parte commission, or that the defendant may cross-examine the complainants witnesses, or that under such a commission, he can produce testimony for any purpose whatever, (much less to prove a substantive matter of defence, which could only by his answer be made an issue in the cause,) or that the testimony under the the commission is entitled to no greater weight than it would have if taken in the ordinary way, after an answer denying all the allegations of the bill. A contrary determination would encourage defendants in withholding their answers; would enable them to raise issues on facts unsustained by their oaths, and would prejudice the rights of complainants in a way which no analogy or principle of a court of equity would sanction. It would impose on the complainants the [**21]  necessity of proving every fact alleged in this bill, by two witnesses, or one witness and pregnant circumstances. Such a requisition under the act of 1820, which was made for the benefit of the complainants, surely cannot be seriously contended for. All that is required of the complainant is, that he offer such proof of the allegations in his bill as would be exacted of him, if by the answer they were neither confessed nor denied.
Having disposed of the questions raised by the appellants in relation to the execution of the ex parte commission and auditor's report, previous to their being returned to the Chancery court, we come now to the consideration of the objection raised to the final decree, by reason of its being passed before the commission had remained in court one entire term after its return, and before the auditor's statement had remained in court liable to exceptions during the first seven days of a term, as required by the rules of the Chancery court. To evade the 

 [*440]  force of this objection, it has been insisted by the appellees, that the rules of the Chancery Court are not before us, and that we cannot judicially know what they are. It is true these rules [**22]  are not in the record, but we conceive that when reviewing the decrees and orders of that court, we are bound judicially to take notice of its general practice, and rules regulating the proceedings under which such decrees and orders were passed.
By the act of 1820, ch. 161, the Legislature intended as nearly as it could reasonably be effected, to enable a complainant to obtain a final decree in the same time that it could be obtained in the usual course of the proceedings of the court, where the defendant had appeared and answered conformably to its commands; but not that the act should be used as an engine of surprise, injustice, or oppression; acting with such extreme precipitancy, that in the five first days under the four days Chancery rule, and without it the two first days of the term to which the subpoena is made returnable, the whole process of interlocutory decree, commission returned, auditor's report and final decree passed, might take place; and the defendant be irremediably fixed for the amount of the decree, although if an opportunity were offered him, he could demonstrate, that the averments in the bill were insufficient to support the decree; that every [**23]  witness sworn under the commission was upon the face of the record incompetent; that all the testimony they gave, and all that was taken under the commission, was inadmissible; and that every item in the auditor's statement, even upon the testimony in the cause, was manifestly erroneous. If the doctrines contended for by the appellees be correct, and such decree were brought up for review by appeal to this court, with all its errors and inconsistencies staring us in the face, its affirmance could not be resisted. Did the language of the act of Assembly much more strongly than it does, warrant the interpretation put upon it by the appellees, we should hesitate long before we adopted it. But the nature of the evil intended to be remedied, and the language and provisions of the act itself, clearly repudiate this construction. 

 [*441]  The design of the act was to relieve the complainant from the unjust and oppressive conduct of the defendant; not to make the latter the victim of the injustice and oppression of the former.
The third section of the act provides, that any defendant against whom an interlocutory decree shall be entered under the provisions of this act, may appear [**24]  and file his answer, &c., at any time before final decree. This section of the act of Assembly was designed to reserve to the defendant an important privilege; it contemplated an intervention of some reasonable length of time between the two decrees. But if we regard it as communicating to the complainant the power of making the interlocutory and final decree occurrences of the same day, the reservation was little better than a mere mockery. The language of the first section of the act, with the obvious reasonableness and justice of the thing itself, appear to us to put the question now under consideration almost beyond the reach of argument. In stating the return of the commissions, and subsequent proceedings to be had thereon, it declares that the testimony taken and returned under them, shall have the same effect as if taken and returned in the usual way, on answer, general replication and issue, and the court shall proceed to a final decree in the cause in the same manner as if the defendant or defendants had appeared and put in their answers. Now in such a case the universal practice and rule in Chancery is, not to proceed to the passage of a final decree (but by consent of [**25]  parties,) until the commission returned has remained on file during one entire term. If on return of the commission the case be referred to the auditor, there is the same reason that his report should remain in court, liable to exceptions, according to the Chancery rule upon the subject, that there is for any other audit so remaining. The Legislature never contemplated by the act of 1820, investing complainants with the power of obtaining snap decrees, finally adjudicating on the rights of defendants, without giving them a reasonable time, such as is allowed under the rules and practice of the Chancery Court, (of which the General Assembly 

 [*442]  on this occasion must be presumed to have been cognizant,) to come in, answer and litigate, in the accustomed mode, the claims brought against them; or to shew the insufficiency of the averments in the bill; or that the testimony taken under the commission is from incompetent witnesses; or that it is inadmissible, or does not warrant the relief sought; or that the statement of the auditor is unsupported by the proof in the cause. To relieve complainants from the embarrassments under which they laboured, not to enable them to oppress or [**26]  do injustice to defendants by surprise or precipitation, was the intent of the law.
That the General Assembly put the same construction upon the act of 1820 that we have done, we think may fairly be inferred from their passage of the acts of 1825, ch. 117, sec. 2, and of 1832, ch. 302, sec. 5, which embraced all final decrees; as well those under the act of 1820 as those otherwise obtained. Upon no other hypothesis can we reconcile those enactments to that prudence, liberality and justice, which must ever be imputed to enlightened legislation.
The second point of the appellants is, "that neither the case stated in the bill, nor the case attempted to be proved, shew any title in the complainants to the interposition of a court of equity. On the contrary, by their own shewing they have ample remedy at law." To escape from this objection the appellees have insisted, that even if their bill be too artificially drawn, by reason of an insufficiency in its averments, to entitle them to the relief they have sought, yet that the proof in the cause having clearly established their right to the interposition of a court of equity, the appellants are by the fifth section of the act of 1832,  [**27]  ch. 302, precluded from urging as a ground of reversal, any such defect in the bill. And if their assumption of the efficacy of the proof offered be correct, we entirely concur in the position they have assumed. Being of opinion as before stated, that not only by the broad and explicit language of the acts of 1825, ch. 117, sec. 2, and 1832, ch. 302, sec. 5, are final decrees under the first section of the act of 1820, ch. 161 embraced, but that upon the soundest principles 

 [*443]  of equitable jurisprudence they ought so to have been. Does the proof shew a case entitling the appellees to relief in equity, is the matter to be inquired into? They allege themselves so entitled, because they were pursuing mortgaged premises which they could reach in no other way than through a court of equity. To this assertion the proof in the cause gives a conclusive negative. It shews, that long before the institution of this suit, the mortgaged premises had all be converted into money, which the appellees could without difficulty have reached by an action at law, either for money had and received, or a special action on the case, on the order of Taylor accepted by Oliver. It is also insisted, [**28]  that the bill must be sustained because it prays for an account. Under that head of equity jurisdiction, we think the present bill cannot be supported, the proof in the cause not shewing long or complicated accounts on both sides; but an isolated item, strictly legal in its character, on one side, and three items of money had and received by the appellants, out of which it is alleged that the claim of the appellees ought to have been paid. See Frietas and al. vs. Dos Santos and al. 1 Young & Jarvis 574, and King vs. Rosset and al. 2 Young & Jarvis 33.
But it is urged, that the appellant's claim against Taylor having a priority of payment out of the moneys received, the appellees could not proceed at law, from an inability to prove what was the complainant's claim. This difficulty we conceive existed but in the imagination of the appellees. After they had proved the amount of moneys received, the onus of proving the amount of the appellant's priorities, we apprehend was then thrown on them. It has been urged too, that the amount received by the appellants, to the extent of the appellee's claim, was money had and received by the former to the use of the latter,  [**29]  and that therefore a bill in equity would lie for its recovery. But this court has decided in the case of Adair vs. Winchester, 7 G. & J. 114, that where the remedy at law in an action for money had and received is clear and ample, that a bill in Chancery will not lie.
It has also been contended, that the order drawn by Taylor 

 [*444]  on Robert and John Oliver, rendered them trustees of the fund, and in its collection, agents of the appellees to the extent of their claim; and in both of those characters liable to be sued in equity. It is true that Courts of Chancery have gone great lengths in converting legal liabilities into quasi trusts and constructive agencies, where the ends of justice would be promoted thereby, and where no adequate relief could be obtained at law. And within the scope of the authority thus exercised, under some circumstances, and for the purpose of giving relief, where no legal remedy existed, a Court of Chancery might regard the order given by Taylor as an assignment and holding in trust pro tanto of the funds in Oliver's hands, on the condition mentioned in the order. As if for example, the Olivers had refused [**30]  to accept the order, and Taylor were insolvent; or if the estate of the Olivers were inadequate to the payment of their debts, and this fund could be traced specifically in the hands of their representatives, it would be treated as thus assigned and held in trust, notwithstanding the acceptance, and the appellees could reach it through the interposition of a court of equity. But in the case before us, the necessity and ground-work for such an equitable fiction does not exist, and consequently it cannot arise. Oliver has accepted the order; his estate is amply sufficient for its payment, and the appellees remedy at law was appropriate, easy and complete. If in a case like the present, where the claim asserted is strictly legal in form and substance; where the remedy at law is expeditious and ample, you grant to a court of equity the power ascribed to it, upon the principles upon which it is claimed, there is scarcely a case resting in contract, and now cognizable in a court of law, which may not be drawn into the vortex of Chancery jurisdiction.
To sustain the decree of the Chancellor it has also been asserted, that this is a bill of discovery; and although the complainant's [**31]  claim be in its nature exclusively cognizable at law, yet that the Chancery Court, for the purpose of the discovery, having obtained jurisdiction over the case, is competent to give full and final relief upon the whole subject matter. The decree 

 [*445]  cannot be supported on this ground, for various reasons; but few of which do we deem it necessary to state. In the first place the bill has neither the form or substance of such a bill of discovery. It does not allege, that the facts of which the discovery is sought, are indispensable as proof to the complainants, and that they are unable to prove them by other testimony. And secondly, the act of 1820, ch. 161, authorises a final decree in no such case, until the complainants, agreeably to the second section of that act, have obtained a decree pro confesso against the defendants, which has not been done. See 1 Story's Eq. 91, and Brown vs. Sivan, 10 Peters 502.
The appellants third point, if supported by the proof in the cause, forms no ground for the reversal of the Chancellor's decree confirming the auditor's statement. That statement is made upon the proof in the record; and if erroneous, the errors [**32]  must by exceptions be brought before the Chancellor for his decision thereon, and if not so excepted to, by the act of 1825, ch. 117, sec. 2, no advantages can be taken thereof in the Court of Appeals.
The appellant's fourth point is, that it is not averred or proved, that the complainants have fulfilled the conditions which were by the order itself to be precedent to the payment of the money decreed to them. We cannot agree with the appellant, that the condition specified in the order was a condition precedent, to be complied with on the part of the appellees before any demand of payment could be made. We regard the word "on" in the order, as a condition of concurrent performance; the acts dependent thereon, are neither to be performed before or after the payment of the money, but simultaneously with it. If neither party, reposing confidence in the other, see fit first to perform their part of the contract, the money should be produced and counted under the eye of the person to receive it; the notes produced with the release signed, and both inspected by the person to whom they are to be delivered; and the payment of the money and delivery of the notes and release, should [**33]  be simultaneous acts, without precedence in either; and should a decree be passed to enforce 

 [*446]  the execution of the contract, it should be, that the defendant pay on delivery or tender of the notes and release; or that the defendants deposit the money in the Chancery Court, to be paid over to the complainants on their filing in court, to be delivered to the defendants, the notes and release aforesaid. If such should have been the substance of the decree in this cause, the complainants on the face of their bill must shew, assuming the truth of its allegations, that they are in a condition to entitle themselves to such relief. It is also one of the oldest and soundest principles of equity, that he who goes into a Court of Chancery invoking its interposition in his behalf, must allege in his bill, that he has done, or has offered to do, or is ready and willing to do, all that on his part is necessary to entitle him to the relief which he seeks; or he must set forth adequate reasons why he should be excused from doing so. Every word in the present complainant's bill may be true, and yet they have no claim to the aid of a court of equity. To entitle them to demand payment of the [**34]  order in question, they must not only be ready to execute the requisite relinquishment, but must have delivered up, or offered to deliver up, or be prepared to deliver up, the two notes specified in the order. This they have no where either alleged or proved that they ever have done, or ever were in a situation to do; or that any reason exists why they are exempt from the necessity of so doing. No safe presumption can arise that the notes are now, or ever were in the possession of the appellees. They were drawn by Taylor in favour of D'Arcy and Didier, and non constat, that they are not now the holders thereof; or that the notes are not now in the possession of some bona fide holder, a stranger to these proceedings. But it has been argued as an apology for these defects in the bill and proof, that the surrender of these notes is of no benefit to Taylor, they being long before the filing of the bill or rendition of the decree, barred by the statute of limitations. The answer to this argument is, that the complainants had no right, by violating their contract, to impose on him the necessity of pleading limitations to a debt which he knew had not been paid. And even [**35]  if they had the right to do so, how 

 [*447]  does it satisfactorily appear to us that such a plea could avail him? For aught that we know, a short time before the filing of the bill or passage of the decree in this case, Taylor may have acknowledged the existence, or promised the payment of this just debt, knowing it had never been paid.
These objections to the relief which the complainants have obtained in the Chancery Court, it is said cannot arise in this court, since the act of 1832, ch. 302, sec. 5, which forbids the reversal here of any decree by reason of the insufficiency of the averments of the bill, unless an exception thereto be raised in the court below. The answer to this is obvious. The objection of the appellants is not alone to the insufficiency of averments, but to the total absence of all proof necessary to establish them, had they been properly made in the bill. Neither in terms, nor by intent, have the Legislature, by the act of 1832, given an efficacy to proof offered under defective pleadings, to which it would not have been entitled had the pleadings been perfect. But no latitude of construction which can be given to this section of the act of Assembly,  [**36]  will enable the complainants to eke out a case from the record before us, in which the decree in their favour can be sustained. Concede for the moment that the bill contains all the averments, of the absence of which the appellants have complained, and that in the record there is all the proof requisite to sustain such averments, can the decree of the Chancellor even then be supported? Assuredly not. It enjoins payment by the appellants of the amount of Taylor's orders in favour of the appellees, without requiring of the latter the performance of any part of the condition on which their right to demand, and the obligation or authority of the appellants to make the payment, were by the express terms of the order made to depend.
To remedy this defect in the decree the appellees insist, that it should not be reversed but be affirmed, with such an addition thereto as should have been made to it at the time of its passage. Tis true, this court may do so, if thereby the purpose of justice would be subserved. But we do not believe that such ends would be accomplished by an affirmance of the 

 [*448]  present decree in the manner suggested. Such a procedure would deprive the appellants [**37]  of all opportunity of defending themselves against the claim of the appellees, in the accustomed mode in which the rights of parties litigant are adjudicated in Chancery, (which system of adjudication is founded on the broad principles of equity and justice). And would, as is apparent from the record, do great injustice to the appellants, inasmuch as by the Chancellor's decree, the appellant's intestate is charged with the whole amount awarded to the Olivers as owners of the ship Warren and cargo, without any deduction or allowance by way of commission or otherwise for the intestate's services in prosecuting the claim, or for his expenditures incurred in procuring the necessary documents and proofs to substantiate it, or for counsels or agents fees necessarily accruing in the prosecution thereof. The existence of such disbursements and charges, we think we may fairly assume, from our knowledge of facts of universal notoriety in relation to such claims, and which appear by the answer of Robert Oliver in the District Court of the United States for the Maryland District, given in evidence by the appellees. And further, it would appear by the testimony of John Thomas [**38]  , that the assignments made to Robert and John Oliver were not merely to secure them for the debt due on account of the two hundred and twenty-five shares of United States Bank Stock, mentioned in the deed of trust, but in the language of the witness, "for advances and money paid by the said Robert and John Oliver for the said Lemuel Taylor." For none of which advances or payments, except for the two hundred and twenty-five shares of stock, does the decree of the Chancellor give any credit to the appellants. To affirm it therefore, in the mode proposed, would be against equity and conscience. The opinion of this court upon the appellant's fifth point, is fully disclosed in the views it has expressed on their fourth point.
The appellants sixth objection to the affirmance of the Chancellor's decree, (conceding this to be a case for the interposition of a Court of Chancery) is, we think, well taken. It is a fundamental rule of equitable jurisprudence, to the universality 

 [*449]  of which the case before us forms not one of the exceptions, that where a bill is filed to affect a fund in which different persons have an interest, all the persons interested therein [**39]  must be made parties, ut finis sit litium, that a multiplicity of actions may be avoided. That Lemuel Taylor was interested in the fund now in controversy, is not only apparent from the bill of complaint and proofs in the cause, but by the auditor's statement, confirmed by the Chancellor's decree, which shews a large balance due him, after satisfying all the other claims, even without embracing in the audit, the proceeds of the Schooner Fawn, and her cargo. For the payment of which balance, had he been a party, either complainant or defendant, he would have been entitled to a decree, and would have been forever precluded from claiming any other or greater sum on account thereof from the representatives of Robert Oliver, who would thus have been protected from all further litigation on the subject. But as the case now stands, none of the rights of Lemuel Taylor have been adjudicated. A new field of litigation is open to him and the appellants; and in their controversy every thing decided in this case may be repudiated and set at naught, and the Chancellor may be compelled to sign a decree, utterly inconsistent in every particular with that now before us. Against [**40]  such multiplied and vexatious litigation, and inconsistent adjudications, the appellants have upon the best established principles of equity, a right to be protected; and to obtain that protection may insist, that all persons interested should, before any decree in the cause, be made parties thereto, that their interests in the fund may be fully and finally adjusted.
The appellant's seventh point we deem it unnecessary to examine, its occurence not being probable in any future case, and enough having been already determined in the consideration of the preceding points to settle the fate of this appeal.
The court will sign a decree reversing the decree of the Chancery Court, and dismissing the appellees bill of complaint, but without prejudice to his legal rights, and without costs.
DECREE REVERSED.  

26 of 46 DOCUMENTS 

SAMUEL LUCAS et al. vs. THE ATTORNEY GENERAL AT THE RELATION OF MICHAEL MCBLAIR AND GEORGE COOKE, THE STATE'S COMMISSIONERS OF LOTTERIES.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 G. & J. 490; 1841 Md. LEXIS 39 

December, 1841, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Chancery, under the act of 1835, chap. 346.

The bill in this cause was filed on the 7th July 1841, and on behalf of the State of Maryland, Josiah Bayly Esq., Attorney General of the said State, at the suggestion of Michael McBlair and George Cooke, the State's Commissioners of Lotteries, that by an act of Assembly passed at December session 1838, entitled an act in aid of the construction of a State Armory and Town Hall, in the city of Baltimore, and the re-building and improvement of the Hanover Market House in said city, and by two supplements thereto passed at December session 1839, Samuel Lucas, William Gwynn, George G. Belt, Charles F. Mayer, Charles G. Ridgley and Oliver Holmes, (the last named appointed by the Mayor of Baltimore city by virtue of said acts, in the place of Solomon Hillen, Jr. originally named in the act of 1838,) were appointed commissioners with power and authority by a scheme or schemes of lottery, and the sales thereof, or of the tickets therein, to raise the sum of $ 225,000, free and clear of all expenses, and that the schemes of lotteries which have been submitted for approval under said acts, to the State Lottery Commissioners, and been [**2]  by them approved, amount in all to eleven million nine hundred and eighty-three thousand one hundred and forty-six dollars, all which said schemes have been drawn by the said Commissioners of the State Armory and Town Hall Lottery grant, or by their agents or assignees, and that in addition thereto, the said Commissioners of the State Armory and Town Hall Lottery grant, have drawn five other schemes of lotteries under said grant, (none of which have been approved by the State Lottery Commissioners, and one of which has never been submitted for approval,) amounting to one million four hundred and fifty-three thousand two hundred and twelve dollars, making in all thirteen million four hundred and thirty-six thousand three hundred and fifty-eight dollars, as the total amount of the schemes which have already been drawn, under the said act of 1838, and the supplements thereto. Further informing sheweth to your honor the said Attorney General, that the prizes in each of the schemes above mentioned, amounted to the sum which would be raised by the sale of the whole of the tickets in such scheme, and that each and every ticket issued in each of said schemes, contained upon its face a stipulation,  [**3]  that the holder should submit to a deduction of fifteen per cent. from such prize as it should draw. Further informing sheweth to your honor the said Attorney General, that fifteen per centum on the amount of all the schemes drawn as aforesaid, produces a sum of money, very far exceeding the sum authorised to be raised by the act of Assembly of 1838 aforesaid, and its supplements, even after the most ample deductions for expenses, charges and interest, and that the lottery privileges by the said acts granted, have by the drawings of said schemes, been fulfilled, exhausted and extinguished. Further informing sheweth to your honor the said Attorney General, that the said Lucas, Gwynn, Belt, Mayer, Ridgely and Holmes, propose and offer to draw in the city of Baltimore, two schemes of lotteries, one on the 8th day of July 1841, and one on the 10th day of July 1841, each purporting to be authorised by the above mentioned act of Assembly of 1838, and the supplements thereto, as appears by certain handbills published and circulated by said Commissioners of the State Armory and Town Hall Lottery, copies of which are herewith filed as part of this information, marked exhibits 1 and 2, and which [**4]  said two schemes have never been submitted for approval to, or approved by the State Commissioners of lotteries. Further informing sheweth to your honor the said Attorney General, that Michael McBlair and George Cooke, esquires, the State Commissioners of lotteries for the present time being, believe that the two schemes of lotteries proposed and offered to be drawn as aforesaid, are unauthorised by the laws of this State. All which actings and doings are contrary to equity and good conscience, and tend to the injury of the State of Maryland. In tender consideration whereof, and for as much as the appropriate remedy in the premises is in equity, to the end therefore that the said Samuel Lucas, William Gwynn, George G. Belt, Charles F. Mayer, Charles G. Ridgely and Oliver Holmes, may full, true and perfect answers make, upon their several and respective corporal oaths to all and singular the premises, and that as fully as if they were thereto particularly interrogated, and especially that they may state, &c., and may be perpetually enjoined and restrained from proposing or offering to draw, or drawing or disposing of any scheme or schemes of lotteries under or by virtue of the acts [**5]  of Assembly aforesaid, and that your informant may have all such other and further relief in the premises, as the case herein set forth may require.

The said Attorney General prays, that the court here will grant as well the State's writ of injunction (pursuant to the directions of the 21st section of an act of Assembly passed at December session 1828, chap. 127, entitled "a supplement to an act entitled an act to amend the lottery system") to the said Samuel Lucas, William Gwynn, George G. Belt, Charles F. Mayer, Charles G. Ridgely and Oliver Holmes, to be directed, strictly commanding and enjoining them, their servants and agents, from proceeding in the drawing of the two lotteries, or either of them, by them offered and proposed to be drawn, on the 8th day of July 1841, and the tenth day of July 1841, and from selling or drawing any scheme or schemes of any lottery or lotteries under and by virtue of said act of Assembly, passed at December session 1838, and the supplements thereto, until their right so to do can be determined, and also the State's writs of subpoena to the said Samuel Lucas, &c., then and there to answer the premises, and to stand to, perform and abide by such [**6]  order, direction and decree therein, as to your honor may seem meet, &c.

This bill was sworn to by George Cooke, one of the State Commissioners of Lotteries.

Exhibits No. 1 and 2 were filed with the said bill. The Chancellor (BLAND,) ordered an injunction as prayed on the 7th July 1841.

The joint and several answers of Samuel Lucas, William Gwynn, George G. Belt, Charles F. Mayer, Charles G. Ridgely and Oliver Holmes, all of the city of Baltimore, to the bill of complaint of information of Josiah Baily as Attorney General of Maryland, on behalf of the State of Maryland, exhibited in this court.

The respondents, reserving to themselves every exception to, &c., nevertheless for answer thereto say, that they admit they are Commissioners of the State Armory and Town Hall Lotteries, appointed by the act of Maryland of 1838, chap. 323, and the supplementary acts of 1839, chapters 52 and 93, or under the authority of said laws, and are duly qualified to act as such, and they refer to said acts and pray that the same may be taken and considered as a part of this answer, as fully as if they were here at large set forth. Your respondents further admit, that the schemes of [**7]  lotteries submitted by them to the State Lottery Commissioners for approval under the provisions of the said original act of 1838, chap. 323, amounted in the whole to the gross sum of about thirteen millions four hundred and thirty-six thousand three hundred and fifty-eight dollars, and that said schemes have been drawn either directly by respondents under said laws, or by a certain firm of the Messrs. Gregory and Company of New Jersey, to whom your respondents, under the power of sale vested in them by such laws, disposed of twelve of such schemes. Your respondents also admit, that since the first drawing of the schemes so approved by the State Lottery Commissioners, as aforesaid, and for reasons hereafter to be stated, they have drawn again five schemes, but not, as stated in the information, schemes which had never been approved by the State Commissioners, or presented to them for their approval, but on the contrary, were five of the schemes approved, as stated by the information by said commissioners, the said five drawings being only re-drawings of the same. Your respondents further admit, that when said information was filed, it was their purpose to draw on the 8th of this present [**8]  month of July, and on the 10th of the same month, two other schemes under said Town Hall grant, but they deny that such schemes were never presented to, or approved by said State Commissioners, and on the contrary aver, that like the five just above referred to, the said two schemes were another portion of the schemes approved by these officers. Your respondents further answering admit, that the prizes in each of the schemes so drawn as aforesaid, are equal to the whole amount of the sales of all the tickets in such schemes, if the whole are so sold and the proceeds all realized, and that each ticket therein so offered for sale under such schemes, was made upon its face subject to a deduction of fifteen per centum upon such prize as it might draw in such scheme; and of course they admit, that fifteen per centum upon the gross amount of the schemes aforesaid, if received, would amount to a much larger sum than two hundred and twenty-five thousand dollars, after deducting every expense to which respondents have, as commissioners aforesaid, been subjected, for it would amount to two million fifteen thousand four hundred and fifty-two dollars and seventy-cents. (2,015,452.70.) But your [**9]  respondents further answering say, that so far from having sold all of the tickets in the schemes aforesaid, and received the proceeds thereof, and raised the said sum of $ 2,015,452.70, as they would have done upon that contingency, twelve of the said schemes, amounting in the gross to five million one hundred and eighty-two thousand one hundred and twenty-five dollars and fifty-five cents, (5,182,125.55,) thus sold as hereinbefore stated, to the house of Messrs. Gregory & Company, and received from that house in full therefor but the sum of ten thousand seven hundred and seventy-five dollars and forty-seven cents, as they believe was known to said State Commissioners named in the information, Messrs. McBlair & Cooke. And your respondents further answering say, that the said purchasers of such lotteries, so far from having sold all the tickets in the same, and realizing as in that event they would have done, fifteen per centum upon the same, less the said amount paid by them to respondents, actually made upon said schemes but about two thousand dollars, as appears by a letter from that house to one of the respondents, and prayed to be taken as a part of this answer,--your respondents [**10]  being willing and offering to produce the original when required by your honor. Your respondents further answering say, as is indeed already shewn, that notwithstanding the amount of said schemes was as aforesaid well known to said Commissioners of State Lotteries, as so sold to Gregory & Company, and that fifteen per centum thereon would exceed by a larger amount the sum authorised to be raised by your respondents under the said act of 1838, and its supplements, the State Commissioners proceeded until lately, to approve the further schemes under said grants, and never intimated the ground now assumed by them, as stated in the information, or that the said grant was exhausted, nor even applied to the respondents to ascertain what their expenses have been, but on the contrary, went on to approve such schemes without questioning the right of respondents to draw further schemes under said grant; and the respondents further answering deny, that the lottery privileges granted to them as aforesaid, have been fulfilled and exhausted by the drawing of the schemes aforesaid, by the drawing whereof they are charged by said bill to have fulfilled and exhausted said privileges. And these respondents [**11]  deny, that they have raised by their schemes of lotteries and sales thereof, and by sales of tickets therein, more than the sum of twenty thousand dollars, free and clear and over and above all expenses and charges and interest, and they aver, that the whole gross sum so raised does not exceed said sum of twenty-thousand dollars, which gross sum, after deduction for all expenses and charges and interest (which expenses have been greatly incurred by the conduct of the State Lottery Commissioners) will not, these respondents aver, leave a larger amount than twelve thousand dollars.

Further answering respondents say and aver, that the whole amount of the sales of tickets made by them and their agents in the said twenty-six schemes drawn by themselves, was only fifty thousand two hundred and twenty-three dollars, upon which they realized only about the sum of two thousand dollars, after the payment of prizes and expenses chargeable against the same, which are about five thousand dollars, a particular account of which they will give your honor if the same should be deemed necessary. And your respondents further answering say, that at the time the said grant was made, as now the object [**12]  of the Legislature was to obtain in fact, and not by construction and fiction, the full sum originally contemplated, one hundred and fifty-thousand dollars, afterwards by the supplementary act enlarged to two hundred and twenty-five thousand dollars, for the accomplishment of the purely public purpose apparent on the face of the grant itself, the rebuilding of the Hanover Market House in the city aforesaid, and in connexion with the same the construction of a building as a Town Hall and State Armory, the latter of which was to be for the use and under the control of the State of Maryland; there was no private interest associated with the said grant, either to your respondents, or any one else, but on the contrary, as just stated, the sole object was the benefit of the State and the city aforesaid.

And your respondents contend, that the construction now urged by this information, if sanctioned, will utterly prostrate the purpose of the Legislature, and never could have been intended by them, since at the time said grant was given and enlarged, the reports of the State Commissioners to that body, or to the Executive, and known to the Legislature by communication from the Executive,  [**13]  shewed that the private contractors of the State Lotteries purchasing for their own profit, and interested of course in advancing schemes to the best advantage, were, and had ever been able to sell but a comparatively small number of tickets in each scheme. This will appear by an official letter from the State Commissioners dated the 31st December 1840, to His Excellency Governor Grason, and by him laid before the Legislature, and prayed to be considered a part of this answer.

And your respondents further answering say, that the contractors stated in said letter, were also the purchasers of certain consolidated lotteries, being private grants, consolidated under the provisions of an act of Assembly in that behalf, and that of these grants there remained, as appears by such letter of such as were called old, to be then raised, but the sum of $ 12,900.43, and of the two recent ones therein mentioned, fifty thousand dollars, and yet notwithstanding the ground now assumed by the State Commissioners as set forth in this information, that the amount raised in contemplation of such grants, is the stipulated per centum upon the prizes, or in other words, upon the gross amount of the schemes,  [**14]  the said Commissioners have, since said letter, approved from time to time twenty-six schemes under the said consolidated grants, amounting in the whole to five million six hundred and ninety-eight thousand five hundred and eighty dollars, and are now daily approving further schemes therein, and otherwise officially assisting said contractors in the drawing of the same.

Your respondents further allege, that before taking the ground now relied upon, that the grant of 1838, and its supplements, was exhausted, not by the respondents having in fact raised the sum of two hundred and twenty-five thousand dollars, "free and clear, aud over and above all expenses and charges and interest whatsoever," but that it was constructively done. The said State Commissioners insisted, that your respondents, although they were expressly exempted by the law itself from any tax whatsoever, in the selling of tickets in the schemes they might draw, were not authorised to sell by agents who were not licensed to vend lottery tickets under the general laws of the State, and for the purpose of putting an end to such agencies, without which the grant would be virtually nugatory, they set on foot certain [**15]  proceedings, which after came into Baltimore county court against certain persons for selling, as agents of respondents, and without being licensed as aforesaid, tickets in their said lotteries. Upon a full hearing of said proceedings, said court decided in favor of the said agents, and upon the ground that it was not the intention of the Legislature that the said grant should be subject in its execution to said license laws, as will appear by a printed copy of the opinion of said court, and prayed to be taken as a part of this answer.

It was not, your respondents further answering say, until that decision was heard, and after promising to approve further schemes for respondents under said grant, for several days thereafter, that the said Commissioners, contrary to their prior conduct, and to their course then and since pursued in the case of the consolidated lotteries, decided against approving such other schemes, not because they were in themselves objectionable, but because the grant was exhausted for the reasons set forth in the information, and not because the $ 225,000 were in fact raised, or that any sum at all adequate to effect the improvement designed to be made by the [**16]  grant, was so raised by respondents.

Being thus placed in the situation of abandoning the entire work, and seeing the will of the Legislature wholly frustrated, and the interest of the State and the city of Baltimore intended to be promoted by said grant, sacrificed, your respondents at once resorted to the only immediate resource left them, that of proceeding to redraw the schemes which had been partially drawn as aforesaid, until by actual sales of the tickets in such schemes, and not by constructive sales, they should be able actually to raise for the purpose of the improvement of the Town Hall and State Armory aforesaid, &c., the sum of two hundred and twenty-five thousand dollars, free, and clear and above and over all expenses, and so forth, and in this purpose they were engaged when arrested by the injunction issued by your honor upon the present information.

In conclusion your respondents further answering, aver and insist, that the grant in question of 1838, was not designed to be subject to any portion of the general lottery system, except so far as the provisions of that system are expressly referred to by it, and they must respectfully insist, that it is not especially [**17]  liable to the provisions of the third section of the act of 1828, ch. 129, upon which as they understand, the present information is alone founded, because first, that section is wholly retrospective, applying altogether to then existing grants, and because secondly, to apply it to this grant, would be to defeat the State herself in the great public object, which it was her purpose by that grant to accomplish, they therefore pray, that the injunction issued upon the information be dissolved and they be dismissed, &c.

The answer was sworn to by all the defendants. The several exhibits therein referred to were filed, but the reporters only consider it necessary to publish the opinion of ARCHER, Judge, in the case of the State vs. Roberts, decided by Baltimore county court.

STATE vs. ROBERTS.--The act of 1821, chap. 232, prohibits the opening any office or place for selling tickets in any lottery whatever, unless there be a license. The act of 1827, chap. 106, sec. 6 and 7, prohibits any occupant of a house from exhibiting thereat any sign or card that shall indicate that a dealing in lottery tickets is carried on, and all persons are prohibited from setting up any sign with [**18]  the like indication, unless such persons should be licensed; and the act of 1828, chap. 129, sec. 6, contains the like prohibitions. By the act of 1831, chap. 79, all persons offending against any law of the State having reference to the lottery system of the State, shall forfeit and pay the sum of thirty dollars. The appellee in this case having been empowered by the Town Hall Commissioners, appointed by the law of 1838, which is entitled an act in aid of the construction of a State Armory and Town Hall in the city of Baltimore, and the re-building and improvement of Hanover Market House in said city, put up a sign indicating that at his office tickets in the lottery authorised by the last act were for sale, and he did actually sell tickets, as has been proven in this cause, without having any license from the State to do so.

The suit has been instituted under the law of 1831, to recover the penalty thereby imposed for a violation of the laws first adverted to; and the sole question in the cause is, whether the appellee, acting for the Commissioners in the Town Hall Lottery, is amenable to the penalty; or in other words, whether he has violated any of the laws of this State by [**19]  the acts charged and proven against him; and this question is to be determined by the solution of the question, whether the law of 1838, authorising a lottery for a State Armory and Town Hall, so far as regards the present question, operated as a repeal of the laws above adverted to, which required licenses to be taken out by dealers in lottery tickets.

Whether the law of 1838 does operate such a repeal, is a question of intention, to be deduced from a just construction of the act. The act, to have the capacity of operating a repeal, must be repugnant to the former law, or it will be the duty of the court so to construe them, that they may stand together.

In determining this question, it may be important to inquire what is the nature and object of the alleged repealing law, for its construction may materially depend upon its character. A different rule of interpretation is applied in the construction of private grants and one for the public. In private grants, should any ambiguity arise, the construction is to be in favor of the State, but in public grants or grants for the benefit of the public, a different rule of interpretation should be applied. The rule of interpretation [**20]  in each case though variant, is founded on the same principle; which is the public interest and benefit.

The act of 1838 had several objects in view, all of a public character--such as the erection of a State Armory and apartments for military drill, confined not alone to militia of the city, but other military corps, and subjecting such building to the legislative control of the State, or in the language of the act, the Commissioners are to build above the Hanover Market, or otherwise in connexion with the same, a hall suitable for a State Armory, and for military drilling, and such other apartments for public purposes, and all such structures and contrivances for alarm bells, and signals for fire, as they may deem proper to construct. The above objects are all of a public character in which the State have a deep concern, as they are all connected with the safety of her citizens either in time of war or peace. There are other objects to be gratified by the law, which rather belong to the municipal corporation, an arm of the government, than to the government itself, such as the erection of a Market House and Town Hall.

Such being the public character of most of the objects [**21]  designed to be accomplished by the law of 1838, we are most clearly of opinion, that it should be liberally construed to effectuate the great design or intention to be accomplished by the law.

With this rule of construction for our guide, we shall proceed to examine the questions presented to our consideration.

The anterior laws had required licenses to be granted to dealers in lottery tickets, and had imposed a tax of five per cent. on the prizes.

The law of 1838 appointed Commissioners by name, and invested them with power to sell, to raise $ 150,000 by the sale of a scheme or schemes of a lottery, and the sales thereof or of the tickets therein, and without being subject to any tax whatever, which sum they were authorised to raise free from all expenses, charges or interest whatever. The commissioners were to give bond to perform their duties under this law, and they are furthermore empowered to sell the schemes, and the vendor and his assignees are vested with the same rights and privileges as the commissioners. Now two questions have been raised and most elaborately discussed under this law--whether,

1st. The commissioners could sell tickets in this lottery [**22]  themselves, without taking out any license, as required by the anterior laws, and

2nd. Whether they could appoint agents, with power to sell tickets, without obtaining a license.

As to the first question, whether the commissioners possess the power to sell without a license being first obtained--it is not necessary for us to determine whether after the passage of the law it would be competent for the Legislature to enact a law imposing a license or a tax on the commissioners, none existing at the time of the law. But we may be permitted to say, that in such a case, if the city of Baltimore have assented to the law according to its provisions, she has acquired an interest in her corporate capacity in the grant, which we think the Legislature could not impair, and if she have acquired an interest in the grant, by the surrender of important rights, as by surrendering her property in part for public purposes and assenting that her Market House shall be pulled down, any attempt to impose a tax even in the form of a license, would impair the contract, and would violate it upon the same principle as did the imposition of a license fee on the importer who sold by the package, violate [**23]  the Constitution of the United States. ( Brown vs. State of Maryland, 12 Wheat. 419,) or the tax laid by the State of Ohio on the operation of banking in that State by the late Bank of the United States--( U. S. Bank vs. Osborne, 9 Wheat. 739.) It is true it was there a question of power between two governments. It would likewise be a question of power whether the State government could impair her grant, and if in the former case she were prohibited from impairing or defeating her concession of power by imposing a license or a tax, she would be equally prohibited from impairing her grant to the corporation.

But the State has imposed no license or tax since the passage of the law, and the only question is, whether the anterior laws operate on the commissioners.

It must be remembered that the commissioners act gratuitously, without any compensation whatever. Could the State have intended to make these commissioners lottery brokers during the long period this grant may endure, and it is said it may last twenty years, and probably will; to change their occupations, to give bonds to do their duty, which would be to sell the tickets until the object should [**24]  be completed, and that without compensation; such must have been the intention if they are compelled to take out license, because under the license no one else could sell.

Again, could the State have intended that the commissioners should advance the amount of the license money out of their own pockets to subserve the public benefit, and wait until they could be indemnified by receiving money from the sale of schemes and tickets? We think not.

But what are the words of the law? The substance of the words is this, that the commissioners shall not be subject to any tax whatever. The words are as strong as they well can be made: they are not that they shall be subject to a tax, but to any tax; and to make it as strong as language can make it; they go further and say, it shall not be subject to any tax whatsoever. Now looking to these expressions as containing a personal exemption from taxation, was not the design manifest, by the existing laws, there was then no personal tax but the license tax; did they refer to that or to some future personal tax. It is said they did not refer to the license, for that a license is not a tax within the meaning of that term. Now the law of 1821 [**25]  expressly call it a tax--and the law of 1826 recognizes it as a tax; indeed they could not have done otherwise. Congress possessing power to lay taxes, under that power impose taxes by licenses--as for example during the last war, taxes in the shape of licenses were granted to carriage owners and to distillers, and we impose taxes on ordinary keepers, or hawkers and pedlars, by compelling them to take out licenses. These are extraordinary taxes laid upon occupations, and are treated by all lexicographers, legal and otherwise, and by writers on the wealth of nations, as taxes.

That a license is a tax, is too palpable for discussion, and comes within the terms of the law, unless there is something in the idea that it is a political or police regulation, intended to preserve, maintain and regulate the lottery system. If it were purely so there might be some weight in the argument, but it is not, it still has upon it the brand of tax impressed upon it by the first law.

It is true, the act of 1828 required the dealers in lottery tickets to give bonds, but this does not alter or vary the question. The design of this was only in aid of the general prohibition. The same obligation [**26]  not to violate the laws existed, when the first tax law in relation to a license was proposed, as existed after the bond was given; the bond was purely to protect the revenue. The truth is, that the whole lottery system, together with the tax on dealers are revenue laws and nothing else, and we hazard nothing in saying, that but for the amount produced and the necessities of the State, the whole system would long since have been condemned as a nuisance.

But if it be the kind of regulation contended for, it is only so in part. It must be conceded, as it has been, that it is in part a tax, and if it be, no matter what may have been the other design or object, still it is a tax, and comes within the terms, any tax whatever.

Again, could it have been the intention of the Legislature to make the Lottery Commissioners pay the same for a license for vending Town Hall tickets as other venders have to pay for selling all kinds of tickets in all the lotteries authorised by the State? If so, this would be a most unequal tax, and would operate great injustice, and we are not to attribute such injustice to the Legislature.

Upon every view of this subject we think the commissioners [**27]  might sell tickets without obtaining a license. We proceed to examine the second question.

Have they the power to appoint agents to sell without license? That they have power to appoint agents has not been denied, indeed could not be denied, because in any grant of power or authority, all that is necessary to the enjoyment of the grant and to perfect its objects, are necessarily and impliedly granted likewise; without such implied power the grant would be nugatory, and would have been more especially so in this case, because the persons appointed, from their occupations and habits, and from the character of the grant, could never have carried it into execution without the intervention of agents equally well skilled with those who sell and have been in the habit of selling under a license.

All grants of this description are necessarily carried out by the intervention of agents peculiarly skilled in forming schemes, in selling tickets, and in all the arcana of that trade.

But must they take out a license; and here again we would ask, must the commissioners employ those already licensed? They may refuse; they may if they please by such refusal defeat the grant.

Must [**28]  they buy licenses for their agents? We answer it would be unreasonable to say the Legislature intended them to buy licenses by advancing money for perhaps ten fifteen or twenty agents, at an expense of several thousand dollars, and when they purchase them the tax is unequal, for it is only to sell Town Hall tickets.

Again, would agents buy a license to sell these tickets alone? Contracts might never be formed, if, as a preliminary, these agents are to purchase general licenses.

If the agent sell, it is but the sale of the principal, and it must upon our construction be free from a tax--for it is a tax whether the agent take the license or the principal. The contract is one of clear agency, by the very terms of it, and the mode of compensation does not change its character.

But it is said this is a most dangerous and enlarged power, it overturns the whole lottery system. We might answer, that was for the consideration of the Legislature; we must be governed by the terms they have used; but why should we not contend the Legislature to have made this grant to this extent.

The lottery system is for revenue. The State Armory is a great State object and must be built,  [**29]  and the State is not able to appropriate $ 150,000 for that object. In this State of things they only say, we will from year to year take so much from our lottery system to accomplish a great State object. This is the inference we draw from the act of the Legislature, and we think it is a just and legal inference, and in so deciding we think we further their views as disclosed by their acts.

In conclusion, we think the appellee has committed no offence against the laws of this State, as the anterior laws porhibiting the sale of lottery tickets, or the dealing therein, is repealed so far as regards the Town Hall Lottery, by the law of 1838, and that the Town Hall Commissioners, and their duly authorised agents, possess full power by this law to sell tickets in the lotteries designated by that law, without obtaining any license whatsoever.

The defendants then petitioned the Chancellor to appoint an early day for the hearing of the matters in controversy, which petition was dismissed, and the complainants filed in court exceptions to the answer of the said defendants.

1st. For that whereas it is positively alleged, in and by said bill and information, that the said defendants [**30]  proposed and offered to draw in the city of Baltimore, two schemes of lotteries, one on the 8th day of July 1841, and the other on the 10th day of July 1841, each purporting to be authorised by the act of 1838, therein referred to, copies of which said schemes are filed with said bill and information as Exhibits 1 and 2, and although the said defendants, in and by their said answer, admit that it was their purpose, when said bill and information was filed, to draw on the 8th and on the 10th of said month, two schemes under said act, yet they do not, in terms, admit nor deny, whether the said two schemes, by them so proposed to be drawn, were or were not the said two schemes of which said exhibits are copies.

2nd. For that whereas it is positively alleged in and by said bill and information, that besides drawing certain approved schemes, the said respondents had drawn five other schemes of lotteries under said grant, (none of which had been approved by the State's Lottery Commissioners, and one of which had never been submitted for approval,) and although the respondents admit, that since the first drawing of the schemes so approved by the State Lottery Commissioners, they have [**31]  drawn again five schemes, but not, as stated in the information, schemes which had never been approved by the State Commissioners, or presented to them for their approval, but on the contrary, were five of the schemes approved by said commissioners, the said five drawings being only re-drawings of the same; and although the said respondents do thereby admit that the said five schemes were all and each of them drawn the second time, yet it is not admitted or denied, directly or in terms, whether or not the said re-drawings or second drawings, were with the approval, or without the approval of the State Lottery Commissioners--nor whether the said schemes respectively were or were not of such construction that one drawing would necessarily determine the fate of all the tickets therein--or whether or not the said schemes were of such construction that one or a first drawing thereof would only partially determine the fate of the tickets therein--nor whether the said first drawing was a full and complete drawing, or only a partial one; and if partial, in what respect, and how in certain,--nor whether the said re-drawings or second drawings of said five schemes were full drawings thereof,  [**32]  or only partial drawings thereof--and whether in the first drawings of said five schemes, any prizes were drawn or not, and if any, whether in the said re-drawings the same, or any of the same, prizes were drawn or not, and whether, previous to such first drawing, any tickets were sold or not in the said schemes; and whether, the same tickets, or any of the same tickets, were considered or were not considered as embraced in said schemes, when the same were, as alleged, re-drawn by said respondents, so that the said answer in these respects is uncertain, evasive, and insufficient.

3rd. For that whereas, although it is positively alleged in and by said bill and information, that the said respondents proposed to draw two schemes on the 8th July and 10th July 1841, which said two schemes it is therein further alleged, had never been submitted for approval to, or approved by the State's Commissioners of Lotteries; and although the said respondents in one part of their said answer, to wit, on the fourth page thereof, deny that such schemes were never presented to, or approved by said State Commissioners, and on the contrary aver, that like other five schemes in said answer referred [**33]  to, the said two schemes were another portion of the schemes approved by those officers, and although in another part of the said answer, to wit, on the sixteenth page thereof, et sequentibus, it is stated, in effect, that the State Commissioners did decide against approving further schemes, on the ground that the grant was exhausted, and that respondents at once resorted to the only immediate resource left them, that of proceeding to re-draw the schemes which had been partially drawn, until, by actual sales of the tickets in such schemes, and not by constructive sales, they should be able to raise said sum of two hundred and twenty-five thousand dollars, free and clear and above and over all expenses, &c., and that they were engaged in this purpose when arrested by the injunction in this case. Yet it is not stated with any certainty whether the said two schemes, proposed to be drawn on the 8th and 10th of July respectively, had been, or had not been, submitted to the State's Commissioners for approval, as original schemes proposed to be drawn on said days respectively, and whether the same had been, or had not been, approved by said commissioners as original schemes proposed to be [**34]  drawn on said days respectively; or whether either of them had so been approved or not; and if upon the true interpretation of said several parts of said answer, it is to be understood as sufficiently alleged that the said two schemes intended to be drawn on said 8th of July and said 10th of July respectively, were re-drawings of schemes which had been submitted as proposed to be drawn on certain days then past, and which had been approved by said commissioners as schemes so proposed to be drawn on certain days which have since passed; yet it is not stated with any precision or any certainty, express or demonstrable, whether the said schemes so proposed to be drawn on said 8th and 10th of July, were full schemes or only parts of schemes; that is to say, whether the said scheme of the 8th July, and said scheme of the 10th July, were respectively the exact counterparts of schemes which had been approved by said commissioners, with no other alteration except the substitution of the said respective days in lieu of other and different days, or whether the said schemes were only remnants of schemes which had been approved by said commissioners, for other days, and which had only been partially [**35]  drawn on such other days, and the residue and undrawn parts whereof, and no more, were intended to be drawn on said several days respectively; and if exact counterparts, it is not stated whether, at the first drawing thereof, any tickets were sold or not, and if any, whether any prizes were drawn or not by the holder of such tickets, and whether the said drawing was a full and complete drawing so as to determine the fate of all tickets, sold and unsold in said scheme or not, and if not, to what extent, and if only remnants of schemes, then whether the same did not purport to decide the fate of all tickets, and to dispose of all the prizes in said original schemes, respectively or not. In all which particulars said answer is very uncertain, evasive and insufficient.

4th. For that so much and all such parts of said answer as relate to the consolidated lotteries, commencing at page twelve of said answer, towards the bottom of said page, at the words "and your respondents further answering say, &c." down to the end of the seventh line from the top of the fourteenth page of said answer, are and every portion thereof is, impertinent to the matters in controversy in the cause.

5th.  [**36]  That so much of said answer, as relates to the right claimed by respondent to sell tickets, without license, by agents, beginning at the words "your respondents further allege," on the fourteenth page, and continuing down to the end of the eighth line on the sixteenth page inclusive of the Exhibit C filed with said answer, is, and the matters therein contained are, wholly impertinent to the merits of this case, and the matters in controversy in this cause.

6th. For that said answer is, in other respects, informal, defective and insufficient.

And afterwards, to wit, the defendants filed in court their amended answer in the words following, to wit:

Attorney General, in behalf of the State of Maryland, at the relation of M. McBlair and George Cooke, Commissioners, vs. Lucas, Gwynn and others. In Chancery.

The defendants agree to amend, and with the consent of the Attorney General, do hereby amend their answer in the following particulars.

1st. In answer to the first exception, the respondents admit, that Exhibits 1 and 2 of the information, are exact copies of the several schemes, proposed by these respondents to be drawn, as set forth in said information, on [**37]  the 8th July and on the 10th July respectively, as expressed on the face of said exhibits.

2nd. In answer to the second exception, the said respondents say, that the said five schemes, referred to in said exception, are exact counterparts of schemes which had been originally submitted by these respondents to the State's Commissioners of Lotteries for approval by them, as schemes to be drawn by these respondents under said act of 1838, chap. 323, and its supplements, and which said schemes, originally submitted, were approved by said State Commissioners as schemes to be drawn on certain specified days, and which said schemes were afterwards drawn by these respondents on the said several specified days appointed, in that behalf, by said State Commissioners; that said schemes were all constructed on the combination system, precisely in like manner as the schemes produced as Exhibits 1 and 2 of the information--and that said several schemes were drawn, by putting into the wheel the whole of the numbers used in combination in the construction of said schemes, and by drawing therefrom such a number of tickets, as upon the principles of construction of such schemes respectively would,  [**38]  and did decide the fate of all the tickets therein--that tickets were sold in each of said schemes before the original drawings thereof, but not the whole amount of re-tickets in said several schemes, or the whole amount of the tickets in any one of the said schemes, or any considerable part of the tickets in any of said schemes; that prizes were drawn by some of the tickets, so sold, in each of said several schemes, so drawn by these respondents, that the said five schemes were re-drawn, or drawn the second time by these respondents, without any new or second approval thereof by the said State Commissioners, and on certain days appointed in that behalf by these respondents, without the approval in that behalf of said State Commissioners, and without application to the said State Commissioners in respect of one of said schemes, for their approval in that behalf, that in the re-drawings or second drawings of said five schemes, no deduction was made for tickets sold prior to the first drawing of said schemes respectively for tickets sold in any of said schemes, nor any deduction for prizes drawn in said several schemes respectively, or any of them, but that said second drawings were [**39]  the full and entire drawings of said several schemes respectively, without any alteration, except the substitution by these respondents as aforesaid, of different days, in each case, for the several days appointed for each scheme respectively, by the said State Commissioners, when they approved the said several schemes respectively.

3rd. In answer to the third exception, the said respondents admit, that the said two schemes, proposed to be drawn on the 8th July and the 10th July 1841, are exact counterparts of drafts, which had been originally submitted by these respondents to said State Commissioners for approval, and which were approved by said commissioners, as schemes to be drawn on certain specified days, appointed in that behalf by said State Commissioners, and which said two schemes were afterwards drawn by these respondents on the said several days appointed in that behalf by said State Commissioners, and that prior to such drawings of said several two schemes, tickets were sold in each of said schemes, and that upon such drawings prizes were drawn by certain of the tickets so sold in each of said schemes; that said two schemes when drawn were drawn severally in every [**40]  particular, in the same manner as the said several schemes, marked Exhibits 1 and 2, are proposed on their face to be drawn; that the whole amount of tickets in said several schemes were not sold prior to such drawings thereof, nor was the whole amount, nor even any considerable part of the tickets in either of the said schemes sold prior to the drawings thereof; that the said two schemes, marked Exhibits 1 and 2, were not submitted to said State Commissioners for approval again since they were so first drawn, nor was any application made to them to sanction their drawing on said several days, specified on the face of said exhibits on the drawing of either of them, on the said day specified on its face; that said days, to wit, the 8th of July and the 10th of July, were severally appointed by these respondents, without asking or obtaining the approval in that behalf of said State Commissioners.

On the 27th of July 1841, the Chancellor (BLAND,) passed the following order:

The exceptions to the answer of the defendants, and the motion to dissolve the injuction by consent, standing now ready for hearing, and the solicitors of the parties having been fully heard, the proceedings [**41]  were read and considered.

Whereupon it is ordered, that the fourth, fifth and sixth exceptions to the answer of the defendants, not having been answered, the same are hereby sustained, and the impertinent matter therein specified and referred to, be, and the same is hereby rejected and expunged from the said answer; and it is further ordered, that the injunction heretofore granted in this case be, and the same is hereby continued until the final hearings or further order.

The defendants prayed an appeal from the order of the Chancellor of the seventh of July eighteen hundred and forty-one, granting the injunction, and also from the order of the twenty-seventh of July of the same year, sustaining the fourth, fifth and sixth exceptions to the answer of the said defendants, and continuing the said injunction.  

DISPOSITION:
ORDERS AFFIRMED.  

HEADNOTES:

Commissioners appointed by act of Assembly with authority to raise a certain sum of money by the sale of schemes and tickets in a lottery having exhausted their privilege in construction of law by the schemes and tickets offered for sale, yet alleging they had not in fact raised the required sum, proposed to offer now schemes, and proceed as before with a view to realize the sum authorised to be raised, may be restrained by injunction, upon the relation and information of the lottery commissioners uniting in a bill with the Attorney General in behalf of the State, showing the exhaustation of the powers under the grant.

By the act of 1838, chap. 323, commissioners were appointed with full power, by a scheme or schemes of lottery, and the sales thereof, or of the tickets therein, and without being subject to any tax, to raise the sum of one hundred and fifty thousand dollars, free and clear, and over and above, all expenses, and charges, and interest whatsoever. By the act of 1839, ch. 52, it was enacted, that the privilege of drawing a scheme or schemes of lotteries conferred as above, should cease so soon as by the drawing of the said schemes the nett sum of $ 225,000 shall have been raised. By the second section of the act of 1838, the scheme or schemes "shall be approved by the Commissioners of Lotteries, or any one of them, before the same or any tickets shall be drawn, or be authorised to be sold, and the commissioners appointed by the act of 1838, were required to give bond for the faithful discharge of their duties." HELD, that in making this grant, the Legislature assumed, that all the tickets in the schemes which the said commissioners so appointed, would propose, and put into market, would be sold before the drawing of any such scheme, and that as they had proposed, and in part sold, various schemes which purported to raise a larger sum than they were authorised to raise, the grant was exhausted.

The act of 1817, ch. 154, sec. 1, provides, that in all cases where lotteries have been heretofore authorised, under which power is given to raise a particular sum of money, by one or more lotteries, and the managers may have drawn a lottery or lotteries, the schemes of which purported to raise the sum authorised to be raised, that in all such cases the power and authority given to raise money thereby, be and the same is hereby considered as completed, and the power to draw any other lottery or lotteries under the same authority, be and the same is hereby declared at an end. HELD, that this enactment, though in terms not declaratory, yet such must be its judicial construction; and it must be regarded as of controlling influence in the ascertainment of the legislative will in all subsequent acts upon such subjects. That act was not only intended to raise revenue for the State, but also prescribed rules and regulations in respect to all lotteries to be drawn in the State, and the approval of all schemes by the Lottery Commissioners.

The act of 1828, ch. 129, sec. 3, prescribes a rule of conduct for the Lottery Commissioners in all future time, as well in its terms as in its nature and object, embracing future as well as antecedent lottery grants.

As a general proposition it is true, that all schemes of lotteries drawn after the act of 1828, whether under antecedent or subsequent grants, must be submitted to the Commissioners of Lotteries for their approval and determination, whether they are authorised by law.

The face of the scheme furnishes the sole test to those commissioners, whether the grant is exhausted or not.

The Legislature never contemplated the drawing of lotteries upon the sale of a small portion of their tickets.

The terms and expressions "to raise a sum," "to propose a scheme or schemes to raise a sum" by lottery, as used in the acts of this State, have the same meaning and effect.

The court will not by implication give such a construction to a lottery grant, nor establish such a rule of interpretation, as must oblige it to repeal an important branch of the State's annual revenue.

In lottery grants, except those drawn by the Lottery Commissioners for the benefit of the State, under peculiar legislative provisions applicable to them only, every scheme is construed to raise the sum it purports to raise.

Whether one act of Assembly repeals another by implication, is a question of intention to be deduced from a just construction of the act relied upon as repealing a prior act. To have the capacity of operating a repeal, it must be repugnant to the former law, or it will be the duty of the court so to construe them that they may stand together. Per ARCHER, J.

It is important to enquire into the nature and object of an act relied upon as repealing a prior act, for its construction may materially depend upon its character. Per ArCHER, J.

A different rule of interpretation is applied in the construction of grants by the public of a private nature, and grants by the public for the public benefit. In the former, should any ambiguity arise, the construction is to be in favor of the State; in the latter a different rule should be applied. The rules of interpretation in each case, though variant, are founded on the same principle; which is the public interest and benefit. Per ARCHER, J.

An act which authorised the erection of a State Armory with apartments for military drill, to be under the control of the State--and structures and contrivances for alarm bells, and signals for fire, in a populous city of the State, with authority to build a market house and town hall, is a grant of a public character, and should be liberally construed to effectuate the designs intended to be accomplished by it. Per ARCHER, J.

The acts of the State prior to 1828, ch. 129, required persons vending lottery tickets to be licensed, and imposed penalties upon those violating the laws in relation to lotteries. The act of 1838, ch. 323, appointed commissioners by name, and authorised them to sell schemes and tickets of lotteries, exempting them from any tax whatever. The vendors of tickets under the authority of the commissioners, are not obliged to take out a license, nor subject to a penalty for a sale without a license. Per ARCHER, J.

Where the city of Baltimore acquired an interest in a public grant, surrendering, according to its provisions for public purposes, important rights of property, an attempt to tax the privileges secured by such grant, would be a violation of contract. Per ARCHER, J.

A license required to be obtained by the payment of money, is a tax. Per ARCHER, J.

The lottery system with a tax on dealers, are revenue laws. Per ARCHER, J.

In any grant of power or authority, all that is necessary to the enjoyment of the grant, and to perfect its objects, are necessarily and impliedly granted likewise; and so when an agent is necessary to carry on the power, the right to appoint will be implied. Per ARCHER, J.  

COUNSEL:
By JOHN NELSON and R. JOHNSON for the appellants, and

By J. N. STEELE and W. SCHLEY, for the appellees.

Act of 1838, chap. 323. An act in aid of the construction of a State Armory and Town Hall in the city of Baltimore, and the re-building and improvement of the Hanover Market House, in said city.

Whereas, sundry citizens of Baltimore,  [**42]  propose to have constructed a State Armory and Town Hall, and other apartments for public uses, and to re-build and enlarge the Hanover Market House in said city, over or in connection with which Market House, it is contemplated to construct said Armory, Town Hall, and other apartments; and whereas, the said undertaking will subserve materially the public convenience and interests; and it is represented, that to accomplish these highly useful objects, adequate means cannot be procured, save through the privilege of a Lottery. Therefore,

SEC. 1. Be it enacted by the General Assembly of Maryland, That Samuel Lucas, William Gwynn, George Gordon Belt, Charles F. Mayer, Charles George Ridgely and Solomon Hillen, junior, of the city of Baltimore, be and they are hereby appointed commissioners, with full power and authority, by a scheme or schemes of lottery, and the sales thereof, or of the tickets therein, and without being subject to any tax whatsoever, to raise the sum of one hundred and fifty thousand dollars, free and clear, and over and above all expenses, and charges, and interest whatsoever.

SEC. 2. And be it enacted, That the scheme or schemes aforesaid, shall be approved [**43]  by the Commissioners of lotteries, or any one of them, before the same, or any tickets, shall shall be deemed to be authorised to be sold, and that before the said commissioners may sell as aforesaid, they shall enter into bond with sureties to be approved, and in a penalty to be fixed by said commissioners of lotteries, or any one of them, condition for the faithful discharge of their duty as commissioners, and for the due application for the purpose of this act, of the monies coming to their hands as commissioners, which bond or bonds shall be made to the State of Maryland, and be filed in the clerk's office of Baltimore county court, and may, on a certified copy thereof as evidence, be sued as other public bonds may, by any person or persons, or body politic interested in the condition thereof.

SEC. 3. And be it enacted, That the said commissioners appointed by this act, may sell for such sums of money as they may deem proper, the scheme or schemes aforesaid, and the purchasers thereof, and their assigns, shall have and enjoy all the rights and privileges in the disposal of the tickets in said schemes, and the raising money therefrom, as are by this act conferred on said commissioners;  [**44]  provided however, that before such purchasers or their assigns shall so avail themselves of said schemes, they shall enter into bond to the State of Maryland, with sureties to be approved, and in penalty to be fixed by said commissioners of lotteries, or any one of them, for the punctual payment of all prizes that shall be drawn to such tickets, and the bond or bonds shall be filed, and may be sued as provided in cases of said bonds of said commissioners, and said commissioners shall make report, verified by affidavit, immediately upon making the sale or sales of a scheme or schemes as aforesaid, particularly certifying the amounts and terms of such sales.

SEC. 4. And be it enacted, That the commissioners by this act appointed, shall (provided the assent of the Mayor and City Council of Baltimore be given this act,) have full power and authority to take down, and upon such plan and dimensions as to them shall seem fit, to rebuild the Hanover Market House in said city; and above the same or otherwise in connection therewith, to cause to be constructed a hall, suitable for the State Armory and for military drilling and Town Hall, and such other apartments for public purposes, and [**45]  all such structures and contrivances for alarm bells and signals of fire, as said commissioners may deem proper to construct; and in order to the enlargement of the site of said Market House, and otherwise for the objects aforesaid, the said commissioners may, in the name of and for the Mayor and City Council of Baltimore, purchase any grounds whatsoever, and the said commissioners to the purposes aforesaid, shall apply the nett monies aforesaid, accruing to them under and by virtue of this act; and when all said buildings and improvements shall have been completed, the same shall be surrendered by said commissioners to the Mayor and City Council of Baltimore, who are hereby authorised to pass all ordinances for the regulating thereof; provided however, that there be reserved for the use and control of the State of Maryland, such apartment or apartments in said buildings, as may be selected and designated by the Governor, for the purpose of an Armory for the service of the militia and volunteer corps of the city of Baltimore, or other military corps, and for a place of military drill, subject to such regulations as the General Assembly of Maryland, may from time to time enact, regarding [**46]  the uses thereof aforesaid.

SEC. 5. And be it enacted, That when the said commissioners shall, in place of selling a scheme, sell the tickets therein, it shall be the duty of the commissioners to pay the prizes which may be drawn to such tickets, which obligation shall be deemed to be within the condition of their bond or bonds as aforesaid.

SEC. 6. And be it enacted, That any vacancies that may from time to time occur by resignation, death, declining to act, or any other cause in the board of said commissioners, shall be filled by the Mayor of the city of Baltimore, the persons appointed to such vacancies being however hereby required, before they shall be competent to act, to enter into bond, with sureties and condition, in penalty as prescribed by the second section of this act in regard to the commissioners herein named.

SEC. 7. And be it enacted, That this act and all the privileges, franchises and rights conferred hereby, shall expire and cease to be exercised at the expiration of two years from and after the passage of this act.

Act of 1839, chap. 52. A supplement to the act of Assembly passed at December session eighteen hundred and thirty-eight, chapter [**47]  three hundred and twenty-three, entitled an act to aid in the construction of a State Armory and Town Hall in the city of Baltimore, and the re-building and improvement of the Hanover Market House in said city.

Be it enacted by the General Assembly of Maryland, That the seventh section of the act to which this is a supplement, be, and the same is hereby repealed; provided however, that the privilege of drawing a scheme or schemes of lotteries conferred by said act and this supplement, shall cease so soon as by the drawing of the said schemes, the nett sum of two hundred and twenty-five thousand dollars shall have been raised; and provided, that nothing herein contained shall be construed to extend said privilege beyond the period when the existing lottery grants shall have expired.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*518]  DORSEY, J,. delivered the opinion of the court.
It is conceded in the argument of this case, and admitted by the answer of the appellants, that had all the tickets been sold in the schemes drawn under the act of 1838, chapter 323, and its [**48]  supplement of 1839, chap. 52, confirming lottery privileges on certain commissioners therein named, a much larger amount would have been raised, than the sum prescribed in those acts of Assembly. But it is alleged by the appellants, that only a small portion of the tickets in the schemes drawn, were sold; and that the amount received by the commissioners from the schemes which they drew, and from those which were sold by them, and drawn by other persons, formed but a very small portion of the sum of $ 225,000, which under the acts 

 [*519]  of Assembly, they say, they were authorised to realize, and they insist, that under the lottery privilege, they still have the right to continue the drawing or sales of lottery schemes, in the mode they have heretofore pursued, until they shall have actually realized the nett sum of $ 225,000. On the other hand it is contended, that the schemes already drawn under the sanction of the Town Hall Commissioners, have more than exhausted the lottery franchise. Upon the true construction therefore of the nature of the franchise conferred by the two acts of Assembly in question, and the powers given for its exercise and enjoyment, must mainly depend [**49]  the determination of the matters in controversy in this case.
On the part of the appellants it is urged, that it was the intention of the Legislature, that the amount which the lottery grant proposed to raise should be actually raised; and that a failure to do so was not contemplated by the Legislature. From this abstract proposition we see no reason to dissent. But why was it that such was the legislative contemplation and intent? Because it assumed, that a sale would be made of all the tickets mentioned in the schemes drawn. It intended that the privilege granted should be fixed and certain; not as contended for in the argument, that it should fluctuate and change with the tide of good or ill luck, and expand and contract with the gain and loss of the wheel. When a scheme is drawn, the legislative assumption is, that all the tickets are sold; that the sum actually raised by the drawing was that which the scheme upon its face purported to raise. If then the owner of a scheme upon a sale of but part of the tickets, sees fit to draw it in contemplation of law, he is the purchaser of all the unsold tickets, and entitled to all the prizes they may draw. Should, therefore, for example,  [**50]  a scheme of a million of dollars (with the usual deduction of fifteen per cent.) be drawn, whilst one-half of the tickets remained unsold, and all the prizes, as by possibility they might be, were drawn by the unsold tickets, in the eye of the law, the lottery privilege would not by this tide of good fortune be thereby changed; the sum raised from it would be but $ 150,000, although the gross sum actually gained 

 [*520]  by the owner of the scheme, would be $ 500,000. So on the other hand, had all the prizes come out to the tickets which had been sold, the sum raised in legal contemplation, by the drawing of the schemes, would have been the same, although the proprietor of the scheme would in fact have lost the sum of $ 350,000, in addition to the amount which he was to have raised by the lottery. To prove the legislative assumption, that all the tickets are sold, in the lotteries drawn under grants from the Legislature, we do not entirely rely upon the notoriety of the fact, that such lotteries were so drawn; but think it satisfactorily shown by reference to the provisions of some of the acts of Assembly in relation to such grants. All the grants in terms provide for the sale of [**51]  the tickets and drawing of the lotteries; and not an intimation is to be found in any of them, which looks to a drawing of the schemes before the tickets are sold. By the act of 1816, chap. 259, entitled "an act for the encouragement of literature," managers were appointed to raise by lotteries to be drawn by them, the sum of $ 50,000 annually, for five years, for the increase of the school fund of the State. And the managers were required under the direction of the Treasurer of the Western Shore, to deposit in such Bank as he might direct, the monies by them received for the tickets sold, to be applied to the payment of prizes, &c. In case of any deficiency in the money so received, no other means were provided by which the prizes could be paid. In almost all the previous lottery grants, the only bond given to secure the payment of prizes, bound the commissioners or managers only to the application of the moneys received from the schemes drawn, to the payment of prizes. It is therefore for the reasons assigned in the opinion of the court in the case of Phalen and Morris vs. The State of Maryland, a matter of the clearest inference, that the Legislature contemplated a sale [**52]  of all the tickets in the schemes of the lotteries drawn.
But we are not left to mere inferences to ascertain the meaning and design of the Legislature upon this subject, they have given us what is equivalent to an unequivocal declaration of their intention in this respect.

 [*521]  That in all such cases, the power and authority given to raise money thereby, be and the same is hereby considered as completed, and the power to draw any other lottery or lotteries, under the same authority, be and the same is hereby declared at an end."
This enactment, though not in terms declaratory, yet such must be its judicial construction; and it must be regarded as of controling influence, in the ascertainment of the legislative will, in all subsequent acts upon such subjects. The act of 1817, chap. 154, was not only intended to provide for the raising of a revenue for the State, by the appointment of a board of lottery commissioners to draw schemes for that purpose, but it prescribed also, certain rules and regulations in respect to all other lotteries to be drawn in the State. By its 5th section it enacts, that the managers of [**53]  all lotteries thereafter to be drawn, should first submit the schemes thereof to the said lottery commissioners, who were directed to approve the same, if not contrary to that act, or the law authorising the same.
By the third section of the act of 1828, chap. 129, it is enacted, "that in determining the amount which may be raised by lottery in virtue of any grant made by this State, the lottery commissioners shall not allow any deduction to be made from the sum of money, which any scheme of any lottery that shall be drawn under any such grant, shall purport to raise, because of any ticket or tickets or parts of tickets therein remaining unsold, at the time of drawing the same." With these enactments before us, and also the act of 1818, chap. 179, sec. 2, requiring a payment into the treasury, for the use of the State, of five per centum on the gross amount of prizes in every lottery before it is drawn; we were at a loss to conceive how any reasonable doubt could exist, as to the test by which the exhaustion of legislative lottery grants as to be ascertained; the amount which, in the contemplation of the Legislature, was raised by such scheme drawn, and the number of tickets [**54]  to be sold previous to such drawing.
But it has been urged in the case before us, that the third section of the act of 1828, chap. 129, has nothing to do with 

 [*522]  subsequent laws, relating only to pre-existing grants. From this interpretation of the 3rd section of the act of 1828, chap. 129, we entirely dissent. It prescribes a rule of conduct for the lottery commissioners in all future time, as well in its terms as in its nature and object, embracing future, as well as antecedent grants; and viewing it in connection with the two preceding sections of the act, we cannot be induced to doubt upon the subject. It is said there could have been no motive in making it operative on future legislation, as in every subsequent grant there might be inserted a similar provision. This suggestion makes no change in our opinion on the subject. We hold the provision to be wise and salutary; and upon the soundest rules of construction more unobjectionably and peculiarly applicable to subsequent, than prior enactments. It gives a uniform rule of construction embracing all lottery grants, not clearly exempted from its influence by the Legislature. It evinces a spirit of impartial legislation,  [**55]  worthy of all praise; and would present strong claims to our sanction, if recommended by nothing but its economical operation upon the time and expenditure of the General Assembly, and its prevention of redundancy in legislative enactments.
The argument of the appellant's counsel tends to the repudiation of all general statutory provisions operating on future legislation, in opposition to the opinions of the most upright and enlightened jurists. But even suppose the argument to be a sound one; that this section of the act of 1828, applied only to existing lottery grants, yet connecting it with the act of 1817, it furnishes such conclusive evidence of the legislative will, when acting on such subjects, that its influence on our opinion would not be materially affected.
Under the acts of 1817, chap. 154, sec. 5, and 1828, chap. 129, sec. 3, powers in their nature judicial, not merely ministerial, are conferred upon the lottery commissioners. And as a general proposition it is unquestionably true, that all schemes of lotteries thereafter drawn, whether under antecedent or subsequent legislative grants, must be submitted to them for their approval and determination, whether they are [**56]  authorised by 

 [*523]  law. If the face of the schemes furnish not the test of exhaustion, and the owners thereof may at their pleasure, upon a sale of any portion of the tickets, draw the lotteries, and the lottery grant is only exhausted to the extent of the sum actually realized by the drawing, it is absurd to submit the determination of the authority to draw the scheme to the lottery commissioners, because they have no possible means of judging correctly on such a subject. All the facts upon which their judgment should be founded, are sealed in the bosom of him who is interested in concealing them; and they have no authority given them to enforce their revelation. To our minds it is clear, that the Legislature never contemplated the drawing of lotteries upon the sale of a small portion of the tickets, and that the standard of exhaustion was not the sum actually raised by the drawing, or they would have required of its owner, after the drawing of every scheme, a statement on oath, of the amount realized by such drawing. It is also said, that the act of 1835, chap. 205, commonly called the consolidation lottery law, is conclusive as to their construction of the powers, given in [**57]  all grants of lotteries by the Legislature; that act authorising the lottery commissioners to raise for the grantees, in the same manner that they raise money on the drawing of lotteries for the benefit of the State, the nett amount specified in each consolidated lottery grant. We cannot give to the act of 1835, the effect imputed to it. Its object was in no wise, to declare or recognize the rights created by the lottery grants previously to their consolidation; but it was in effect, a bargain between the Legislature and those grantees, by which the accustomed mode of realizing the objects of those grants was changed, and new facilities afforded in consideration of which, those grants were withdrawn from all competition or conflict with State lotteries for revenue; and what was a more prominent object with the Legislature, it was thereby enabled more speedily to consummate those lottery grants, and thus hasten the epoch they desired, of putting an end to all drawing of lotteries in Maryland. To impute to the Legislature the design of conferring by implication on lottery grantees, not coming 

 [*524]  in under the act of 1835, and on all subsequent grantees of lottery privileges;  [**58]  the benefits of that act of Assembly is, we think, a construction which has nothing but its novelty to recommend it, and is in manifest conflict with the intent of the Legislature. Some stress has been laid on the alleged peculiarity of the phraseology of the first section of the act of 1838, which appoints commissioners with authority by a scheme or schemes of lottery, to raise the sum of $ 150,000. In all previous lottery grants, it is asserted, that the authority given is to propose a scheme or schemes to raise "the sums of money mentioned in the acts of Assembly." An examination of the various acts of Assembly conferring lottery privileges prior to 1838, shows, that this assertion is not sustained by the facts from which it is alleged to appear. By the act of 1809, chap. 63, for drawing a lottery or lotteries in Middletown, in Frederick county, commissioners are authorised, not as is said "to propose a scheme to raise," &c. but "to raise by lottery or lotteries at any place within this State, a sum not exceeding two thousand dollars." The act of 1809, chap. 150, appoints managers of a lottery, and empowers them, not as stated "to propose a scheme," &c., but "to raise [**59]  eight thousand dollars." The same may be said of the acts of 1810, chap. 27--1811, ch. 54--and the acts of 1803, chap. 74, sec. 5--1804, ch. 100--1807, chap. 42--1810, chap. 40--1811, chap. 148--1813, ch. 132--1814, ch. 116--1815, ch. 209, and other acts which might be referred to, are identical in terms, (if not stronger) with the act of 1838. And yet these acts of Assembly are so similar in their nature and objects, and all their provisions with those passed at the same sessions, in which the words "to propose a scheme, &c.," are used, that after carefully examining them, with a view to their true interpretation, we can arrive at no other conclusion than that, though the terms and expressions as to the raising of money by the drawing of lotteries are somewhat variant, yet that the same powers in this respect are, and were designed to be conferred under each act of Assembly. And this conclusion appears to us sufficiently obvious, even if the Legislature had not unequivocally so declared by the acts 

 [*525]  of 1817 and 1828. It is however contended, that conceding to the 3rd section of the act of 1828, the interpretation we have ascribed to it, the act of 1838, chap. 323, is  [**60]  pro hac vice a repeal of it. And this constructive repeal has been based upon a variety of grounds.
First, it is said, that the preamble of the act of 1838, shews its object to be a great "matter of State and general, as well as city interest," and that its provisions must therefore receive such a construction, as will effectuate the accomplishment of that object. We do not ascribe to this preamble of the act of 1838, that controling influence in expounding its enactments, which would give to them an import, wholly variant from that invariably given, for nearly fifty years, and indeed as far back as we can trace the subject upon our statute books, to all other lottery grants emanating from the Legislature of Maryland. The erection of such a structure as was contemplated, would, to be sure, subserve the public convenience and interest, but the interests of the State at large are quite as much concerned, and as deeply involved in the encouragement and promotion of christianity and education, (for which purpose numerous lottery grants have from time to time been made,) as they are in the erection of that gigantic structure, the diagram of which has been so imposingly displayed [**61]  to our view. Dispassionately regarding the subject, we cannot induce ourselves to believe, that the construction of this magnificent building, except in the imaginations of its projectors, is such a paramount object of State policy, of such vital importance to the republic; that the lottery grant made in aid of it, should on that account, receive a construction so fatal to the morality, acknowledged policy, and pecuniary interest of the people of the State, and at war with that given to every other legislative lottery grant, passed within the memory of man.
Secondly, it is asserted in support of the anomolous prerogative construction claimed for the act of 1838, chap. 325, that by its first section, all lotteries drawn under it are exempt from the payment of the five per cent. tax; a privilege or exemption, it is alleged, never before conferred in any lottery 

 [*526]  grant made by the State. And from this act of favor and munificence, the appellants claim an implied legislative transfer in the drawing of schemes under their act, of all the powers exercised by the lottery commissioners in drawing schemes in aid of the revenue of the State.
We have not deemed it necessary [**62]  to examine the numerous lottery grants, prior to 1838, to ascertain the truth of this allegation. But let it be conceded, what does it prove? Nothing more than that the grant of 1838, should be exempted from the operation of that section of the act of 1818, chap. 176, which imposes a tax of five per cent. on all other than State lotteries. Is it a just inference from this partial limited exemption to this lottery grant, that it is therefore exempted from all other regulations, burthens and restrictions, which the acts of Assembly have imposed upon it in common with all others? That because, by a special provision in the act of 1838, this grant has conferred on it one of the privileges or immunities of State lotteries; therefore it is entitled to the enjoyment of them all? Such a doctrine is novel, to say the least of it; and certainly does not harmonize with the well settled maxim of the law, that "expressio unius est exclusio ulterius." It has been decided by Baltimore county court, as is shown by the record, (and we mean not to intimate a doubt as to the correctness of that decision, the case not being before us,) that the vendors of the Town Hall lottery tickets are [**63]  not bound to take out licenses under the act of 1831, chap. 79, as are those who sell tickets in lotteries, drawn for the benefit of the State; the grant of which licenses cannot be made for a less sum than $ 5,000.
The State lottery commissioners under the act of 1831, chap. 76, sec. 1, cannot sell schemes for the State, unless the purchaser thereof shall stipulate to pay to the State of Maryland during the year, at least $ 15,000; nor are they authorised to sell their schemes at a lower rate than five per cent., on the amount of the tickets sold therein. As then the appellant's counsel throughout their argument, disclaim all idea of a legislative design, in the passage of the act of 1838, to suspend 

 [*527]  or materially impair the revenue of the State, derived from the sale of State lottery schemes; and claim only, that their schemes sold for the accomplishment of a State object should be placed on an equal footing, and in fair competition with State lottery schemes sold for the sake of revenue; can it on any pretence of reason, consistency or justice, be contended, that by a mere implication of the legislative intent, the State Armory and Town Hall lottery grant had bestowed [**64]  on it, the privileges now claimed. If it possessed them, the inevitable consequence would have been, that until the grant was exhausted, not a dollar could have been raised by the sale of schemes for public revenue. What lottery dealer, acting upon those principles by which they are all governed, would buy State lottery schemes, and pay $ 5,000 a year by way of licenses for selling the tickets therein, when he could purchase at the same price, to say the least of it, of the Town Hall commissioners, schemes identical in every respect, and possess the same power in the sale of his tickets without paying any thing for it? Who would treat for a moment, with the State commissioners for the purchase of lottery schemes, when he must guaranty to the State, the payment of at least $ 15,000, and could make no purchase at a rate below five per cent. on the amount of tickets he should sell; when by buying the same schemes of the Town Hall commissioners, he would be exempted from all guaranty, and might purchase his schemes at any price that might be agreed on by the contracting parties. To induce us to infer that the General Assembly intended to make such extraordinary discriminations in favor [**65]  of State Armory and Town Hall lotteries, as against State lotteries, drawn for the purpose of public revenue, other and stronger reasons must be urged than were suggested on the present trial. But suppose this State Armory and Town Hall is to be magnified into such a pre-eminent State concern, that it shall over ride not only all other previous lottery grants, but prostrate that system of State revenue, derived from the drawing of lotteries, which had been reared and protected, by so much special legislation; are we not to give the same construction to the act of 1839, chap. 

 [*528]  234, granting lottery privileges to raise a sum of money, in aid of the construction of an outlet lock of the Tide Water Canal at Bell's Ferry, and to the act of 1839, chap. 219, authorising a lottery to raise a sum of money for building a Masonic Hall at Elkton in Cecil county, and the act of 1839, chap. 146, granting a lottery to aid in the construction of a Town Hall or Odd Fellows Hall at Easton, all of which acts of Assembly confers on its commissioners, in every respect, precisely the same powers and exemption, in reference to the exercise of the franchise granted, that are by the [**66]  act of 1838, conferred on the Town Hall commissioners? If the argument of the appellant's counsel be a sound one, we do not see how we can avoid arriving at that conclusion. And yet it would be a startling proposition to assert that by these acts of Assembly, this outlet lock, Masonic Town Hall, and Town or Odd Fellows Hall, were converted into such absorbing, paramount State objects, that we are to presume, without the semblance of an expression of the will of the Legislature to that effect, that it designed for the accomplishment of these objects, to sacrifice the public revenue derived from State lotteries; and to confer on the lottery commissioners under these three acts of Assembly, all the powers heretofore exclusively vested in the State of lottery commissioners to raise a revenue for the public benefit, and which powers (apart from the act of 1838,) as now interpreted, were denied to the commissioners and managers under all other lottery grants, emanating from the State: and were not exercised by the Lottery commissioners, even whilst raising a revenue for the State, but under a specially delegated authority. By such a construction there is entailed upon the State, for a period [**67]  perhaps, of almost interminable duration and of the most odious character, a lottery system, in a great degree beyond the reach of legislative regulations or restraint, and resting in the almost uncontrolled will of the lottery dealers. And this too, in opposition to the known wish of the Legislature, as evinced by the act of 1834, ch. 219, and more strongly manifested by the act of 1839, ch. 31--to provide by constitutional enactment for the approach, within some reasonable 

 [*529]  time of the day, when the drawing of lotteries should be at an end in Maryland.
To deprive the State of the means of raising a revenue under such circumstances, by such an implication of power, would we think, be a case in the annals of legislation, without a precedent or authority to sustain it. Infinitely more judicious and consistent with the designs of the Legislature would it have been, to have abandoned all drawing of lotteries for the benefit of the State, and to have drawn them for the State Armory and Town Hall, until the nett sum of $ 225,000 was raised, than to have clothed the Town Hall commissioners with the powers they now claim. Had such a proposition been made to it, by the projectors [**68]  of this grand State Armory and Town Hall project, there is no difficulty in divining what its answer would have been.
But we are told, that the State lottery commissioners have themselves given the appellants construction to the act of 1838, by approving of new schemes, after the drawing of schemes purporting to have raised more than the sum of $ 225,000. What these commissioners may have done, through inadvertence, or misconstruction of the provisions of the acts of Assembly, or a misconception of their duties or powers, or any other cause, can have no influence on the opinion of this court in the case before it.
The appellant's counsel have relied with great confidence on the third section of the act of 1838, chap. 323, as demonstrating that their grant is not exhausted, because as yet, they have received, for schemes sold, but a small part of the sum they were authorised to raise, and that by the explicit terms of that section, they are empowered to continue the selling of schemes, until they have realized from such sales, the nett sum of $ 225,000. No man, say they would buy a scheme, and pay for it, the entire amount which it purported to raise. This common sense proposition [**69]  cannot be denied; and therefore the Legislature must have contemplated, in thus giving the power to sell, that the schemes would be sold for a less sum than by their drawing, they were competent to raise. The third section 

 [*530]  of the act of 1838, conclusively proves that, if any rational mind could have entertained any doubt upon the subject, had that section of the act of Assembly been wholly omitted. But it is the inference which the appellants draw from the proposition that we controvert: That inference is, that the Town Hall commissioners are warranted in selling schemes, until their receipts from such sales realize the nett sum of $ 225,000, the amount authorised to be raised by the act of 1838, and its supplement. Does the language used in the act of 1838, chap. 323, and its supplement of 1839, chap. 52, support this inference? In the question we propose to examine, upon a superficial view of these acts of Assembly, there is some plausibility in the construction of them given by the appellants. But its fallacy, we think apparent, upon a more attentive perusal. It will not be denied, as before stated, that it was the expectation and design of the Legislature, that the [**70]  purchasers of schemes in the Town Hall lottery, were to acquire them at a less sum than on their drawing they were competent to raise. Upon no other conceivable motive, would any lottery dealer become such a purchaser. As a corollary, from this postulate, it must be admitted, that if the Legislature intended to authorise the Town Hall commissioners to sell schemes of lotteries without limitation as to price, until from such sales they received the nett sum of $ 225,000, that the purchasers of such schemes may lawfully draw all they shall have purchased; notwithstanding, that by such drawing they might raise ten times (for example,) the amount received by the Town Hall commissioners. If the transfer of such authority was not contemplated by the Legislature, it would have passed a law manifestly enabling these commissioners to practice the grossest fraud, that was ever practised, upon an unsuspecting man. If it did not intend to invest these purchasers with such power, then we think the implication almost irresistible, that it did not design to authorise the sale of more schemes than were competent to raise by their drawing, the sum of $ 225,000. Does the act of 1838, with its supplement [**71]  of 1839, by any fair interpretation of the language used in 

 [*531]  them, confer such a power on these commissioners, is the inquiry we propose to consider? So far from it, both the original act and its supplement, negative such an implication of power in the clearest terms. The third section of the act of 1838, provides, "that the said commissioners, appointed by this act, may sell for such sums of money as they may deem proper, the scheme or schemes aforesaid, and the purchasers thereof and their assigns, shall have and enjoy all the rights and privileges in the disposal of the tickets in said schemes, and the raising money therefrom as are conferred on said commissioners." And the supplement thereto, passed in 1839, chap. 52, for the purpose of increasing the sum authorised to be raised in the original act from $ 150,000 to $ 225,000, provides, "that the privilege of drawing a scheme or schemes of lotteries, conferred by said act and this supplement, shall cease as soon as by the drawing of the said schemes, the nett sum of $ 225,000 shall have been raised." The third section of the act of 1838, is to be construed in connection with the first, and limits and explains [**72]  its meaning, showing to what extent the right of sale was conferred, and the powers thereby transferred to the purchasers, which powers are defined in language too explicit, we conceive, for a controverted construction, and give to purchasers "all the rights and privileges in the disposal of the tickets in said schemes, and the raising money therefrom, as are by this act, conferred on said commissioners." What was the power of the commissioners in raising money and selling tickets in lottery schemes? Why, it ceased to exist the moment $ 150,000 nett were raised, by the drawing of schemes; and in the hands of the purchasers of schemes it terminated in the occurence of the same event. This interpretation of the Town Hall lottery privilege, is still more explicitly announced in the supplement of 1839, which declares that the lottery privilege shall be extinct, "so soon as by the drawing" of schemes, "the nett sum of two hundred and twenty-five thousand dollars shall have been raised." No discrimination is intimated, between schemes drawn by the Town Hall commissioners and their purchasers. From the positive terms of these enactments, it 

 [*532]  appears to us, that the powers [**73]  claimed by the Town Hall commissioners, cannot be deduced from the authority given them to sell schemes of lotteries, and that had they sold schemes, competent to raise five millions of dollars, the moment the purchasers had by the drawing of those schemes, or any of them, raised the nett sum of 225,000, from that moment the lottery privileges under the purchased schemes were exhausted, and all power to sell schemes or draw lotteries under the Town Hall grant, was at an end, although in point of fact the Town Hall commissioners may not have realized from the sale of schemes, one-tenth part of the sum of $ 225,000. In favor of the alleged power to sell schemes until the actual receipt of $ 225,000, it has been strongly pressed in the argument, that the Legislature intended that the State Armory and Town Hall should be finished; that this could not be effected for less than $ 225,000; and that the Legislature would not therefore have licensed sales of schemes by the commissioners, "for such sums of money as they may deem proper, unless it had contemplated, that the loss sustained by the sale of schemes should be restored to the amount to be raised by the lottery grant, by the sale of [**74]  additional schemes. Before we assent to the conclusion attempted to be drawn from these premises, we must first be satisfied of their truth, which we cannot assume in the absence of all proof. Not knowing what representations were made to the Legislature, as the basis of this provision of the act of 1838, we cannot consent to speculate in the wide field of conjecture concerning it. Nor if we did, would we consent that such speculations should at all affect our construction of the lottery grant before us, as we can readily imagine the existence of a state of facts, which induced the legislation in question, and which is not only in accordance with, but would greatly strengthen the opinions we have formed on the subject.
But it is urged, that the latter part of the third section of the act of 1838, which provides, "that the said commissioners shall make report, verified by affidavit, immediately upon making the sale or sales of a scheme or schemes as aforesaid, particularly certifying the amounts and terms of such sales," 

 [*533]  clearly proves, that these sales were to be continued, until the sum of $ 225,000 was realized from their proceeds; and that this proviso of the act [**75]  of Assembly is inoperative, and without object upon any other hypothesis. Neither of these propositions can, in our opinion, be sustained. This provisory enactment is, in every aspect in which it may be viewed, as necessary, and as perfectly consistent with the designs of the Legislature, had they been, that the commissioners should sell only such number of schemes, as upon their face, were competent to raise the stipulated amount, as if such sales were to be continued until the specified sum had been realized by the commissioners; and its operation equally apparent and efficient upon either assumption of the legislative design. The second section of the act of 1838, had directed, that the commissioners should give bond "for the due application for the purposes of this act, of the monies coming to their hands as commissioners." When therefore, by the third section, they were authorised to sell the schemes of the lotteries, it was a necessary precaution in order to the enforcement of the bond, that reports should be made by the commissioners, of the amounts received by them on the sales of schemes. But upon our construction of all lottery grants, (other than those drawn by the lottery [**76]  commissioners for the benefit of the State, under peculiar legislative provisions applicable to them only,) that every scheme raises the sum that it purports to raise, no report of the receipts of the Town Hall commissioners was necessary, and therefore the law required none. Because the sum, in legal contemplation raised, was known to the lottery commissioners, whose duty it was to determine on the exhaustion of the Town Hall lottery grant, when called on to approve schemes to be drawn under it; and the public were presumed to possess the same knowledge, through the medium of the public newspapers, in which the community are notified of the lottery schemes to be drawn. But the sum received on the sale of a lottery scheme, rests only in the knowledge of the vendor and vendee: hence the necessity for the report required in this case.
It has been said that the act of 1838, cannot defeat or 

 [*534]  retard the gratification of the wish of the Legislature, to secure at some reasonable time, the termination of all lottery privileges in Maryland, or entail upon us an odious, demoralizing, protracted, lottery scourge; because by the supplement of 1839, chap. 52, it is provided, that the [**77]  Town Hall lottery privilege shall not extend beyond the period when the existing lottery grants shall have expired. But how easy would it be for the commissioners of this mammoth lottery grant, to obtain the control of some minor lottery privilege, whose time of drawing has no limitation, and thus secure the indefinite duration of its powers. And further, if we ascribe to the Town Hall lottery grant, the alarming powers which are claimed for it, we must yield the same to the Town or Odd Fellows Hall lottery privilege, in the drawing of which, there is no limitation as to time.
The views which we have expressed upon the principal matters in controversy in this case, render it unnecessary to decide several minor incidental points, which were raised in the argument.
The orders of the Chancellor, granting and continuing the injunction issued in this case are affirmed.
ORDERS AFFIRMED.
BUCHANAN, C. J., and ARCHER, J., dissented.  

27 of 46 DOCUMENTS 

SAMUEL WYMAN AND SAMUEL G. WYMAN vs. SAMUEL RAE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 G. & J. 416; 1841 Md. LEXIS 33 

December, 1841, Decided 

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

This was an action of trespass upon the case, brought upon the 16th April 1838, by Samuel Wyman and Samuel G. Wyman, merchants and partners trading under the firm of Samuel Wyman & Co., against the appellee, to recover their damages, for that the appellee intending to deceive and defraud the said plaintiffs, did wrongfully and deceitfully encourage and persuade the said plaintiff, to sell and deliver to Samuel Rae, Jr., and Thomas W. Rae, partners in trade, divers goods on credit to a large amount, and did for that purpose, falsely and deceitfully and fraudulently assert and affirm to the said plaintiff, that he the said defendant had given to the said Thomas W. Rae, and Samuel Rae, Jr., partners as aforesaid, the sum of $ 3000, and that they ought to do a good business and a safe one for their creditors, and did thereby falsely, fraudulently and deceitfully cause and procure the said plaintiff to sell and deliver the last mentioned goods, wares, &c., upon trust and credit to the said J. W. Rae and Samuel Rae, Jr., partners as aforesaid. The declaration then proceeded to allege a sale and delivery of the goods; the falsehood of the defendant's [**2]  representations, and the non-payment of the debt by the purchasers. There were other counts in the declaration of the same character, to which the defendant pleaded not guilty.

FIRST EXCEPTION.--The plaintiffs to support the issue on their part, proved by Joseph Smith, junior, a competent witness, that he was a clerk and salesman in the plaintiffs' employment, from September 1835, inclusive, to July 1836. That he was acquainted with the defendant and his two sons, Thomas W. Rea, and Samuel Rea, Jr.; that in September 1835, one of the sons came to the plaintiffs' store in Baltimore, where witness then was, and bought a small bill of goods, the amount of which witness does not exactly recollect, but it did not exceed $ 400; that witness made this sale and gave said sons credit, because of his own knowledge of them, and from statements made by them to Mr. Addison B. Riley, of the firm of Gaither & Co., and by Mr. Riley, repeated to witness, which statements, as Mr. Riley repeated them, were, that their father the present defendant, had given them three or four thousand dollars to go into business with. These statements were repeated by witness to Mr. Samuel G. Wyman, one of the plaintiffs;  [**3]  and Mr. Wyman requested witness to enquire of Mr. Rea, the defendant, when he next saw him, whether such statements were correct, and what capital he had given to his sons; accordingly, when witness again saw the defendant, which was in the last of September or beginning of October 1835, in the store of the plaintiff, on a visit, which defendant, who lived in Winchester, made at that time to Baltimore, witness asked him whether the statements above mentioned were correct, and what was the amount of capital he had given to his sons, as Mr. Wyman was anxious to know, as it was probable the sons might want to make further purchases from S. Wyman & Co., and the object of the inquiry was, to ascertain whether it would be safe to continue to do business with them; to which the father replied, that he had given them three or four thousand dollars, and that they ought to do a good and safe business. Witness does not recollect whether defendant said three or four thousand dollars, but it was a precise sum of which he spoke, and either one or other of them; that witness reported this conversation with the defendant to the plaintiffs, and afterwards, and on the credit which the above representations [**4]  procured for the sons, sold goods to them so long as witness continued in the service of the plaintiffs' sales, which, but for such representations he would not have made. Witness left the employment of the plaintiffs in July 1836. On cross examination he stated, that he was now a member of the firm of Stewart, Smith and Ames, formerly William P. Stewart & Co., which firm was a creditor of the said T. W. and S. Rea, Jr. Examined in chief he says, that he has no interest in the result of the present suit. In reply to a question on the part of the defendant he says, that it is generally understood, that when a dealing is commenced between a mercantile firm and a country merchant, it will be continued for years, if the parties are mutually satisfied. The plaintiffs then further to support the issue on their part, proved by Lucius Reed, a competent witness, that the said T. W. and S. Rea, Jr., were at the time of the institution of this suit, and still are, indebted to the plaintiffs for goods purchased from them in September in the year 1836. When the witness had proceeded thus far in his testimony, he was interrupted by the defendant's counsel, who enquired of him whether notes had been [**5]  given for the goods so purchased? Witness replied that the plaintiffs held two notes for such purchases, but did not say what were their dates, or whether payable on demand or otherwise. The counsel for the defendant then objected to the further testimony of witness in regard to said indebtedness, until the said notes were produced; and prayed the court to decide, that any further testimony in relation to such sales of goods made to said T. W. and S. Rea by plaintiffs, on the faith of defendant's representations hereinbefore stated, was inadmissible until said notes were produced or their non-production legally and satisfactorily accounted for; which decision the court (MAGRUDER and PURVIANCE, A. J's.) gave. The plaintiffs excepted.

The plaintiffs having offered the evidence set forth in the first bill of exceptions, which is to be taken as a part of this bill of exceptions, as if incorporated at length therein, and after the decision of the court as stated in said first bill of exceptions, and for the purpose of accounting for the non-production of the note of $ 1,166.29, at the trial offered all the following evidence in this bill of exceptions, viz: he offered to prove by Lucius [**6]  Reed, a competent witness, that the plaintiff had in the month of September 1836, sold bills of goods to the said T. W. and S. Rea, Jr., to the amount respectively of $ 1,166.29, and $ 278.64, on six months credit, and that two notes were taken for said sums respectively, one of said notes for $ 278.64, which had been taken, when on the expiration of the credit on one of said sales, the amount due thereon had not been paid; and offered to prove by Thomas Phenix, cashier of the Western Bank of Baltimore, that a note for $ 1,166.29 had been placed by the plaintiff in said Western Bank, by which it had been sent to the North Western Bank of Virginia for collection; in the usual course returned to the said Western Bank unpaid, and handed back again by said Bank to the plaintiffs. They also offered to prove by the said Lucius Reed, that the other of said notes for $ 1,166.29, before spoken of by said Reed, had been sent to Morgan Neilson, the plaintiffs' attorney at Wheeling, to be placed in a train for recovery, and that the said last note still belonged to the said plaintiffs, and was still unpaid. They also offered to prove by Neill Barnett, a competent witness, that in March or April [**7]  1837, the defendant being informed by his son James Rea, of the involved situation of T. W. and S. Rea, induced the witness, who resided in Winchester, to go to Wheeling, and undertake to get security for a debt claimed to be due to said defendant by his said sons Thomas W. Rea and Samuel Rea, Jr., and that on the 19th April 1837, said T. W. and S. Rea, Jr., executed the deed of trust hereinafter inserted to the said Neill Barnett, of all their property of every description, and that on the 15th October following, they executed another deed of trust hereinafter inserted, to the same trustee of the same property. The plaintiffs further offered in evidence the admission by the defendant's counsel, that said deeds of trust are true copies of the original deeds, and that the same are to be received as evidence in this cause, as if they were duly and legally authenticated; and that the defendant knew of the execution of the said deeds, and claimed from the trustees payment of certain claims of his, according to the preference given to him therein. The plaintiffs also offered to prove by the said Neill Barnett, that under the said deeds he had received all the property of the said T. W.  [**8]  and S. Rea, Jr., and that the debts therein mentioned to be due to the said plaintiffs, had not been paid by him in whole or in part; that there were about $ 6000 in his said trustee's hands, which would be enough to pay the defendant in full, and leave a small dividend for the merchants to whom T. W. and S. Rea, Jr. were indebted.

This indenture made on the 19th day of April 1837, between Thomas W. Rea and Samuel Rea, Jr., merchants trading under the name and firm of T. W. and S. Rea, Jr., of the city of Wheeling and State of Virginia, of the first part, and Neill Barnett trustee, of the second part, and Samuel Rea, Sen., Bank of the Valley in Virginia, Neill Barnett, George R. Gaither & Co., Janney, Hopkins & Hull, S. Wyman & Co., J. & W. Lockwood & Co. Weith and Norris, Marriott & Hardesty, Baltzell & Payne, and William P. Stewart & Co., of the third part, witnesseth, that whereas the said parties of the first part are indebted to Samuel Rea, Sen., in the sum of $ 2,950, due by note dated September 10th 1835, drawn on demand, and for a balance due by account of $ 219.93; and to the Bank of the Valley, &c. &c., reciting various debts due and to become due; and to S. Wyman &  [**9]  Co. in two notes, one for $ 1,137.67, and one note for $ 294. And the said T. W. and S. Rea, Jr. being willing and desirous to secure the payment of the said debts with the accruing interest, to the above named parties, also to secure harmless the said Samuel Rea, Sen., in consequence of his endorsement of the note aforesaid, in the Bank of the Valley, or any note which may be substituted in lieu thereof, whether the same shall be for the whole amount or any part thereof, have agreed to convey the property hereinafter mentioned for that purpose. Now this indenture witnesseth, that the said T. W. and S. Rea, Jr., as well for the considerations aforesaid, and for the further sum of one dollar to them in hand, paid by the said party of the second part, at or before the sealing and delivery hereof, the receipt whereof is hereby acknowledged, have granted, bargained and sold, and by these presents do grant, bargain and sell unto the said Neill Barnett, his heirs, &c., the following personal property, to wit: all the goods, wares and merchandize of every description and kind, now in the possession of the said T. W. and S. Rea, Jr., in the store house rented by them on Market street, in the [**10]  city of Wheeling, also all the books, accounts, notes and bonds, which is now due the said T. W. and S. Rea, Jr.; to have and to hold the aforesaid property to him the said Neill Barnett, trustee, his heirs, executors, &c., forever, upon the special trust and confidence, that if the said T. W. and S. Rea, Jr. shall fail to pay off and discharge the debts aforesaid, that then and in that event, it shall be the duty of the said trustee, his executors or administrators, upon the request of the said Samuel Rea, Sen., or his executors, &c., to sell the property hereby conveyed, and collect the book accounts, notes and bonds, as the case may be, or so much thereof as may be necessary to satisfy and pay off the said debts, to the highest at public sale, having first established the time and place of such sale, by advertising the same for three weeks, in some newspaper printed at Wheeling, and out of the proceeds of such sale, first pay off and satisfy the debts aforesaid, or so much thereof as may remain due and unpaid, after deducting the expenses of executing this trust, including a commission of five per cent.; and the overplus if any, pay to the said T. W. and S. Rea, Jr., their heirs,  [**11]  &c. But said property shall be so managed and disposed of by said trustees, as to give the preference and priority to the debts due Samuel Rea, Sen., individually, as well as to secure him harmless as endorser, as fully and completely as if the said debts were secured by a separate and elder deed of trust. It is agreed that the aforesaid property may remain in the possession of the said T. W. and S. Rea, Jr., until a sale shall become necessary under this trust, when the said T. W. and S. Rea, Jr., will permit the said trustee to take peaceable possession thereof for the purpose aforesaid; and the said trustee covenants for himself and his heirs, with the said parties of the first and third parts, faithfully execute the duties hereby reposed in him. In witness whereof, the parties have hereunto set their hands and seals, the day and year first above written.

THOMAS W. RAE,     (Seal.)

SAMUEL RAE, JUN.,     (Seal.)

NEILL BARNETT,     (Seal.)

This indenture made this 15th day of October 1837, between Thomas W. Rea and Samuel Rea, Jr., of the city of Wheeling of the first part, and Neill Barnett of the second part: Whereas, the said parties of the first part [**12]  being indebted to Samuel Rae, Sen., of Winchester, Virginia, in the sum of $ 2,950, on a promissory note, dated, &c., also for a balance of account for $ 219.93, to the Bank of the Valley, in the sum of, &c., reciting various debts to S. Wyman & Co., in two notes, one for $ 1,137.67, the other for $ 294. And whereas said parties of the first part, for the purpose of securing the payment of said debts, did by deed bearing date the 19th of April 1837, sell and convey unto the said party of the second part, his heirs, &c., all the goods, wares and merchandise of every description and kind, then in the possession of the said parties of the first part, in the store rented by them on Market street in the city of Wheeling, and also all book accounts, notes and bonds, which were then due the parties of the first part, in trust for the purposes in said deed set forth, which said deed was presented in the clerk's office of the county court of Ohio county, and upon the acknowledgment of said parties of the first part, and admitted to record on the twentieth day of June, one thousand eight hundred and thirty-seven; (all which premises, reference being had to said deed, will more fully and at large [**13]  appear,) and whereas the said debt of $ 125, in said deed of trust mentioned, as due to said party of second part, has since the execution thereof been fully paid and satisfied, and said parties of the first part being advised, that said deed of trust is of doubtful validity, and being willing and desirous to confirm the same, and to secure the payment of the debts therein and herein recited, (except the said debt of one hundred and twenty-five dollars to said party of second part, which has been already paid as aforesaid.) Now this indenture witnesseth, and for the further consideration of five dollars to them in hand paid, at and before the ensealing and delivery hereof, the receipt whereof is hereby acknowledged, the said parties of the first part have granted, bargained and sold, and by these presents do grant, bargain and sell unto said party of second part and his assigns, all the following personal property, to wit, all the goods, wares and merchandizes of every description and kind, now in the possession of the said parties of first part, in the store room occupied by them on Market street in said city of Wheeling; and also all the book accounts on the books of said parties [**14]  of first part, due and to become due; and also all bonds, notes, bills of exchange and other causes in action and evidences of debt, due or to become due to said parties of the first part, (which said book accounts, bonds, bills, notes and other evidences of debt, and causes in action, are hereby assigned to said party of second part,) to have and to hold the said property, bonds, bills, notes, book accounts, causes in action and evidences of debt to said party of second part, and his assigns forever, to have and to hold the said premises unto the said parties of second part, and his assigns forever. Upon trust nevertheless that the said party of the second part shall proceed to take possession of said premises, and after fixing the time and place of sale, and giving four weeks notice thereof, in some public newspaper printed in the city of Wheeling, shall sell the same at public auction for cash, or on a credit, as to said trustee shall seem best, for the interest of all concerned, and shall also proceed to collect the said book accounts, bonds, bills, notes and other debts, and out of the proceeds thereof, shall after paying the expenses of sales and collection, and all other expenses [**15]  attending the execution of this trust, and reserving to himself five per centum on the amount of said sales and collection, first pay to the said Samuel Rea, Sen., the said sum of two thousand nine hundred and fifty dollars, due by said note, and also said balance due by account of two hundred and nineteen dollars and ninety-three cents; and also to pay and satisfy the said debt due to said Bank of the Valley for two thousand dollars, together with all interest which may have occurred upon said debts; and secondly pay and satisfy all the other debts recited in this and the former deed of trust, (except the said debt to the said party of second part,) which has been paid as aforesaid pro rata; and the balance if any, shall pay to said parties of first part or their assigns; and it being uncertain whether the debts recited herein are of the exact amounts stated, it is intended hereby to secure the true amounts due to the several creditors herein named. The debt due the Bank of the Valley has been paid since the execution of the former deed, the sum of fourteen hundred and sixty-two dollars, and its being recited in the foregoing part of this deed at two thousand dollars, was, because [**16]  that was the amount of the original note. The stock of goods, wares and merchandize hereby conveyed, amounts per invoice to six thousand five hundred and sixty-eight dollars and seven cents, and the debts due said parties of first part, are enumerated in the schedule hereto annexed, as part of this deed. In testimony whereof, said parties of first part have hereunto set their hands and seals, as also said party of second part.

THOMAS W. REA,     (Seal.)

SAMUEL REA, SEN.,     (Seal.)

NEILL BARNETT,     (Seal.)

Schedule referred to--List of debts due T. W. and S. Rea, Jr.

Morgan S. Gregg, $ 309.16, subject to his account, &c.

To which testimony so offered for the purpose of accounting for the non-production of said note of $ 1,166.29, at the trial the defendant's counsel objected, and the court (MAGRUDER and PURVIANCE, A. J's.,) sustained the objection. The plaintiffs excepted, and brought this appeal.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

The taking of a note of the purchaser for goods sold and delivered, certainly does not extinguish the original cause of action.

An action on the common counts, may be sustained by proof of the sale and delivery, although a note may have been given by the purchaser therefor.

If a note has been given in such case, its production is generally required for the security of the defendant, and not from any rule of evidence, which excludes proof of indebtedness, without the production of the note.

In an action upon the case for deceit, in giving a party a false credit, the vendor of the goods, the plaintiff, may prove the sale and delivery of the goods, and the indebtedness of the purchaser thereof, without producing the notes given for the payment of such goods.

If the defendant in such an action desired to show, that the credit given on the notes had not expired, the burthen of proof was upon him, he should have given notice to have them produced, and if not produced, proved their contents.

The law creates no presumption, that promissory notes are on time.

Where a party under the circumstances of the case, was not bound to produce certain promissory notes, he is under no obligation to account for their non-production, and evidence offered with that view only, is useless and inadmissible. 

COUNSEL:
By LATROBE for the appellants, and

By NELSON for the appellee.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*425]  ARCHER, J., delivered the opinion [**17]  of the court.
The taking of a note for goods sold and delivered, certainly does not extinguish the original cause of action. An action on the common counts, may be sustained by proof of the sale and delivery of the goods, although a note may have been given therefor. 17 Seargt. and Low. 152. If however a note has been given, in such case the production of the note is generally required, for the security of the defendant, and not from any rule of evidence which would prevent the introduction of evidence of indebtedness, without the production of the note. It was clearly competent we think, for the plaintiff to produce other and further evidence of indebtedness, without producing the notes taken for the goods.
If it were important for the defendant to show, that the credit given on the notes had not expired, the burthen of such proof was upon him. He should have given notice to have them produced, and if not produced, proved their contents.
There is no evidence in this bill of exceptions to show the notes were on time, and the law certainly makes no such inference. We therefore think the court erred in the opinion by them expressed in the first bill of exceptions.
The evidence [**18]  in the second bill of exceptions was offered to account for the non-production of the note; the court rejected the evidence. If the plaintiff, as we have seen, was not bound to produce the note, he was certainly under no obligation to account for its non-production, and the testimony offered with such view, and such view only, was useless, unnecessary and inadmissible. We concur with the court in the opinion by them expressed in the second bill of exceptions.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

28 of 46 DOCUMENTS 

THE MARINE BANK OF BALTIMORE vs. THE MERCHANTS BANK OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

12 G. & J. 498; 1842 Md. LEXIS 19 

December, 1842, Decided 

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

This was an action of Assumpsit, brought by the appellant to January term 1840, against the appellee, who pleaded non-assumpsit.

The case was submitted to the county court upon a statement of facts, which concluded, as follows:

"The question is submitted to the court upon the foregoing "statement of facts, whether The Marine Bank is entitled to "recover from The Merchants Bank, the amount so paid."

The county court rendered judgment for the defendant. The plaintiff appealed.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

Where a cause is submitted upon a case stated, which only authorises the court to decide a question, but does not confer authority to enter a judgment, this court, upon appeal, must reverse the judgment, and remand the cause for further proceedings.  

COUNSEL:
By WALLIS for the appellant, and

By BROWN for the appellee.  

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

OPINION:

 [*498]  BY THE COURT--
There being no provision in the case stated, as to the judgment to be entered, after the court's opinion is expressed on the question submitted, the court can give no judgment, and the cause must be remanded.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

29 of 46 DOCUMENTS 

HENRY S. MITCHELL A. D. B. N. OF JAMES D. MITCHELL vs. ANN M. MITCHELL, ADM'X OF JOSEPH T. MITCHELL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 Gill 66; 1843 Md. LEXIS 7 

December, 1843, Decided 

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

This was an action of Assumpsit, brought by the appellee against James D. Mitchell on the 22nd July 1833. Pending the action J. D. M. died, and his executrix Elizabeth A. Mitchell (who also died,) and the present appellant were successively made parties to the case. The defendants pleaded non-assumpsit and limitations on which pleas issues were joined.

Before the trial the parties filed the following agreement:

It is agreed in this cause that the attendance, in person, of William Carmichael, a witness on the part of the defendant, may be dispensed with at the trial of this cause, whenever the same may take place, and that in lieu thereof, certain letters from the said Carmichael to the late James D. Mitchell and Joseph T. Mitchell, on the subject of a receipt by him, and the payment over of certain moneys by him collected, to a certain Joseph T. Mitchell, on the order of said James D. Mitchell, may be used and read as evidence in the cause at the trial thereof. It is further agreed, that the plaintiff, as administratrix of Joseph T. Mitchell, give the necessary and usual notice required by law for creditors to present their claims against [**2]  the estate of said Joseph T. Mitchell, and that the same was published in the Kent Enquirer, a newspaper published in Kent county, for the time and in the manner as the law directs, the evidence of which may be received from the paper herewith filed, marked exhibit A. It is further admitted, that the personal estate of Joseph T. Mitchell, was more than solvent, and that a large residuum was left for distribution among the representatives and heirs at law, after the payment of all debts, which were presented for payment. The above letters are to be made subject to all legal exceptions as to their admissibility or competency, other than those now waived by this agreement.

THOMAS F. BOWIE, for Defendant.

WILLIAM L. BRENT, for Plaintiff.

EXHIBIT A--referred to in the aforegoing agreement:

MARYLAND, Kent County Orphans Court.

November 30, 1830. On application of Ann M. Mitchell, administratrix of Joseph T. Mitchell, late of Kent county, deceased, it is ordered, that she give the notice required by law for creditors to exhibit their claims against the said deceased's estate, and that the same be published once in each week for the space of three successive weeks,  [**3]  in the Enquirer, printed in Chestertown.

(Seal.)

In testimony that the foregoing is truly copied from the minutes of the proceedings of the orphans court of the county aforesaid, I have hereto set my hand and the seal of my office affixed, this 30th day of November, 1830.

Test,--F. WILSON, Register of Wills for Kent County.

In compliance with the above order, this is to give notice, that the subscriber, of Kent county, hath obtained from the orphans court of Kent county, in Maryland, letters of administration on the personal estate of Joseph T. Mitchell, late of Kent county, deceased. All persons having claims against the said deceased's estate, are hereby warned to exhibit the same with vouchers thereof, to the subscriber, at or before the 30th day of May next, they may otherwise by law be excluded from all benefits of the said estate. Given under my hand, this 30th day of November, 1830.

ANN M. MITCHELL,

December 3. Adm'x of Joseph T. Mitchell, deceased.

LETTERS referred to in the aforegoing agreement:

CENTREVILLE, 26th March, 1828.

Dear Sir,--Your uncle, Joseph Mitchell, spoke to me when I was last in Kent county, as if he had supposed [**4]  you had given me instructions to proceed by execution against Gerald Coursey. As I have received no instructions from you on this subject, I beg you will give me directions. G. Coursey paid me last fall $ 1,000, of which I paid $ 950 by your order, to Mr. Joseph T. Mitchell.

I think it right to say to you on this subject, that I believe G. Coursey, by some indulgence, will pay your debt and save his property, but from the entire depressed state of the country, his property would now be sacrificed if sold by the sheriff, but being your agent in this business, I will promptly execute any orders you may send. I remain, very respectfully, yours,

WM. CARMICHAEL.

________________________________________________________________________________
JAMES D. MITCHELL Dr. to WM. CARMICHAEL.	
1828.	Jan. 5,	To cash p'd Jos. T. Mitchell by your order	$ 950	
	Dec. 19,	To ditto paid  ditto   per ditto	950	
		To commission on $ 2000, at 5 per cent.	100	
	
			$ 2,000	
		Contra.	
1827.	Nov. 24,	By cash from G. Coursey on judgments	$ 1,000	
1828.	Dec. 9,	By ditto from  do.  on  do.	1,000	
	
			$ 2,000	
________________________________________________________________________________

CENTREVILLE, 29th April, 1829.

Dear Sir,--I this day received yours of the 24th, and send you an extract [**5]  from my books by which you will see the amount of monies received from G. Coursey and paid over to Mr. Joseph T. Mitchell. I am, respectfully, yours,

WM. CARMICHAEL.

CENTREVILLE, 17th November, 1830.

Dear Sir,--Pressing engagements and absence from home have prevented me from giving an earlier answer to yours of the 27th ultimo. I subjoin an account taken from my books, by which you will see the monies received and paid over to your uncle. After my last payment to him, I wrote him that a balance was due me from your father, which I neglected to deduct, and requested him to retain the same in his hands, but did not hear from him afterwards. This balance you can settle at your convenience. I am, respectfully, yours,

WM. CARMICHAEL.

________________________________________________________________________________
JAMES D. MITCHELL Dr. to WM. CARMICHAEL.	
1828.	Jan. 5,	To cash paid Joseph T. Mitchell,	
		 per your order	$ 950 00	
	Dec. 19,	To  do.   do.   per do.	950 00	
1829.	Oct. 15,	To  do.   do.   per do.	950 00	
1830.	Ap'r 27,	To  do.   do.   per do.	300 00	
		To  do.   do. by check on	
		  Bank of Baltimore	384 32	
		To costs of three suits	19 50	
		To commission, at 5 per cent.	187 01	
	
			$ 3,740 83	
		Contra.	
1827.	Nov. 24,	By cash from G. Coursey on judg'ts	$ 1,000 00	
1828.	Dec. 8,	By do. from  do.	1,000 00	
1829.	Sept. 12,	By do. from  do.	1,000 00	
1830.	April 8,	By do. from  do. balance of jud'ts	720 72	
		By costs of three suits	19 50	
	
			$ 3,740 22	
________________________________________________________________________________

 [**6]  

E. E.     WM. CARMICHAEL.

No. 7, referred to in the aforegoing agreement:

________________________________________________________________________________
RICHARD HALL, use of James D. Mitchell, ex'r of France, vs.	
GERLAND COURSEY. Judgments, &c.	
Amounts of debt	$ 1,337 50   	
Interest on same from 1st Jan. 1823 to 1st Jan. 1825	168 50   	
	
	1,498 00   	
Int. paid as per endorsement on bonds,	175 57   	
	
	1,322 43   	
Interest on same to 24th November 1827	150 75   	
Same, executor of same, vs. Same. Judgments.   	
Amount of debt	1,337 50   	
Interest on same from 1st January 1823 to 24th	   	
  November 1827, (393.33)	394 71   	
Same, executor of same vs. Same. Judgments.	
Amount of debt	368 87   	
Interest on same from 1st Jan. 1823 to 24th Nov. 1824	108 75   	
	
	3,683 01   	
Then paid W. C., attorney	1,000 00   	
	
	2,683 01   	
Interest on same to 8th December 1828	166 64   	
	
	2,849 65   	
Then paid W. C., attorney	1,000 00   	
	
	1,849 65   	
Interest on same to 20th December 1828	3 69 1/2	
	
	1,853 34 1/2	
Credit then allowed by Joseph T. Mitchell	225 15   	
	
	1,628 19 1/2	
Interest on same to 12th September 1829	68 52   	
	
	1,696 71 1/2	
Then paid W. C., attorney	1,000 00   	
	
	696 71 1/2	
Interest on same to 8th April 1830	24 01   	
Costs of judgments	6 55   	
Costs of  do.	6 55   	
Costs of  do.	6 40   	
	
	$ 740 22 1/2	
________________________________________________________________________________

 [**7]  

E. E.     WM. CARMICHAEL.

________________________________________________________________________________
Amount received by William Carmichael as by above statements:	
1827.	Nov. 24,	Cash	$ 1,000 00	
1828.	Dec. 8,	do.	1,000 00	
1829.	Sept. 12,	do.	1,000 00	
1830.	April 17,	Paid W. C., by cash deposited in	
		  Bank of Baltimore, the 8th	740 22	
	
			$ 3,740 22	
		Contra.	
1828.	Jan. 5,	Cash p'd Jos. T. Mitchell by your order	$ 950 00	
1828.	Dec. 9,	To   do.   by  do.	950 00	
1829.	Oct. 15,	To   do.   by  do.	950 00	
1830.	Ap'l 27,	To   do.   by  do.	684 32	
		To commission on $ 3,740.22, at 5 pr.ct.	185 01	
		To costs of suit on three judgments	19 50	
	
			$ 3,738 83	
________________________________________________________________________________

CENTREVILLE, April 30, 1830.

Dear Sir,--According to my promise, I now send you a statement of the money collected from Mr. G. Coursey. I have an unsettled account with Mr. James D. Mitchell on account of business transacted for his father; the balance due me is between $ 60 and $ 70. I intended to have retained to this amount, and to have rendered him an account, but it escaped me in the hurry of the moment, and as it is inconvenient for me to transact business with Mr. Mitchell, I beg [**8]  you to have the goodness to reserve that sum for me, as I will render Mr. M. the accounts.

I have thought on Williamson's business since you left me. I have a judgment against him but not against you, and could only due the replevin bond. There are several cases, and it would greatly increase costs, but I must be governed in this by your determination. I remain respectfully yours,

WM. CARMICHAEL.

1ST EXCEPTION. At the trial of this cause, the plaintiff to support issues on her part joined, offered in evidence to the jury the several promissory notes, and the due bill set forth in the declaration, and proved the same to have been signed in the proper hand-writing of James D. Mitchell, the defendant's testator, and also proved the hand-writing of James W. Mitchell on the notes of 23rd Nov. 1820; but offered no evidence of the hand-writing of Elizabeth Mitchell, by whom the said due bill purports to have been assigned.

$ 1,030.    Six months after date, I promise to pay to Joseph T. Mitchell, or order, negotiable at the Bank of Maryland, one thousand and thirty dollars, for value received, this 20th October 1828.     JAMES D. MITCHELL.

$ 1,220.    On the [**9]  8th July next, I promise to pay to Joseph T. Mitchell, or order, negotiable at the Bank of Maryland, twelve hundred aud twenty dollars, for value received.

Baltimore, 20th October 1828.    JAMES D. MITCHELL.

$ 200.    Baltimore, 23rd November 1829. On the first day of October 1830, I promise to pay to the order of James W. Mitchell, two hundred dollars, for value received.

JAMES D. MITCHELL.

On the back of the aforegoing promissory note is thus written, to wit, James W. Mitchell.

$ 200.    Baltimore, 23rd November 1829. On the first day of June 1830, I promise to pay to the order of James W. Mitchell, two hundred dollars, for value received.

JAMES D. MITCHELL.

On the back of the aforegoing promissory note is thus written, to wit, James W. Mitchell.

And then, for the purpose of maintaining the issues joined on her part on the second and third pleas, on the pleas of limitations, and for the purpose of proving an acknowledgment of the said James D. Mitchell, within three years before the present suit was brought, of his indebtedness on said notes, and also to prove the hand-writing of Elizabeth Mitchell, to the assignment of the said bill,  [**10]  offered to swear to the jury William L. Brent, but the defendant produced an authenticated copy of the administration bond of the plaintiff on Joseph T. Mitchell's estate, dated 30th November 1830. Certified to be a true copy of the administration bond given by Ann M. Mitchell, administratrix of Joseph T. Mitchell, as taken from the original bond now on file in his office, by the Register of Wills of Kent county. And proved that the said William L. Brent was one of the plaintiff's sureties in said bond, and objected to the competency of said witness, on the ground that he was liable for any devastavit which the plaintiff might have committed in the administration of said estate as the plaintiff's surety, and that under the circumstances of this case, and in the present cause, said witness had an interest in the result of this suit. This objection on the part of defendant to the competency of said witness, the court sustained, and thereupon, the plaintiff, for the purpose of showing that said witness was competent to give the testimony for which he was called, produced the following papers, to wit, the administration account of Ann M. Mitchell on Joseph T. Mitchell's estate, passed [**11]  and sworn to on the 12th of May 1832, which showed a balance due the estate, consisting of negroes not divided $ 2,812, and which was also certified to be a true copy taken from the records of his office, by the Register of Wills for Kent county, under his official seal.

And also read the agreement and exhibits in this cause, filed 21st August 1841. See ante.

And also a certified copy of the release of Joseph T. Mitchell, Jr., the sole heir at law of Joseph T. Mitchell, who is admitted to have been of full age, and also the original release:

MARYLAND, Kent County, Sct. I hereby certify, that it appears from an administration account, passed by Anna M. Mitchell, administratrix of Joseph T. Mitchell, late of Kent county, on the 12th May 1832, that after the payment of all just debts and claims due and owing by the said Joseph T. Mitchell, that there was a considerable balance due the estate, amounting to the sum of $ 2,812, and consisting of negroes undivided; and I also certify, that on the 1st May 1838, Joseph T. Mitchell, the sole child and heir at law of the said Joseph T. Mitchell, deceased, appeared in open court, in the orphans court of the said Kent county, and [**12]  the said court being satisfied that he was of legal age, filed, to be recorded in my office, a release in the following words and figures, and which was accordingly recorded by order of the said court: Whereas, a settlement has taken place between my mother, Mrs. Anna M. Mitchell, as administratrix of my deceased father, Joseph T. Mitchell, and as my acting guardian, and I have received from her full possession of my estate, real, personal and mixed, it is my desire to place on record, the evidence of such full settlement and a full discharge of her sureties; this therefore is to certify, that I do acknowledge the receipt in full of all the share or portion of my said deceased father's estate, to which I am entitled, and I do hereby release, acquit and discharge the said Ann M. Mitchell, and her sureties, and her and their executors or administrators, of and from all claim and demand therefor. Given under my hand and seal, this first day of May, eighteen hundred and thirty-eight.     JOSEPH T. MITCHELL, (Seal.)

Witness,--Samuel Covington.

MARYLAND, Kent county, Sct. Be it remembered, that on this first day of May, eighteen hundred and thirty-eight, before me the subscriber,  [**13]  a justice of the peace of the State of Maryland for Kent county, personally appeared the within named Joseph T. Mitchell, and acknowledged the foregoing receipt and release as his act and deed, and to be discharged for the purposes therein mentioned.    Acknowledged before,

SAMUEL COVINGTON.

(Seal.)

I hereby certify, that the above is a true copy of the original release, now on record in my office. In testimony whereof, I have hereto subscribed my name and affixed the public seal of my office, this 11th day of August, 1841.     JAMES F. BROWNE, Register of Wills for Kent County, Md.

Whereas, a settlement has taken place between my mother, Mrs. Ann M. Mitchell, as administratrix of my deceased father, Joseph T. Mitchell, and as my acting guardian, and I have received from her full possession of my estate, real, personal and mixed, and it is my desire to place on record the evidence of such full settlement, and a full discharge of her sureties; this therefore is to certify, that I do acknowledge the receipt in full of all the share or portion of my said deceased father's estate, to which I am entitled, and I do hereby release, acquit and discharge the said Anna [**14]  M. Mitchell, and her sureties, and her and their heirs, executors or administrators, of and from all claim and demand therefor. Given under my hand and seal, this first day of May, eighteen hundred and thirty-eight.

JOSEPH T. MITCHELL, (Seal.)

Witness,--Samuel Covington.

On the back of the aforegoing is thus endorsed: "Filed May 1st, 1838. Recorded in Liber B book, vouchers No. 5, folio 328.     J. F. BROWNE, Register Wills."

And also the following assignment of the plaintiff, of the choses in action in the present suit, to the said Joseph T. Mitchell, Jr.

Know all men by these presents, That I, Ann M. Mitchell, adminstratrix of all and singular the goods and chattles, &c., of my late husband, Joseph T. Mitchell, having paid all the creditors of the said, the late Joseph T. Mitchell, do hereby assign, transfer and set-over to Joseph T. Mitchell, the sole child and distributee of my said husband, deceased, by way of distribution, all the choses in action and evidences of debt, filed in the Charles county court of the State of Maryland, in a suit brought by me, as administratrix of the said Joseph T. Mitchell, deceased, against James D. Mitchell, and now pending [**15]  against the executrix (or administratrix,) of the said James D. Mitchell. Witness my hand and seal, this 17th day of August, 1831.     ANN M. MITCHELL, (Seal.)

From which said papers, and the facts in evidence as aforesaid, the said plaintiff contended and insisted before court, that the said witness was released from all liability of said bond, and that he was in consequence of said release, a competent witness in the present suit, which opinion the court, (C. DORSEY, A. J.) gave, and permitted the said witness to be sworn to the jury for the purpose aforesaid; to which opinion of the court, and to their permitting the said witness to be sworn to the jury as a competent witness in this cause, the defendant excepted.

2ND EXCEPTION. In addition to the evidence in the previous bills of exceptions, which is made a part of this, the defendant in support of the issues on his part joined, gave in evidence to the jury, that Elizabeth Mitchell, the administratrix of James D. Mitchell, who was a party to this suit previous to her death, departed this life during August court eighteen hundred and forty-one; then gave in evidence to the jury, that letters of administration de bonis [**16]  non was granted by the orphans court court of Charles county to defendant, on the 14th September, 1841; and then offered to read in evidence to the jury the deposition of Richard B. Mitchell, as follows:

At the request of Henry S. Mitchell, the following notice and deposition was recorded this 23rd day of March, Anno Domini 1842.

To Mrs. Ann M. Mitchell, or her attorney:

You will please take notice, that I shall on the 25th day of the present month, between the hours of 10 o'clock A. M. and 2 o'clock P. M. of the same day, at Myrtle Grove, the residence of Mr. Henry S. Mitchell, in Charles county, Maryland, at the request of said Henry S. Mitchell, then and there proceed to take the deposition of Mr. Richard B. Mitchell, who is now dangerously ill at said place, and not expected to live, to be read as evidence in the trial of the cause now depending in Charles county court, in which Ann M. Mitchell, administratrix of Joseph T. Mitchell, is plaintiff, and Elizabeth A. Mitchell, executrix of James D. Mitchell, is defendant.

January 24th 1842.    JAMES BRAWNER, Commissioner.

Service admitted this 24th day of January, at 1/2 past 4 o'clock P. M., for what it [**17]  is worth.     WM. L. BRENT, At Washington city, District Columbia.

ANN M. MITCHELL, Adm'x of J. T. Mitchell, vs. E. A. MITCHELL, EX'X of J. D. Mitchell. Interrogatories to R. B. Mitchell, on the part of the defendant.

Interrogatory 1st, 2nd and 3rd.

CHARLES COUNTY, Sct. At the instance of Mr. Henry S. Mitchell, the undersigned, a commissioner appointed by the Honorable the judges of this court, under an act of Assembly passed at December session 1828, ch. 165, in accordance with a previous notice served on William L. Brent, Esq., attorney for Mrs. Ann M. Mitchell, as will appear by reference to said within notice, herewith returned, did attend at Myrtle Grove, the residence of Mr. Henry S. Mitchell, on the 25th January 1842, between the hours of 10 o'clock A. M. and 2 o'clock P. M., and proceeded to take the deposition of Mr. Richard B. Mitchell, who being sworn on the Holy Evangely of Almighty God, to the interrogatories propounded, answers as follows:

To the first interrogatory, yes. 2nd and 3rd, &c.

Taken and subscribed by me,

JAMES BRAWNER, Commissioner.

Taken by James Brawner, a commissioner appointed and duly qualified by the judges of Charles [**18]  county court, to take depositions, in pursuance of the Act of Assembly passed at December session 1828.

The plaintiff then gave in evidence to the court, that said Richard B. Mitchell died on the 26th January 1842, and that he was expected to die for a week previous to the taking of said deposition. The plaintiff then gave in evidence, that at the time said deposition was taken, the death of Elizabeth Mitchell, the first administratrix of James D. Mitchell, was not suggested on the record; and further gave in evidence, that William L. Brent, the attorney, upon whom the notice of the commission was served, resided in Washington city, thirty miles distant from the place where the said deposition was taken. The defendant then gave in evidence, that Frederick D. Stone, who served the notice on said Brent, returned on horseback, and in time to be present at the time said deposition was taken. And the plaintiff further gave in evidence, that the said plaintiff resided in the city of Baltimore, in Maryland, at the time said notice was given; and further gave in evidence, that the present defendant Henry S. Mitchell did not appear to the present cause until August court 1842.

The [**19]  defendant then read in evidence the following rule of court, made in pursuance of the Act of Assembly passed at December session 1828: "In pursuance of the directions of the act of the General Assembly of the State of Maryland, passed at the December session 1828, ch. 165, we, the judges of the county court for the county of Charles, do hereby appoint James Brawner, senior, John Hughes and George D. Parnham, commissioners to take the depositions of witnesses in the cases therein provided, and that in all cases when they act as such, they shall first serve, or cause to be served on the party against whom such deposition or depositions are intended to be used, or his attorney, a written notice containing the name of the person or persons whose deposition or depositions are intended to be taken, and the time and place, when and where it is to be taken, at least eight days before said day, exclusive of the day of issuing and serving such notice, and also in all cases when a real cause exists, the parties or party interested upon making it appear to the satisfaction of the commissioner or commissioners, that his witness is very old, sick, or about to leave the country, it shall or may be [**20]  discretionary to take the deposition or depositions of such witness, on giving such notice less than eight days as they may think reasonable, all circumstances considered, so that the party interested, his guardian, agent, trustee or attorney, may have a convenient time to attend; and if such party and his attorney, &c., cannot be found, then by leaving said notice at his last place of abode, a copy of which, certified by the commissioner or commissioners, and attested to be served as herein provided, shall be returned by the said commissioner or commissioners, as the case may be, to the clerk of the county court, with the deposition or depositions so taken; and the court do allow the said commissioners the sum of four dollars to each commissioner for each day they may act as such.

November 17th, 1829.

J. STEPHEN,

EDMUND KEY,

J. R. PLATER.

The plaintiff then objected to the reading of said deposition in evidence to the jury, because said deposition had not been taken in pursuance of said Act of Assembly and supplement thereto, because the said Henry S. Mitchell, the administrator de bonis non, was not a party to the record, which objection the court (C. DORSEY,  [**21]  A. J.) sustained; to which opinion of the court the defendant excepted.

The defendant appealed.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

The security of an administrator may, under circumstances, become a competent witness for his principal to maintain an action of law to recover money due the intestaet's estate; although at one period the administrator may have been guilty of a devastavit in relation to the same claim.

As where from lapse of time, after due notice having been given under the testamentary act to creditors to assert their claims, they are presumed to have been satisfied and none appeared to exist, and where the sole distributee of the deceased had released both the administrator and sureties from all claims, this obviates all objection on the ground of liability on the surety for the omission of the administrator.

Where a bill of exceptions is sealed, the truth of the facts contained in it, can never afterwards be disputed.

A release to an administrator and his sureties may be legally recorded in the orphans court of the county where letters of administration were granted, and a copy certified by the Register of Wills of the same county is competent evidence.

An administrator in his settlement with a distributee may assign the choses in action of his intestate by parol.

The Register of Wills is authorised and bound to record administration accounts proved and passed, and a copy under his official seal is competent evidence.

Where letters of administration were granted in 1830, and an order of court notifying creditors to bring in their claims obtained and published in 1831, and an account proved and passed in 1832, by which it appeared that a number of creditors had been paid, it was held in 1842, no unsatisfied creditors appearing in proof, that all the creditors of the estate were paid and discharged.

The act of 1828, ch. 165, which authorises the taking of testimony in civil cases, before commissioners to be appointed by the county courts, manifestly contemplates a case where both the plaintiff and defendant are in existence and actually parties to the litigation upon the record at the time the notice is given by the commissioners, and the deposition taken in pursuance thereof.

So where a defendant is dead, and no new party having been made, a deposition taken is without authority under that act.

Where commissioners are appointed under an Act of Assembly by the courts to take proof between parties, no rule of court can transfer powers to the commissioners, designed by the act to be exercised by the courts or the judges thereof.

Acts of Assembly made relative to the administration of justice are to be liberally construed for the attainment of that important object.

It is the province of courts of justice to expound laws and not to legislate.  

COUNSEL:
By T. F. BOWIE for the appellant, and

By R. J. BRENT for the appellee.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*80]  STEPHEN, J., delivered the opinion of this court.
Two exceptions were taken to the opinion of the court below in this case, both of which relate to questions of evidence. In the first exception, the witness produced to give evidence for the plaintiff being incompetent, by reason of interest, certain paper writings or documentary proofs were offered in evidence, for the purpose of restoring his competency, which being held by the court sufficient for that purpose, the defendant excepted. Much of the argument urged by the appellant's counsel is rendered unavailing by certain admissions and facts stated in the bill of exceptions and the operation of law upon those facts and admissions. In 2 Tidd's Practice, 913, the following principle of law is stated in relation to the legal effect and conclusiveness of a bill of exceptions: "when the bill of exceptions is sealed, the truth of the [**22]  facts contained in it, can never afterwards be disputed; for this principle, Show. P. C. 120, is referred to. The ground upon which the witness produced by the plaintiff was contended to be incompetent, being his liability for any devastavit of the plaintiff, as her surety in the administration of her husband's estate, one of the proofs produced to obviate that objection, was a release executed by Joseph T. Mitchell, who is stated in the bill of exceptions to be the sole heir at law of his father Joseph T. Mitchell, and who is expressly admitted in said bill of exceptions to have been of full age at the time it was executed; a certified copy of said release was also produced, authenticated by the signature and seal of the Register of Wills for Kent county. This release contained an express acknowledgment that he had received his full share of his father's estate, and released the administratrix and her sureties from all responsibility therefor. This release was moreover executed after a lapse of eight years 

 [*81]  from the time letters of administration were granted, and was acknowledged before a justice of the peace of Kent county, according to law, and [**23]  was on the same day duly admitted to record. The administration bond, which was given in evidence by the defendant, to shew the incompetency of the plaintiff's witness, fully evinces that letters of administration were obtained from the orphans court of Kent county; and, consequently, proves that the acknowledgement was legally made, before a person competent to take it. There is nothing, therefore, in the objection raised by the counsel for the appellant, that it did not appear that the acknowledgment was made before a justice of the peace in the county where the letters were obtained, and that therefore the release was not legally recorded, so as to make a copy of it admissible in evidence. In 2 Harr. & Gill's Rep. 57, this court, when speaking upon a similar subject, say: "they were recorded in the office of the Register of Wills of Prince George's county, where George Briscoe died, and where, of course, letters of administration were taken out on his estate, having been previously acknowledged before the said Register. So in 6 H. & J. 234, this court say, "where an instrument of writing is required by law to be recorded, the enrolment of it is evidence [**24]  of all circumstances necessary to give it validity. But this evidence is not conclusive, it is only prima facie, and like all prima facie evidence, may be rebutted." The condition of the administration bond given in evidence by the defendant, speaks of Ann Mitchell, as the administratrix of Joseph T. Mitchell, late of Kent county, deceased; and where of course, as this court say in 2 H. & G. 57, letters of administration were taken on his estate. No sufficient proof was adduced in the court below to impeach the release or to impair its validity: the written assignment made of the choses in action in August 1841, was not sufficient to invalidate it upon the ground of fraud, as they might have been transferred by parol when the release was executed; and the written assignment subsequently made, might have been intended, as more authentic and better evidence of that fact. As further proof of the competency of the witness to testify 

 [*82]  in the cause, the plaintiff offered in evidence a copy of her administration account, which is stated in the bill of exceptions to have been passed by the court on the 12th of May 1832, and is certified by [**25]  the Register to be a true copy, taken from the records of his office, and is authenticated by the seal of his office annexed. The admissibility of this account was objected to upon the ground that the Register had no authority by law to record it, and that therefore a copy was not evidence. We think that such an objection was entirely groundless and untenable; that the Register was not only authorised, but bound by law to record it, for the purpose of shewing to creditors and others interested in the estate, how and in what manner the assets had been administered. By the act of 1798, ch. 101, sub-ch. 15, sec. 9, it is enacted that, "the Register of Wills in each county already, or hereafter to be appointed, agreeably to the Constitution, shall diligently attend each meeting of the orphans court in his county, and under their direction, make full and fair entries of their proceedings;" among which proceedings are manifestly intended to be embraced, all administration accounts passed and settled under the sanction of such courts. This account, in which a number of creditors appear to have been paid, was passed by the orphans court, after notice had been given agreeably to the order of [**26]  said court for creditors to exhibit their claims for payment, in the year 1832, more than ten years prior to the trial of this case in the court below, and considerably more than twelve months after the said notice had been published according to said order. After such a lapse of time, it was we think fair to presume, that there were no outstanding claims of creditors to be satisfied, when this case was tried in the court below, and that the witness was not on that account incompetent to testify. The administration bond offered in evidence by the defendant, bearing date on the 30th day of November, in the year 1830, and the cause was tried in Charles county court at the August term 1842, a period of nearly twelve years had therefore elapsed from the date of the letters, before the trial in this cause took place. In the absence, therefore, of any proof of indebtedness, it is, we think, fair to 

 [*83]  infer, that they were all satisfied and discharged at the time the surety in the bond was offered as a witness. In 5 G. & J. 344, this court say: "it appears then, that a period of about eleven years had expired, from the time letters of administration were taken out [**27]  upon his estate, before the mortgage was executed;" and this court have said in the case of Allender and Riston, 2 G. & J. 86, "in the case now before this court, it no where appears that there were any debts remaining due and unpaid at the time of the mortgage, or if there were, that the defendants knew of them;" and to use the language of Mr. Justice Ashhurst, in 4 Term. R. 645, "if the creditors will lie by, and not assert their rights, it is reasonable for a third person to suppose that all the debts are satisfied." Under this view of the case, we think that the opinion of the court below in the first bill of exceptions was correct, and that all objection to the competency of the witness was sufficiently removed.
We think, also, that there was no error in the opinion of the court below in the second exception. The defendant in the suit was dead, and no new party had been made when the notice was given and the deposition was taken by the commissioner. The act of 1828, ch. 165, under which the deposition was taken, manifestly contemplates a case where both plaintiff and defendant are in existence, and actually parties to the litigation upon the [**28]  record at the time the notice is given by the commissioner, and the deposition is taken in pursuance thereof. The language of the 2nd section of the act is, "that either party, in any action depending in the said courts, after due notice to the other party or his attorney, agreeably to such rule as shall be made by said courts respectively, may take the deposition of any witness before any one of the said commissioners, to be used as testimony on the trial of such action." The defendant in this case being dead, and no new party having been made, the deposition was taken without legal warrant or authority, according to the provisions of this act, and was, therefore, properly rejected by the court. We wish it to be understood, that in deciding the question as to the admissibility 

 [*84]  of the deposition offered in evidence in this case, we have been governed exclusively by what we deem the true construction of the Act of Assembly under which it was taken; and we do not wish to be understood as giving any sanction to the rule of court upon that subject, adverted to in the course of the argument, and which rule we think confers a power upon the commissioners, which was intended by [**29]  the legislature to be exclusively exercised by the courts, or the judges thereof. It is true, that Acts of Assembly made relative to the administration of justice, are to be liberally construed for the attainment of that important object, but it is the province of courts of justice to expound laws, and not to legislate; that is a duty which belongs to a different department of the government. We think that there is no error in the judgment of the court below, and that the same ought to be affirmed.
JUDGMENT AFFIRMED.  

30 of 46 DOCUMENTS 

J. & B. HARBAUGH vs. SAMUEL MOORE, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 G. & J. 283; 1840 Md. LEXIS 17 

December, 1840, Decided 

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

This was an action of ejectment, brought on the 2nd August 1836, by the appellant against the appellee, for a part of Gist's Inspection, by metes and bounds. The defendants in possession, appeared, and pleaded the general issue.

At the trial of this cause the plaintiff to support the issue on his part, gave in evidence the lease from Christopher Hughes to Leonard Harbaugh, dated 27th January 1783, for the land declared for, to hold for the term of ninety-nine years--rent £  206, payable half yearly--right to re-enter for non-payment of rent reserved, and lessee bound to renew on payment of a year's rent, at the termination of present lease; that Leonard Harbaugh, by virtue of the said lease, entered upon the land demised, improved it, and enjoyed it for several years; that on the 11th of December 1789, Hughes, alleging, as was the fact, that there was rent in arrear, entered as landlord upon the property, and took possession thereof, and that he and those claiming under him, including the defendants, have been in possession of the same by actual enclosure, claiming the whole under Hughes, and exercising exclusive acts of ownership over [**2]  the whole, adversarily from 1789 to the present day.

The plaintiff also exhibited letters of administration on the personal estate of the said Leonard Harbaugh, granted by the orphan's court of Baltimore county, to the lessor of the plaintiff, that Harbaugh died about the year 1819. If upon the foregoing statement the court should be of opinion that the plaintiff is entitled to recover, then judgment to be entered for the plaintiff, if not, for the defendant.

The county court rendered judgment for the defendants, and the plaintiffs brought this appeal.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

A right of entry in the plaintiff, is essential to a recovery in an action of ejectment, and if that right is barred by the statute of limitations, there can be no recovery.  

COUNSEL:
By R. JOHNSON for the appellants, and

McMAHON and RICHARDSON for the appellees.  

JUDGES:
The cause was submitted to the court, STEPHEN, DORSEY, CHAMBERS and SPENCE, J.  

OPINIONBY:
STEPHEN 

OPINION:

 [*284]  STEPHEN, J., delivered the opinion of this court.
This case comes up upon an appeal from Baltimore county court, on a case stated. It appears by the facts agreed upon between the parties, that Christopher Hughes on the 27th January 

 [*285]  1783, leased the land for which the ejectment was brought to a certain Leonard Harbaugh, for the term of ninety-nine years, renewable forever, at the [**3]  yearly rent of £  206 current money, payable by moieties, on the 25th of March and the 29th of September, in each and every year, with a clause in the said lease, stipulating for a right of re-entry, by the said Hughes, in case the said rent should be in arrear and unpaid, for the space of sixty days next after the times limited for the payment thereof, the same being first lawfully demanded. That Harbaugh, the lessee, entered upon the demised premises under the said lease, and continued in possession for several years, when the rent being in arrear, Hughes, the landlord, on the 11th December 1789, entered as landlord upon the property, and took possession thereof; of which property, he, and those claiming under him, including the defendants, have been in adversary possession, exercising exclusive acts of ownership over the whole, from the year 1789 to the time of the case stated. The lessors of the plaintiff, brought this action of ejectment as the administrators of Harbaugh; and the question is, whether upon the above facts they were entitled to recover? The judgment of the county court was for the defendants, from which judgment the plaintiffs have appealed to this [**4]  court.
We cannot entertain a doubt, as to the propriety of affirming that judgment. A right of entry in the plaintiff, is essential to a recovery in the action of ejectment, and that right was clearly extinguished and taken away, by the length and character of the defendants possession, as admitted in this case. The lessor of the plaintiff must shew, that he had a right of entry at the time of the demise; for if his entry is barred by the statute of limitations, he cannot recover in an action of ejectment. Roscoe on Ev. 324. We are of opinion that the judgment of the court below must be affirmed.
JUDGMENT AFFIRMED.  

31 of 46 DOCUMENTS 

NATHANIEL CLARY vs. CORNELIUS GRIMES et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

12 G. & J. 31; 1841 Md. LEXIS 3 

December, 1841, Decided 

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

On the 22nd day of March, 1833, Nathaniel Clary filed his bill on the equity side of Baltimore county court, alleging, that Henry Howard of John, was on the 18th October, 1832, seized in fee of a part of a tract of land called Head Quarters, as described in the bill of complaint, and that he agreed with Philemon Welsh for the sale thereof, gave and delivered him his bond of conveyance, binding himself upon the payment of one hundred and fifty dollars to him Henry, before the 10th March, 1833, to make a good and sufficient deed of all his right, title and interest in the same; that also, on the 28th January, 1833, the said Henry Howard of John, did execute and deliver to the said Philemon Welsh, an instrument of writing, binding himself to convey any part of the above mentioned parcel of land described in said bond of conveyance, which might be found to lay in Baltimore county, upon the payment of the consideration mentioned in the bond of conveyance; that Philemon Welsh, on the 16th February, 1833, assigned all his interest in the said bond to the complainant, who on the 9th March, 1833, exhibited his assignment to the said Henry Howard of John,  [**2]  offered to deliver up the same and pay him the said sum of $ 150, and tendered him a deed, and that he refused to receive the money or execute the conveyance. Prayer for a specific performance of the contract; that Henry Howard of John, and Philemon Welsh be made parties, and for general relief.

Philemon Welsh appeared and confessed the facts charged in complainant's bill.

Henry Howard of John, being summoned and not appearing, an interlocutory decree was passed against him, and a commission ordered, which was issued on the 2nd September, 1833, and closed on the 3rd August, 1835.

On the 8th September, 1833, Henry Howard of John, petitioned Baltimore county court for leave to file his answer, and an answer was filed, (the terms of this leave do not appear,) which admitted his contract with Philemon Welch, but alleged that Welch had assigned his contract to James Thomas; that Thomas sold to Cornelius Grimes; that subsequently to the assignment of said agreement, which was put on the back thereof, it was erased in part, and a new assignment made, whereby the rights under said agreement were attempted to be transferred to the said complainant, and the dates of said assignment [**3]  fraudulently altered, and the matter placed, or attempted to be placed, in the same situation as though the said assignment to Thomas had never been executed. He also denied a tender at the time and in the manner stated, and exhibition to him of the bond of conveyance as stated, &c.

On the 20th November, 1833, the complainant petitioned for leave to amend his bill, in order to make Cornelius Grimes a party defendant, and to aver, that the assignment to Thomas, relied upon in the answer of Howard the defendant, was obtained by duress. On the 20th November, 1833, the county court (PURVIANCE, A. J.,) passed the following order:

"Leave is granted to make Mr. Grimes a party defendant, "according to the prayer of the petition." And a subpoena issued for said Grimes on the 21st November, 1833, who being summoned, appeared and answered the bill, taking in substance the same defence as Henry Howard of John.

On the 14th April, 1834, the complainant suggested the death of Henry Howard of John, and a subpoena issued for his representatives, who were all summoned.

The defendants then by agreement waived all objections which might be taken to the testimony of Philemon Welch,  [**4]  examined as a witness for complainant, so far as they might arise from his examination without a previous order of court. On the 29th June, 1835, an order was passed directing the commissioner to return the commission, which was closed in August 1835.

On the 2nd November, 1835, the cause was transmitted to Chancery. And on the 19th January, 1837, it being before the Chancellor (BLAND,) he ordered it to stand over with leave to amend, as allowed by the order of the 20th November, 1833, and also to amend so as to make James Thomas a party.

On the 17th April, 1838, the complainant filed his amended bill, praying subpoena against C. Grimes, James Thomas, Sarah Howard and others, representatives of H. Howard of John. The alleged matters of the original bill, and the pretended claim of Grimes through James Thomas, the assignee of Welch, who was not made a party to this amended bill, were stated in the bill as amended.

James Thomas answered the bill, and alleged that though he purchased from Welch, yet being unable to comply with his contract, he cancelled it, returned his contract to Welch, who gave him up his bond. He denied a sale to Grimes of any interest in, or any portion [**5]  of that contract.

On the 24th January, 1840, it was agreed that the several answers filed should be taken as answers to the amended bill, as well as to the original bill.

The complainants excepted to the evidence of the declarations of James Thomas, as sought to be given in evidence by the defendants.

The defendant, Cornelius Grimes, also excepted:

1. To the competency of James Thomas and Philemon Welch as witnesses against him.

2. To the admissibility of the evidence of those two witnesses, and each of them.

3. To the admissibility of the depositions taken by complainant under the ex parte commission issued under the interlocutory order, because said defendant was not then a party to this cause.

4. To the admissibility of all hearsay evidence.

At December term, 1840, the Chancellor (BLAND,) dismissed the bill, being of opinion that putting aside the depositions of the parties to this suit as coming from incompetent witness, and the mere hearsay detailed by other witnesses, the complainant has failed to sustain his claim to relief, by any legal and satisfactory evidence.

The complainants appealed to this court.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

The evidence taken under an ex-parte commission, is not admissible against a defendant, who is brought into the cause by an amendment made in the plaintiff's bill, after the commission had issued.

The declarations of the assignee of a bond of conveyance, made while it was in his possession, and while he was the holder thereof, are evidence against a subsequent assignee of the same bond, who claimed title under the person who made such declarations.

The holder of a bond of conveyance for a parcel of land, as assignee, made and delivered a deed, by which he conveyed to G. the land described in the bond; afterwards, to defeat G., and with a fraudulent intent to deprive his conveyance of its intended operation, he re-delivered the bond to the original obligee, when the assignment was erased and a new assignment endorsed to C. by the obligee. Held--

That under such circumstances, neither the first assignee, nor C., who in fact claimed under him, could seek in equity a specific execution of the contract as against the obligor, or defeat G's. title.

A defendant in resisting the claim of a complainant, is entitled to see that the court keep within its established rules in determining the rights of the latter.  

COUNSEL:
By [**6]  W. F. GILES for the complainants.

J. J. LLOYD for the defendants.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*35]  ARCHER, J., delivered the opinion of this court.
As the commission ex parte under the interlocutory decree was ordered and issued before Grimes was made a party to the proceedings, we think the objection was well taken to the admissibility of the evidence against Grimes.
But we have, notwithstanding, examined the merits of the case upon the testimony taken under the commission, and we have arrived at the conclusion, that the complainant is not entitled to the relief he seeks. In this examination we have considered the declarations of Thomas, to whom the bond of conveyance from Howard was assigned, made before the erasure, and before assignment of the bond, by Welch, to the complainant, as evidence. The complainant derives his title to the bond of conveyance through Thomas, and any declaration made by Thomas, while he was holder of the bond, we consider as evidence against the complainant.
We are satisfied that Welch entered into the contract which is now sought to be [**7]  specifically enforced with Howard, for the benefit of Thomas, and that he accordingly assigned the agreement to Thomas. While Thomas was thus in possession of the agreement by assignment, he executed a deed to Grimes, large enough by its terms to transfer any interest he had in the land affected by the agreement; and then to defeat Grimes, and with the fraudulent design to deprive the conveyance of its intended operation, he re-delivered to Welch the agreement to convey, when the assignment to Thomas was erased, and an assignment by Welch to Clary was made in its stead. Under such circumstances, it is not perceived that Thomas could have (had he not assigned to Cleary,) any claim to a specific execution of the contract; nor do we see how Cleary, the complainant, could stand in any better situation. The established 

 [*36]  rules which govern courts of equity in enforcing contracts, would forbid our interference in his behalf.
The complainant must stand or fall by the pretensions of Thomas, from whom he has in reality derived his pretended title, and has therefore in our judgment no claim to our interposition.
It has been objected [**8]  that the conduct of Grimes has been harsh and oppressive. This may be so, but Grimes is not demanding the aid of Chancery to enforce a conveyance, but is resisting the claim of the complainant; and he is entitled to see that the court keep within its established rules in determining the rights of the complainant.
DECREE AFFIRMED.  

32 of 46 DOCUMENTS 

ELIZABETH A. MITCHELL, EX'RX. OF J. D. MITCHELL, vs. ANN M. MITCHELL, ADM.'RX OF JOSEPH T. MITCHELL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 G. & J. 388; 1841 Md. LEXIS 28 

June, 1841, Decided 

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

This was an action of assumpsit, brought on 22nd of July 1833, by Ann M. Mitchell, administratrix of Joseph T. Mitchell, against James D. Mitchell. At August term 1836, the plaintiff filed a declaration, to which the defendant pleaded the general issue, and limitations. At August term 1837, the defendant's death was suggested, and at March term 1838, the appellant appeared, and the plaintiff upon leave declared anew, and counted upon two promissory notes of the defendant, payable to the plaintiff's intestate, one for $ 1,220, payable 8th July 1829, the other for $ 1,030, payable in six months from date, upon other notes of the defendant, due in June and October 1830, endorsed and assigned to the plaintiff's intestate; also for money lent, advanced, paid, laid out and expended, upon an accounting together. The defendants pleaded as before, the general issue and limitations.

At the trial of the cause, there was a verdict and judgment for the plaintiff, whereupon the defendant moved the court for a new trial, and assigned his grounds therefor. The county court refused to entertain this motion, unless the defendant would abandon her exceptions,  [**2]  which being refused, the court declined to entertain the motion.

FIRST EXCEPTION.--The plaintiff, to support the issue on her part joined, on the plea of limitations, and for the purpose of taking the case out of the operation of the statute of limitations, proved to the jury, by the testimony of William L. Brent, Esq. one of the plaintiff's counsel, and the brother of the said plaintiff, that some time on or about the month of March 1831, some time after the death of the plaintiff's intestate, James D. Mitchell, the defendant's testator, called on the witness at his residence in Charles county, and desired to know how he stood with reference to the estate of his uncle, the plaintiff's intestate; and on that occasion the witness produced and exhibited to said James D. Mitchell, the several notes, constituting the causes of action in this suit, and during the conversation in relation thereto, the said James D. Mitchell told witness that they were his notes, and that he was indebted on the same, and subsequently thereto, whilst they were conversing about the said intestate, at what time of the day witness does not know or recollect, witness asked the said James D. Mitchell if he [**3]  had any offsets against said notes, and the said James D. Mitchell replied that he did not know, but would examine his books and papers and would let him know. The defendant's counsel then offered to prove to the jury by the same witness, that some time afterwards, he still being the plaintiff's counsel in regard to said notes, he saw the said James D. Mitchell, who told him that he had examined his books and papers and had discovered that he had an offset against a part of said notes, and that said offset consisted of a sum of money which his uncle, the plaintiff's intestate, had received of his and for his use as executor of Francis J. Mitchell's estate, and which he had not paid over to him, and desired witness to allow the same, which witness refused to do. But at the instance of the plaintiff's counsel the court (STEPHEN, C. J., and KEY, A. J.,) rejected the said evidence so offered by the defendant, as inadmissible to qualify the said acknowledgment, and refused to permit the same to go to the jury, but were of opinion, and so instructed the jury, that the said acknowledgment could not be qualified or controlled by said subsequent declarations as to the offset, but that said [**4]  acknowledgment, so as aforesaid given in evidence, was sufficient to defeat the plea of limitations, if found by the jury to be true; to which rejection of said evidence as offered by the defendant's counsel, and to which opinion as given by the jury, the defendant excepted.

SECOND EXCEPTION.--At the trial of this cause, and after the jury had been sworn, and the cause about to be argued to the jury, and before the close of the examination of proof, the plaintiff, to support the issues on her part joined, offered in evidence to the jury the two following notes which were proved to be in the hand-writing of James D. Mitchell, each for the sum of two hundred dollars, and payable to the order of James W. Mitchell, dated at Baltimore, 23rd Nov. 1829.

$ 200.     Baltimore, 23rd November, 1829.

On the first day of June 1830, I promise to pay to the order of James W. Mitchell, two hundred dollars, for value received.

JAMES D. MITCHELL.

$ 200.     Baltimore, 23rd November, 1829.

On the first day of October 1830, I promise to pay to the order of James W. Mitchell, two hundred dollars, for value received.     JAMES D. MITCHELL.

And then proved, that [**5]  said notes were in the possession of Joseph T. Mitchell, the plaintiff's intestate, when he died in September 1830, with the blank endorsement thereon of James W. Mitchell, whose hand writing of his name was also proved. The defendant's counsel thereupon insisted, that said blank endorsement conferred no title or interest in said notes to Joseph T. Mitchell, the plaintiff's intestate, in his life time, and that the suit could not be sustained in the name of the plaintiff, as the administratrix of said Joseph T. Mitchell, to recover the amount of said notes in the present action; but the court permitted the plaintiff's counsel to fill up said blank endorsement, which was done by said counsel, by writing above the name of said James W. Mitchell, the following words, "pay to Joseph T. Mitchell, or order, for value received," and the court then gave the opinion, and instructed the jury, that the plaintiff could maintain the present action, and that they must find for the plaintiff, provided they believe the aforesaid evidence contained in the first bill of exceptions, which is made a part of this bill of exceptions on the said two notes, to which opinion of the court and instruction to [**6]  the jury, the defendant's counsel excepted. The defendants counsel then prayed the opinion of the court, upon the endorsement as actually made and inserted, that Joseph T. Mitchell, being dead at the time of said trial, and when the said blank endorsement was so filled up, he could acquire no interest in said notes, and the present plaintiff, as his administratrix, could not recover the amount of the same, under the evidence and pleading in this cause; but the court were of opinion, and so instructed the jury, that upon the whole of the evidence, if believed by them to be true, the said endorsement was sufficient to enable the plaintiff to recover in the present action; to which opinion of the court and their instruction to the jury, the defendant excepted.

THIRD EXCEPTION.--At the trial of this cause, and after the evidence contained in the first bill of exceptions had been given to the jury, which is incorporated and made a part of this bill of exceptions, the defendant by her counsel, prayed the court to instruct the jury, that if they should believe from the evidence contained in said bill of exceptions, that the said James D. Mitchell, the defendant's testator, at any time [**7]  within three years before the commencement of this suit, acknowledged the notes, on which the present suit is brought, to be his notes, and that he was indebted thereon, and that at the same time or during the same conversation in which he made said acknowledgment, he accompanied the same with a declaration, that he would examine his books and papers, and let the witness know whether he had any offsets against said notes or not, and that some time afterwards, the said James D. Mitchell, in pursuance of said declaration, did inform the witness that he had offsets against the said notes, and insisted on being allowed said offsets, that then said acknowledgment of said notes and indebtedness, is not sufficient to defeat the defendants plea of limitations; but that if they should find from the said evidence, that said acknowledgment was made under the circumstances aforesaid, that then they must find a verdict for the defendants upon the pleas of limitations filed in this cause; but the court refused to grant said prayer, and were of opinion, that there was no evidence in the cause upon which said prayer could be granted; to which opinion of the court and their refusal to grant the prayer [**8]  as asked for, the defendant by her counsel excepted, and prayed the court to sign and seal this bill of exceptions, &c.

The defendant's counsel then prayed the court to instruct the jury, that if they should believe from the evidence contained in the said first bill of exceptions, which is also made a part of this, that the said Joseph T. Mitchell, the plaintiff's intestate, was alleged by the said James D. Mitchell to have been indebted to him for offsets or otherwise, at the time of the acknowledgment given in evidence as aforesaid, or during the same conversation with the witness in which said acknowledgment was made, and that said James D. Mitchell, when he made said acknowledgment was ignorant as to the extent of said alleged indebtedness, that then said acknowledgment is not sufficient to defeat the plea of limitations filed in this cause; but the court also refused to grant said prayer, but were of opinion, that there was no evidence in the cause legally admissible to go to the jury, upon which said prayer could be grounded; to which refusal to grant said prayer, and to the opinion of the court as given, the defendant excepted.

FOURTH EXCEPTION.--After the evidence [**9]  had been closed on the part of the plaintiff, the defendant by her counsel then called to the stand and had sworn as a witness, Richard B. Mitchell, and proposed to prove to the jury by said witness, the payment to Joseph T. Mitchell, in his life time, the intestate of the plaintiff, various sums of money by James D. Mitchell, the defendant's testator, in part payment of and on an account of the notes on which the present suit is brought; but the plaintiff's counsel objected to the competency of the said witness for any such purpose, on the ground that the said witness was one of the defendant's sureties in her testamentary bond, as executrix of said James D. Mitchell, and it being admitted that the said witness was one of the said sureties, the court sustained the objection made by the plaintiff's counsel, and refused to permit said evidence so proposed to be offered to be given in evidence to the jury; to which refusal of the court the defendant also excepted.

FIFTH EXCEPTION.--After said trial had progressed and the evidence closed on both sides, but before the cause was submitted to the jury, it came to the knowledge of the defendant's counsel for the first time, that William [**10]  L. Brent, a witness sworn and examined as a witness for the plaintiff, was one of the sureties of the plaintiff in her bond as administratrix of said Joseph T. Mitchell, and thereupon the defendant's counsel prayed the court to reject the evidence which had been given to the jury by the said William L. Brent, contained in the first bill of exceptions, which is made a part of this, on the ground that the said witness was a surety of the plaintiff in her administration bond, and an incompetent witness for the plaintiff in this cause, which fact was unknown to defendant's counsel at the time he was examined; but the court rejected said prayer, but was of opinion, and so instructed the jury, that the said William L. Brent, notwithstanding his said suretyship, was a competent witness for the plaintiff. To which refusal to grant said prayer, and to the opinion of the court as given to the jury, the defendant excepted.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

Where the defendant called on the witness, and desired to know how he stood with reference to the estate of his uncle, the plaintiff's intestate, and on that occasion, the witness produced and exhibited to the defendant, the several notes of the defendant, constituting the cause of action in the suit, and during the conversation in relation thereto, the defendant told the witness that they were his notes, and that he was indebted on the same, and subsequently thereto, whilst they were conversing about the said notes, but at what time of the day witness does not know or recollect, witness asked the defendant if he had any offsets against said notes, and the defendant replied that he did not know, but would examine his books and papers and let him know. This is sufficient, if believed by the jury to be true, to defeat the bar of the statute of limitations.

And it is not competent in such a case for the defendant to prove by the same witness, "that some time afterwards, he still being the plaintiff's counsel in regard to said notes, that he the witness saw the said defendant, who told him he had examined his books and papers, and had discovered that he had an offset against a part of said claim, and that it consisted of a sum of money which the plaintiff's intestate had received of his, and for his use, as executor of F. J. M's. estate, and which had not been paid over to him, and desired the witness to allow to him, which he refused to do," for the purpose of qualifying the said previous acknowledgment.

The plaintiff, administratrix of an endorser, may at the trial, fill up the blank endorsement of the defendant, with the name of her intestate, and as payable to him, and upon that proof recover.

Where there is no evidence tending to prove the hypothesis of fact upon which the defendant proposes to rest his defence, the court will not instruct the jury upon the question of law arising from the supposed state of the case.

The surety of a defendant executrix, is not competent to prove the payment of the plaintiff's demand, by the testator of the defendant.

The court will consider an objection to the competency of a witness arising out of a fact unknown at the time of his examination, discovered before the cause was submitted to the jury, and exclude the evidence, if the objection is well founded.

The plaintiff's intestate died in September 1830, in possession of claims due on the first of June of that year, and his administrator did not commence his action until July 1833. Held, that under such circumstances, being guilty of a devastavit, arising from delay, so that limitations created a bar, the security of such administrator is not a competent witness to prove a new acknowledgment of the debt in answer to the plea of limitations.  

COUNSEL:
By T. F. BOWIE and T. S. ALEXANDER for the appellants.

WILLIAM L. BRENT for the appellees.  

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

OPINION:

 [*394]  By the Court. Judgment affirmed on the four [**11]  first exceptions, and reversed on the fifth.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

33 of 46 DOCUMENTS 

EDMUND DIDIER vs. WASHINGTON KERR.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

12 G. & J. 499; 1842 Md. LEXIS 20 

December, 1842, Decided 

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

This was an Attachment, to compel the appearance of the appellee, commenced on the 4th May, 1839. The warrant was founded upon the deposition of "Henry Didier, attorney in fact of Edmund Didier," and was returned levied upon certain real property in the city of Baltimore. The writ against the appellee was returned non est. Judgment of condemnation was entered at the same term, when the appellee moved the court to quash the attachment, because the account on which the order to issue the same was granted, is not verified by the oath of the plaintiff himself, but by a pretended attorney in fact. At January term, 1841, the county court struck out the judgment of condemnation, and quashed the writ of attachment. The plaintiff appealed to this court.

The act of 1795, chap. 56, sec. 1, provides, that the creditor may make application for an attachment to any judge, &c., "and on the oath or affirmation of such creditor, made before any, &c., that the said debtor is bona fide indebted to him, in the sum, &c., over and above all discounts," &c., the judge, &c., shall issue a warrant for an attachment, &c.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

The affidavit under the act of 1795, chap. 56, to authorise the issuing of a warrant to the clerk of the county court, for an attachment to compel the appearance of an absent or absconding debtor, is insufficient, if purporting to be made by the attorney in fact of the creditor.  

COUNSEL:
By R. JOHNSON [**2]  for the appellant, and

By J. MASON CAMPBELL for the appellee.  

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

OPINION:

 [*499]  BY THE COURT--
JUDGMENT AFFIRMED.  

34 of 46 DOCUMENTS 

EXECUTORS OF R. OLIVER, vs. PALMER AND HAMILTON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 G. & J. 137; 1840 Md. LEXIS 4 

June, 1840, Decided 

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

Motion to dismiss the appeal by the appellees.

The bill in this cause was originally filed in Baltimore county court, as a court of equity, on the 9th August 1837, by the appellees, against the appellants. Its object was to recover payment of an order of the 18th June 1821, of Lemuel Taylor on Robert and John Oliver, in favor of the appellees, under the circumstances alleged in the pleadings. The defendants were returned summoned to the September term 1837, of that court; and not appearing, the complainants, on the 15th November 1838, obtained a decree, declaring they were entitled to some relief, and an order for a commission to take proof in support of the allegations of the bill. A commission was issued--proof taken and returned on the 28th December 1838; on the same day, at the suggestion of the complainants, the cause was removed from Baltimore county court to the Court of Chancery. On the 8th January 1839, the Chancery Court referred the cause to the Auditor of that court, who on the 25th of the same month, reported various accounts to the court, one awarding the complainants the sum of $ 17,578.33. To this account the complainants [**2]  excepted. But on the 8th February 1839, the Chancellor (BLAND,) overruled the exceptions; ratified it and decreed, that the appellants should pay the sum above mentioned, or bring the same into court, &c. Nothing further appears to have been done in the cause, until the 23rd November 1839, when the defendants filed their petition, alleging a variety of facts, praying that the enrolment of the final decree of the 8th February 1839, might be opened; that they might be allowed to file their answer to the original bill; and that such further proceedings might be had, as may be necessary to insure a trial of the merits of the cause, and for other relief. This petition was answered by the appellees, accompanied with various exhibits and depositions. On the the 17th March 1840, the Chancellor, upon petition of the appellants, ordered their petition and answer to stand for hearing, on the 24th April 1840, and gave the parties the usual leave to take proof. This petition, &c., coming on to be heard, on the 7th May 1840, was dismissed by the Chancellor with all proceedings under it, he being of opinion, that on the 23rd November 1839, when the application was made, the decree could not be opened [**3]  on a mere petition for that purpose; but waiving all objection to the form of the proceeding by petition, no sufficient cause had been shewn for opening or vacating the record of the decree of 8th February 1839.

On the 19th May 1840, the appellants filed the following petition--

To the Honorable THEODORICK BLAND, Chancellor of the State of Maryland:

The petition of Robert M. Gibbs, Charles Oliver and Thomas Oliver, the defendants to this cause, that by a decree passed in the cause on the 8th day of February 1839, they were required to pay unto the complainants the sum, &c.; that the said decree was obtained in the cause by mistake, which was not discovered by your petitioners, until after the time appointed for regularly taking an appeal therefrom, as they will be prepared to show, according to the form of the act of Assembly; they therefore pray, that they might be permitted now to appeal from said decree to the Court of Appeals, &c.

To this petition were annexed the depositions of Jonathan Meredith, Esq., one of the solicitors of the defendants, and of Thomas Oliver, that the decree within mentioned was obtained through mistake.

A prayer for an appeal was [**4]  also entered upon the record; and the defendants by their solicitor, filed an order directed to the Register of the court, to enter an appeal on behalf of the defendants, from the final decree in this cause, and also from the order whereby the defendants petition to open the enrolment of the decree is dismissed.

At this term the appellees moved to dismiss the appeal, as well from the final decree of the 8th February 1839, as from the order of the 7th May 1840.  

DISPOSITION:
MOTIONS OVERRULED.  

HEADNOTES:

It is for this tribunal, and not for the inferior court, to determine whether, in any given case, an appeal lies.

Under the act of 1826, ch. 200, section 14, all appeals from decrees of the Court of Chancery, shall be prosecuted within nine months from the time of making such decrees, unless it shall be alleged on oath or affirmation, that such decree was obtained by fraud or mistake.

The law does not require that the fraud or mistake shall be proved, nor is it a subject of controversy between the parties. Neither is it necessary to entitle a party to appeal under this act of Assembly, after the expiration of the nine months, that the grounds or nature of the fraud or mistake should be stated. If it be alleged on oath, that the decree was obtained by fraud or mistake, it is sufficient to warrant the appeal after the nine months--and the law being silent in relation to the person who is to make the oath, it may be made by any person having knowledge upon the subject.

The appeal need not be entered on the first moment of the discovery, a just construction of the act allowing the same time to appeal, after the discovery of the fraud or mistake, as is given all other persons under the law.

A bill or petition may be filed to vacate the enrolment of a decree alleged to have been obtained by surprise, and to let in the defendant to answer, and from the order of the Chancellor refusing the application in either form, an appeal may be taken to this court.

The act of 1820, ch. 161, gives to the party not appearing, or appearing and not answering, the right before final decree, under circumstances, to file his answer; but the Legislature did not design to say, that no case could be presented in which the party would be let in to answer after decree. 

COUNSEL:
By NICOLS, DULANY and W. SCHLEY, for the appellees.

In support of their motion to dismiss the appeal from the decree of 8th February 1839, they insisted--

1. That the said appeal was not brought up to this court, until after the lapse of more than fifteen months from the time of making said decree.

2. That the said appeal was not made or entered in the Court of Chancery, until after the lapse of more than fifteen months from the time of making said decree.

3. That there is no sufficient allegation, on oath or affirmation, that said decree was obtained by fraud, or through mistake, to entitle the appellants to maintain this appeal therefrom.

4. That the allegation of mistake,  [**5]  made by the appellants in their petition to the Chancellor, filed on the 19th of May 1840, is defective, informal and insufficient; and is but the assertion by the petitioners of their opinion and conclusion upon a state of case, not disclosed in their petition; and without any explanation of the grounds on which such opinion and conclusion were formed, without any specification of the supposed mistake, and without even a suggestion of the nature of such supposed mistake, or its probable effect in the cause.

5. That the said petition of the 19th May 1840, is not on the oath of all the said petitioners, nor is any reason given, or cause shewn, why the same is not on the oath or affirmation of all the said petitioners, whereas, nevertheless, all have concurred in the present appeal.

6. That the appeal, not being made and entered in the Court of Chancery, within nine months from the time of making the said decree, could not be made and entered in said court, nor prosecuted in this, except upon allowance thereof, by an order of the Court of Chancery, upon the ground, that the same was obtained by fraud or through mistake; whereas no such order of the Court of Chancery was passed,  [**6]  and made to allow an appeal from said decree.

7. That even if the appellants are to be considered as entitled to appeal, after the lapse of nine months from the time of making said decree, or the allegation that the same "was obtained through mistake," and that such mistake was not discovered until after the expiration of nine months from the time of making said decree; yet the appellants were bound to exercise such right without unnecessary delay, and upon the very first opportunity. Whereas from the affidavit of Mr. Meredith, endorsed on the petition to the Chancellor, filed on the 19th May 1840, it appears that the alleged mistake was known at least as early as the 21st November 1839, and that said petition was then prepared; and yet, although a term of this court has since elapsed, no cause is shewn, nor any reason assigned, why the said petition was not sooner filed, and the appeal brought up to the last December term of this court.

8. That the appellants, after the discovery of the alleged mistake, having elected to apply to the Court of Chancery for relief, touching the said decree, are bound and concluded, upon the hearing of this motion, by the decision of said court [**7]  upon any allegations of facts respecting said alleged mistake; and further, that by such election of remedy, by application to the Court of Chancery, and the proceedings thereon had, the appellants waived and abandoned the right, if any, which they might otherwise have claimed, to insist on such alleged mistake as a ground to maintain an appeal for said decree.

9. That inasmuch as the appellants were in default, in failing to appear and answer, and the said decree was obtained in virtue of the provisions of the act of 1820, chapter 161, the defendants have no right to seek a reversal thereof, by appeal, in the mode now attempted.

And upon the motion to dismiss the appeal from the order of 7th May 1840, the appellees further insisted--

10. That the refusal of the Chancellor to open the enrolment of the decree of 8th February 1839, declared in his said order of 7th May 1840, did not decide any matter of right between the parties; and that the same is not a decision, order or decree, from which an appeal will lie to this court.

ALEXANDER, MCMAHON and R. JOHNSON for the appellants insisted--

1. That the appeal from the final decree of the 8th February 1839, is [**8]  properly taken. The prayer for an appeal being sustained by the affidavit of one of the appellants, that the decree was entered by mistake.

2. That the circumstances of mistake, are not required to be set out in the affidavit, or in any manner shewn to the court; but if this position should be ruled against them, they will insist, that their petition to vacate the enrolment of the decree, fully proves the existence of mistake on the part of the appellants in reference to the entry of said decree.

3. That an appeal will lie from the order dismissing their petition, to vacate the enrolment of the decree. In support of this position they will contend, that the petition is the appropriate form of proceeding, to attain the relief which was sought, and that the error dismissing their petition, being passed in fact upon the merits, precludes them from all relief by any form of proceeding, against the irregularity and surprise, of which they complain in their petition.  

JUDGES:
The motion was argued before STEPHEN, ARCHER, CHAMBERS, and SPENCE, J.  

OPINIONBY:
ARCHER 

OPINION:

 [*142]  ARCHER, J., delivered the opinion of the court.
Two appeals have been taken in this case, one from the final [**9]  decree of 8th February 1839, and the other from the Chancellor's order of 7th May 1840, dismissing the petition of the appellants filed on the 23rd November 1839, which appeals were entered on the 19th May 1840.
Motions have been made to dismiss these appeals. The appeal from the final decree it is insisted, is made at too late a period, and that no appeal will lie from the order dismissing 

 [*143]  the appellants' petition, for reasons which will be hereafter adverted to.
First, as to the final decree. By the act of 1826, ch. 200, sec. 14, all appeals from decrees of the Court of Chancery, shall be prosecuted within nine months from the time of making such decrees, and not afterwards, "unless it shall be alleged on oath or affirmation, that such decree was obtained by fraud or mistake." This appeal having been taken more than nine months after the decree, the question has been raised, whether under this clause of the act, the appellants are now properly in this court, to prosecute their appeal.
On the 19th May 1840, the appellants filed in Chancery a petition, alleging, that the decree was obtained by mistake, which was accompanied by the affidavits of Jonathan Meredith,  [**10]   Esq., and Thomas Oliver, one of the appellants, that the decree was obtained through mistake. An appeal bond was taken in the usual form, and approved by the Chancellor.
These affidavits are alleged to be insufficient to enable the appellants to prosecute their appeal, because they are but assertions of the parties opinion and conclusion, upon a state of the case not disclosed, and without any explanation of the grounds upon which such opinion and conclusion were founded, without any specification of the supposed mistake, and without even a suggestion of the nature of such supposed mistake, or its probable effect in the cause, and they are further contended to be insufficient, because only one of the parties has made the affidavit.
It is for this tribunal, and not for the inferior court to determine, whether in any given case an appeal lies; and it is therefore a question, entirely proper for the consideration of this court, whether the affidavits filed in this case give the parties a right of appeal. Thompson vs. M'Kim, 6 H. & J. 302.
The act of Assembly is so worded, as to leave no doubt on our minds, as to its true construction. The appeal is to be [**11]  allowed after nine months, provided it is alleged on oath, that it was obtained through fraud or mistake. The act does not 

 [*144]  say, provided it be proved, but provided it be alleged, and the mode of establishing the allegation, is by an oath. The right exists upon the allegation and oath, and is not a subject matter of controversy between the parties, unless we do violence to the act of Assembly; for if the oath is to be controverted and denied, and so disallowed, the allegation and oath are discarded, which the Legislature say, shall entitle the party to an appeal. Appeals are thus limited and restricted, unless there is an allegation and oath, of fraud or mistake. The abuse from such an exemption, was supposed to be found in the requirement of an oath, that the mistake or fraud existed. The abuses anticipated to arise from this construction of the law, will most probably be found to be imaginary. After the lapse of twenty-four years since the passage of the law, this is the first case where any party has sought at our hands, the benefit of the law.
Several acts of Assembly have been passed, which in their received construction, have aided us in the interpretation,  [**12]  which we have placed on the clause of the act under consideration. By the act of 1804, ch. 55, sec. 2 and 3, civil causes are authorised to be removed by suggestion in writing, by either of the parties thereto, supported by affidavit or other proper evidence, that a fair and impartial trial cannot be had in the county where such actions are depending; and in criminal prosecutions, the party presented or indicted, might remove upon suggestion without an oath, until by the act of 1805, ch. 65, sec. 49, an oath was required. The effect of these provisions was to change the jurisdiction, and the ground upon which the change was to be made, was, that "a fair and impartial trial could not be had in the county where the suggestion was made," yet no other evidence has ever been required of this fact, than the oath of the party. No counter proof is admitted, the oath of the party being sufficient to establish the fact, that a fair and impartial trial could not be had, and even the suggestion without oath was sufficient in criminal prosecutions, until modified by the act of 1805, ch. 65, sec. 49. By the act of 1804, ch. 55, sec. 4, the Attorney General may 

 [*145]  remove by suggestion [**13]  in writing. It has never been the practice where such suggestion has been made, to require any proof whatever, that a fair and impartial trial could not be had; but the suggestion has been taken as a compliance with the requisitions of the law, and the fact whether a fair and impartial trial could be had, in the county where the suggestion has been made, has never been permitted to be controverted; but the suggestion on oath in the one case, and the suggestion alone in the other, have been always considered as conclusive. It may be further observed, that where the oath of the party per se, is not to operate, the Legislature have expressly so declared, and have pointed out the mode of contesting it, as will be seen by reference to the act of 1787, ch. 9, sec. 2 and 3.
In various laws, the Legislature have required proof to be taken as a foundation for the court's proceedings, as in the act in relation to attachments of 1715, and the act of 1786, ch. 33, in relation to the marking and bounding of lands. In other laws, they declare the oath of the party shall be the foundation of the proceedings, as in the act of 1795, ch. 5. We apprehend, that in the case before us, the [**14]  Legislature has pointed out the mode of proof, by declaring, that on oath of fraud or mistake, an appeal would lie, and having so done, we are of course bound to concede the right.
It must be remarked, that the law does not say by whom the oath shall be taken. The appellees insist, it must be made by the parties; that where there is more than one party, it must be made by all the parties, who desire to prosecute their appeal. We think, that as the law is silent in relation to the person who is to make the oath, it may be made by any person having knowledge of the fraud or mistake. It would have been unwise to have confined it to the parties, because by so doing, in many cases the design of giving an appeal would have been defeated. Mistakes may be committed, or fraud exist, not known to the parties, but known to other persons. Nor do we consider, that all the parties should make oath, for one of the parties alone may be conversant of the mistake or fraud.

 [*146]  It is again urged, that if the allegation and affidavit are sufficient, still the appeal is taken at too late a period, being nearly six months after the decree was brought to the knowledge of the appellants. But in [**15]  our apprehension, there has been no want of diligence in prosecuting the appeal, after a knowledge of the existence of the decree. In the case of alleged fraud or mistake, there is no positive limitation in the act, as to the time when the appeal shall be taken, and nothing would justify this court in so limiting this right, that persons intended to be benefitted by it, should on the first moment of the discovery of fraud or mistake, resort to his appeal. A just construction of the act, would allow him the same time to appeal, after the discovery of the fraud or mistake, that all other persons had under the act. In this view of the case, the appeal has not been delayed unreasonably.
The next question presented, is on the right of appeal from the order of the Chancellor, dismissing the appellant's petition, praying under the circumstances therein stated, that the enrolment of the decree of 8th February 1839, might be vacated; that the appellee upon terms might be let in to answer, and for such relief as the case might require.
Upon the merits of this appeal, or whether the Chancellor did right or wrong in dismissing the petition on the present motion, we are not called upon to determine.  [**16]  
The only question we have to decide is, whether an appeal lies from the decision of the Chancellor, dismissing the petition.
There was an interlocutory decree under the act of 1820, in consequence of the failure of the appellants to appear and answer; a commission ex parte issued, testimony was taken, and a final decree passed.
The appellants sought by petition, to open the enrolment of decree, and in effect, to vacate the decree; so that they might be permitted to answer and disclose the merits of their case. The decree having been duly enrolled, became a record of the court, and bound the rights of the appellant, and the refusal of the Chancellor to vacate the enrolment and decree, 

 [*147]  and to let in the merits on a proper case made, as much affected the rights of the appellant, as a decree opening the enrolment, and vacating the decree would have affected the rights of the appellees. And in the latter case, an appeal has been entertained by this court. The action of the Chancellor, it has been determined by this court, in such cases, is to be regulated by a sound discretion, but unless he exercises that discretion according to law, this court has determined in Scott vs. Burch, 1 G. & J. 393, [**17]  that an appeal will lie from his decision, and in that case reversed the Chancellor's decree. In 4 Bro. Par. cases, 456, an appeal was held to lie, from an order refusing, after the enrolment of a decree, to set aside the process of contempt, and a decree obtained on a sequestration, and to receive the answer of the defendant. The House of Lords entertained the appeal, and decreed, that the sequestration should be discharged, the enrolment of the decree vacated, and the decree set aside. In this case it was argued on appeal, as it has been here, that the proper remedy of the party, was by bill of review, but the result proved that the argument was not maintained.
It is said this is a decree upon the merits, and that no case can be found in the English books, where the enrolment of a decree has been vacated, and the decree has been set aside, except by bill. In the case in 4 Bro. Par. Ca., 546, the defendant was in contempt for not answering, and the bill was taken pro confesso. In the case now before the court, the appellants had never appeared, and instead of the bill being taken pro confesso, there was evidence taken ex parte, and a decree was passed. In [**18]  neither case were the merits of the defendant's case developed. In each, the object and design would be the same, to get rid of the decree, that defendant's defence to the merits might be let in. In point of principle, it seems to us difficult to distinguish the cases. Technically it may be true, that in the one case, the decree would be on the merits, and the other not; but in point of fact, in neither case, would the decision be on the merits of the defendant's case, not having filed his answer, or taken his testimony. 

 [*148]  This being a proceeding under our act of Assembly, there are no cases in the English books precisely like it, but the cases which bear the strongest affinity to it, are the cases of decrees pro confesso.
Had the design been to set aside the decree for fraud, the remedy would clearly have been by bill of review, and not by petition, and in such a case, had the relief been sought by a wrong mode of proceeding, the decision of the Chancellor would have settled no right; and an appeal would not have laid to this court. But with the precedent before us, we cannot say that an original bill was necessary, nor do we perceive, that a bill of review could [**19]  have been sustained. Fraud in the obtention of the decree is not alleged. The concealment alleged is subsequent to the decree, and even subsequent to the enrolment. No error is alleged apparent in the body of the decree, nor is there any discovery averred of new matter, which would constitute properly the ground work of a bill of review.
If it be said, that the decree having been enrolled, an original bill although not technically a bill of review, should have been filed to vacate it, the answer we think, will be found in the fact, that bills have not always been resorted to for such a purpose. Thus in 4 Bro. P.C. 546, and in 1 Johns. Ch. 541, and in 3 Johns. Ch. 424. In the two latter cases, it would appear as though the decrees were enrolled, yet petitions were filed to vacate the decrees, and let in the answers. So in John. Ch. 201, a petition to vacate a decree for surprise or irregularity, is considered the proper course; but it is not certain in that case, whether the decree was enrolled. Again, there are other cases in which bills have been filed, as in 1 G. & J. 393. From these cases we are led to the conclusion, that [**20]  the appellants might have proceeded for the alleged surprise, either by bill or petition.
It is admitted, that an appeal will not, in general, lie from an order refusing to re-hear. 2 Wend. 226. But this is an application to vacate the enrolment of a decree; to set aside the decree, and to let in the answer, and the merits of the case on 

 [*149]  the part of the defendants below, who never appeared, and therefore an essentially different application from that of a rehearing simply.
The act of 1820, ch. 161, gives to the party not appearing, or appearing and not answering, the right before final decree, under circumstances, to file his answer. But it was not the design of the Legislature to say, that there could be no case presented in which it would be competent for the party after decree, to be let in to answer. The design of the act was certainly to expedite Chancery suits, where they were protracted by the negligence of one of the parties; but it did not design, to give one party advantage over the other, and in all cases to make the decree conclusive in the cause, although his failure to appear or to answer, was not the result of negligence, or where it might [**21]  have proceeded from a providential cause, as the insanity of the party. Whenever the defendant shall be enabled to present such a case, he would have a right to be let in to develope the merits of his case; and a refusal of the court below to permit him to do so, would in our opinion be error. Whether the appellants have made such a case as would entitle him thus to come in, it is not proper on this appeal that we should say. The motions to dismiss the appeals taken in this case are overruled.
MOTIONS OVERRULED.  

35 of 46 DOCUMENTS 

DUDLEY LEE vs. JOHN HOYE'S LESSEE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 Gill 188; 1843 Md. LEXIS 15 

December, 1843, Decided 

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

This was an action of Ejectment, for a tract of land called Flavia, brought on the 10th February 1840. The demise was laid on the 1st January 1839.

The defendant pleaded non cul, and took defence according to his pretensions, as they shall appear to be laid down on the return of a warrant of re-survey to be issued in this cause, &c.

1ST EXCEPTION. The plaintiff to support the issue on his part joined in this case, offered in evidence the plats and explanations. He also offered in evidence the following certificates and extracts from the books of the land office:

STATE OF MARYLAND, Sct: I, George G. Brewer, register of the land office for the Western Shore of the State of Maryland, do hereby certify that there is deposited in and belonging to the office aforesaid, a certain record book, entitled, "Record of the Officers and Soldiers entitled to land westward of Fort Cumberland, in Washington county, with the numbers of the lots drawn for them, agreeably to an act of the General Assembly, passed November session 1788."

Received into the land office the 14th November 1789, by John Callahan, Reg. L. O. W. S.

And that the [**2]  said record book, in a certain part thereof, under the caption of "Soldiers entitled to land westward of Fort Cumberland," contains among others, the following entries, to wit, viz:

________________________________________________________________________________

Names.	Rank and Regiment.	No.	
John Kidd.	P.	4.	1225.	
________________________________________________________________________________

And I do hereby further certify, that another record book, deposited in and belonging to the office aforesaid, entitled, Ledger A, and received into the said land office, according to the following receipt upon the first page thereof, to wit:

Received into the land office as a record, agreeably to the directions of an Act of Assembly, to dispose of the reserved lands westward of Fort Cumberland, in Washington county, &c., passed November session 1788.

    Test,     JNO. CALLAHAN, Reg. L. O. W. S.

And in a certain part thereof, contains as follows, to wit:

December 10th, 1787. In compliance with a resolution of the General Assembly of the State of Maryland, of the 20th May 1787, and a commission from the governor and council, to me directed, bearing date the 11th June 1787, for the purpose of surveying and laying out the reserve land, to the westward of Fort Cumberland, into convenient lots of [**3]  50 acres each, &c.

I hereby certify that I have carefully surveyed for the State aforesaid, 4165 lots of 50 acres each, lying and being in Washington county and State aforesaid, and on the manors, reserves and confiscated lands, to the westward of Fort Cumberland, as will appear by a general plat thereof, and certificates numbered in rotation from 1 to 4165, in this book and another titled Ledger B.     Per     FRANCIS DEAKINS.

And also the following entry, to wit:

No. 1225. Beginning at end of the second line of lot 1224, and running north-west ninety-seven perches, south twenty-six degrees, west one hundred and twenty-two perches, to the end of the second line of lot 1222, and with it reversed, south seventy-eight degrees, east sixty-eight perches, then by a straight line to the beginning, containing fifty acres.

And I do further certify that the foregoing entries have been severally compared and collated with the said original record book, from which they have been respectively taken, and that they agree and correspond therewith.

In testimony whereof, I have hereunto set my hand and affixed

(Seal.) my official seal, this 6th day of October, 1841.

GEORGE [**4]  G. BREWER, Reg. L. O. W. S., Md.

Similar certificates were offered in evidence for lots

No 1226 granted to Timothy Langrel,

" 1229 " to John King,

" 1230 " to William King,

" 1231 " to George Elms,

" 1235 " to James Driver.

For the purpose of shewing title in the respective persons, named in said papers to the respective lots of land claimed in this action, at the time said papers or entries were made, to the sufficiency of which said extracts from said books of the land office, for such purpose, the defendant by his counsel objected, on the ground, that the said extracts did not furnish sufficient evidence to shew that the said lots of land had been allotted to the respective persons therein named, by the commissioners, under and in conformity to the provisions and requirements of the act of Assembly of 1788, chapter 44, so as to vest the legal title to said lots in said persons respectively, but the court (BUCHANAN, C. J. and BUCHANAN, A. J.,) was of opinion, and so instructed the jury, that the said extracts were legally sufficient for the said purpose for which they were offered, to which opinion and instruction the defendant excepted.

2ND [**5]  EXCEPTION. The plaintiff then to support the issue on his part joined, offered in evidence the following patent:

T. W. VEAZEY,

(Seal.)

T. BLAND, Ch.

"THE STATE OF MARYLAND, To all persons to whom these presents shall come, greeting: Know ye, that whereas, John Hoye of Allegany county, on the 28th day of September, 1837, obtained out of the Western Shore Land Office, a special warrant of escheat, to re-survey and affect the following lots, lying in the county aforesaid, and contiguous to each other, viz: Nos. 1226, 1232, 1235, 1234, 1229, 1230, 1231, 1517, 2569, 2567, 2536, 2535, 2538, 2526 and 2527, with liberty of correcting errors, adding any contiguous vacancy, and of reducing the whole into one entire tract, and he, the said John Hoye, assigned the said warrant of escheat to James Smith, of the county aforesaid. In pursuance whereof, a re-survey was made on only the following lots, viz: Nos. 1226, 1232, 1235, 1229, 1230 and 1231, and a certificate thereof returned, when the same were found to contain with fifty-five and a half acres of vacant land, added the quantity of three hundred and fifty-four and a half acres, and called "Flavia," and he having since by [**6]  his assignment, bearing date the 28th day of February 1838, assigned, transferred and made over the same unto John Hoye, who fully compounded for said land according to law. The State of Maryland doth therefore, hereby grant unto him, the said John Hoye, the said lots re-surveyed as aforesaid, with the vacancy added, reduced into one entire tract and called "Flavia," lying in Allegany county aforesaid. Beginning for the outlines of the whole, at the end of the third line of lot No. 1225, it being also at the end of the second line of lot No. 1223, and running thence reversing the third line of lot No. 1225, and running with the second line of lot No. 1222, north seventy-eight degrees west, sixty-eight perches, to the second line of lot No. 2517, and reversing it and running with the second line of lot No. 2516, and reversing the second line of lot No. 1225, north twenty-six degrees east, one hundred and twenty-four perches, to the beginning of lot No. 1232, and reversing the given line thereof, south eighty degrees west, twenty-three perches, then reversing the third line of lot No. 1232, and running with the second line of lot No. 2518, and the second line of lot 2515, north twenty-six [**7]  degrees east, one hundred and twenty perches, then reversing part of the second line of lot No. 1232, north sixty-six degrees east, one hundred and forty-three perches, then north twenty-three degrees east, ninety-three perches, to the second line of lot No. 1235, and running with the lines thereof, north sixty-seven degrees west, ninety perches, north twenty-six degrees east, eighty-five perches, south sixty-seven degrees east, ninety-five perches, then running with the first line of each of lots No. 1235 and 1226, south twenty-three degrees west, one hundred and seventy perches, to the end of the second line of lot No. 1230 and reversing said line, and running with the second line of lot No. 1231, south forty-five degrees east, two hundred perches, then running with the third line and with the given line of lot No. 1231, south forty-five degrees west, eighty perches, north forty-five degrees west, one hundred perches, to the end of the first line of lot No. 1229, then by a straight line to the beginning, containing three hundred and fifty-four acres and one half of an acre, according to the certificate of re-survey thereof taken and returned into the Western Shore Land Office, bearing [**8]  date the fifth day of January 1838, and there remaining, together with all rights, profits, benefits and privileges thereunto belonging. To have and to hold the same unto him, the said John Hoye, his heirs and assigns forever. Given under the great seal of the State of Maryland, this 7th day of September 1838. Witness the Honorable THEODORICK BLAND, esquire, Chancellor."

And then rested his case, relying upon the same as legally sufficient, in connexion with the testimony offered in the first bill of exceptions, which is to be taken and considered as forming a part of this second bill of exceptions, to vest the legal title of the land, for which this suit is brought, in him, and to entitle him to recover the same in this suit, to the sufficiency of which said patent for the said purpose, the defendant objected, and prayed the court to instruct the jury, that the said patent was insufficient for the purpose for which it was so offered, on the ground, that it does not appear on the face of the patent whose lands were escheated, or any of the facts or circumstances, set forth to shew, that said lands so granted, were liable to escheat; which instruction the court (BUCHANAN, C. J.  [**9]  and BUCHANAN, A. J.) refused to give, being of opinion, that the said patent so offered, was legally sufficient to vest the plaintiff, with title in fee in the lands it purports to convey, and that therefore, the plaintiff is entitled to recover; to which refusal and opinion of the court, the defendant excepted.

3RD EXCEPTION. The defendant then to support the issue on his part joined, offered in evidence the following patents:

BEN. OGLE.

A. C. HANSON, Ch.

"THE STATE OF MARYLAND, To all persons to whom these presents shall come, greeting: Know ye, that whereas, General John Swan of the City of Baltimore, on the 17th of October 1798, obtained out of the Western Shore Land Office, a special warrant to re-survey the following lands, lying in Allegany county, and contiguous to each other, viz: Rich Glades, originally, on the 9th of March 1798, granted him for one hundred and fifty acres, and lots No. 1233 and 1236, each containing fifty acres, with liberty of correcting errors, adding vacancy, and reducing the whole into one entire tract. In pursuance whereof, a re-survey was made, when the same were found to contain the exact quantity of two hundred and fifty acres,  [**10]  and there being no vacant land added. The State of Maryland doth therefore hereby grant and confirm unto him, the said General John Swan, the said lands re-surveyed as aforesaid, reduced into one entire tract, and called Good Meadows, lying in Allegany county aforesaid, beginning at a bounded white oak, numbered 2511, standing at the end of six hundred and twenty perches, on the first line of a tract of land called the Royal Charlotte, it being the beginning of lot No. 2511, and running with the given line of said lot reversed, south eighty degrees east, one hundred and eighty-five perches, to the end of the third line of said lot, then north twenty-six degrees east, seventy perches, to the end of the second line of lot No. 1235, and with it reversed, south sixty-seven degrees east, one hundred perches, to a pile of stones at the end of thirty-four perches on the third line of lot No. 1517, and with it reversed, south twenty-three degrees west, eighty-two perches, south fifty-nine degrees east, eleven perches, to a bounded red oak bush, south sixty-two degrees west, one hundred and fifty-six perches, to the end of the second line of lot No. 2515, and with it, north eighty degrees west,  [**11]  two hundred and eight perches, to a bounded black oak and white oak, the beginning of lot No. 2509, then by a straight line to the beginning, containing two hundred and fifty acres, according to the certificate of re-survey thereof taken and returned to the land office, bearing date the 27th of May 1799, and there remaining, together with all rights, profits, benefits and privileges thereunto belonging. To have and to hold the same unto him, the said General John Swan, his heirs and assigns forever. Given under the great seal of the State of Maryland, this 30th day of December 1800. Witness the Honorable ALEXANDER CONTEE HANSON, esquire, Chancellor."

BEN. OGLE.

A. C. HANSON, Ch.

"THE STATE OF MARYLAND, To all persons to whom these presents shall come greeting: Know ye, that whereas, General John Swan, of the city of Baltimore, on the 7th of November 1799, obtained out of the Western Shore Land Office, a special warrant of proclamation of re-survey, and to affect lots No. 1227, 1228 and 1224, lying to the westward of Fort Cumberland, in Allegany county, and contiguous to each other, which lots were originally allotted to Solethiel Gaff, as settler on and entitled to a [**12]  preference in the purchase of the same, who neglected paying the purchase money for the same, within the time limited by law. In pursuance whereof, a re-survey was made, when they were found to contain the quantity of one hundred and fifty acres, for which the said John Swan, paid to the Treasurer of the Western Shore, the sum of thirty-three pounds fifteen shillings, being the full caution money due according to law. The State of Maryland doth therefore hereby grant unto him, the said General John Swan, the said lots re-surveyed as aforesaid, reduced into one entire tract, and called Gaff's Neglect, lying in Allegany county aforesaid, beginning at a bounded white oak marked 2526, standing at the end of six hundred and forty perches on the north-east line from the bounded forked white oak, and running thence, south forty-five degrees west, two hundred and twenty-four perches, to the end of the second line of lot 1223, north forty-five degrees west, one hundred perches, north forty-five degrees east, two hundred and forty perches, to the beginning of lot No. 1231, and with the given line reversed, south forty-five degrees east, one hundred perches, then by a straight line to the beginning,  [**13]  containing one hundred and fifty acres, according to the certificate of re-survey thereof, taken and returned into the land office, bearing date the 28th of January 1800, and there remaining, together with all rights, profits, benefits and privileges thereunto belonging. To have and to hold the same unto him, the said General John Swan, his heirs and assigns forever. Given under the great seal of the State of Maryland, this 16th day of April 1801. Witness the Honorable ALEXANDER CONTEE HANSON, esquire, Chancellor."

ROBT. BOWIE.

A. C. HANSON, Ch.

"THE STATE OF MARYLAND, To all persons to whom these presents shall come greeting: Know ye, that whereas, General John Swan, of the city of Baltimore, on the 3rd of March 1803, obtained out of the Western Shore Land Office, a special warrant, to resurvey the following lands lying in Allegany county, and contiguous to each other, viz: Good Meadows, originally on 13th of December 1800, granted him for two hundred and fifty acres, Gaff's Neglect, originally on the 16th of April, 1801, granted him for one hundred and fifty acres, and lots No. 1225, 1226, 1229, 1230, 1231, 1232, 1234 and 1235, each containing fifty acres, with liberty [**14]  of correcting errors, adding contiguous vacancy, and reducing the whole into one entire tract. In pursuance whereof, a re-survey was made, when the same were found to contain eight hundred and thirteen acres and one quarter of an acre, and there being no vacant land added. The State of Maryland doth therefore hereby grant and confirm unto him, the said General John Swan, the said lands re-surveyed as aforesaid, reduced into one entire tract, and called South Bar, lying in Allegany county aforesaid, beginning at a bounded white oak, numbered 2511, standing at the end of six hundred and twenty perches, on the first line of a tract of land called the Royal Charlotte, it being the beginning tree of Good Meadows, one of the originals of this re-survey, also the beginning of lot No. 2513, and running thence with the given line of said lot reversed, south eighty degrees east, one hundred and eighty-five perches, then with the third line of lots No. 2513, 2514, 2519 and 4150 reversed, north twenty-six degrees east, two hundred and forty-three perches, to the beginning of the sixth line of lot No. 2572, and with it south sixty-seven degrees east, ninety-three perches, to a bounded white oak [**15]  marked 2532, it being the beginning tree of lot No. 1234, one of the originals, and the end of the third line of lot No. 1514, then with the said third line and the third lines of lots No. 1516, 1517 and 1521 reversed, south twenty-three degrees west, two hundred and fifty-five perches south, fifty-nine degrees east, eleven perches, to the end of the first line of lot No. 1520, and with it reversed, south forty-five degrees east, two hundred perches, to a tract of land called Chance, then with Chance, south forty-five degrees west, three hundred and twenty perches, to the beginning of the second line of No. 1223, and with it, north forty-five degrees west, one hundred perches, to the beginning of the second line of lot No. 1222, and with it, north seventy-eight degrees west, sixty-eight perches, to the second line of lot No. 2517, then with said line reversed, and with the second line of No. 2516, north twenty-six degrees east, one hundred and twenty-two perches, north forty-five degrees west, three perches, south eighty-eight degrees west, twenty-six perches, to lots No. 2508, then with it, and lot No. 2515, north twenty-six degrees east, one hundred and twelve perches, to the end [**16]  of the second line of said lot, still with it and lot No. 2509, north eighty degrees west, two hundred perches, to the first line of the Royal Charlotte, and thence by a straight line to the beginning, containing and laid out for eight hundred and thirteen acres and one quarter of an acre, according to the certificate of re-survey thereof, taken and returned into the land office, bearing date the 10th of May 1803, and there remaining, together with all rights, profits, benefits and privileges thereunto belonging. To have and to hold the same, unto him the said General John Swan, his heirs and assigns forever. Given under the great seal of the State of Maryland, this 2nd day of March 1805. Witness the Honorable ALEXANDER CONTEE HANSON, esquire, Chancellor.

Also the plats and explanations which accompany this bill of exceptions, and which are to form a part thereof. He also proved by George W. Devicmon, that from thirty-two to thirty-four years ago, he resided in the immediate neighborhood of the lands claimed by the plaintiff in this suit, and continued to live there during a period of twenty years, and that during all that time he never heard of John Kid, Timothy Langrel, John [**17]  King, William King, George Elms, Samuel Denny and James Driver, or either of them, being in that part of the country, or making any claim whatever to said lands. The defendant further proved by William Ashby, a competent witness, that he was born in the neighborhood of said lands, and is now fifty-six years old, that he, during all that time, never heard of the existence of the above named persons, or any one of them, and never heard of their being in the neighborhood of said lands, or enquiring after or making claim to the same, up to this time. The defendant also proved by John Waltz, a competent witness, that he moved to the immediate neighborhood of the land claimed by the defendant in this action, and adjoining the same as far back as the year 1797, and has continued to live there ever since, and up to this time; that he saw the several lots of land contained in the tract of land called South Bar, run out in the year 1798, and that the said land has been claimed by said Swan, and those claiming under him, down from 1803, to the present time; that the possession or improvement numbered No. 1 on the plats, was made by George R. Waltz, about seventeen years ago, and the possession [**18]  or improvement No. 2, as shown on the plats, was made about ten or twelve years ago, and that the same were made under the defendant, and as his acts; and further, that during the whole time from the year 1803, down to the present time, he never heard of any person claiming said lots of land, or any of them, except the said General John Swan and the defendant, and that at the time of the institution of this suit, and for several years before, Dudley Lee the defendant, was in possession of said lots as the tenant of James Swan. It was admitted by the plaintiff, that the land in controversy has been demised to the defendant and his heirs, by the last will and testament of the said General John Swan, deceased, his father, made on the 27th of May 1820.

Whereupon the defendant by his counsel, prayed the court to instruct the jury, that they might presume the death of the respective parties hereinbefore named, as the holders and owners of said lots, without heirs at the time the said lots of land were granted to the said John Swan, by the State of Maryland as aforesaid, and that the State of Maryland therefore, at the time the patent was issued to the said General John Swan, for the [**19]  said lots of land, or a part of the tract of land called South Bar, had a right to grant the same, they then being liable to escheat, and that the title in fee of said lots, did pass by the said patent for South Bar, from the State of Maryland to the said General John Swan, and that therefore the plaintiff is not entitled to recover in this case upon the title so adduced, and relied upon by him as aforesaid; which prayer and instructions the court (BUCHANAN, C. J. and BUCHANAN, A. J.,) refused, being of opinion, that the said patent for South Bar, passed no title whatever to the said John Swan, for said lots so embraced in the same. To which refusal and opinion, the defendant excepted.

4TH EXCEPTION. The defendant then further to support the issue on his part joined, in addition to the evidence offered in the third bill of exceptions, which is to be taken and considered as forming a part of this fourth bill of exceptions, proved by competent testimony, that General John Swan was taxed with the said tract of land called South Bar, including said lots, from the year 1805, to the time of his death, and paid the taxes on the same, and that since his death down to the present time,  [**20]  the said land in controversy has been taxed to the defendant, who had paid the taxes on the same.

Whereupon the defendant by his counsel, prayed the court to instruct the jury, that they may and ought to presume, that deeds of conveyance were duly made, executed and acknowledged, conveying to the said John Swan, in his life time in fee, the said lots of land so owned by the soldiers, the respective said original owners thereof, which instruction the court refused to give; to which opinion and refusal of the court, the defendant excepted.

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

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

Extracts from record books deposited in the land office, showing the name and rank of grantee, and number of the lot and acres, with a particular description of such lot as surveyed, to which an officer or soldier of the Revolution was entitled, which books purport to have been made under the authority of the act of 1788, ch. 44, with a certificate from the register of the land office, under his seal of office, that the same have been carefully collated and compared with the original record books from which they were respectively taken and agreed therewith, are sufficient evidence to show title in the person named in such extracts, to the lot therein described.

An escheat grant is prima facie evidence of title, and is available for that purpose until the contrary is proved.

It is not necessary nor usual, according to the practice of the land office, to state on the face of an escheat patent whose lands were escheated, or the facts or circumstances which shew that the lands were escheatable.

A patent which professed to grant, as escheat, several parcels of land which it described, with contiguous vacancy, cannot include, as such vacancy, another parcel of land which appeared to have been theretofore granted by the State, and not enumerated as one of the parcels escheated.

The court will not instruct the jury after a lapse of seventeen years merely, to presume the death of the patentee of land.

A death of a patentee will not be presumed to support a title to land, acquired in violation of the law, and rules of the land office.

Before a title can be acquired in lands liable to escheat, the rules of the land office require that two-thirds of the value of the land be paid to the State.

A warrant of resurvey should be founded upon a siezin in fee in the lands upon which the resurvey is to be made.

A partial possession of land, with a general claim of title for fifteen years, will not authorise the presumption of a conveyance to such claimant.  

COUNSEL:
By ALEXANDER and SCHLEY for the appellants, and

By PRICE for the appellee.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*200]  STEPHEN, J. delivered the opinion of this court.
During the trial of this case, several exceptions were taken to the opinions of the court below, upon which it becomes the duty of this court now to decide. The plaintiff to support the issue on his part joined, offered in evidence certain certificates and extracts from the books [**21]  of the land office, for the purpose of shewing title, in the respective persons named in said papers, to the respective lots of land, to recover which this action was instituted, at the time said papers and entries were made; to the sufficiency of which extracts from the books of the land office for such purpose, the defendant objected, on the ground that said extracts did not furnish sufficient evidence to prove that said lots of land had been allotted to the respective persons therein named by the commissioners, so as to vest the legal title to said lots in said persons respectively; but the court was of opinion and so instructed the jury, that the said extracts were legally sufficient for the purpose for which they were offered; to which opinion and instruction the defendant excepted; and whether in that opinion there was error, it is now necessary to determine.
By the act of 1788, chapter 44, it was made the duty of the commissioners to distribute the lots in controversy among certain officers and soldiers by lot, and to endorse the name of the officer or soldier on the ticket, containing the number drawn by such officer or soldier; and the law provides that thereupon, an estate [**22]  in fee simple should be vested in the officer or soldier in such lot, without any patent, deed or grant, to be issued for that purpose; a legal estate in fee therefore vested in the officers and soldiers by operation of law, without any further evidence or muniment of title to be furnished by the officers of government for that purpose. The law directing the distribution, also provides that the commissioners shall make a record of all the lots by them distributed among the said officers and soldiers, and return the same to the Register of the Land Office, to be by him safely kept. The said law also recognises the validity of the books, in which are entered the certificates of all the lots distributed as 

 [*201]  aforesaid, ascertaining and defining their respective boundaries and locations. From these books and the record returned into the land office by the commissioners, the certificates and extracts offered in evidence were taken and certified by the register of the land office, and we are of opinion that they were good and sufficient evidence for the purpose for which were offered. So far as the question of title was involved, they were by law invested with all the legal properties [**23]  and attributes of a patent, and were therefore competent and admissible evidence; the certificates of the register embracing every thing which the records of his office can furnish in relation to the title and ownership of such lots.
The plaintiff then in addition to the preceding evidence, offered in evidence an escheat patent for the land for which the ejectment was brought, and there rested his case, relying upon the same as legally sufficient, together with the evidence in the first bill of exceptions to vest the legal title of the land, for which the suit was brought, in him, and to entitle him to recover; but the defendant objected to the sufficiency of the patent for that purpose, on the ground that it did not appear on the face of the patent whose lands were escheated, nor were any of the facts or circumstances set forth to shew that said lands were liable to escheat; but the court overruled the objection, and were of opinion that the patent was legally sufficient to vest the title in fee in the plaintiff in the lands it purported to convey, and that therefore the plaintiff was entitled to recover.
In this opinion of the court there was no error, so far as the same was objected [**24]  to by the defendant. In 2 H. & J. 126, the principle is stated to be, that an escheat grant is prima facie evidence of title, and is available for that purpose until the contrary is proved. It is not necessary or usual according to the practice of the land office, to state on the face of the patent whose lands were escheated, or the facts or circumstances which shew the lands were escheatable. Where a warrant regularly issued, has been executed by the proper officer, and a certificate returned, which has laid a sufficient 

 [*202]  time in the land office without caveat, to justify the emanation of a grant, it is but a fair, reasonable, prima facie presumption, that the land taken up was escheatable, and that the title passed to the grantee. But the court erred in that part of their opinion, in which they declared that the plaintiff was entitled to recover all the land covered by the patent, as well that part which was escheated, as that which had been taken up as vacancy. It appears by the proof in the case offered by the plaintiff himself, that lot numbered 1225, had been allotted to a certain John Kidd, which was taken up and included in his patent, as [**25]  vacancy.
We think there was no error in the opinion of the court in the third bill of exceptions. The lots were distributed to the soldiers in 1789, in virtue of the act of Assembly passed for that purpose, and South Bar was patented on the 2nd March 1805, a period of time too short to warrant a presumption of the death of the holders of such lots, without heirs, under the circumstances of the case; there being no proof moreover that the soldiers ever resided on the lots, or in the neighborhood where they were situated, or any evidence offered of any facts or circumstances on which such a presumption could be properly founded. But such a presumption at all events, ought not to be made in support of a title, acquired in violation of law and the rules of the land office, which require two-thirds of the value to be paid to the State, before a title can be obtained in lands liable to escheat, and which also require that a warrant of resurvey should be founded upon a seisin in fee, in the lands upon which the resurvey is to be made; neither of which essential conditions appear to have been complied with in the case of the patent for South Bar.
We think there was no error in the [**26]  opinion of the court in the fourth bill of exceptions. The possession of the defendant of the lots in controversy was only a partial one, and that for so short a period as ten or fifteen years, with a general claim of title, was too short a period to warrant the presumption of a conveyance of the lots to the patentee of South Bar, as prayed for by the defendant. For the reasons above stated, 

 [*203]  the judgment of the court below is reversed and a procedendo ordered.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

36 of 46 DOCUMENTS 

S. AND H. HOWARD vs. THE WILMINGTON AND SUSQUEHANNA RAIL ROAD COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 Gill 311; 1843 Md. LEXIS 27 

December, 1843, Decided 

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

This was an action of assumpsit, commenced on the 21st March 1837, by the appellants against the appellees.

The plaintiff's declaration contained nine counts.

The defendant pleaded nine pleas, viz:

1st and 2nd plea, non-assumpsit and payment to all the counts on which issues were joined.

3rd plea was to the 4th count.

4th plea to the 5th count.

5th plea to the 6th count.

6th plea to the 8th count.

7th plea to the 1st count.

8th plea to the 2nd count.

9th plea to the 3rd count.

To these seven last pleas, the plaintiffs demurred generally.

The county court overruled the demurrers, and decided the pleas to be sufficient in bar of the action.

At the trial in this court the parties agreed, that the general counts in the plaintiff's declaration should be abandoned and stricken therefrom; that the judgment for the defendants should be regarded and treated as a general judgment, and that the case should be argued and heard upon the demurrers to the pleas filed to the 1st, 2nd, 3rd, 4th, 5th, 6th, 8th and 9th counts of the plaintiff's declaration.

The plaintiffs declared as follows:

1ST [**2]  COUNT. For that whereas the said plaintiffs heretofore, were employed in executing work and labor upon rail roads and canals as their proper business, &c., and whilst they were so employed, to wit, on the 1st October 1835, at, &c., at the request of the defendants, they the said plaintiffs, did make and enter into a contract or agreement with the said W. and S. R. R. Co., to graduate the W. and S. rail road between Charlestown and Havre De Grace, for twenty-four cents per cubic yard for excavation, grubbing and purchasing land for embankment across Principio Valley included. The plaintiffs to purchase land to supply material for embankment when it could not be supplied from the road, without making a haul of less than eleven hundred feet; all rock or other material that could not be removed without blasting, to be left to the superintending agent, and if said agent and plaintiffs could not agree as to the price, the agent might re-let this part of the work to any other person, as specified in the former specifications of said company of the first and second divisions. And the said plaintiffs aver, that after the making the contract aforesaid, and in consideration thereof, to wit, on,  [**3]  &c., at, &c., and also in consideration, that the said plaintiffs then and there undertook and faithfully promised the defendants to fulfil, perform and keep the said contracts, all things on said plaintiffs part to be performed, fulfilled and kept. They the said defendants, undertook and faithfully promised the said plaintiffs to perform, fulfil and keep the said contract in all things on defendants part, to be performed, fulfilled and kept, to wit, on, &c., at, &c. And the said plaintiffs declare, that they have always since the making of the said contract, been able, ready and willing to perform, fulfil and keep all things in said contract specified on their part to be performed, fulfilled and kept, according to the true intent and meaning of the said contract, of which the said defendants had notice, to wit, on, &c., and often afterwards at, &c. And the said plaintiffs further say, that in consideration of the contract aforesaid, and of the promises and undertakings of the said defendants aforesaid, and for the purpose of performing all things in said contract on the part of said plaintiffs to be performed, they did advertise, proclaim and publicly declare, that they would employ [**4]  and hire all such laborers as should apply to said plaintiffs to be hired for a reasonable compensation, to work upon the rail road in the contract stated, between Charlestown and Havre De Grace, in consequence whereof the plaintiffs were applied to by a great number of laborers to be hired, to wit, upon said road, and said plaintiffs did engage, hire, and pay a much larger number of laborers than they at that time had use for, or could work to advantage on the other job of work they were then engaged in completing, for the purpose of retaining said laborers in plaintiffs employment, with their carts, oxen and horses, so that the plaintiffs might be ready and prepared to commence and vigorously prosecute to its completion the graduation of the rail road in the agreement specified, whenever the said defendants were ready, and should give notice to the plaintiffs to begin to work upon it; and the said plaintiffs also aver, that they employed a number of boarding masters, to board the laborers to be employed in working on the said rail road in said agreement specified, many of whom purchased and provided large supplies of food, bedding and cooking utensils; and the plaintiffs engaged [**5]  the services of a number of managers to superintend the work of the laborers, all of whom were retained by the said plaintiffs at great expense, until said defendants were ready for plaintiffs to begin grading the rail road between Charlestown and Havre De Grace, according to the agreement aforesaid; and the said plaintiffs also purchased a great number of implements and engines, and one hundred dozen shovels for the purpose of fulfilling their agreement aforesaid, and were put to great expense, inconvenience, trouble and delay in and about satisfying, retaining and compensating the laborers, workmen and others whom they had engaged, retained and hired, for the purpose of fulfilling their agreement as aforesaid. And said plaintiffs further declare, that a great number of laborers, workmen and others they had engaged and hired for the purpose of fulfilling the agreement aforesaid, moved upon the line of the rail road between Charlestown and the Susquehanna River, and there constructed their houses or shantees, to be ready to commence their labors on said rail road, according to the agreement they had entered into as aforesaid, with the said plaintiffs; and the said plaintiffs moved [**6]  and transported all their necessary engines, implements, machinery, stores and other effects from the Baltimore and Port Deposit rail road to French Town in Cecil county, for the purpose of making ready to use the same on that part of the Wilmington and Susquehanna Rail Road in said agreement mentioned. And the said plaintiffs say, they were then and there able, ready and willing to commence and prosecute the work in the said agreement mentioned, to its completion, according to said agreement; and said plaintiffs further aver, that they were hindered and prevented by the making of the agreement aforesaid, from attending to and bidding for the lettings and contracts upon other rail roads and canals in various other places, which they otherwise might and would have attended to and bid for, and engaged in, and thereby lost the opportunity of making large gains and profits from the same; and the plaintiffs further aver, that although after the time of making the agreement aforesaid, to wit, on the 12th July 1836, they entered into another contract or agreement in writing with said defendants, to do all the grading of that part of section No. 9 of the same rail road, mentioned in the first [**7]  agreement, and which lies in the state and county aforesaid, and which extends from station No. 191 to the end of the piers and wharf in the river Susquehanna opposite Havre De Grace, being a portion of the same rail road included in the first agreement above stated. Nevertheless, the said second agreement to grade section No. 9 from station No. 191 to the river as aforesaid, was made and entered into, with the expressed determination and understanding on the part of the plaintiffs, and was so declared and expressed by the plaintiffs to the said defendants, at and before the time of entering into the said second agreement, that by entering into the said second agreement, they the said plaintiffs, did not waive, abandon or rescind the said first agreement so made as aforesaid, but that notwithstanding the said second agreement, the said plaintiffs held and considered the said defendants liable and responsible to them for all the loss, injury and inconvenience the said plaintiffs had suffered or been put to by the non-fulfilment on the part of the said defendants, of all the matters and things in the said first agreement by them to be performed and observed, according to the true intent [**8]  and meaning of the said first agreement, except only insomuch as said first agreement refers to that part of the said rail road that is mentioned in said agreement, of all which premises the said defendants had notice, to wit, at, &c. Yet the said plaintiffs say, that the defendants well knowing the premises, but contriving and wrongfully intending, artfully and deceitfully to defraud and injure the said plaintiffs, to wit, on the 1st December 1835, at, &c., wholly refused and declined to observe, perform and fulfil any of the matters and things in the said first agreement, specified on their part to be performed and fulfilled, and refused and declined to perform any of the matters and things in their said promise and undertaking, but thereby craftily and subtily deceived the said plaintiffs in this, videlicit, that the said defendants took the work of grading the rail road in the first agreement mentioned out of the hands of the said plaintiffs, by letting the same to other contractors and persons without the consent of and against the will of said plaintiffs; and said defendants further disregarding the said first agreement, and their promises and undertakings afterwards, to wit,  [**9]  on the 1st of December 1835, at the county aforesaid, did not, nor would permit or suffer the plaintiffs to begin or proceed to complete the work on the rail road in the first mentioned agreement specified, and then and there wholly hindered and prevented them from so doing, and then and there wrongfully and unjustly discharged the plaintiffs from any performance or completion of their first said agreement and promise and undertaking, whereby the plaintiffs have been deprived of all the profits, gains and advantages, which they otherwise might, and would have derived and acquired from the completion of the work in the first agreement mentioned scilicet at, &c.

2ND COUNT. For that whereas the said plaintiffs were heretofore engaged in executing jobs of work and labor upon rail roads and canals as their proper business, &c., and the said W. and S. R. R. Co. were incorporated for the purpose, amongst other things, of constructing a rail road in the county aforesaid, and were bound by their charter to complete the construction of the said rail road in a given time mentioned therein, on pain of forfeiting their franchise, and said company were empowered amongst other things, to enter [**10]  into contracts with laborers and others, for the purpose of constructing said road, and the said defendants scilicet on the 1st of October 1835, at, &c., in consideration, that the plaintiffs at the special instance and request of the defendants, would undertake, promise and agree to grade all that portion of the W. and S. R. R. that lies betwixt Charlestown and Havre De Grace, or that was there laid out or contemplated to be made there in Cecil county, and would agree to execute the whole in a workmanlike manner, and according to the directions of the engineer, the defendants undertook and promised the plaintiffs, that they would have the privilege of wasting the material of the cut, and of purchasing ground to supply the embankment over Principio Valley when it could not be supplied from the road, without making a haul of less than eleven hundred feet; and the defendants undertook, and then and there promised the said plaintiffs to permit and suffer them to grade the portion of the rail road that lies between Charlestown and the Susquehanna river, and to pay the said plaintiffs twenty-four cents per cubic yard for common excavation, all rock excavated to be paid for at the estimate [**11]  of the engineer; and the said plaintiffs aver, that they, confiding in the promise and undertaking of the said defendants, did undertake, promise and agree, to and with said defendants to grade all that portion of the W. and S. R. R. that lies between Charlestown and Havre De Grace in a workmanlike manner, according to the directions of the engineer, afterwards, to wit, on 1st October 1835, at, &c., on the day and year last aforesaid, and divers days and times thereafter, did provide the necessary laborers, means and instruments for the purpose of grading the road as aforesaid, and were put to great trouble and expense, in and by engaging a great number of superintendants and laborers, and retaining them until the said defendants should be ready for plaintiffs to begin grading said rail road, and by purchasing a great number of shovels and other implements, and by moving and transporting all their necessary implements, machinery and stores from the Baltimore and Port Deposit rail road to French Town, for the purpose of using them in and about grading that portion of said rail road above mentioned; and the said plaintiffs further aver, that they have been able and willing ever since [**12]  the making of the said promise and undertaking of the defendants aforesaid, (until as hereinafter stated they were prevented from so doing by said defendants,) to begin and execute the grading of that portion of said rail road that lies betwixt Charlestown and Havre De Grace, in a workmanlike manner, and according to the directions of the engineer, whereof the said defendants then and there had notice at Cecil county aforesaid. Yet the said defendants not regarding their said promise and undertaking in manner aforesaid made, but contriving and fraudulently intending to deceive and injure the said plaintiffs in this behalf, did not, nor would, permit or suffer the said plaintiffs to begin to grade the said portion of rail road, nor to complete the grading of the same, but wholly refused and neglected so to do, and on the contrary thereof, they the said defendants, after the making of their said promise and undertaking, and whilst the said plaintiffs were able and willing to begin and execute the grading of that portion of the rail road that lies betwixt Charlestown and Havre De Grace in a workmanlike manner, according to the directions of the engineer, to wit, on 1st of December 1835,  [**13]  at, &c., wrongfully and unjustly, and without the license and consent, and against the will of plaintiffs, they the said defendants, let out the said portion of the rail road, and contracted for its graduation with other persons, and caused it to be graded by them, whereby the said plaintiffs were hindered and prevented from grading or beginning to grade said portion of the rail road aforesaid, nor did the said defendants pay the said plaintiffs twenty-four cents per cubic yard for the common excavation on said portions of rail road nor any part thereof, nor did they pay the said plaintiffs for the rock excavated according to the estimate of the engineer, although often requested so to do, but have hitherto wholly refused and neglected, and still refuse. And the said plaintiffs also aver, that the said defendants wrongfully and unjustly discharged the plaintiffs from the performance or completion of their said promise and undertaking, whereby the said plaintiffs not only lost and were deprived of all the profits, benefits and gains that might and would have accrued to them from grading the said portion of the rail road betwixt Charlestown and the Susquehanna river, but also suffered [**14]  and were put to great loss and expense of time and money, in and about preparing to execute the grading of said rail road, and prevented from entering into contracts and engagements for jobs of work on other rail roads and canals, amounting in the whole to a large sum of money, at, &c.

3RD COUNT. And whereas also heretofore, that is to say, on the 1st October 1835, at, &c., in consideration that the said plaintiffs, at the special instance and request of the defendants, would get ready and be prepared in a reasonable time, then next ensuing the day and year last aforesaid, with laborers, implements, machinery, horses and carts, to grade a certain portion of a rail road, which the defendants were then engaged in constructing, the defendants then and there undertook, and faithfully promised the plaintiffs to suffer and permit them to grade all that portion of the W. and S. R. R.; (or by whatever other name the same may be called,) that they were engaged in constructing, or intended to construct betwixt Charlestown and the Susquehanna river, and to give the plaintiffs the privilege of wasting all material of the cut not required for the embankments, and permit them to purchase earth [**15]  to supply the embankments over Principio Valley, where it could not be supplied from the road without making a haul of less than eleven hundred feet, and if the plaintiffs would execute the whole grading in a workmanlike manner, and according to the directions of the engineer, undertook and promised to pay them twenty-four cents per cubic yard for common excavation, and to pay the plaintiffs for all rock excavated at the estimate of the engineer. And the said plaintiffs aver, that they, confiding in the said promise and undertaking of the defendants, afterwards, at, &c., on, &c., in the county aforesaid, and on divers days and times thereafter, for the purpose of being ready and prepared with laborers, implements, machinery, horses and carts to grade the portion of the said rail road above mentioned, did engage and hire a great number of laborers, and horses and carts, all of which were kept and retained by plaintiffs in a state of readiness and at great expense, waiting for a long space of time for defendants to permit and suffer the plaintiffs to begin the grading of the portion of the rail road above specified, and said plaintiffs purchased a great number of necessary implements [**16]  and machines, and one hundred dozen shovels, for the purpose of being ready to grade said rail road, and were put to great expense and trouble in and about moving and transporting their engines, machinery and other effects from the Baltimore and Port Deposit rail road to French Town in Cecil county, for the purpose of being ready and prepared to commence grading the said portion of said rail road above mentioned, and to proceed with the completion of the same in a workmanlike manner, according to the directions of the engineer, so soon as the defendant might or should permit, or suffer the plaintiffs to begin to grade the same; and the said plaintiffs further aver, that they were hindered and prevented by the promise and undertaking of said defendants, made in manner and form as above stated, from undertaking and engaging in jobs of work on other rail roads and canals, and lost thereby the opportunity of making large gains and profits from the same, of all which premises the defendants on the day and year aforesaid, at the county aforesaid, had notice. And the said plaintiffs aver, that from the time of making the said promise and undertaking of the said defendants, the plaintiffs [**17]  were ready and willing in a reasonable time, and for a long space of time, scilicet, from the time of making said promise and undertaking until the 1st December 1835, at the county aforesaid, and offered to begin to grade all that portion of the rail road above mentioned, and to complete the same in a workmanlike manner, according to the directions of the engineer, in a reasonable time, of all which premises the defendants at, &c., on, &c., and often afterwards, had notice. Yet the said plaintiffs in fact say, that the defendants, contriving and wrongfully intending to injure the said plaintiffs, did not nor would perform their said promise and undertaking in form aforesaid made, but totally disregarding the same, did not nor would permit or suffer the said plaintiffs to begin to grade that portion of the rail road above mentioned, betwixt Charlestown and the Susquehanna river, but wholly neglected and refused so to do, and on the contrary thereof, they the said defendants, after the making of their said promise and undertaking, and whilst the said plaintiffs were ready and willing to begin and complete the grading of that part of the rail road above specified, in a workmanlike manner,  [**18]  and according to the directions of the engineer, to wit, on the 1st December 1835, at Cecil county aforesaid, wrongfully and unjustly, and without the license or consent of the plaintiffs, and against their will, contracted for the grading of the above stated portion of rail road betwixt Charlestown and the Susquehanna river, with other persons than the plaintiffs, and caused the said portion of rail road to be graded by them, whereby the plaintiffs were hindered and prevented from beginning to grade said portion of rail road, and were wrongfully and unjustly, and against their will, discharged by the defendants from beginning and completing the grading of the said rail road betwixt Charlestown and the Susquehanna river, in a workmanlike manner, and according to the directions of the engineer, nor did the said defendants pay the plaintiffs twenty-four cents per cubic yard for the common excavation on said portion of the rail road, nor any part thereof, nor did said defendants pay the plaintiffs for the rock excavated according to the estimate of the engineer, although often requested so to do, to wit, at the county aforesaid; but to pay the same or any part thereof, the said defendants [**19]  have hitherto wholly refused, and still do refuse, whereby the said plaintiffs have been deprived of all the profits, benefits and gains, which otherwise might and would have accrued to them from the completion of grading of the said rail road betwixt Charlestown and the Susquehanna river, to wit, at, &c.

4TH COUNT. And the said plaintiffs further complain, for that whereas the said plaintiffs heretofore, to wit, on the 12th of July 1836, at Wilmington, that is to say, at, &c., made another agreement in writing with the said W. and S. R. R. Co., and amongst other things in said agreement specified, to do all the grading of that part of sect. No. 9, in the State of Maryland, of the W. and S. R. R., which extends from station No. 191 to the end of the piers and wharf in the river Susquehanna, opposite Havre De Grace, according to the directions of the engineer and the specifications in said agreement, for the sum of twenty-six cents per cubic yard for every cubic yard excavated, the said section to be completed in a workmanlike manner, viz: one mile from station No. 191, by the 15th of October 1836, and the residue by the first day of November ensuing, which said agreement and specification,  [**20]  and all things therein contained, is of the tenor and in the words following, to wit:

"Agreement between S. H. and H. H. of the first part, and the W. and S. R. R. Co. of the second part."

"The party of the first part, in consideration of the matters hereinafter referred to and set out, covenants and agrees to and with the party of the second part, to furnish and deliver at the proper cost of the said party of the first part, the building materials, which are described in the annexed schedule to the said party of the second part, together with the necessary workmanship and labor on said rail road, and at such times, and in such quantities as the party of the second part shall require and designate; and faithfully, diligently and in a good and workmanlike manner, to do, execute and perform the office, work and labor in the said schedule mentioned.

"And the party of the second part, in consideration of the premises, covenants and agrees to pay the party to the first part, the sums and prices in the said schedule mentioned, on or before the first day of November next, or at such other times and in such manner as therein described. Provided, however, that in case the party [**21]  of the second part shall at any time be of opinion that this contract is not duly complied with by the said party of the first part, or that it is not in due progress of execution, or that the said party of the first part is irregular or negligent, then and in such case he shall be authorised to declare the contract forfeited, and thereupon the same shall become null, and the party of the first part shall have no appeal from the opinion and decision aforesaid, and he hereby releases all right to except or to question the same in any place or under any circumstances whatever. But the party of the first part shall still remain liable to the party of the second part for the damages occasioned to him by the said non-compliance, irregularity or negligence: and provided also, that in order to the faithful and punctual performance of the covenants above made by the party of the first part, and to indemnify and protect the party of the second part from loss in case of default and forfeiture of this contract, the said party of the second part shall, notwithstanding the provision in the annexed schedule, be authorized to retain in their hands until the completion of the contract, fifteen per [**22]  cent. of the moneys at any time due to the said parties of the first part. Thus covenanted and agreed by the said parties this 12th day of July 1836, as witness their seals, &c.     SEBRE HOWARD,     (Seal.)

JAMES CANBY, Pres't, (Seal.)

Signed, sealed and delivered in the presence of--. [The date above changed to 1st of November, and in the schedule the price changed to twenty-six cents, and an extra price for extra haul inserted, and the work fixed to be done by Nov. 1st 1836, before signing.]     WM. P. BROBSON.

Schedule referred to above.

The above named S. H. and H. H. contract to do all the grading of that part of section No. 9 in the State of Maryland of the W. and S. rail road, which extends from station No. 191 to the end of the piers and wharf in the river Susquehanna opposite Havre De Grace, according to the directions of the engineer, and according to the specifications hereto annexed, for the sum of twenty-six cents per cubic yard, for every cubic yard excavated, the said section to be completed in a workmanlike manner, viz: one mile from station No. 191 by October 15th 1836, and the residue by November 1st ensuing. They also contract to make [**23]  tha embankment at the river from the excavation of the road, provided the haul shall not exceed a distance of eight hundred feet from the eastern termination of the said embankment, all other portion of the hauling together, not to exceed an average of eight hundred feet, and for any distance exceeding the said average, the price is to be one and a half cents per cubic yard for each hundred feet haul. The party of the second part contracts to pay to the said Sebre Howard and Hiram Howard, the said sum of twenty-six cents per cubic yard, in monthly payments, according to the measurement and valuation of the engineer, retaining from each payment fifteen per cent. until the final completion of the work. If any additional work, in consequence of water, grubbing or hard material is required, on the side ditch or ditches through Cowden's woods, the same is to be decided by the engineer, as in case of rock, &c., &c.

Specification of the manner of grading the Wilmington and Susquehanna Rail Road.

Before commencing any excavation or embankment the natural sod must be removed to a depth of three inches from the whole surface occupied by the same, for the purpose of afterwards sodding [**24]  the slopes thereof, and all stumps, trees, bushes, &c., entirely removed from the line of the road, as directed by the engineer. In cases of embankment, a grip must be cut about one foot deep for footing the slopes and preventing them from slipping, the embankments must be very carefully carried up in layers of about one foot in thickness, laid in a hollow form, and in so doing all hauling or wheeling, whether loaded or empty, must be done over the same, the slopes of the excavations and embankments will be one and half horizontal to one perpendicular, except where otherwise ordered by the engineer, and are to be sodded with the sods removed from the original surface; side ditches and back drains must be cut whenever ordered by the engineer at the same price as the common excavation; the side ditches will, on an average, be about nine feet wide on top and about two feet deep, and will extend along a great portion of the road. In most places where embankments are to be made, the cutting of the adjacent parts is about sufficient for their formation, and as the contractor is supposed to have examined the ground and profiles, and to have formed his estimates accordingly, no allowance will [**25]  be made for extra hauling; where more earth is required than is procured from the excavation, the contractor shall take it from such places as the engineer may direct, the cost per cubic yard being the same as the other parts. Where there is any earth from the excavations more than is required from the embankments, it shall be placed where ordered by the engineer. All the estimates will be made by measuring the excavations only. Loose rock, boulders, iron, stone or other pebbles of a less weight than one-fourth of a ton, are to be removed by the contractor at the same price as the common excavation, but in cases of larger size, or for blasting, the price shall be a matter of special agreement between the contractor and engineer; and if the former should not be willing to execute for what appears to the engineer a fair price, the latter may put the same into other hands. No extra allowance will be allowed for cutting down trees, grubbing, bailing or other accidental expenses. Measurements and estimates will be taken about once a month, and full payment will be made by the directors after deducting 15 per cent., which deduction on each estimate will be retained until the entire contract [**26]  is completed, which must be on or before   . It is to be distinctly understood by the contractors that the use of ardent spirits among the workmen is strictly forbidden.     WILLIAM STRICKLAND,

Chief Engineer of the Wil. and Sus. R. R.

And thereupon afterwards, to wit, on the said 12th of July 1836, at the county aforesaid, in consideration that the plaintiffs at the special instance and request of the said defendants, had then and there undertaken and faithfully promised the said defendants to perform and fulfil all things in said agreement on said plaintiffs behalf to be performed and fulfilled, they the said defendants undertook and faithfully promised the said plaintiffs to perform and fulfil all things in said agreement on the defendants part to be performed and fulfilled; and said plaintiffs declare, that soon after the making of the said agreement, for the purpose and with the intent of fulfilling and performing all things in said agreement on their part to be performed and fulfilled, to wit, on the 23rd July 1836, at the county aforesaid, they promptly and diligently commenced doing and executing the grading of that part of section No. 9 in said agreement set [**27]  out and contracted for by them, and were fully prepared with laborers, means and instruments to execute the work in the manner and in the time specified in said agreement, for the completion of the same, and so continued actively and diligently to prosecute and do the work of grading, and all other work contracted for in said agreement, until the 17th of September 1836, when said plaintiffs were served by the sheriff of Cecil county with a writ of injunction, issued from the High Court of Chancery, sealed with the seal of the State of Maryland, and signed by the honorable Theodorick Bland, Chancellor, which said injunction was of the tenor following, to wit, which said writ after its formal part proceeded as follows:

We therefore do hereby command and strictly enjoin you the said Delaware and Maryland rail road company, your president and directors, agents and servants, that from henceforth you, and each and every one of you, do absolutely forbear, desist, surcease and refrain altogether from making, constructing or completing the said wharf, contemplated and laid out by you the said Delaware and Maryland rail road company, from the lot leased by the father of the said complainant [**28]  to Martha Coffield, on the Susquehanna river, and from all and every act whatsoever towards the making, completing or using in any manner the said wharf or any part thereof, and from placing any stone, gravel, earth, logs, timber, boards, or any other substance or material on said wharf, or any part thereof, or in the said river, and from driving down piles or timbers in said river, and from any other and further act touching or affecting the said road commenced by you from the Cecil Shore of the Susquehanna river, until the further order of the court of chancery. Witness the honorable Theodorick Bland, esquire, Chancellor, this 13th of September 1836.

Test,--RAMSEY WATERS, Reg. Cur. Can.

In Chancery, 13th Sept. 1836. Ordered, that writs of subpoena and injunction issue as prayed by the foregoing bill of complaint; and it is further ordered, that at any time after the said defendants have filed their answers, the court will hear a motion to dissolve the said injunction, provided the said defendants give to the said plaintiffs, or their solicitor, ten days notice thereof, and the register is directed to endorse a copy of this order on the said writ of injunction, that it may [**29]  be served therewith on the said defendants.

THEODORICK BLAND, Ch'r.

On which injunction was thus endorsed: Injoined--Noble Pennington, Sh'ff.     True copy,

Test,--RAMSEY WATERS, Reg. Cur. Can.

By means of which injunction the plaintiffs were prevented and delayed from executing the work in said agreement, contracted to be performed and done in the time specified in said agreement, and were enjoined and prohibited from working upon that part of the rail road in said injunction mentioned, being part of sec. No. 9 in said agreement mentioned, for a long space of time, to wit, from the said 17th of September, the day on which said injunction was served, until the 30th of October in the same year, being the day when said injunction was appealed from and appeal bonds filed, whereby said plaintiffs suffered great delay, inconvenience and expense in conducting and performing the grading of the said rail road in said agreement mentioned, for and during the whole time the said injunction remained and continued in force; and said plaintiffs declare that at the time of making of said agreement, the ground upon which the said rail road was to be graded was laid down on the [**30]  profile prepared by the engineer, and marked out by stakes to shew the width of the rail road track at the surface of the earth, and also the width of the embankment, (as referred to in the specification in said agreement,) all of which were examined by the said plaintiffs at the request of the defendants before they made and entered into said agreement. And said plaintiffs aver, that although great part of the embankment to be made was staked out and laid down in the profile to be only fifteen feet wide at the top, the engineer ordered and directed the plaintiffs to make the embankment thirty feet wide at the top along a great portion of the railroad in said agreement mentioned. And said plaintiffs further aver, that whilst they were executing the work according to the profile as aforesaid, the engineer of the defendants ordered and directed the plaintiffs to grade the rail road -- feet deeper than it was laid down on said profile, whereby said plaintiffs were greatly delayed, and were prevented from completing the first mile of the road before the 20th of October 1836, which was then completed and finished according to and under the directions of the engineer aforesaid. And said [**31]  plaintiffs further aver, that notwithstanding the said injunction, and all the other actings and doings of the said defendants in the premises as aforesaid, they did with great diligence and care, with all proper and necessary means, and without any unnecessary or unavoidable delay, proceed with and continue to execute the work in said agreement specified, according to the terms and condition thereof, in a faithful and workmanlike manner, and did observe, fulfil and keep all the terms and conditions of said agreement on their part to be observed and kept, or except so far only as they were prevented from finishing the work in the time specified in said agreement by the injunction aforesaid, and the orders, interference and hindrance of the said defendants, and that after the said 15th of October 1836, and the said 1st of November, the time fixed for the completion of said work in said agreement, they did proceed under the orders of the engineer aforesaid, and at the request and by the permission of the said defendants, and by the authority and virtue of the agreement aforesaid, to execute the work in said agreement mentioned, according to the terms and conditions thereof, and performed [**32]  and fulfilled every thing on their part by said agreement to be done and performed, from the time of the making said agreement until the 19th of January 1837; and said plaintiffs declare, that the engineer of said company estimated the work of said plaintiffs done under said agreement in the month of December 1836, according to measurement and valuation, at the sum of three thousand six hundred and some dollars, before deducting the fifteen per cent. specified in said agreement to be retained by said company until the final completion of said work; yet the said defendants disregarding the terms of said agreement, although often requested so to do, at, &c., aforesaid, have not yet paid the said sum of $ 3,600, after deducting the fifteen per cent. aforesaid, nor any part of the said fifteen per cent. so retained as aforesaid, but contriving and intending to defraud and injure said plaintiffs, after paying them one thousand dollars, a part of said estimate, refused and still do refuse to pay the balance. And said plaintiffs further aver, that according to the terms of said agreement, when there was any earth from the excavations more than was required for the embankments, it was to be [**33]  placed where ordered by the engineer, yet the defendants well knowing the premises, on the 19th of January 1837, at Wilmington, that is to say at, &c., notwithstanding the request and demand of the plaintiffs in this behalf, but intending and contriving artfully and deceitfully to defraud and injure the said plaintiffs, refused to permit the engineer to point out or order any where to deposit the earth from the excavation, although there was a large quantity of earth to be removed from the excavations more than was required for the embankments, and also refused to pay said plaintiffs one and a half cents per cubic yard for each hundred feet haul over eight hundred feet in distance, as by the terms of said agreement they were bound and required to do, but said defendants artfully and fraudulently contriving to impose upon said plaintiffs, by forcing them to submit to an alteration of the terms of said agreement, or to be deprived of all the benefits and advantages to which they were entitled to under the same, declared the said agreement to be forfeited, and refused to comply with the terms and conditions on their part to be observed, and fulfilled and kept, whereby said plaintiffs [**34]  were suddenly thrown out of employment, and unjustly and fraudulently prevented completing the work contracted to be done by them as aforesaid, and have lost all gains and profits which they might and would otherwise have made and acquired from finishing the work according to said agreement.

5TH COUNT. And the said plaintiffs further complain, for that whereas after the said 15th October, and the said 1st November, the times fixed for the completion of the said work and labor designated in the said agreement, on the 12th July 1836, stated in the fourth count of this nar, the said plaintiffs at the special instance and request of the said defendants, to wit, on the 2nd November 1836, at Wilmington, to wit, at, &c., aforesaid, undertook and agreed with the said defendants to finish and complete all and singular the work and labor in the agreement aforesaid, which then remained unfinished and incomplete, at the prices and in the manner stipulated in the said agreement, and to do and perform the same within a reasonable time, and that the said defendants in consideration thereof, promised and agreed to pay the said plaintiffs all that was then due them, and also for the said work [**35]  and labor the prices stipulated in the said agreement, and to do and perform all and singular the covenants on the part of the said defendants to be done, as mentioned in the said agreement; and the plaintiffs further aver, that in consideration thereof, they the said plaintiffs did proceed diligently and faithfully with the said work and labor at the said instance and request of said defendants, and that while they were so employed faithfully and diligently executing the said work and labor, and after the same had progressed considerably, the said defendants refused to do and perform the covenants and agreements on their part to be done and performed, and that said defendants, and their agents and engineers, refused to suffer and permit the said plaintiffs to proceed with the said work and labor, and to finish and complete the same according to the terms of the said agreement; and the plaintiffs in fact say, that they were prevented from finishing and completing all the said work and labor in the manner stipulated in the agreement aforesaid, by the orders, directions, hindrance and interference of the said defendants, their agents and engineers, and that they the said plaintiffs,  [**36]  were ready and willing to have done and performed, and offered to do and perform all and singular the said work and labor within a reasonable time, and in the manner stipulated in the agreement aforesaid, of which said defendants then and there had notice, to wit, at the county aforesaid; but the plaintiffs were prohibited and prevented from doing the said work and labor at the times and in the manner aforesaid, by the refusal of the said defendants to observe and perform the covenants and agreements on their part to be done and performed as set forth in the written agreement aforesaid, and by the interference and hindrance of said defendants, and their agents and engineers, to wit, at the county aforesaid. By reason of which said unjust and fraudulent conduct on the part of the said defendants the said plaintiffs were prevented from realizing the benefits, profits and advantages which they would have derived from the completion of the said work and labor, and the observance of the said last mentioned agreement on the part of the said defendants; wherefore the said plaintiffs say they are injured, and have suffered damages fifty thousand dollars.

6TH COUNT. And the said plaintiffs [**37]  further complain, for that whereas on the 2nd of November 1836, at the special instance and request of the defendants they undertook and agreed with the defendants, to finish and complete the work and labor upon section number nine on the rail road of the defendants, which runs from Wilmington to the Susquehanna river, upon the following terms and conditions, that is to say: (here insert the agreement of the 12th July 1836, leaving out the words, namely: "one mile from station number one, and the residue by November the first ensuing," and inserting in place thereof, "and within a reasonable time,") and that the said defendants in consideration thereof, promised to pay for such work and labor the prices stipulated as aforesaid, and that in pursuance of said agreement, did forthwith proceed with the said work and labor up to the month of January 1837, when they were prevented by the said defendants from further progressing in said work, and from finishing and completing the same according to the terms of said agreement in the first instance, because the said defendants refused to suffer their engineer to order or direct, where the surplus earth from the excavations on said section over [**38]  and beyond the amount of earth required for the embankments in the same section, should be placed, as they were bound to do by the said agreement, and afterwards in the same month, fraudulently and illegally entirely stopped the said plaintiffs, and prevented them from going on with and completing the same, and afterwards gave the work to some body else, by which the said plaintiffs were prevented from finishing and completing their said agreement; and the said plaintiffs further aver, that if they had been permitted to go on with and finish the said work under said contract, as they offered to said defendants and intended to do, they would have made large profits, to wit, fifty thousand dollars. Whereas by the said conduct of the said defendants they not only lost the said profits, but were put to other losses and expenses by being left in the possession of a large force of men and materials, horses and carts, which they had got together for the purpose of completing said work.

7TH COUNT. And whereas also the said defendants afterwards, to wit, on the 1st of August 1837, at the county aforesaid, were indebted to the said plaintiffs in the further sum of fifty thousand dollars,  [**39]  for the work, labor, care and diligence by the said plaintiffs before that time done and performed, in and about the business of the said defendants, and for them, and at their special instance and request, and also for divers materials and other necessary things by the said plaintiffs before that time found, and provided and applied in and about that work and labor for the said defendants, and at their like special instance and request, and being so indebted the said defendants, in consideration thereof afterwards, to wit, on the day and year aforesaid, at the county aforesaid, undertook and promised the said plaintiffs to pay them the last mentioned sum of money, nevertheless the said defendants not regarding their said promises and undertakings, but although often requested so to do, by the said plaintiffs, have not yet paid the said sum of money or any part thereof, but refuse so to do, to the damage of the said plaintiffs, in the sum of fifty thousand dollars.

8TH COUNT. And whereas also heretofore, to wit, on the     day and     year at the county aforesaid, in consideration that the said plaintiffs at the like special instance and request of the said defendants, had [**40]  before that time undertaken to perform certain work, labor and services in and upon the property of the said defendants, to wit, on the rail road between     at the county aforesaid. And said plaintiffs aver, that they did perform the said work and labor upon the property aforesaid, and the said defendants undertook and then and there faithfully promised the said plaintiffs to pay them so much money as they therefor reasonably deserve to have of the said defendants, when they the said defendants should be thereunto afterwards requested; and the said plaintiffs aver, that they reasonably deserved to have of the said defendants the further sum of     like lawful money, to wit, at the county aforesaid, whereof the said defendants afterwards, to wit, on the day and year last aforesaid there had notice, nevertheless the said defendants not regarding their said promises and undertakings, but contriving and fraudulently intending craftily and subtily to deceive and defraud the plaintiffs in this behalf, have not as yet paid the said sums of money, or any part thereof to the said plaintiffs, although often requested so to do, although they the said defendants afterwards, to wit, on the [**41]      day of the     of the year     last aforesaid, at the county aforesaid, were requested by the said plaintiffs so to do, but the said defendants to pay them the same have hitherto wholly neglected and refused, and still do neglect and refuse, to the damage of the said plaintiffs in the full sum of, &c.

9TH COUNT. And the said S. and H. Howard, by their attorney aforesaid complain, for that whereas the W. and S. R. R. Co. heretofore, to wit, on the 12th of July 1836, at Wilmington, that is to say at Cecil county aforesaid, made another agreement in writing with said plaintiffs, by which said agreement amongst other things therein set out, the plaintiffs agreed to do all the grading of that part of section No. 9 of the Wilmington and Susquehanna Rail Road in the State of Maryland, which extends from station No. 191 to the end of the piers and wharf in the river Susquehanna opposite Havre De Grace, according to the directions of the engineer and the specifications in said agreement, for the sum of twenty-six cents per cubic yard for every cubic yard excavated, the said section to be completed in a workmanlike manner, viz: one mile from station No. 191 by the 15th of October [**42]  1836, and the residue by the 1st of November ensuing, which said agreement and specification, and all things therein contained is set out in totidem verbis in the 4th count of this declaration, as by reference thereto will fully appear. And thereupon afterwards, to wit, on the said 12th July 1836, at the county aforesaid, in consideration that the plaintiffs, at the instance and request of the defendants, then and there undertook and faithfully promised the said defendants to perform, fulfil and keep all things in said agreement on plaintiffs part to be performed, fulfilled and kept, they the said defendants at the same time and place undertook and faithfully promised the said plaintiffs to perform, fulfil and keep all things in the said agreement on the defendants part to be performed, fulfilled and kept; and said plaintiffs declare that soon after the making of said written agreement, for the purpose and with the intent of fulfilling and performing all things in said agreement on their part to be performed and fulfilled, to wit, on the 23rd of July 1836, at the county aforesaid, they did promptly and diligently commence grading that part of section No. 9, in said agreement mentioned,  [**43]  and were fully prepared with laborers, means and utensils to execute the work in the manner and within the time specified in said agreement for the completion of the same, and so continued actively and diligently to prosecute and do the work of grading said rail road and all other things, according to the said agreement, until the 17th of September 1836, when said plaintiffs were served by the sheriff of Cecil county with a writ of injunction, prohibiting said plaintiffs from working any longer upon a certain portion of said rail road in said agreement specified, which injunction issued from the high court of chancery of the State of Maryland in due form of law, and is set out in eisdem verbis in the 4th count of this declaration, together with the sheriff's return and the chancellor's order on the said injunction, as by reference to said 4th count will more fully appear. By force of which injunction the plaintiffs were prevented and delayed from executing the work in said agreement contained in time specified therein for its completion, and were enjoined from working upon part of the road mentioned in the said agreement for a long space of time, to wit, from the said 17th of September [**44]  1836, being the day on which said injunction was served on said plaintiffs, until the 30th of October in the same year, which was the day when said injunction was appealed and appeal bond filed; and the said plaintiffs aver, that the engineers of the company directed the plaintiffs to make the embankment on the rail road in the agreement mentioned, many feet wider than it was marked out on the plat of the road that was made by the engineer, and examined by the plaintiffs at the request of the defendants before entering into the agreement aforesaid, and said engineer also directed the plaintiffs to make the grade of the said road many feet deeper than it was laid down on said platt, whereby the said plaintiffs were prevented from completing the said first mile of said road before the 20th of Oct. 1836, which was then completed according to the directions of the engineer, of which the defendants had notice, then and there, at the county aforesaid. And the plaintiffs say, that notwithstanding the said injunction and the directions of the engineer aforesaid, they the said plaintiffs did afterwards proceed and continue from the time of making said agreement, until the time when the defendants [**45]  declared the said contract forfeited as hereinafter stated, duly to comply with and progress in the execution of said agreement, without being guilty of any irregularity or negligence, and did perform, fulfil and keep all things on their part in said agreement to be performed and fulfilled, and did, after the said 15th day of October and the said 1st day of November, in the year 1836, proceed under the orders of the engineer aforesaid, and at the request of the said defendants, and by the authority of said agreement, and under the same, to execute the work in said agreement, according to the terms thereof. And the said plaintiffs declare, that after the said 15th day of October and the 1st day of November, to wit, on the 2nd day of November, in the year 1836, in consideration of the premises, and that the plaintiffs then and there, at the request of the defendants, undertook and faithfully promised the said defendants to perform, fulfil and keep all things in the said agreement on the part of said plaintiffs to be performed and fulfilled in a reasonable time, they the said defendants undertook and faithfully promised the plaintiffs to perform and fulfil all things in said agreement [**46]  on the part of the said defendants to be performed and fulfilled and kept, according to the true intent and meaning of the said agreement, to wit, on the day and year last aforesaid, at the county aforesaid. And the plaintiffs aver, that they, confiding in the promise and undertaking of the said defendants, secondly and lastly above made, from and after the 2nd day of November, in the year 1836, did proceed and continue to execute the work and labor in said agreement mentioned, according to said agreement, and to perform, fulfil and keep all things in said agreement on their part to be performed, fulfilled and kept, until the 19th day of January, in the year 1837; yet the said plaintiffs in fact say, that the defendants, before the 19th day of January, 1837, contriving wrongfully and unjustly to injure the plaintiffs, did not, nor would perform, fulfil nor keep the matters and things on their part in said agreement to be performed, fulfilled and kept, according to their undertakings and promises firstly and secondly above made, but thereby craftily and subtily deceived the said plaintiffs in this, to wit, that the said defendants refused to permit the engineer to order or point out [**47]  any place where the plaintiffs might place the earth from the excavations, when there was a large quantity of earth from the excavations, more than was required for the embankments, and also refused to pay said plaintiffs one cent and a half per cubic yard for each hundred feet haul of the earth from the excavation of the road to make the embankment at the river, although the haul from the excavations to the eastern termination of the embankment at the river, exceeded an average distance of eight hundred feet, and also refused to pay plaintiffs one and a half cents per cubic yard for each hundred feet haul of the earth from the excavation of the road, when all the other portions of the haul exceeded an average distance of eight hundred feet, as by the said agreement they were required to do. But the said defendants, after they had, as above stated, broken said contract, and disregarded their promises and undertakings, by refusing to comply with the terms of said contract, in the manner hereinbefore stated, and when the said plaintiffs had duly complied with the said contract, and whilst the same was in due progress of execution, and the said plaintiffs were not irregular or negligent,  [**48]  and before a reasonable time had been allowed for said plaintiffs to complete the said contract, the said defendants attempted to declare the said contract forfeited and null, without the consent and against the will of said plaintiffs, to wit, on the 19th day of January, in the year 1837, at the county aforesaid, whereby the said defendants did not, nor would suffer or permit the said plaintiffs to proceed any further to execute the said contract, but then and there wrongfully discharged the said plaintiffs from any further completion of their said agreement, and hindered and prevented them from finishing the work in said contract specified. Nor did the said defendants pay the said plaintiffs twenty-six cents per cubic yard for every cubic yard of earth excavated on said road, according to the measurement and valuation of the engineer, but to pay the same or any part thereof the said defendants, although often requested so to do, to wit, at, &c., have hitherto wholly refused, and still refuse, whereby the said plaintiffs say that they have not only been refused payment of the money due them for work done on said rail road before the said 19th day of January, 1837, but have also been [**49]  deprived unjustly of all the profits, benefits and gains which otherwise might and would have accrued to them, if they had been permitted by said defendants to complete the work in said contract mentioned.

Whereupon, the said plaintiffs say they are injured and defrauded, and have sustained damages to the amount of fifty thousand dollars, to wit, at, &c., and thereupon they bring their suit, &c.

To this declaration the defendant pleaded:

1st. Non-assumpsit, and

2nd. Payment and satisfaction, on which issues of fact were joined.

3RD PLEA AS TO 4TH COUNT. "That after the making of the said supposed agreement in the said fourth count mentioned, to wit, on the 18th January 1837, the said plaintiffs had become, and were for a long space of time then next before, had been, irregular and negligent in the prosecution of the work in said agreement mentioned, and had not duly complied with the terms of the said agreement, to wit, at, &c.; and the said defendant in fact further saith, that after the making of the said agreement, and before, and on the said 18th January 1837, at, &c., the said work and labor in the said agreement mentioned, was not in due progress of execution,  [**50]  to wit, at, &c., of all which said premises the said plaintiffs and this defendant then and there, to wit, on, &c., at, &c., had notice; and the said defendant in fact further saith, that afterwards, and whilst the said plaintiffs so were and continued to be irregular and negligent in the execution of the said agreement, and without having duly complied with the terms of said agreement, and whilst the said work was not in due progress of execution, this defendant being of opinion that the said agreement had not been duly complied with by the said plaintiffs, and that the work in said agreement mentioned, was not in due progress of execution, to wit, on, &c., at, &c., in virtue of the provisions of said agreement, and in exercise of the authority thereby given and reserved, did declare the said agreement to be forfeited, as for the cause aforesaid this defendant might lawfully do, of all which premises the said plaintiffs afterwards, to wit, on, &c., at, &c., had notice. By reason whereof, and by force and effect of the said agreement, the same agreement thereby became and was null. And this, &c."

The 4th plea as to the 5th count; the 5th plea as to the 6th count, and the 6th plea [**51]  as to the 8th count, were similar to the 3rd plea as to the 4th count, and relied upon a forfeiture of the contract of July 1836, announced on the 18th January 1837, as a bar to, &c.

7TH PLEA TO 1ST COUNT. That after the making of the said supposed contract in the said first count mentioned, and before the commencement of this suit, to wit, on the 12th July 1836, a certain agreement by deed in writing, was then and there made and entered into by and between the said plaintiffs and the said defendant, and which said last mentioned agreement was of the tenor, following, to wit. (This plea then set out at length the agreement of 12th July 1836--see ante.) And said defendant in fact says, that the said part of sec. No. 9, in the State of Maryland, of the W. and S. R. R. which extends from station No. 191 to the end of the piers and wharf in the river S., opposite Havre De Grace, as mentioned in said last mentioned agreement, is a part of that part of the said rail road between Charlestown and Havre De Grace, in said first count mentioned, and which is thereby alleged to have been included in the said supposed contract in said count mentioned, and not another or different part, of [**52]  which premises the said plaintiffs and this defendant, before, and at the time of the making of the said agreement, in this plea recited, had notice, to wit, at, &c.; and the said defendant in fact says, that after the making of the said agreement in this plea above recited, the said plaintiffs, under and in virtue of the said agreement in this plea above recited, commenced and prosecuted the work on that part of section No. 9, in the State of Maryland, of the W. and S. R. R., which extends from station No. 191, to the end of the piers and wharf in the river Susquehanna, opposite Havre De Grace, as mentioned in the same agreement; and that all the work which was done by said plaintiffs on that part of said section No. 9, was commenced, prosecuted and done, under and in virtue of said agreement in this plea above recited, and not otherwise, nor under any other or different agreement. By reason of which said premises, the said supposed contract in the said first count mentioned, became merged, extinguished, waived, released and abandoned. And this, &c.

The 8th plea to 2nd count and 9th plea to 3rd count, were similar to 7th plea to 1st count.

The plaintiffs demurred to the [**53]  3d, 4th, 5th, 6th, 7th, 8th and 9th pleas, in which the defendants joined, and the county court (CHAMBERS, C. J. and HOPPER and ECCLESTON, A. J.,) gave judgment on the demurrers for the defendant, from which the plaintiffs prosecute this appeal.  

DISPOSITION:
JUDGMENT REVERSED, &c.  

HEADNOTES:

Where the parties entered into a contract, to construct a road between two given points, which from its nature was an entire indivisible contract, and afterwards entered into another agreement for the performance of the same work, either in part, or in the whole, at a different price, the latter is an extinguishment of the first contract.

Where an entire contract is extinguished in part or in the whole, an action on the contract itself cannot be sustained.

Where an entire contract is extinguished in part or in whole, by the making a new one for a part of the subject matter of the first, it is not sufficient for the plaintiff, who seeks to recover damages for a violation of the original agreement, and to repel the legal presumption of a merger in such a case, to aver that he entered into the second contract with an express understanding on his part, and so declared to the defendants at the time, that the first contract was not waived, except so far as it was covered by the second; but the fact of assent by the other party should have been also averred.

The legal presumption of a merger, as where two contracts are successively entered into upon the same subject matter, is not to be repelled by evidence of the silence of one party, but assent of parties must be averred and proved, to prevent such presumption from operating.

Whether parol evidence of such assent would be received to vary the effect of the second contract upon the first, both being in writing. QUERE?

Where a contract has been vacated and rendered legally inoperative in part by the consent of the plaintiff, no action can be sustained upon it for the recovery of damages on the ground, that the plaintiffs was prevented by the wrongful act of the defendant from fulfilling it.

Where an original contract has been rescinded by the parties after it has been performed in part, either by a waiver of the performance of the balance of the contract, or entering into a new one so inconsistent with the first as to be wholly irreconcilable with it, in such case a recovery may be had for the performance on a general count; but not by declaring on the contract itself.

It is a rule in pleading, that each party tacitly admits all such traversable allegations on the opposite side, as he does not traverse.

In July 1836, the plaintiff contracted with the defendant, to construct a rail road according to certain specifications, to complete one mile by the 15th October, and the residue by the 1st of November following. The defendant agreed to pay in monthly payments, according to the measurement and valuation of his engineer, retaining from each payment fifteen per cent., until the final completion of the work, and was authorised in certain cases to declare the contract forfeited, from which the plaintiff should have no appeal. The plaintiff averred, that he diligently prosecuted his work &c., until the 17th September, when he was prevented by a writ of injunction, served on him until the 30th October, from going on; that tha engineer of the defendant had not complied with his duty, stating the particulars of his breach thereof under the contract; that he proceeded after the 1st November, under the orders of the defendant to prosecute the work until the 19th January, and that the work done under the agreement in December 1836, was estimated by defendant's engineers, at, &c., which sum not being paid, the defendant on the 19th January, fraudulently, and for the illegal purpose of imposing better terms on the plaintiff, &c., declared the contract forfeited. The defendant pleaded, that the contingencies (stating them,) on which the right to forfeit the contract depended, had occurred, and that on the 19th January, he had in virtue of his reserved power, forfeited the agreement. To this the plaintiff demurred generally. HELD:

1. That the breaches of contract, not denied by the plea, were admitted.

2. That the illegal and fraudulent purpose, for which the contract was alleged to have been annulled, was also admitted.

3. That the annulling the contract under the circumstances, was a breach thereof.

Where a contract is broken, the plaintiff will be entitled to some damages, whether they be stated or not.

Damages are implied from a breach of a contract.

Wherever damages necessarily and naturally arise from the breach complained of, and may therefore be implied, they need not be stated; otherwise they must, to prevent surprise.

Where a breach of contract is relied on, from which damages necessarily and naturally arise, the general conclusion, that the plaintiff has sustained damage in, &c., is sufficient to all the counts in the declaration, and obviates the necessity of charging damages generally in each one of them.  

COUNSEL:
By H. STUMP and REVERDY JOHNSON, for the appellants, and

By O. SCOTT and NELSON, Att'y Gen'l of the U. S. for the appellees.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*340]  STEPHEN, J., delivered the opinion of this court.
This suit was instituted in the court below upon two contracts, the one bearing date in the year eighteen hundred and thirty-five, and the other in the year eighteen hundred and thirty-six. The appellee, the defendant in the court below, filed several special pleas to the plaintiffs declaration, which contained several counts; and to those pleas the appellants, who were the plaintiffs, demurred generally. The defence of the defendant was founded upon an alleged extinguishment of the contract of 1835, by the operation of the contract of 1836, 

 [*341]  which, it is admitted by the parties, covered a part of the work to be done under the contract [**54]  of 1835, and for which a different price was to be paid. The suit being upon the contract of 1835, for the recovery of damages, for not being permitted to execute it by the wrongful acts and doings of the defendants, if the defence of the defendants is well founded, that it was extinguished, either wholly or partially, the action on the contract itself, which was an entire one for the graduating the road from Charlestown to Havre de Grace, for twenty-four cents per cubic yard, cannot be sustained. To repel the inference of an extinguishment, either general or partial, of the contract of 1835, the plaintiffs aver in their declaration, that the contract of 1836 was entered into by them with an express understanding on their part, and that they so declared to the defendants at the time, that the contract of 1835 was not waived or abandoned by that of 1836, except so far as the road covered by the first contract was embraced by the second; and the plaintiffs contend that the silence of the defendants, when so informed, was evidence to go to the jury from which their assent might be inferred. But, according to the established principles of pleading, the fact of assent ought to have [**55]  been avered, and not the evidence of it, (if the evidence stated was admissible to control or vary the written contract,) which is always matter for the consideration of the jury, and not for the decision of the court. See Gould's pleadings, 152, where it is said "all facts essential to the right of action or the defence must in general be expressly and substantively alleged. Hence stating the mere evidence of a material fact is not sufficient; the fact itself must be stated, otherwise the allegation will present no subject to which the law can be applied. Besides such a mode of pleading would, if admissible, refer the matter of fact in question to the court, instead of the jury." He there puts the case of an action of trover, where the plaintiff alleges a property in the goods, the loss, the finding, and a demand and refusal, but omits to aver a conversion, and says the declaration would be ill. This being a suit upon the contract to recover damages, and the contract being entire 

 [*342]  and indivisible, the suit cannot be sustained, if any part of it has been annulled by the act and agreement of the plaintiffs themselves; and looking to the pleading in the case, as [**56]  spread upon the record, we are bound to assume that a part of it was annihilated by the consent of the plaintiffs themselves. In Chitty on Contracts it is said to be "a general rule that an entire contract cannot be apportioned; and if a party undertake to complete a certain act, before his claim to remuneration is to accrue, he cannot recover for a partial performance, although the completion was prevented by accident, as fire, &c. To the same effect this court have decided, in 6 H. & J. 44, where they say, "The agreement formed an entire contract, and to enable the plaintiff to recover on it he must prove a performance, or tender to perform every thing required by it on his part to be performed." The contract being vacated and rendered legally inoperative in part by the consent of the plaintiffs themselves, the conclusion is inevitable that no action can be sustained upon it for the recovery of damages, on the ground that the plaintiffs were prevented by the wrongful act of the defendants from fulfilling it. Where the original contract is rescinded by the parties, after it has been performed in part, either by a waiver of the performance of the balance of the [**57]  contract, or entering into a new one so inconsistent with the first as to be wholly irreconcilable, in such case a recovery may be had for the part performance on a general count, but not by declaring on the contract itself. To this effect is the case in 6th Harris & Johnson's Reps., 38. If the entirety of the contract is disaffirmed by receiving a partial benefit, the plaintiff may recover for the work done on a general count, but not on the special agreement, (Chitty on Contracts, 273.) The same principle is to be found recognised (if authorities be necessary for so plain a proposition) in 12th John. Reps. 165. In that case the plaintiff "agreed to work for the defendant ten and a half months, and spin yarn, at three cents per run; and afterwards left the service of the defendant, and brought an action against him for spinning 845 runs of yarn, at three cents per run; it was held that the contract 

 [*343]  of the plaintiff was entire and must be performed as a condition precedent before he could bring an action against the defendants for the price of his labour." The suit upon the second contract of the 12th of July, 1836, we think ought, upon the pleadings in the [**58]  case, to have been sustained. It is a rule in pleading that "each party tacitly admits all such traversable allegations on the opposite side, as he does not traverse. For, as each party is allowed to deny, in some form, (either by a general or precise traverse,) all material facts alleged against him, the omission by either party to traverse any such fact, alleged by his adversary, is justly considered as an admission of it." Gould's Pleading, 152.
It appears by the fourth count of the plaintiffs declaration that the defendants were in default in not paying them a large sum of money according to contract, which was due according to the estimate of the engineer for work done in the month of December 1836, which was due and payable before the contract was declared to be forfeited; and also that they refused to permit the engineer to designate or point out a place where the surplus earth arising from the excavations was to be deposited; and also refused to pay the plaintiffs one other sum of money for extra hauling beyond a certain distance, as specified in their said agreement, and artfully and fraudulently contriving to impose upon said plaintiffs by forcing them to submit [**59]  to an alteration of the terms of said agreement or to be deprived of all the benefits and advantages to which they were entitled under the same, declared the said agreement to be forfeited, and refused to comply with the terms and conditions thereof, whereby the said plaintiffs were thrown out of employment, and fraudulently prevented from completing, &c., and have lost all the gains and profits, &c.
In the plea filed by the defendants to this count of the plaintiffs declaration, these breaches of the contract on their part are not denied, and of course, according to the established principles of pleading, they are to be taken and considered as admitted. Such being the state of the pleadings, and the admissions of fact flowing from them, it follows as a necessary 

 [*344]  consequence that such annulling of the contract was a breach thereof, for which the plaintiffs had a right to recover the damages flowing therefrom, and also for the damages resulting from the previously enumerated breaches of the agreement. It was not necessary to aver damages in the plaintiffs fourth count. In 1st Saunders on Pleading and Evidence, 165, it is said: "If the contract be broken the plaintiff [**60]  will be entitled to some damages, however small, whether they be stated or not, for damages will be implied from the very breach itself; and wherever the damages sustained necessarily and naturally arise from the breach complained of, and may therefore be implied, they need not be stated; otherwise they must, in order to prevent the surprise on the defendant, which might otherwise ensue at the trial; and if he do not state them particularly he will not be permitted to prove them in evidence." In the same book, at page 513, it is said: "Where damages are the principal object of the action the declaration should conclude 'to the damage of the plaintiff' of a sum sufficient to cover the real damages sustained." So, also, same book and same page, speaking on the same subject, it is said: "An omission in stating damages, when necessary, would be bad on demurrer, and perhaps after judgment." So, also, in 2d Johns. Reps., 149, it is said: "The damages sustained are matter of evidence, and need not be alleged, nor are they rarely ever stated, but in a general manner."
In this case the plaintiffs declaration concludes in the usual manner, and charges that they "have sustained damages [**61]  to the amount of fifty thousand dollars, to wit, at the county aforesaid, and therefore they bring their suit, and so forth." This general conclusion is sufficient as to all the counts in the declaration, and obviates the necessity of charging damages generally in each one of them. The judgment of the court below is reversed, and a procedendo ordered.
JUDGMENT REVERSED, &c.  

37 of 46 DOCUMENTS 

JAMES MULLIKEN vs. THEODORE R. S. BOYCE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 Gill 60; 1843 Md. LEXIS 6 

December, 1843, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Prince George's County Court.

This was an action of Assumpsit, brought on the 2nd March 1840, by the appellee against the appellant, to recover the amount of a promissory note of the defendant for $ 350, dated 28th September 1837, payable to the appellee or order. The declaration also contained the common money counts. The defendant pleaded non-assumpsit, and the jury found a verdict against him for $ 445.37, on which judgment was rendered.

1ST EXCEPTION. At the trial of this cause, the plaintiff to support the issue on his part joined, offered in evidence to the jury the following promissory note, which was admitted to be in the handwriting of the defendant, which is as follows:

UPPER MARLBOROUGH, 28th Sept. 1837.

$ 350. Two years after date, I promise to pay T. R. S. Boyce, or order, three hundred and fifty dollars, for value received, with interest, payable at the Bank of Baltimore.

JAMES MULLIKEN.

The defendant to support the issue on his part joined, then proved to the jury by William D. Bowie, a competent witness, that he was present when the contract was made, for which the said note was given, and that said note was given for the purchase [**2]  money of a brown mare, sold and delivered by plaintiff to defendant, who kept possession thereof until the mare died; that the said plaintiff sold the said mare, and the defendant purchased the same on the express stipulation and condition on the part of the plaintiff that she was a thorough bred animal, and that the plaintiff promised to furnish to the defendant a certificate to that effect from the breeder, a Mr. A. S. Allen, of Virginia, and at the time of said sale, gave to the defendant a short memorandum of her pedigree, which said memorandum he declared contained her true pedigree, but it was declared unsatisfactory at the time by the defendant, on the ground that it did not trace the pedigree of said mare far enough, and that it was not the breeder's certificate; and thereupon the plaintiff assured the defendant that he would obtain a certificate that the said mare was thorough bred, from the breeder, a Mr. A. S. Allen of Virginia, and send the same to defendant, and defendant agreed to receive such certificate as evidence of that fact, on which assurance being given, the defendant then executed the said note, on which this suit is brought. The defendant then proved by the [**3]  same witness, that about eighteen months afterwards, the defendant called on the plaintiff in Baltimore, for the pedigree of said mare, and demanded the certificate from the breeder, of her being a thorough bred animal, and that the said certificate was not furnished by the plaintiff at that time, but the plaintiff promised to furnish it at some future time, which defendant agreed to. The plaintiff then proved by the said witness, that some eight months, or a year afterwards, and before the commencement of this suit, a paper purporting to be a certificate of pedigree of said mare, from Mr. A. S. Allen, the breeder of said mare, was enclosed in a letter from the plaintiff to the defendant, through the mail, and that said paper was received by the defendant. The defendant then proved, that the said paper, purporting to be a certificate of the pedigree of said mare, was objected to by him to the witness at the time of its reception, but the plaintiff was not present, on the ground that it was not a certificate of the said mare's being a thorough bred animal. Upon the foregoing evidence the defendant prayed the court to instruct the jury, that it was incumbent on the plaintiff before he [**4]  could recover in this action, to prove that the said mare was a thorough bred animal, and that unless they find from the evidence that the said mare was a thorough bred mare, that then they must find a verdict for the defendant, but the court (STEPHEN, C. J., and KEY, A. J.) refused to grant the said prayer, but were of opinion and so instructed the jury, that if the jury find from the evidence in the cause that the note on which this action is brought, was passed by defendant for a mare represented by plaintiff to be thorough bred, and that plaintiff agreed to furnish defendant a certificate of her being thorough bred, as evidence of that fact, then the plaintiff cannot recover, unless he shews a compliance with the contract, by having furnished such a certificate within reasonable time from the time of the contract; to which opinion of the court refusing to grant the defendant's prayer as asked for, and to their opinion as given, the defendant excepted.

2ND EXCEPTION. At the trial of this cause, after the evidence had been given, which is contained in the first bill of exceptions, which by agreement is made a part of this bill of exceptions, the defendant offered to prove by [**5]  William D. Bowie, a competent witness, that the sum of $ 350, the amount of the note on which this suit was brought, was agreed to be paid by the defendant to the plaintiff, in consideration of her being sold as a thorough bred mare, and that said sum was more by $ 250, than the value of said mare, if she had been sold as a common or cold blooded mare, or any other common mare of her appearance and size, and then asked the said witness whether he had ever seen the pedigree of said mare, and from his knowledge of the pedigree of said mare, he considered her to be a thorough bred animal, but the counsel for the plaintiff objected to the said witness answering said question, unless the defendant would produce the certificate of pedigree of said mare, and the court sustained the objection of plaintiff's counsel, and refused to permit the said witness to answer the said question; to which opinion of the court, and to their refusal as aforesaid, the defendant excepted.

3RD EXCEPTION. At the trial of this cause, and after the court had given the opinion expressed in the second bill of exceptions, which by agreement is incorporated with and made a part of this bill of exceptions, the [**6]  defendant, for the purpose of letting in secondary proof of the contents of said certificate of pedigree, proved to the court by the testimony of William D. Bowie, a competent witness, that the certificate of the pedigree of said mare, which was furnished by the said plaintiff to the defendant, in the manner and at the time stated in the preceding bills of exceptions, was at one time in the possession of the witness, and its contents were read by him; that he returned said certificate to the said defendant, who at the time lived with the said witness, although said defendant owned a plantation and house, to which he frequently went, and where witness has seen papers which he supposes belonged to defendant; that said witness has himself looked for the said certificate of pedigree, and has not been able to find it, and that he has seen the defendant look among the papers at witness' house in a drawer where the said defendant usually kept such of his papers as were of much importance, and that the said certificate of pedigree was not found by the said defendant. Witness further stated, that he had no knowledge of any search made in any other place by the said defendant, and that the said [**7]  witness does not know that said defendant had papers at his own plantation house, nor does he know that said defendant ever made any search for said certificate of pedigree at the latter place; but the court rejected the said evidence, so as aforesaid offered, and were of opinion that the said evidence was not legally sufficient to warrant the introduction of any secondary or parol proof of the contents of said certificate of pedigree; to which opinion of the court, and their refusal to suffer any parol proof to go to the jury of the contents of said certificate of pedigree, the defendant excepted.

The defendant appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

The plaintiff, upon the sale of a horse by him, promised the defendant, the purchaser, to obtain a certificate from the breeder, that the animal was thorough bred, and send it to him. In an action to recover the amount of a note given for the purchase money, the defendant prayed the court to instruct the jury that the plaintiff could not recover, unless the jury should find, that the horse was thorough bred, which the court refused, and instructed the jury that the plaintiff could not recover unless he furnished the promised certificate within a reasonable time from the making of the contract. This was affirmed upon appeal.

Upon the sale of a horse, the seller agreed to furnish the buyer with a breeder's certificate that the horse was thorough bred. The latter accepted the animal, and retained him without any offer to return him. In an action upon a note for the purchase money, though the plaintiff had failed to furnish the promised certificate, he may still recover the actual value of the horse sold.

Where a defendant is not prejudiced by the erroneous instruction of the court below, or where such an instruction is beneficial to him, this court, upon his appeal, will not therefor, reverse the judgment.

A promise by the vendor of a horse to furnish a breeder's certificate that the animal was thorough bred, does not authorise the defendant in an action against him for the purchase mony, to introduce the opinion of a witness who had seen its pedigree as forwarded by the plaintiff to the defendant, that he did not consider it thorough bred, as evidence to the jury, without producing the paper which contained it.

A witness is not competent to speak of the contents of a paper writing or document without producing it.

Where a defendant lived with the witness, and kept papers at his house, and had also a plantation and house to which he frequently went, and where the witness had seen papers which he supposes belonged to defendant, an unsuccessful search for a paper alleged to be left at the house of the witness, and no search any where else, is not sufficient to let in secondary evidence of the contents of the paper as a lost paper.  

COUNSEL:
By T. F. BOWIE for the appellants, and

By W. H. TUCK for the appellee.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*65]  ARCHER, J., delivered the opinion of this court.
By the contract between the parties, the representation of the plaintiff was gratified by the adduction of the breeder's certificate that the mare was thorough bred. The prayer therefore, of the defendant, which called upon the court to say that the plaintiff could not recover unless the jury believed the [**8]  mare was thorough bred, could not be gratified; the plaintiff being entitled to recover the full amount of the note, if the jury should believe the plaintiff had produced the breeder's certificate, according to the terms of the contract. The prayer was wrong in another respect; for had the plaintiff failed to comply with his representation, he would still have been entitled to recover the value of the mare actually sold, as an animal not thorough bred.
In the instruction given by the court, the only error we perceive, is in their instructing the jury that the plaintiff could alone recover, upon the production of the breeder's certificate. If the plaintiff failed to produce evidence of this, still he was entitled to recover the value of the animal, as one which was not thorough bred. But the defendant is not prejudiced by this error; on the contrary it might have proved beneficial to him, and we cannot therefore reverse the judgment of the court in this respect.
We concur with the court below in the opinion by them expressed in the second bill of exceptions.
The witness is, in effect, asked to speak of the contents of a paper writing or document, without its production, for although [**9]  he is asked whether, from his knowledge of the pedigree of the mare, he considered her to be a thorough bred mare, yet the question has manifestly reference to the pedigree detailed in a paper which he is asked if he had seen, as the foundation for the question in relation to his opinion of the pedigree.

 [*66]  We also think the court were right in refusing to permit the evidence of the contents of the certificate to be given in evidence to the jury, as a proper foundation had not been laid for the introduction of such evidence.
JUDGMENT AFFIRMED.  

38 of 46 DOCUMENTS 

CHASE AND CRABB, EXECUTORS OF J. T. CHASE, vs. LOCKERMAN AND OTHERS, HEIRS AND DEVISEES OF J. T. C.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 G. & J. 185; 1840 Md. LEXIS 9 

December, 1840, Decided 

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

The bill in this case was filed on the 19th June 1833, by Adam & John Miller, praying subpoena against Richard Lockerman and wife, and the executors of J. T. Chase. The bill alleged that J. T. C. in his life time, executed a single bill or promissory note, to a certain R. L. jr., in trust for his mother Frances T. Lockerman, whereby he promised to pay $ 1000, with interest thereon. The complainant claimed under the following assignment:

ANNAPOLIS, 8th May, 1832.

Gentlemen,--Please to pay Adam & John Miller or order, four hundred and twenty-one dollars, with interest from 13th April, 1832, and deduct the same from the amount due me from the estate of the late J. T. Chase, and much oblige yours, &c.

F. T. LOCKERMAN.

To Messrs. R. M. C. and R. I. C., executors of J. T. C., and sought payment from the executors of J. T. C.

The defendants were summoned, and on the 5th September, 1833, the complainants obtained an interlocutory decree for want of an appearance, and a commission to take proof in support of their claim.

At the same term R. L. and F. T. L. filed their answer by consent, disclaiming all knowledge of the single [**2]  bill as alleged by the complainants; but admitting that R. L. was in possession of a single bill of J. T. C., for bank stock by him borrowed of F. T. L. for $ 1350, payable to R. L. jr., for the use of his mother F. T. L.; that R. L., was the administrator of R. L. jr. The answer admitted that F. T. L. was indebted to the complainants for goods sold to her, on her separate account, and that she executed the order filed with the bill, to satisfy their claim.

The executors of J. T. C. also answered the bill, admitting the execution of some instrument by their testator to R. L. jr. for the benefit of his mother, of which they asked an inspection; also notice of the assignment to the complainants from F. T. L., but they had declined to admit its validity, unless established by decree of this court: assets were not admitted but the executors offered to account as the court should direct; that the residue of the estate of their testator, and the fund specifically appropriated by him for the payment of debts, were inadequate to that object; that the property specifically bequeathed by J. T. C. to his children and grand-children, had been necessarily applied to the payment of debts; that [**3]  the property left to F. T. L. had not been so applied nor any part thereof; that all the devisees and legatees are bound to contribute rateably to the payment of his debts; and they submit they may set off against the aforesaid claim of the said F. T. L. and against the claim of the complainants as her assignees, such sum as on taking of the account, it may appear she ought to contribute towards payment of the testator's debts.

After general replication, a commission was issued by consent; under it were filed copies of the administration accounts of J. T. C.; inventories, accounts of sales, &c.; copy of single bill of J. T. C. for $ 1350; for bank stock payable to R. L. jr. for the use of his mother F. T. L., and also the will of J. T. Chase, contains the following devises, to wit:

"I will and direct all my just debts to be paid. I give and devise to my dear son Richard M. Chase, his heirs and assigns, all those several tracts and parcels of land lying in A. A. county and included, &c., and also the lots, grounds and houses in the city of A., which I purchased of N. P., to have and to hold in fee in trust, to permit my dear daughter Frances T. Lockerman, during her natural [**4]  life, to use and occupy the same or any part, &c. But in case my said daughter should elect, that the said land, &c., should be leased or rented out, and should signify her said election in writing, to my said son, his heirs or assigns, that then the same shall be leased accordingly--rents to be for her sole use, &c. &c.

"I will and devise unto my son R. M. C., his heirs, executors, &c., all the lands mortgaged me by my son son-in-law Richard Lockerman, in trust, to receive the interest on said mortgages, which has or may become due, and to pay the same over to my daughter F. T. L., during her life; to her sole and exclusive use, &c.; and in case my son-in-law R. L. should survive my said daughter F. T. L., I do hereby grant permission to my said son-in-law, to occupy and use the said lands mortgaged by him during his natural life, free from rent and interest.

"I give and devise the lands mortgaged to me by my son-in-R. L. after his death, and after the death of his wife, unto their children and their heirs, to be equally divided amongst them. My will is, that after the death of my dear daughter F. T. L., my son R. M. C., his, &c., by a good and sufficient deed, shall convey [**5]  the said lands lying on Fishing Creek, Smith's Creek and South River, and the lots of ground and houses in Annapolis, hereinbefore described and devised to him in trust, unto the children of my daughter F. T. L., their heirs and assigns, equally to be divided among them.

"I give and devise unto my said daughter Hester Ann, and the heirs of her body lawfully begotten, all the rest of my lands lying on Oyster and Fishing Creeks, South River, and the Bay, including Thomas' Point, and adjoining the lands devised unto my daughter Lockerman.

"I give and devise unto my son Richard M. Chase, all that part of Belmont, (according to the re-survey thereof,) which is included within, &c., to have and to hold the said land to the said Richard M. Chase, his heirs and assigns forever, in trust--to permit my dear daughter Matilda Chase, and her husband Thomas Chase, during their natural lives, and the natural life of the survivor, to use and occupy the same, and receive the profits and rents, &c., with a right to make leases; and after the death of his daughter and son, in trust for the use of the children of my said daughter, their heirs and assigns, equally to be divided among them.

"I [**6]  give and devise unto my son Richard M. Chase, his heirs and assigns forever, all that part of the residue of Belmont, according to the re-survey thereof, not given or devised unto my dear daughter M. C., to have and to hold to him, his heirs and assigns forever.

"I give and devise unto my dear daughter Hester Ann, during her life, my dwelling house and the lots appertaining to it, and all my household and kitchen furniture.

"I give and bequeath unto H. A., my dear daughter during her life, all the rents now due, or which may become due on the lots of ground I leased to Vachel Dorsey, and forever--one-fifth part of my plate.

"I give and bequeath unto my grand children, the children of my daughter Lockerman, one-fifth part of my plate, same to my grand children, children of M. C.--same to my son R. M. C.--same to my daughter C. C.

"I give and bequeath unto the children of my daughter Lockerman, all the plate I bought of my son-in-law R. Lockerman.

"I give and devise unto my daughter H. A., sixty shares of the stock of the Farmer's Bank, forever.

"I give and devise unto R. M. C., his heirs and assigns, the two half acre lots in Annapolis, now occupied, &c.  [**7]  ,--all my notes, note books, family pictures, watch and sleeve buttons.

"I give and bequeath unto each of my grand children, two shares of stock in, &c.

"I give and bequeath unto my dear son R. M. C., the following negroes, to wit, &c.--to my grand children, certain slaves, &c.; and having advanced my dear daughter C. C., in addition thereto, I give her certain slaves--also, to A. H. certain slaves, to serve until, &c.

"It is my will and desire, that all my negroes and mulattoes be free, as follows, that is to say, &c.

"I give and devise unto all my grand children, after the death of my daughter H. A., the ground lying in Baltimore county, which I leased to V. D., to them and their heirs, to be equally divided among them.

"Having endeavoured in the best manner to equalize the respective portions given to my children by advancement, and the particular devises in my will, it is my most earnest desire and request, that my children be satisfied and contented with the distribution I have made, for I can truly assure them, that in so doing, I have been prompted by the same affection for each, &c."

After providing for the payment of a debt of his son Thomas, by [**8]  authorising a sale of certain real property, and making sundry small legacies, the will declared as follows:

"All the rest and residue of my estate, real, personal and mixed, or of whatever nature and kind, I give, devise and bequeath unto all my dear children and their heirs, equally to be divided among them. It is my will and desire, and I do direct my executors, that all the personal estate devised to my dear daughters under the residuary clause of my will, be converted into money, by my executors, and invested in stock of The United States, &c., and that the dividends and interest be received by my executors, and paid over to my daughters respectively, as entitled, and that the stock be sold, and principal received, whenever my daughters or either of them should request it, and paid to them for their exclusive use and benefit. In case my personal estate, and the land appropriated to the payment of my debts and legacies should be insufficient for the said purpose, I will and direct, that the deficiency be applied out of the residue of my estate, as my executors may think it right." And then appointed R. M. Chase and R. I. Crabb, executors.

The first codicil of 7th May [**9]  1824, devised his dwelling house and ground to R. M. C. after the death of H. A., and certain shares of bank stock to several of his grand children, intended for them by their grand mother, and certain household and kitchen furniture, plate excepted, to H. A. for life.

The second codicil dated 31st May 1824, substituted pecuniary legacies to H. A., $ 3000, and several of his grand children, $ 250 to some, $ 100 to others, for the stock previously bequeathed to them, and ordered his executors to sell a portion of the residuum of his estate, real and personal, as would enable them to comply with this bequest, with power to convey the real estate.

The third codicil of 5th September 1825, contained directions, as to delivery of his negroes to his legatees, and sales of crop on hand and cattle, for payment of debts and legacies; a revocation of power to sell certain property for payment of his son Thomas' debt, he having paid that debt--and further devises of real property to certain of his grand children; provision by the sale of real property to pay Mrs. Lockerman's debts, and power to her to convey, &c.

The fourth codicil without date, contained devises of real property [**10]  to his children and grand children, by name.

The fifth codicil of the 29th November 1825, contained directions to his executors to comply with his contracts for sale of real property, and execute conveyances to the purchasers thereof, and then proceeded--

"It is my will and desire, and I do direct, that my executors, out of the money annually receivable, and to be received by them under the decree of the Chancery Court, in the case of Joseph Sterett and Molly his wife and Jeremiah Townley Chase against Thomas Moale and others, apply so much of the money to be received by them annually, out of the part or portion of the money allotted to the said J. T. C., by virtue of the said decree, as shall or may be sufficient for the payment of the taxes on the real estate of the said J. T. C. lying, &c., during the minority of the youngest child of F. T. L. and M. C., whichever event may be most distant from the time of my death, and the residue of the money annually received under said decree, to be equally divided among my children, share and share alike, and paid to each of them for the use of their respective children, and by each of them so applied."

The sixth codicil devised [**11]  a part of Belmont, as described, to his daughter M. C., to have and to hold to her, and the heirs of her body, and to M. C. and H. A. during their lives, or the life of the survivor of them, his dwelling house in A., and after the death, &c., "to the children of my daughters M., H. A. and F. and their heirs as tenants in common. I give and bequeath unto my said daughters, all my kitchen and household furniture, my plate excepted, during, &c.

"I give and devise unto my daughters M. and H. A. part of the Plains I bought of R. I. C. during, &c., and after unto the children of my daughter M. and their heirs, to be equally divided among them."

"I hereby revoke the devise of part of the Plains to my daughter H. A., and substitute the above clause in the place of it.

"I hereby revoke and annul that part of my will by which I devise to each of my grand children, two shares in the Farmer's Bank of Maryland, from an apprehension that my ex-exutors will not have sufficient funds to comply with it; and also, that clause in my will by which I bequeath sixty shares of stock in the F. B. to my daughter H. A., and lieu thereof, I give and devise to her all my right, title and interest [**12]  in twenty-one acres of land, which I leased to Vachel Dorsey, now deceased."

Judgments against J. T. C. were also filed, with various admissions as to cause of the executors with the personal property. After this bill was amended upon petition, and all the heirs and devisees of J. T. C. made parties as defendants, the defendants answered this bill, taking different views of the will of J. T. C., when at October 1835, the cause was referred generally to the auditor of the court to report upon. After various admissions of facts and ages of children, &c., the auditor made his report, which was excepted to, and on the 3rd December 1836, The Chancellor (BLAND,) passed the following order:

"Ordered, that this case be, and the same is hereby again referred to the said T. C. as special auditor.

"It is to be recollected, that under one of the codicils to the will of the testator J. T. C., deceased, his children take the money to be received under the decree in the case of Sterett and Chase against Moale and others, as naked trustees, for the use of his grand children, and that after the death of all the children of the testator, that money is to be divided only into so many parts [**13]  as it shall then appear there were children of the testator, who have then left children, and each of such parts, as if carried by representation to such grand children, is to be then finally divided among and given to them accordingly; or in other words, that money then vests in, and is to be divided among his grand children, as if he had died intestate, leaving no other children, than the parents of his then living grand children, which children were also then dead intestate. Whence it necessarily follows, from the language of the same codicil, in relation to the application of so much of that money to be received annually, that until the death of the survivor of the testator's children, all those portions of the said money, as they annually become payable, after deducting therefrom, during the minority of the youngest child of the testator's daughter Frances T. Lockerman, or of his daughter Matilda Chase, so much as may be necessary to pay the taxes on the testator's real estate, lying in Anne Arundel county, and in the cities of Annapolis and Baltimore, and to be considered as then annually vesting in the testator's grand children, in like manner and in the same proportions as [**14]  if his children were all then dead; so that as an additional grand child may be born before the death of all his children, a new use springs up in favor of such additional grand child; and all the then existing uses shift so far as may be necessary to accommodate such new claim. And so too on the death of a grand child, before the death of all his children, the claim of such deceased grand child, not then vested, sinks for the benefit of the others, and the uses shift accordingly, so that a dividend of the annual portion only of the said money, is to be considered as so vesting in each grand child, who was alive when it became payable before the death of all the children of the testator. The exact amount due as well to the defendant F. T. Lockerman, as to the plaintiffs, as creditors of the testator is to be ascertained, and also the amount of assets in the hands of the executors, and then the proportion in which each devisee and legatee under the will and codicil of the testator, is to contribute to the payment of the said debt, is to be adjudged from the proofs and admissions of the parties, according to the value of the respective beneficial interests so devised or bequeathed.

At [**15]  April 1837, the auditor made another report, with voluminous accounts; and at December term following, the parties agreed, that the accounts and report should be rejected by the Chancellor, and that the cause be remanded to the auditor with directions, to state an account upon such principles of contribution as the Chancellor may deem correct, according to the proceedings and this agreement, viz:

"It is admitted, that J. T. C., advanced his daughter, the defendant Catharine Crabb, by a conveyance of real estate to the said Catharine and her husband, R. I. Crabb; that he advanced several of his children parties defendants in this cause, by gifts or otherwise, of personal property, and by money paid by him on their account, as stated in the said will, but the value or amount or particulars of such advancements, are not yet ascertained, otherwise than as stated in the said will.

If the Chancellor shall be of opinion, that upon the whole of the said testator's last will and testament, and the proceedings in this cause, his several children or their representatives are bound to contribute equally to pay his debts, which remain unsatisfied, after applying the general residue of [**16]  the estate to that purpose, then the auditor shall cause the said five children, or their representatives, equally to contribute, when the case is remanded to him.

But if the Chancellor should decide, that the said five children or their representatives, are not so bound equally to contribute, then the Chancellor is respectfully requested to express his opinion in regard to the liability of--

1st. The testator's personal estate, specifically bequeathed by his will.

2nd. The personal estate advanced by him in his life time to his children, or paid by him on their account, as stated in his will.

3rd. The real estate devised by him to his children.

4th. The real estate advanced by him in his life time to Catharine Crabb.

5th. The interest of the said testator in the estate mortgaged by Richard Lockerman deceased to him, as will appear by the decree, and other proceedings of this court.

6th. The testator's claim against the fund raised or to be raised, under the decree of this court in the cause of Sterett vs. Moale, to contribute to the payment of his debts aforesaid, and the order or degree in which the said descriptions of property or such of them,  [**17]  as shall be held liable, ought to contribute to the purpose aforesaid.

"It is further agreed, that the Chancellor may at once pass a decree for the payment of the complainant's claim, the executors having money in hand sufficient to pay the same, provided that such decree shall not prejudice the question of contribution as aforesaid."

Upon this agreement the Chancellor (BLAND,) passed an order for payment of the complainant's claim, and on the 4th May 1838, the following order:

"Ordered, that the report of the special auditor, filed on the 4th April 1837, be and the same is hereby rejected; and it is hereby further ordered, that this case be and the same is hereby again referred to the said special auditor, with directions to state an account awarding to the several parties, that to which they may be respectively entitled, and charging each of the five devisees and legatees of the testator J. T. C. deceased, with an equal contribution for the satisfaction of his debts. All the estate of a debtor being liable for the payment of all his debts, he cannot by any act of his, impair the rights of his creditors. The testator Chase, indicates by his will, that he was then disposing [**18]  of his property with a full view of this legal restriction, and taking his will and his several codicils together, it was manifestly his intention, subject to the legal restriction in favour of his creditors, that all his property, without regard to its being real or personal estate, should be equally divided in the manner prescribed, among the five special objects of his bounty. And the property having so passed into their hands; for they all claim under, and in affirmance of his will, they must therefore each of them contribute in the same equal proportions, to the satisfaction of such of his debts as remain unpaid; so as to leave the property to pass in the same proportional value to each donee as adjusted by the testator. The persons who may be required to refund any of the proceeds which had been obtained under the decree in the case of Sterett and others vs. Moale and others, and which had been applied under the sanction of an order of the orphans' court, are not to be charged with interest thereon. The special auditor will also recollect, that the order of the 3rd December 1836, and of the 5th December 1837, are to be construed in accordance with this order."

Further accounts [**19]  were reported, and excepted to. The cause by consent was then submitted for an immediate decision, and the accounts ratified. No question however was made upon those accounts in this appeal. The parties then filed the following agreement:

It is agreed, that the whole cause shall be treated as opened upon appeal; so as to enable the Court of Appeals to affirm, reverse or modify the orders passed in the cause for or against all or any of the parties, in the same manner and to the like extent, as if separate appeals had been taken by each party, and as if each appeal had been taken from all of said orders.  

DISPOSITION:
DECREE REVERSED AND CAUSE REMANDED.  

HEADNOTES:

The principle seems to be well settled in England, that as to debts by specialty, since the statute of fraudulent devises, specific devises of freehold and lease-hold estates are on the same footing, and liable to contribute in equal portions to the payment of such debts.

In this State and in England, the personal estate is the primary fund for the payment of debts, as between the real and personal representatives of the deceased, and must be first resorted to for that purpose.

And if a specialty creditor proceeds against the real estate, descended or devised, the heir or devisee who has sustained the loss, shall be allowed to stand in the place of such creditor, and to re-imburse himself out of the personal estate, provided such re-imbursement will not prejudice creditors, or other parties having more favored claims.

If the obligee recover against the heir, he may re-imburse himself out of the assets in the hands of the executor, but not to the prejudice of either a specific or general legatee.

It is only against the residuary legatee, that such an equity exists in favor of the heir--in favour of a devisee, it exists against a general, though not a specific legatee.

The general rule of marshalling assets, is to apply first, the personal estate--then lands devised to be sold for payment of debts--then lands descended; and lastly, estates specifically devised, even though they were generally charged with the payment of debts.

If in this State, specific legacies have been applied to pay specialty debts, the specific legatees are entitled to contribution against the devisees of the realty--and if the general personal estate, has been applied to the payment of specialty debts, and the simple contract creditors, consequently thrown upon the specific bequests, the specific legatees in that case, have a right to contribution from the devisees of the real estate.

Where a testator stands in the relation of parent, a bequest to children generally will in legal construction, embrace all who answer that description at the period of his death.

It is a rule in the construction of wills, that where there is a general and particular intent apparent upon the face, the general intent, though first expressed, will control the particular intent, if there should be a conflict between them.

Chancery treats executors and trustees with indulgence, when they act in good faith, and does not hold them liable upon slight grounds.

An administrator will be charged with interest on money kept in his hands without apparent reason, from the end of thirteen months from the date of his letters, where it appears he has been guilty of culpable negligence in so doing.

The bequest of money to be received under a decree in Chancery, is a specific bequest, and not liable to abate with general legacies. If the fund out of which such a bequest is payable fails, the legatee has no title to be recompensed out of the general personal estate.

A mortgage interest before foreclosure, is considered in equity as a chattel interest, and as such, belongs to the executor, and though the technical fee may descend to the heir, he takes it in trust for the personal representative.

But as between the real and personal representative, the mortgagee may by a manifest declaration of his intent, convert the mortgage as well as any other part of his personal estate into land, and make it pass accordingly.

Where the circumstances of a trust are such as to require the direction and indemnity of a court of equity, the practice is, to charge the costs of the suit upon the fund.  

COUNSEL:
T. S. ALEXANDER for appellants.

1st. Upon the true construction of the will of J. T. C., the fund to be derived from the decree passed in the case of Sterett vs. Moale, ought to be distributed among all the children of the testator. This fund passed to all the children as a part of the general residuum of the estate. The division is to be made among the children, share and share alike. Payment is to be made to each child, and the application of the fund is thrown on his children. The executors are not bound to see to the application [**20]  of this fund among the grand children. If not bound to apply, then they are not bound to inquire into the existence of grand children. They are bound to pay this fund to the children; this is their duty and the extent of their obligation. The court cannot go beyond the will; must construe that and no more. A court of equity cannot impose any further duty on the executor, than is imposed by the will. The bequest is to children; the distribution is among them. Is there any use which can be executed by any court? The fund is left to the discretion of the children. They are not required to distribute it equally, even among the grand children. Each child of testator may apply all its share to any one grand child, unequally or exclusively. No declaration as to time of application. It may be retained for future use. It is independant of all trust to grand children. If a trust, it must be indefinite in duration--for life of parent or longer. In effect, it is not a condition, which can be specifically executed. Whether issue now is not material. There may be issue. The Chancellor said, as no issue now they may be excluded. But I contend, that if any one child should lose all her children, still [**21]  she would take. She would answer the description of the will at death of testator. The fund is to be paid over to the children, although there is a trust in favor of grand children. 3 Bro. C. C. 96.

As a general rule, the reason of a bequest does not control its construction, the construction of its terms. 14 Ves. 322, 16 Ves. 46. Pre. in Chan. 597. 2 Con. Cas. 223.

A devise to a father for the maintenance of his child, is a devise to the father, though he has not expended one half of the bequest. 1 Swan. 35.

2nd. Contribution for the payment of the testator's debts, ought to be made by his legatees and devisees, according to the character and value of the property given to them respectively by his will, and not equally by his children, as to the principles on which contribution is to be decreed. The estate is exhausted unequally. It depends on the value of the property devised. It does not include the advances by the parent. At the time of making the will, the testator had no control over the property advanced to his children. Contribution does not affect advances. In cases of intestacy, advances are not considered in payment of debts; as to distribution, advances may [**22]  be considered. But this is optional with the party advanced. Hotch-pot applies to intestacy. Testator may prescribe terms; impose terms. The law does not impose terms.

For payment of debts, the estate of the intestate is to be applied in the following order--

1st. The general personal estate.

2nd. Personal estate specifically bequeathed.

3rd. Real estate not specifically devised.

4th. Real estate specifically devised.

5th. That the debt secured by the mortgage of Richard Lockerman to the testator, is to be treated as personal estate. 3 John. C. Rep. 319.

RANDALL for the appellees, contended--

1st. That according to the true construction of J. T. Chase's will, the fund to be derived from the case of Sterett vs. Moale, belongs exclusively to those of the children of J. T. C. who have children, and in trust for such children.

An examination of the different parts of his will, shows the general intention of the testator. He designed a fund for the exclusive use of his grand children. He creates such a fund. It is absorbed; then he provides another fund for the same object. The utmost anxiety is manifested to devote to his grand children a certain [**23]  portion of his estate. This he particularly and clearly designed. If it is not illegal, that intention will be carried out. The will devises a large part of his estate to his grand children, and also declares equal distribution among all, to be his object in his second codicil. If there is any doubt then about the construction of the devise of the Sterett and Moale fund, the court will construe it by the general design of the testator, and make that devising clause end in that design. The codicils are framed on the principles of substitution, and the intent relied on, is some times expressly declared. The court will look to the cestui que trusts, and the fact of five trustees for the grand children is not material. The Chancellor was correct, and his order upon this branch of the case, meets all its fluctuating contingencies. It was a legacy for the use of grand children, born and to be born. 10 Law Lib. 22. Willis on trusts, 48. Tolson vs. Tolson, 10 Gill & John.

2nd. In opposition to the appellants second point, that the contribution for the payment of the testator's debts, ought to be equal by each of his five dhildren, without regard to the quantity or quality of the estate [**24]  devised or bequeathed to them, because by the true construction of the will, it is obvious, that he has by advancement or otherwise made their share equal. 1 P. Wms. 403. 1 Rop. 254. 12 Law Lib. 18, 34, 19, 35. 3 P. Wms. 322, 324.

There can be no appraisement in this case, for the testator has devised to them equally. The nature of this will is such, that if contribution to pay debts is necessary, that must be founded upon the testator's intention that the devises are equal. Those who take under a will are concluded by it. 2 Rop. 378. 2 Wm. Exrs. 893.

3rd. The executors should have been made to pay interest on the balances due by them, on their administration account. 1 Swan. 99.

4th. That R. I. Crabb and H. A. Chase, should be made to pay interest on the portions of the S. and M. fund received by them, and ordered to be refunded by the Chancellor.

ALEXANDER in reply as to third point cited, 12--Ves. 386. 2 Roper, 336, 438, 439.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*200]  STEPHEN, J., delivered the opinion of this court.
The personal estate of the testator not being sufficient to pay his debts, and the specific [**25]  legacies bequeathed by his will, the question arises, in what manner the deficiency is to be supplied, or upon what principles, contribution is to be made by those who have been the objects of his bounty in the disposition of his property. By his will, he has given several specific legacies, and devised to several of his children a considerable real estate, and the question which it becomes necessary to decide, is whether the devisees of real estate, are to contribute equally and proportionally with the specific legatees of the personalty, or the burthen of making up the deficiency, is to fall solely, and exclusively, upon those, to whom he has specifically bequeathed a part of his personal estate.
The principle seems to be well settled in England, that as to debts by specialty, since the statute of fraudulent devises, making real estate in the hands of devisees, liable to the payment of such debts, specific devisees of free hold, and lease hold estate, are on the same footing; and liable to contribute in equal proportions to the satisfaction of those debts. It was so decided in the case of Short vs. Long, 2 Vern. 756. In that case the assets falling short [**26]  to pay debts, the question was, whether the deficiency was to be charged upon the real or upon the lease hold estate. The Lord Chancellor decreed the deficiency to be borne equally, in proportion to value of each estate. The debts being due by specialty, and both descriptions 

 [*201]  of property liable for the payment of them; and the devisees and legatees being both equally objects of the testator's bounty, he determined that the contribution ought to be equal.
The same case is to be found reported 1st P. Will. 403, 404, Lord Chancellor Cowper, that great master of equity, as he has been emphatically styled, there decided, that to prevent the disappointment of the testator's intention, both estates being liable, the contribution ought to be equal.
The counsel for the appellant in the course of his argument, seemed to think, that this decision had been overruled in the case of Hazlewood vs. Pope, 2 P. Wms. 322. In 1st Roper on Leg. 638, it is said, the fifth resolution in Hazlewood vs. Pope, may probably at first sight, be considered at variance with the case last cited. That resolution was in these words, "where a man dies indebted by [**27]  bond, and leaves a personal estate, and devises lands to J. S. in fee, and gives specific legacies, and the creditor by bond, comes on the personal estate to be paid his bond, the specific legatees shall not stand in the place of the bond creditor, to charge the land devised; because the devisee of the land, is as much a specific devisee, as the legatee of the specific legacy." It is presumed, says Roper, that Lord Talbot, in the expression, "the specific legatees shall not stand in the place of the bond creditors, to charge the land devised," must have intended, not that the devisee should not contribute, but that the specific legatee had no right to have the assets marshalled against the specific devisee, so as to throw the bond debt exclusively upon the real estate devised, to the exoneration of the personalty, specifically bequeathed. In this qualified sense, the resolution in question, and the case of Long vs. Short, probably may be reconciled; but the point cannot be considered free from doubt. The reason assigned by Lord Talbot, would seem to indicate, that the construction given by Roper to his opinion was well founded, and that he did not intend [**28]  to repudiate the principle of contribution, but only designed to exclude the doctrine of an exclusive liability, under the circumstances attaching to the 

 [*202]  devisee of the real estate. It was manifestly the opinion of Roper, that the principle of contribution was sustainable, because in the preceding page, he says, "there appears to be a distinction, in the application of the preceding rule, as to marshalling in favor of specific legatees, for in that case it seems, that the real and personal assets specifically devised and bequeathed, will upon failure of the general personal estate, be so far marshalled, (if indeed that term can in strictness be applicable,) that the specific devisee and legatee, shall each, in proportion to the value of their respective gifts, contribute to the payment of the specialty debt. But with respect to a simple contract creditor, the exception is not admitted; for he must resort alone to the personal estate specifically bequeathed, as that is the only fund liable to his debt."
The principle established by Lord Chancellor Cowper, in the case of Long vs. Short, is sanctioned in a note, to be found in 3 Woodeson's Lect. 534, where [**29]  it is said, "as to debts by specialty, specific devisees of freehold, and leasehold estates, seem to be on the same footing, since the statute of fraudulent devises, 3 W. and M. ch. 14, and liable to contribute in equal proportions to the satisfaction of those debts." So also in 2 Wms. on Exrs. 1043, in a note, it is said, "according to the decision of Ld. Cowper, in Long vs. Short, 1st P. Wms. 403, the devisee would be entitled to compel the specific legatees to contribute to the payment of the debt, but not wholly to exonerate the land." Again, at page 1056, of the same book, in a note, it is said, "with respect indeed to specific legacies, the assets, according to Ld. Cowper's decision in case of Long vs. Short, shall be so far marshalled upon failure of the general personal estate, that the devisee, and specific legatee, shall each in proportion to the value of their respective gifts, contribute to the payment of the specialty debt." In 3 Johns. Ch. 158, speaking upon the subject of contribution between two specific devisees of land, Chan. Kent says, "the same rule was declared in Long vs. Short, 1 P. Wms. 403, [**30]  in the case of two specific devisees of land. The Lord Chancellor said it would equally disappoint the intention of the testator, to defeat 

 [*203]  either devise, by subjecting it to the testator's debts; and therefore he held, that on a deficiency of assets, both estates must contribute in proportion to the value of their respective premises."
In England as in this State, the personal estate is the natural or primary fund for the payment of debts, as between the real and personal representatives of the deceased, and must be resorted to in the first instance for that purpose. And in order to inforce such primary liability, it is an established rule in equity, that as between the representatives of the deceased debtor, if the creditor proceeds against the real estate, descended or devised, the heir or devisee, who has sustained the loss, shall be allowed to stand in the place of the specialty creditor, to re-imburse himself, out of the personal estate, in the hands of the executors, provided such re-imbursement will not prejudice any of the creditors, or any other party having a more favored claim, than the heir or devisee respectively. Wms. on Exrs. 1041.  [**31]  
If the obligee recovers against the heir, he may re-imburse himself out of the assets in the hands of the executor, but not to the prejudice of either a specific or general legatee; such an equity exists only in favor of the heir, against a residuary legatee, but in favor of a devisee, it exists against a general legatee, though not as it would seem against specific legatees, for the reason heretofore given. 2 Wms. on Exrs. 1043.
According to the principles of the English law, equity will marshall the real assets descended to the heir, in favor of, or for the relief of specific legatees; but it will not for such purpose interfere with the lands devised, unless they were devised subject to the payment of debts. 3 Johns. Ch. 153. That is to say, the lands devised, will not be made to release or exonerate the specific legatee, but they will be held to contribute. The general rule of marshalling assets, is to apply, first the personal estate; then lands devised to be sold for the payment of debts; then lands descended; and lastly, estates specifically devised, even though they are generally charged with the payment of debts. The testator in this case,  [**32]  having made 

 [*204]  provision in his will for the payment of his debts and legacies, if the fund provided by him for that purpose has proved to be inadequate, the rule of contribution, as established by law, must be resorted to, and ought to prevail.
We therefore think, that if in course of the administration of the assets by the executors, the specific legacies bequeathed by the will of the testator, have been applied to the payment of specialty debts, the specific legatees are entitled to contribution against the devisees of the real estate; but that so far as such legacies may have been applied to extinguishment of the claims of simple contract creditors, no such right of contribution exists, as against the devisees of the realty; the personal fund alone being responsible for the payment of debts of that description. We think moreover, that if the general personal estate has been applied to the payment of the specialty debts, whereby the simple contract creditors, have been thrown upon the specific bequests, the specific legatees have a right to resort to the devisees of the real estate for contribution; such right of contribution being essential to carry into effect the intention [**33]  of the testator, which was to make them both equally the objects of his bounty. The property given by him in his life time to his children by way of advancement, was no part of his estate at the time of his death, and cannot be made to contribute by his representatives to the payment of his debts.
We are of opinion, that the money receivable under the decree in Chancery in the case of Sterett vs. Moale, ought to be equally divided amongst all the children of the testator, and not exclusively given to those having children. The will of the testator affords pregnant evidence, that all his children were equally the objects of his bounty and affection; and in disposing of the fund in question, the language he has used is strong to shew, that an equal participation by them in the benefits of that fund, was his object. It is true, that at the time his will was made, and at the period of his death, there were two of his children who had no issue; but in the course of nature, it was not improbable that, that state of things 

 [*205]  might cease to exist; and in the event of their having children, the same motive and feeling of parental affection, would have operated in their behalf,  [**34]  and would have made them equally the objects of his bounty and benevolence. The language of his will in reference to the subject is as follows: "the residue of the money annually received by my executors under the said decree, to be equally divided by them, amongst my children, share and share alike, and paid to each of them for the use of their respective children, and by each of them so applied."
From the terms of this bequest it is, we think, most apparent, that equality to each of his children, was the governing motive of the testator, and such ought to be the construction given to his will, if it can be made compatible with the import of the language he has used. Where the testator stands in the relation of parent, a bequest to children generally will be presumed, in legal construction, to embrace all who answered that description at the period of his death. A court of equity is always solicitous to adopt and enforce such a construction, because it is conformable to the dictates of nature, and in accordance with the best affections of the heart. In 2 Wms. on Exrs. 716, speaking of bequests to children in a class, the author says, "generally speaking, every person who [**35]  at the time of the testator's death falls within the described class of children, will be entitled. But where it appears from express declaration or clear inference upon the will, that the testator intended to confine his bequest to those only who answered the description at the date of the instrument, such intention must be carried into effect. A court of equity however, is always anxious to include all children in existence at the time of the death of the testator, and particularly, when he stands in the relation of parent to the legatees; the court presuming, that he intended to do his duty, in providing for all his children at his death, will lay hold of any general expression, to give effect to this presumed intention, and will not permit such general expression to be narrowed by the context." The language of the will, in making the bequest in this case, is very 

 [*206]  broad and general. The legacy was to be divided by the executors amongst his children, share and share alike; and paid to each of them, for the use of their respective children, and by each of them so applied. It is a well established rule in the construction of wills, that where there is a general and particular [**36]  intent, apparent upon the face, the general intent, although first expressed, shall control and overrule the particular. Thus in 2 Wms. on Exrs. 714, it is said, "it must not however be understood, that because the testator uses in one part of his will, words having a clear meaning in law, and in another part, words inconsistent with the former, that the first words are to be cancelled or overthrown. A contrary principle is now fully established, in the doctrine already considered, that the general intent although first expressed, shall overrule the particular." It appears in this case most clearly from his own explicit declarations, that it was his great and leading object to make an equal distribution of his property amongst all his children, being governed in this last solemn act of his life, in providing for his family, and disposing of his estate by an equal and similar affection for each, and every one of them. If then equality of bounty to all his children, was his great leading and cardinal motive; in the language of the books, if such was his general intent, and he has used language sufficiently strong to carry that intent into effect, upon principle, it appears to [**37]  be settled, that such general intent is not to be frustrated, by any inconsistent particular intent, but must be supported, and ultimately prevail. In the decision of this question, it is moreover a circumstance entitled to great and weighty consideration, that the fund in controversy is of considerable value, and amounts in magnitude to nearly a third of his personal estate; and if allotted exclusively to such of the children of the testator as had children, will necessarily lead to an infringement of that well established rule of construction, that the particular must yield to the general intent, in case there should exist a conflict between them. Although a provision for his grand-children might have been an object, about which he was solicitous, it is fully apparent that he was equally 

 [*207]  anxious, that all his children should be equally benefitted by his bounty; and that no distinction or disparity should exist between them, as the objects of his munificence.
The true construction of his will is, that the fund to be received by his executors, under the decree in Chancery, was to be paid to each of his children in equal proportions, to be applied by those then [**38]  having issue, to the use of their children, and by those not then having children, to the use of their children, whenever they should have children. By no other appropriation of that fund, can the general intent of the testator, as plainly indicated upon the face of his will, be carried fully into effect. A contrary construction would defeat entirely that equality of bounty amongst his children, which appears to have been the great and paramount object of the testator in the disposition of his property, and ought not to be adopted, unless the language of his will is so explicitly imperative, as necessarily to demand it. We do not think that the executors are properly chargeable with interest upon the several balances from time to time found to be in their hands, in the course of their administration. They do not appear to have used the assets in any instance for their own emolument, nor was there that degree of unwarrantable negligence in the appropriation of them, to the payment of debts, which would render them upon principle so chargeable. Their settlements appear to have been annually made with the orphans' court, except in one instance, where there appears to have been [**39]  an excess of a few months only; and the rule as settled by this court, appears to be, to look with a favorable eye upon the conduct of executors, and other trustees, and to treat them with a reasonable indulgence, when they have acted with good faith in the execution of the trust confided to them; and not to hold them liable upon slight grounds. In 4 G. & J. 453, 460, this court lay down the general principle to be, that whenever an administrator manifestly intends fairly to do his duty, the rule should be, not to hold him liable upon slight grounds. It is moreover to be remembered, that until the settlement of their fourth account with the orphans' court, the balances against 

 [*208]  them to more than one-third of their amount, were composed in part of Bank of Columbia stock, for which in that account, they obtained a credit, as being worth nothing. In the book last referred to, it is true, this court say, an administrator may be compelled to pay interest on money kept in his hands, without apparent reason, from the end of thirteen months after the the date of his letters, but they say at the same time, that he is only to be charged with interest,  [**40]  where in so doing, it also appears that he is guilty of a culpable inattention to his duty. In this case, so far from being guilty of negligence, or a culpable inattention to duty, the executors appear in one instance, to have used extraordinary diligence and dispatch; for their third and fourth accounts, from the dates of the probates attached to them, appear to have been settled with the orphans' court on the same day.
In treating upon the subject of charging executors or administrators with interest, in the settlement of their accounts, Wms. on Exrs. 1132, says, "There are two grounds on which an executor or administrator may be charged with interest: 1st. That he has been guilty of negligence in omitting to lay out the money for the benefit of the estate. 2nd. That he himself has made use of the money to his own profit and advantage, or has committed some other misfeasance. With respect to neglect on the part of the executors, in not laying out balances, it must be observed, that it frequently may be necessary and justifiable, for an executor to keep large sums in his hands, to answer the exigency of the testator's affairs, especially in the course of the first year after [**41]  the decease of the testator, in which case such necessity is so fully acknowledged, that according to the ordinary course of the court, the fund is not considered distributable until after that time. But if the court observes, that an executor keeps money dead in his hands, without any apparent reason or necessity, then it becomes negligence, and a breach of trust, and the court will charge the executors with interest." So in 3 Gill and John. 341, this court say, where trustees act bona fide and with due diligence, they have always received the favour and protection of courts 

 [*209]  of equity; their acts have been regarded with the most indulgent consideration. Under the circumstances of this case, we do not therefore think, that there has been such negligence and culpable inattention to duty, as to require, that the executors should be charged with interest on the balances, from time to time, found to be in their hands. It does not appear, that the assets have been used for their own benefit, or that any unreasonable or avoidable delay, has occurred in bringing their trust to a final settlement.
We think, that the bequest to his children of the money to be received under [**42]  the decree in Chancery, was a specific legacy, and not liable to abate with the general legacies. The money to be received under that particular decree, was given to the legatees; and they had a right to demand it, as such from the executors. The intent was clear, to give that identical money, and not a sum of the like amount generally. When received by the executors, it became specifically the right and property of the legatees, and they had a right to demand it of the executors as such. In 2 Wms. on Exrs. 745, it is said, "where the bequest was to my grand-daughter, the sum of forty pounds, being part of a debt due to me, from A, for rent, she allowing what charges shall be expended in getting the same. Item--I bequeath to my grand-sons C. and D., the rest and residue of what is due to me from the said A, which is about forty-pounds more, in equal shares, and they allowing charges as aforesaid, these were held specific legacies." Again, at page 739, the same author says, "a legacy is general, when it is so given as not to amount to a bequest of a particular thing, or money of testator, distinguished from all others of the same kind. A legacy is specific when it is a bequest [**43]  of a specific part of the testator's personal estate, which is so distinguished." A debt due to the testator, may be specifically bequeathed; as where there is a bequest of the money now owing to me from A, or the money due to me on the bond of A. That the legacies were specific, will further appear from the consideration, that if the fund had failed out of which they were payable, the legatees would not have 

 [*210]  been entitled to any recompense or satisfaction out of the general personal estate, which is one of the features distinguishing a general from a specific legacy.
As to the character of the mortgage from Richard Lockerman to the testator, and whether the same is to be considered as real or personal estate, we are of opinion, that it must be considered as belonging to the class of real, and not personal assets. There is no doubt of the general rule, that a mortgage interest before foreclosure, is considered in equity, as a chattel interest, and personal assets, and belongs to the executors; and though the technical fee may descend to the heir, he takes it in trust for the personal representatives. 3 Johns. Ch. 145, and cases there cited. The principle [**44]  is well settled, that a mortgage on lands is nothing more than a security for the debt, and any thing which transfers or extinguishes the debt, transfers or discharges the mortgage as an incident to the debt. This no doubt is the general aspect under which it is viewed in a court of equity; but it is equally well settled, that the mortgagee, may as between his real and personal representative, by a manifest declaration of his intent, convert the mortgage, as well as any other part of his personal estate, into land; and make it pass accordingly. 1 Wms. on Exrs. 432. 2 Vern. 581.
In the case referred to in Vernon, the following facts are stated: "the testator having several mortgages, and amongst the rest, a mortgage in fee of lands in Fenlake, he devises his mortgages to his two daughters, and their executors and administrators; and devises his lands in Fenlake, upon which he had entered, upon forfeiture of the mortgage, to his two daughters and their heirs; Mary, one of the daughters, dying without issue, Higgs the husband and administrator, claims a moiety of the lands in Fenlake, as part of his wife's personal estate, it being a mortgage [**45]  not foreclosed, nor the equity of redemption released." Upon this state of facts, the court say, "although it is a mortgage, as between the mortgagor and mortgagee, yet the testator's intent was, it should pass to his daughters as real estate, to them and their heirs, and not as 

 [*211]  part of his personal estate; and Mary the wife of Higgs, being dead without issue, it descends, and goes to her sister, as her heir at law, and Higgs, as administrator to his wife, ought not to have any part thereof as personal estate." It is manifest, that the ground of the decision in this case was, that the mortgaged estate in question, was devised to his daughters, and their heirs; and not as in the case of the other mortgages, to his daughters and their executors and administrators; it being therefore the clear intent of the testator to treat it as real estate, descendible to the heirs, and not as personalty, which should pass to the executors or administrators, the court, in order to effectuate that intent, treated it as land, and not as personal estate. In the case before this court, the intent of the testator was we think equallv apparent, to treat the mortgage as real estate, [**46]  and not as personal property. The language of the will is as follows: "I will and devise unto my son Richard M. Chase, his heirs, executors and administrators and assigns, all the lands mortgaged me by my son-in-law Richard Lockerman, in trust, to receive the interest on said mortgages, which has or may become due, and to pay the same over to my daughter Frances Townley Lockerman, during her life, to her sole and exclusive use and benefit; and her receipt for the same, shall be good and sufficient in law, and equity; and in case my son-in-law, Richard Lockerman, should survive my said daughter Frances Townley, I do hereby grant permission to my said son-in-law to occupy and use the said lands mortgaged by him, during his natural life, free from rent and interest. I give and devise the lands mortgaged to me by my son Richard Lockerman, after his death, and the death of his said wife, unto their children, and their heirs, to be equally divided amongst them." The lands mortgaged in this case are devised to the trustee and his heirs, and after the death of the cestui que trust, and her husband, (who in case of his surviving his wife, is to have permission to [**47]  occupy them free from rent and interest,) they are devised to their children and their heirs, to be equally divided between them. The intention of the testator, therefore, to treat the mortgage as real estate, is, we think, 

 [*212]  most clear and indisputable. Upon the subject of costs, we think, that the executors ought not to be personally charged with the payment of them, either in this court, or in the court below; but that they ought to be paid out of the assets of the estate. The difficulties attending the execution of their trust, rendered it proper, that they should act under the direction and indemnity of a court of equity; and in such cases the practice seems to be to charge the cost of the suit, upon the fund. 1st. John. C. Rep. 45, 473, 153. In the last case referred to, the Chancellor says, as the defendant is not in default, and has only sought the direction of this court, in a case proper for it, he ought to receive cost out of the fund, and this is the course of the court in such cases. The decree of the Chancellor is reversed, and the cause remanded to the Court of Chancery for further proceedings, conformably to the principles herein contained.
DECREE [**48]  REVERSED AND CAUSE REMANDED.  

39 of 46 DOCUMENTS 

JOHN F. CONOLLY vs. KETTLEWELL & WILSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 Gill 260; 1843 Md. LEXIS 23 

December, 1843, Decided 

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

This was an action of Assumpsit, brought by the appellees against the appellant, on the 16th May 1840, for goods sold and delivered. The defendant pleaded non-assumpsit and limitations, on which issues were joined.

1ST EXCEPTION. The plaintiff, to support the issue on his part, proved by John Higinbothom, that he was the clerk of the plaintiff in 1836 and 1837, and at the time when the articles charged in the account of the plaintiff, as following, were sold and delivered.

"Mr. JAMES STERLING, secured by John F. Conolly,

Bought of Kettlewell, Wilson & Hillard.

1837, Feb. 13. 1 bb'l 1st quality sugar, bb'l 25c. 237 lb. at 10 c. $ 23.95, &c. Amounting in the whole to $ 624.16."

That all the articles in said account were selected by James Sterling and by one of the plaintiffs; entered in the day-book of plaintiffs to James Sterling, as follows: "Mr. James Sterling, bought of Kettlewell, Wilson & Hillard." But the goods therein contained were not delivered by the plaintiffs, and the plaintiffs refused to deliver them to Sterling until they saw the defendant. That plaintiff then asked Conolly, will you pay for these goods [**2]  if delivered to Sterling, and if Sterling did not. That Conolly answered the plaintiffs, that if Sterling did not pay the amount of the goods, he would pay; and that afterwards, on the books of the plaintiff, in the account of Sterling, the following words were written, "secured by John F. Conolly," by the plaintiffs, and the goods were, after said promise, delivered by the plaintiffs to Sterling; and further proved, that the said Sterling had previously applied to purchase goods from the plaintiffs on his own credit, and had been refused. Whereupon the defendant moved the court to give the following instruction:

"That in this case the promise to see the plaintiffs paid, if Sterling did not pay, not being in writing, is void by the statute of frauds, and plaintiff cannot recover." Which instruction the court (ARCHER, C. J., and PURVIANCE, A. J.,) refused to give. The defendant excepted.

2ND EXCEPTION. The plaintiff having offered the evidence in the preceding exception, and which is made part of this, the defendant further prayed the court to instruct the jury as follows, to wit: "That there is no evidence in this cause to shew that there was a joint responsibility of Sterling [**3]  and Conolly for the sale and delivery of the goods to Sterling, now sought to be recovered." Which instruction the court refused to give. The defendant excepted.  

DISPOSITION:
JUDGMENT REVERSED. Motion by appellee for a procedendo overruled.  

HEADNOTES:

It is the province of the jury to decide all questions of fact of which evidence legally sufficient for that purpose is laid before them, and it is equally the right and duty of the court to decide all questions of law arising upon the facts, when found and ascertained by the jury.

The plaintiff proved that all the articles mentioned in his account, were selected by S, and that he refused to deliver them until he saw the defendant. He then asked the defendant, "will you pay for the goods if delivered to S, and he did not?" Defendant answered, if S did not pay, he would. The goods were then entered on the plaintiff's books, "secured by" defendant. Under such circumstances, the defendant cannot require the court to say to the jury, "that the promise to see the plaintiff paid, if S did not pay, not being in writing, is void by the statute of frauds, and plaintiff cannot recover," as it took from the jury the right of finding the truth of the facts of which evidence had been offered.

In effect, the proof in the case, if believed by the jury, subjected the defendant to separate and secondary, and not an original or a joint responsibility.

Where the plaintiff below obtained a verdict, and the defendant brought the cause before this court on exceptions, and it appeared that the contract relied on and proved, was void under the statute of frauds, being a collateral, and not an original undertaking. After a reversal of the judgment, the plaintiff's motion for a procedendo was overruled.  

COUNSEL:
BY RICHARDSON, D. A. G., for the appellants, and

BY MCMAHON for the appellees.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*262]  STEPHEN, J., delivered the opinion of this court.
We think the court were clearly right, in refusing to grant the defendant's first prayer, made in this case. It was an action founded upon a collateral promise to pay the debt of another person, to whom goods were delivered by the plaintiffs. The prayer to the court was to instruct the jury, that the promise of the defendant to see the plaintiffs paid, if the principal debtor did not pay, not being in writing, was void by the statute of frauds, and the plaintiff, therefore, could not recover. It is the province of the jury to decide all questions of fact, of which evidence legally sufficient for that purpose is laid before them; and it is equally the right and duty of the court to decide all questions of law, arising upon the [**4]  facts, when found and ascertained by the jury. The granting of the prayer made by the defendant of this case, would have violated this well established principle in law, defining the jurisdiction of the court and the jury in the administration of civil justice. The court were called upon to assume the existence of facts 

 [*263]  which it was the exclusive province of the jury to find. The prayer assumes the truth of the facts of which evidence had been given, without submitting the verity thereof to the finding of the jury. To have granted such a prayer, would have been an unwarrantable encroachment upon the province of the jury, and it was therefore properly refused by the court.
We think there was error in the refusal of the court below to grant the defendant's second prayer. The undertaking of the defendant, according to the proof in the cause, clearly subjected him to a separate and secondary, and not an original or joint responsibility. The contract was to pay, if the person to whom the goods were delivered did not. The goods were charged to him in the day-book of the plaintiffs, and the plaintiffs refused to deliver them until they saw the defendant. When they saw the defendant,  [**5]  they asked him if he would pay for the goods, if the party to whom they were to be delivered, did not pay. And it is proved, that his undertaking was expressly a conditional one to pay, if the person to whom the goods were delivered, did not pay. That this was a collateral and not an original undertaking, is clearly established by the case of Elder vs. Warfield, to be found in 7 H. & J. 391, where this court say, "where there is no previously existing debt or other liability, but the promise of one, is the inducement to, and ground of, the credit given to another, by which a debt or liability is created in him to whom the credit is given, such a promise is a collateral undertaking. The general rule being, that wherever the party undertaken for, is originally liable upon the same contract, the promise to answer for that liability is a collateral promise, and must be in writing, as if B gives credit to C, for goods sold and delivered to him, or the promise of A to see him paid, or to pay him for them if C should not, in that case it is the immediate debt of C, for which an action will lie against him, and the promise of A is a collateral undertaking to pay that debt,  [**6]  he being only as a security. This case is not distinguishable in principle from the one here put, as an example or illustration of the nature and character of a collateral liability; and we think that the 

 [*264]  court below erred in refusing to grant the defendant's second prayer; that there was no evidence of a joint responsibility of Sterling and Conolly, for the payment of the goods sold and delivered to Sterling, Conolly was manifestly a security only, and not originally and jointly liable with Sterling, for the price of the goods sold and delivered.
JUDGMENT REVERSED.
Motion by appellee for a procedendo overruled.  

40 of 46 DOCUMENTS 

ANN GRAY vs. WALTER CROOK, JR.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

12 G. & J. 236; 1841 Md. LEXIS 16 

December, 1841, Decided 

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

This was an action of assumpsit commenced by the appellee against the appellant on the 30th August 1837. The defendant pleaded the general issue, but it was agreed that either party might give in evidence any matter that could be offered, if the same was specially averred or pleaded; and that in the trial of the cause it is to have the same effect as if specially set forth in the pleadings. The defendant was authorised to set up any defence that could be offered in any state of the pleadings.

At the trial of the cause the plaintiff offered evidence that his account was repeatedly presented to the defendant, at least half a dozen times in the year 1835; that she promised to pay it, and never denied its correctness. On the 13th July, 1835, she stated that in a few weeks she would receive funds from her father's estate through the trustees of the Steam Boat Company, and would pay the same. The plaintiff's account commenced on the 9th May, 1826, and ended on the 2nd May, 1834; it was for various articles of upholstery--as curtains, paper hangings, blinds, matrasses, altering and making carpets, &c., furnished in the intermediate period, and [**2]  amounted to $ 1,029.45. The father of the defendant, by his last will and testament, devised to trustees for the sole and separate use of his daughter, the defendant, free from all control of her husband during her natural life, a variety of real and personal property, and the will was proved on the 19th June, 1828. The plaintiff further proved that the father of the defendant, Benjamin Ferguson, died in 1828, and that said defendant is the daughter of the said Ferguson, and spoken of in said will as Ann Gray, she being at that time the wife of Walton Gray, who died in January, in the year 1836; that the said defendant Ann Gray has ever since been and now is a widow. The plaintiff further offered competent evidence to prove that said Walton Gray, at the dates of the several charges in the plaintiff's account, was in bad credit, and that he petitioned for the benefit of the insolvent laws of Maryland on the 15th of November, 1820; and again on the 20th August, 1827; and again on the 12th April, 1830; and again on the 20th January, 1831; and again on the 4th April, 1834. The plaintiff further offered evidence to prove that the trustees named in the above will of Benjamin Ferguson undertook [**3]  the said trust, and that the portion of the separate income of the said defendant, out of the property and estate devised for her sole and separate use by the said will, amounted to $ 2,602.14 in the year 1834, and in the year 1835 to the sum of $ 2,381.05, and in the year 1836 to the sum of $ 2,992.13; that her said separate income under the said will from the death of the said testator to the year 1834, was less than in the year 1834, but that she had such separate income, which between the death of the said testator and the year 1834, and also in the years 1834, 1835 and 1836, was regularly paid to her by the said trustees, and that her said separate income has continued and still continues, and has been regularly paid to her by the said trustees up to this time. The plaintiff further offered evidence that the said last mentioned witness was the collector of the plaintiff in the years 1835 and 1836; that as such collector he called on defendant in 1835, during the life of her said husband Walton Gray, for the payment of the said account, and that she then promised to pay the same, and that he, the last mentioned witness also called on her for payment of the same two or three times [**4]  in the year 1836, after the death of her said husband; that at one of the said calls the said defendant promised to pay the same, and at another, she promised to pay it as soon as she received her dividends from the stock of the Union Line of steamboats; that he the witness requested her to call on the trustees for her dividends, to which she replied that it was unnecessary, as they always sent her word when her dividends were ready, and that the defendant then appointed a day when she would pay it; that the witness called on the day appointed precisely, and the defendant told him that she had sent up the money; that this was in the year 1836, and after the death of the defendant's husband, but that no payment was in fact made, to his knowledge. The plaintiff further proved that the dividends coming to the said defendant from the said Union Line of steamboats were regularly paid to her by the trustees in the years 1836, 1837, 1838 and 1839. The plaintiff further proved by a competent witness, that he the said last mentioned witness assisted as a workman of the plaintiff in putting up in the house of the said Walton Gray, the defendant's husband, part of the articles charged in the [**5]  said plaintiff's account. The plaintiff further proved that Walton Gray continued to transact business in a small way; that he kept a small counting room in a store where he occasionally transacted business, but his business was not sufficient to support his family without the aid of his wife's estate.

The defendant then proved by a competent witness, that for three or four years after the death of Benjamin Ferguson, the testator mentioned in the foregoing will, Walton Gray, the husband of the said Ann, was in the receipt, and had the command of large sums of money, but that those sums arose from the dividends upon his wife's estate, which she permitted him to receive.

The plaintiff further proved that at the time the articles mentioned in the said account were furnished, the defendant was moving in a respectable circle in life, with one or more children, and that the said articles were suitable and appropriate, considering the defendant's position in society.

Whereupon the defendant prayed the opinion and direction of the court to the jury, that there was in this case no evidence to show that the private and separate estate of the defendant was ever pledged originally [**6]  for the payment of the plaintiff's claim, and that in the absence of such testimony, the plaintiff was not entitled to recover, which opinion and instruction the court refused to give to the jury. The defendant excepted.

The said defendant further prayed the opinion and direction of the court to the jury, that there was no evidence in the cause to show that the goods charged in that account of the plaintiff were furnished at the request, or upon the promise of the defendant, and without such evidence the plaintiff was not entitled to recover; which opinion and direction the court refused to give to the jury. The defendant excepted.

The said defendant further prayed the opinion and direction of the court to the jury, that in this cause the plaintiff was not entitled to recover, because the proper jurisdiction over the claim of the plaintiff, if any existed, was vested in a court of equity, which opinion and direction the court refused to give. The defendant excepted.

The verdict being against the defendant, she prosecuted this appeal.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

Since the act of 1825, chap. 117, on appeal, in a case brought up on bills of exceptions, this court only decides upon the prayers as made below, or the instructions which appear to have been granted.

Where a married woman, who has a separate estate during coverture, was furnished with articles suitable to her condition in life, for the use of the house in which she dwelt with her husband and family, and both before and after the decease of her husband, who was insolvent, promised to pay for them generally, and also as soon as she received her dividends from a specified portion of her estate, in an action at law, brought by the vendor after the husband's death, to recover the value of the articles so furnished, against the wife, the survivor, the court will not instruct the jury, that there was no evidence that the private and separate estate of the defendant was ever pledged originally for the payment of the plaintiff's claim; nor, that there was no evidence that the goods were furnished at the request, or upon the promise of the defendant.

Neither will the court in such case instruct the jury that the proper jurisdiction over the claim of the plaintiff (if any existed,) was vested in a court of equity.  

COUNSEL:
By WALSH for the appellant, who insisted--

1st. That there is no evidence in the cause to show that the [**7]  separate estate of the defendant was pledged in any way for the debts mentioned in the declaration; and in the absence of such evidence, there is no consideration for the subsequent promise relied upon by the plaintiff.

2nd. That there is no evidence to show that the property mentioned in the declaration was furnished at the request or upon the promise of the defendant, and without such evidence, there is no consideration for the promise after the death of the husband, relied upon by the plaintiff.

3rd. The appellant will rely upon the ground taken in the third prayer in the record, that if any claim existed, jurisdiction over it was in a court of equity.

To show that as there was no express pledge of the separate estate of the wife in this case, the contract in judgment of law was the husband's he cited, 32 Law Lib. 138, 142; Duke of Bolton vs. Williams, 2 Ves. Jr. 143; Jones vs. Harris, 9 Ves. Jr. 894; Heatly vs. Thomas, 15 Ves. Jr. 596; Bullpin vs. Clark, 17 Ves. Jr. 365; 3 Maddox, 387.

The contract of sale as to a portion of the articles furnished, took place before the separate estate was created. The promise of the appellant was no more nor less than to pay [**8]  the debt of her husband, and made subsequent to the debt, and hence not founded on any consideration. 2 Pothier, 27. The articles furnished were not necessaries. 1 Ser. & Low. 10. This debt was always the debt of the husband. 14 E. C. L. Rep. 188; 11 E. C. L. Rep. 84; 1 Camp. 120; 22 Ser. & Low. 187; 2 Strange, 204.

LLOYD and MARTIN for the appellee, maintained--

1. That there was evidence in the cause from which the jury were authorised to find that the property mentioned in the declaration was furnished at the request and upon the promise of the appellant; and that if this be so, the express promise made by the appellant, after the death of her husband, to pay for the said property, was a valid promise founded upon a sufficient consideration.

2. Assuming that the property mentioned in the declaration was furnished at the request, and on the promise of the appellant, and that after the death of her husband she expressly promised to pay for it, as stated in the first point, that then the appellee was entitled to recover his claim, although there was no evidence shewing that the separate estate of the appellant had been pledged for the said debt.

3. That the claim [**9]  of the appellee resting upon an express promise, founded on a sufficient consideration, as above insisted on, it was competent for him to enforce it in a court of law, as the appropriate jurisdiction.

The goods were furnished on the promise and at the request of the appellant--the husband a bankrupt--this fact was known and the credit was given to the wife. 5 Taunton, 131, '36, '44. 11 Eng. C. Law Rep. 301.

The jury might infer a sale on the credit of the wife; the husband never was responsible. Under a conflict of evidence the question is always for the jury. Ferguson vs. Tucker, 2 Harr. & Gill, 181; Davies vs. Barney, 2 Gill & John. 382; McEldery vs. Flannagan, 1 Harr. & Gill, 320; Pawson's Adm'rs. vs. Donnell, 1 G. & J. 1.

A moral obligation supplies a consideration at law for an express assumpsit. 1 Lord Raymond, 389; 5 Taunt. 37; 1 E. Com. Law, 10; Barnes vs. Hedley, 1 Taunt. 174; Early vs. Mahon, 19 John. 147; 3 E. Com. Law, 260, 4 Bing. 459, 15 Eng. C. Law Rep. 39; 12 E. C. Law Rep. 184; 2 Carr. & Paine, 383; 7 Conn. 57; 2 Binn. 591; 3 Pick. 207; Wennall vs. Adney, 3 Boss & Pull, 249, notes.

But for the coverture, the law would have implied a promise to pay.  [**10]  Her promise relates to the original request. Oatfield vs. Waring, 14 John. 188; Jackson vs. Halloway, 7 John. 83.

The act of the wife in this case after the death of her husband binds her. Lee vs. Muggeridge, 1 Ves. & Bea. 122, 123.

The principle of all the cases cited is, that a moral obligation to pay a debt is a sufficient foundation for an express promise to pay. The contract here was with the wife of an insolvent husband. The goods were furnished upon her request for the use and accommodation of herself and family, suitable to her condition in life, and it was consummated by a pledge of her private separate estate. The goods were a gain to the promisor, a loss to the promise, the two great ingredients of a contract at law. Wennall vs. Adney, 3 Boss. & Pull, 249, notes.

The express promise to pay is a distinctive feature in this cause. It confers jurisdiction on a court of law. Edwards vs. Davis, 16 John. 284, note a.

RICHARDSON for the appellant in reply.

The only question in the first prayer is, whether if the goods were originally furnished upon the request of the appellant, she then being covert, is she bound to pay in this action? We insist, if she [**11]  made a contract at all it was the contract of her husband. The debt due Crook was due from Mr. Gray in point of law. Whether it was the husband's debt or her debt, was a fact which should have been submitted to the jury. If the law does not throw the creditor on him, then it was a fact for the jury to decide which was the debtor, the husband or the wife. Independent of the pledge of the private estate, in point of law, this was the debt of the husband. Let us review the facts. In 1826 Mr. and Mrs. Gray lived together in the same house, master and mistress. In 1826, Crook furnished goods to the value of 250; all the articles were for the house in which Gray and wife lived. In 1829 more goods were furnished to amount of $ 150. So in 1830 and 1831. All the articles were suitable to their condition in life. There is no evidence until 1835 of a promise to pay, and Mrs. Gray was then covert. The husband died in 1836. After his death she again promised. There was no evidence of a demand of payment from 1826 to 1835. It was the husband's debt in 1826 when first contracted. Then there was no private estate. The father died in 1828, and she had no property until then, but that furnished by the [**12]  husband 2 Pothier, 27. Evans' notes. The contract of a married woman is void. The husband is answerable for necessaries. The supply of these to her does not constitute a personal claim against her. Her separate estate is an exception. In cases within the exception the separate estate is pledged. M. E. Church vs. Jacques, 1 J. C. R. 450. Another test is, that if Gray had been sued, judgment must have gone against him. And as to the wife, a subsequent promise upon an executed contract is void.

As to whose debt it was from the delivery of the goods to the death of Gray, the counsel cited 14 E. C. Law, 188; 11 E. L. Law, 84; 1 Campb. 120.

The husband is responsible, living with the wife, for any goods to any extent he permits his wife to receive. The case of 22 Serg. & Low. 187, is like the case at bar as to the delivery of the goods. 2 Strange, 204. The wife's agreement is the husband's contract, if he knows of it and suffers it to be executed.

Again, Gray was released under the insolvent law in 1827, and he was thus released from his responsibility for the portion of this account previously contracted. Then the wife had no personal estate. Her father died in April, 1828.  [**13]  The separate estate then commenced, and in 1830 Gray is again released by the insolvent law. In the mean while the second large item of the account accrued. But his application in 1834 covers the whole of the claim. The cases of 1 E. C. Law R. 131; 5 Taunt. have no application here.

The husband's indebtedness up to his death is established both in fact and at law; and if the question of present indebtedness depends on--to whom the credit was given--as a question of fact, it is for the jury to decide. The question of credit to whom given, was kept from the jury. It does not arise on the first prayer, but as the second prayer was also refused, this was equivalent to a declaration that there was evidence that the goods were furnished on the promise of the defendant. The implied effect of this refusal is, to say the goods were furnished on Mrs. Gray's credit. 11 E. C. L. 301.

The case of Lee vs. Muggridge, 5 Taunt. 37, is contrary to decided cases, and unlike the case at bar.

Mrs. Gray has no jus disponendi of her property under her father's will. She was the mere recipient of rents and profits, and differs from the case in Taunton, where the wife had the power [**14]  of disposal.

The debt of the wife having separate property, is like the debt of any other feme covert, unless she pledges her separate estate. She must intend to charge it, and have the ability to do it. 2 Roper on Hus. and Wife, 32 Law Lib. 137, 142.

There is an agreement to wave errors of pleading, and that the plaintiff may recover upon any case which he might have made in pleading upon the actual proof in the case. But in point of law, according to the facts, the plaintiff has made no case, and the agreement does not aid him.

Forbearance is no consideration for a promise to pay a void debt. 1 Strange, 94; 7 Harr. & J.; 2 L. Ray, 1055; 7 Conn. Rep. 64.  

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

OPINION:

 [*244]  BY THE COURT--
JUDGMENT AFFIRMED.  

41 of 46 DOCUMENTS 

THE STATE OF MARYLAND vs. JOHN PRICE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

12 G. & J. 260; 1841 Md. LEXIS 19 

December, 1841, Decided 

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

This was an INDICTMENT charging that the appellee on, &c., at &c., "unlawfully did keep a certain gaming table called a faro table, at which said gaming table unlawfully kept as aforesaid, the game of faro was then and there unlawfully played for money, against the act of Assembly in such case made and provided, and against," &c.

The traverser demurred to the indictment, in which the State joined, and the county court sustained the demurrer. The case was brought up on writ of error by the State, and was argued

The act of 1826, ch. 88, under which the indictment was found, enacted, that "every person who shall be duly 'convicted of keeping any E. O. table, or any other kind of 'gaming table, (billiard tables excepted,) at which the game of 'Pharo, Equality, or any other game of chance shall be 'played for money, shall for the first offence forfeit and pay," &c.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

Where the enacting clause of a penal act contains an exception, it is not indispensable that an indictment framed under it should set forth an express negation of it.

Where the charge preferred ex natura rei, as conclusively imports a negation of the exception, as if such negative had been in express terms, no rule of construction requires more.

Where exceptions are in the enacting part of a law, it must appear in the charge, that the defendant does not fall within any of them. A case must be averred which brings the defendant within the act. That a faro table is not a billiard table, is a fact of such notoriety as to be within the knowledge of the community at large; and hence there is no presumption of law or fact which will prevent the court from judicially knowing what a faro table is.

If a billiard table, which is excepted from the penalties of the act, were in fact used as faro table, ipso facto, it would lose the immunity conferred upon it.  

COUNSEL:
By BOYLE, D. A. G. for the State--

Who maintained that the indictment sufficiently negatived the exceptions in the act of 1826, that a faro table was not a billiard table.

By HANDY, PITTS and RICHARDSON for the appellee.  [**2]  

The negative words of the statute found in the enacting clause must be followed in the indictment. 1 Chitty Crim. Law, 190, 192; 1 Burr. 152; 1 D. & E., 84; Archb. Crim. Prac. 21, 20. The indictment should conclude against the form of the act, and not against the act of Assembly. 2 East. Rep. 332; 7 Massa. 9. This offence was unknown to the common law, neither keeping a table nor gaming was punishable. The offence at common law was keeping a gaming house, a nuisance tending to the destruction of good morals. This is a statutable offence, and the exception in the body of the act is a part of the legislative description of the thing intended to be prohibited, and hence the very words of the act ought to be used. 1 Barn. and Ald. 99; 1 Russ. and Ryan, 321; 7 D. and E. 18. Hence, the exception ought to be negatived. The court cannot judicially know what a faro table is. They cannot know that it is not a billiard table, nor can they look out of the indictment for the description of the offence.  

JUDGES:
Before STEPHEN, DORSEY, CHAMBERS and SPENCE, J.  

OPINIONBY:
DORSEY 

OPINION:

 [*262]  DORSEY, J. delivered the opinion of this court.
The correctness of the judgment of the county court, it is asserted [**3]  by the appellee, is fully established by the general principle, as stated in Archb. Cr. Pl. 21, and other elementary writers upon the subject, "that if there be any exception contained in the same clause of the act, which creates the offence, the indictment must shew, negatively, that the defendant or subject of the indictment does not come within the exception." If the meaning of this rule be, as is contended, that the indictment must contain an express negation of the exception, it is not warranted by a fair construction of the opinions of the court, in the cases referred to, as its basis. In announcing such a principle, the court must be understood as asserting it in reference to the cases then before it, and those of a similar character. In all of which it will be found that, but for such negation, the guilt of the accused would not conclusively appear. Under the exception he might be innocent, although every allegation against him be fully proved. The rule, in such cases, and in such only has it ever been declared from the bench in any reported case that we can find, is undeniably true. But to apply it to a case like the present, where the charge preferred, ex natura rei [**4]  , as conclusively imports a negative of the exception, as if such negative had been in express terms, would violate the soundest principles of construction; and give to the rule an universality of operation which its terms do not import, and was never contemplated in the decisions or commentaries to which it owes its birth. The true rule upon the subject is thus given by Lord Mansfield, in Rex vs. Jarvis, Hil, Term, 30, Geo. 2, reported in note, (k) in King vs. Stone, 1 East 644, "where exceptions are in the enacting part of a law, it must appear in the charge, that the defendant does not 

 [*263]  fall within any of them." And in Spiers vs. Parker, 1 Term. R. 141, "the plaintiff must aver a case, which brings the defendant within the act." To sustain the doctrine contended for by the appellant--if a statute were passed, making "the malicious killing of cattle, except horses," a felony: and an indictment charged the malicious killing of a cow, it would be defective, unless it negatived the exception, by stating that the cow was not a horse. An allegation so useless, not to say absurd, cannot be required by any technicality either in civil or criminal [**5]  pleading.
But it is urged by the counsel of the appellee, that the court cannot judicially know what a billiard table is, or that it is not the table at which the game of faro is usually played. To such a proposition we cannot yield our assent. We know of no recognized presumption either of law or fact, that imputes to the court an ignorance of a matter, like the present, of such notoriety as to be within the knowledge of the community at large. And we feel perfectly warranted in assuming to ourselves such a knowledge upon the subject, as enables us to declare that, in excepting billiard tables, the Legislature did not design to authorise their being kept for the playing thereon, of the game of faro for money; (the authority so to use them being a corollary of the doctrine contended for by the appellee,) but that the moment they are so appropriated, they, ipso facto, pro hac vice, lose the immunities conferred on them by the exception; and cease to be billiard tables in the eye of the law. When, therefore, the charge in the indictment demonstrates, that the gaming table complained of could not be a billiard table, was it not superfluous to have added an allegation to that effect?  [**6]  
The objection taken to the indictment, that it does not describe the offence with sufficient certainty and conformity to the language used in the act of Assembly, cannot be sustained. The offence is charged in the very words of the act of Assembly, by which it is created, with the additional words, "called a faro table," which detract nothing from the sufficiency of the description of the offence, otherwise set forth in the indictment. The 

 [*264]  prohibition in the act of Assembly, is the keeping of a gaming table, at which the game of Pharo, Equality or any other game of chance shall be played for money. The charge in the indictment is, that the accused "unlawfully did keep a certain gaming table, called a faro table, at which said gaming table, unlawfully as aforesaid, the game of faro was then and there unlawfully played for money." The only difference between the language of the act and that of the indictment is, that in the latter it is alleged that the gaming table was called a faro table. Such an allegation in no wise impairs the indictment, which is perfect without it; and even if it be not wholly rejected as surplusage, its only possible effect would be to impose upon [**7]  the prosecution the necessity of proving, at the trial, that the gaming table complained of was called a faro table. Totally unlike the present is the case of Rex vs. Craven, 1 Russ. & Ryan, 14, relied on in support of this objection. There the felony, created by the statute, was the stealing of a bank note, or promissory note, for the payment of money. The charge in the indictment was, the stealing of "a certain note commonly called a bank note." And the court say, "that in the first special description of the property stolen, it being stated only to be a note, was not sufficient; the words of the act being bank note or promissory note for the payment of money. And that the addition "commonly called a bank note," "did not aid such original wrong description." In the case at bar, there was no original wrong description which required aid from the words that were added. On the contrary, the indictment described with technical accuracy, in the very language of the act of Assembly, the offence committed, and such description was neither aided nor impaired by the additional words unnecessarily used.
The judgment of the county court is reversed and the cause remanded thereto.  [**8]  
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

42 of 46 DOCUMENTS 

GEORGE LAW vs. J. K. TOWNSEND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 G. & J. 407; 1841 Md. LEXIS 32 

June, 1841, Decided 

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

This was an action of assumpsit, brought on the 29th October 1838, by the appellee against the appellant, to which the defendant pleaded the general issue.

FIRST EXCEPTION.--It is agreed by the parties, that the defendant (Law,) was appointed administrator upon the estate of Stephen Waterman, late master of the ship Mentor; that in that capacity, prior to the 14th May 1836, he had received on account of said ship, under the late convention between The United States Government and that of France, the sum of $ 4,616.40. The plaintiff then read in evidence the following letters from the defendant to the plaintiff:

1. George Law to John K. Townsend, of 18th September 1834, enquiring for information of the names of the administrators of the late George Townsend and Capt. Stephen Waterman, and offering to disclose and prosecute claims for them under the French Treaty. Where I discover such claims and disclose them to the parties interested, I am allowed one-fourth of any recovery made through my means as agent, attending throughout to the prosecution, and in case of failure to recover, no charge for any trouble or expense I may incur in [**2]  the business. My terms of compensation once acceded to, I can transmit the power of attorney, &c., and save the parties from further trouble in the prosecution of the claim in question.

2. From same to same. Washington city, 10th January, 1835. "Dear Sir,--A short absence from the city has prevented an earlier reply to your favor of 29th ultimo, with enclosures in case of ship Mentor, Waterman master, which came duly to hand. I accede to your wishes in respect to commission, and will allow you five per cent. as proposed. I write in haste to save the mail."

3. Same to same. 14th December 1835. "Award in case of ship Mentor, Waterman master, has been some time made for the sum of $ 16.155, one-half to each estate," &c. Probable dividend 62 1/2 cents in the dollar.

4. Same to same. 14th May 1836. I am without any thing from you, and now request you will inform me as early as convenient, to whom the administrators of G. T. wish to have the certificates filled up for the proportion of award in the case of the ship Mentor, which that estate is entitled to, say seventy-five per cent. You will please furnish account of the estate of George Townsend against that of Stephen Waterman,  [**3]  in such form as must pass your orphan's court, that I may be enabled to pass it before the court where I have taken out administration, and pay over the amount to the administrator of George Townsend, being desirous of getting all these matters brought to a close. In this latter transaction I am entitled to thirty-five per cent. from the estate of George Townsend, of which I have to pay five per cent. to my security, him, and five per cent. to your good self. I have not now my correspondence with you to refer to, and should I be in error please correct me, and say how will you have the certificates for your own 5 per cent. filled up, &c.

5. The Plaintiff to the Defendant. New York, 29th Dec. 1834. "I now enclose you my deposition of the value of the ship Mentor, Capt. Waterman, and also the debt of George Townsend against Stephen Waterman, in the year 1807. The former I conclude will be ample testimony for establishing the requisite proof before the commissioners for French spoliations. Your letter of 13th December received, &c., and was pleased to learn that you had taken out letters of administration in the orphan's court, on the estate of S. W. though I was surprised to observe [**4]  that your securities charged 5 per cent. each; your charge and the securities, makes it 35 per cent. I think as I have thrown a considerable business in your hands and will be likely to do more, it appears to me right for you to allow me five per cent. on all the business I have and can send you, &c."

P. S. I have seen Mr. Strong of Hudson, who informs me he has no papers of Stephen Waterman--all he knew about the business, was by the directions he had from Waterman, who died in 1827, and nothing since has been done in the business. I herewith enclose you, certificate from the orphan's court, agreeably to your request.

6. The Plaintiff to the Defendant. New York, 29th September 1834. After information in relation to Townsend, &c., I recollect well, that the said Capt. Waterman, went out in said ship Mentor as captain, and ran away with the ship and freight, and kept her in possession until she was captured. It was the means of ruining Townsend--all the property and avails of said ship ought in justice and equity to belong to the estate of the said George Townsend, and I trust you will endeavor to have that effected, as Waterman never paid a cent for said vessel, or any part [**5]  of the same. Capt. Marshall informs me, that he never knew said Stephen Waterman, nor could we ever find out, that he had any near connexions, &c. P. S. Mr. H. Townsend is willing to allow you the terms you propose."

7. The Plaintiff to the Defendant. New York, 28th October 1834. "The laws of our State are such, that neither Mr. Liggett nor the brother of George Townsend, can administer on the estate of Stephen Waterman, although they may be considered the largest creditors, not being the nearest of kin." Our public administrator will have to administer on S. Waterman's estate, and he will have to advertise five or six weeks before he can send on letters. I do hope you will be able to save that claim also. Please write me how that will be.

No. 8. The Plaintiff to the Defendant, 14th November 1834. "I believe you were correct when you said that letters of administration could be taken out on the estate of S. Waterman on behalf of the estate of George Townsend, as largest creditor. I feel confident I shall be able to effect that. I shall give you all information you require, in relation to the ownership in my next, I think.

No. 9. P. H. Frost, agent of plaintiff to defendant,  [**6]  27th November 1834, as to further efforts to procure letters on Waterman's estate.

No. 10. From Plaintiff to Defendant, 29th November 1834. Stating further difficulties as to procuring letters on Waterman's estate. "We however want you to take out letters on said Waterman's estate, for fear that some of his friends may do so, and thus prevent George Townsend's estate from getting the debt due from Waterman's estate, which is about $ 7000."

Other letters were in proof, not however affecting the controversy in this cause.

The defendant then read in evidence, the receipt of the plaintiff as follows:

George Law, Esq.     To John K. Townsend, Dr.

To my commission allowed by him as per his letter for my services rendered him, in assisting in proving the claim against ship Mentor, Waterman master, for French spoliations, under the French indemnity, as awarded to the commissioners to the estate of George Townsend, for $ 8077.50, 5 per cent.

________________________________________________________________________________
Commission on the same, is	$ 403.87	
Deduct 50 per cent.	201.93	
	
  Received payment in full,	$ 201.94	
________________________________________________________________________________

Washington, 23rd June, 1836.    JOHN K. TOWNSEND.

The plaintiff then proved by Charles [**7]  Gilman, that the defendant refused to pay over the amount in his hands, as administrator of Stephen Waterman, until an order was obtained from the orphan's court of Washington county, in the District of Columbia; that accordingly on the 16th August 1838, such an order was obtained, directing the defendant to pay Barnibas Waterman and Joshua Waterman, administrators of Stephen Waterman, in the State of New York, any balance in his hands. Under this order the defendant proved the payment of $ 3,462.38, being so much money received by him under the late convention with France, and remaining in his hands after the payment of expenses of establishing the claim to the same, and also $ 134.16 additional interest; and further proved, that when the said defendant paid to the said Charles Gilman, the amounts of money as above stated, he the said defendant did not claim a deduction of more than 25 per cent. on the amount in his hands, as administrator of Stephen Waterman, and that the amounts then paid were less by 25 per cent. than the amounts received by him as administrator of Stephen Waterman, and that the plaintiff had no knowledge of the settlement thus made between Charles Gilman and the [**8]  defendant, and was not a party to it.

The plaintiff then offered certain proof taken under a commission, which was objected to by the defendant, and excluded by the court. As no appeal was taken by the plaintiff, that evidence is not reported.

The plaintiff then prayed the court direct the jury as follows:

"That according to the true construction of the correspondence between the plaintiff and defendant, as given in evidence in the shape of various letters read to the jury, the plaintiff is entitled to recover five per cent. on the whole amount or sum of money, upon which the defendant received his commission of 25 per cent., if the jury shall believe from the evidence, that the defendant did receive 25 per cent. commission, upon the amount awarded and received as the proceeds of the ship Mentor." Which instruction the court (MAGRUDER A. J. and PURVIANCE, A. J.,) gave to the jury. The defendant excepted.

SECOND EXCEPTION.--"The evidence having been given as is mentioned in the defendant's first exception, the defendant then prayed the court to grant the following prayers and instructions to the jury."

"If the jury find from the evidence, that the defendant [**9]  agreed to pay the plaintiff a commission of five per cent. on the amount which might be received by him, provided he, the plaintiff, received thirty per cent. on such amount; and if the jury further find, that after such agreement, the representatives of Stephen Waterman, called upon the defendant to pay the amount of such allowance, and that the plaintiff had no authority to act for the administrators of Stephen Waterman, and that the defendant received in fact, a commission of only 25 per cent. from the administrators of Stephen Waterman, the plaintiff cannot recover."

"If the jury find, that defendant agreed to pay plaintiff a commission of five per cent. on the amount which might be received under the French Treaty, for the ship Mentor, provided he, the defendant, received thirty-five per cent. on the same, and that upon the settlement, the defendant received only twenty-five per cent., then the plaintiff cannot recover."

"That the contract in this case appears from the correspondence, and that the payment of the five per cent. to plaintiff by defendant, on the amount received from S. Waterman's estate, depends upon the question of fact, whether the defendant received [**10]  thirty-five per cent. on the amount received from S. Waterman's estate; and that if the jury find, that defendant has in fact received only twenty-five per cent., then the plaintiff cannot recover."

"If the jury find from the evidence, that the claim of Stephen Waterman's estate, under the French Treaty, was not sent by the plaintiff to George Law, then the plaintiff is not entitled to recover five per cent. on the amount received by George Law, as administrator of Stephen Waterman." But the court rejected all the prayers of the defendant, and refused to grant any one of them, to which refusal of the court to grant the said prayers, or any one of them, the defendant excepted.

The verdict and judgment being against the appellant, he prosecuted this appeal.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

Where there is a contract for services to be rendered, and compensation to be made upon a given contingency, and the proof of performance consists entirely of letters between the parties. QR. Whether the court or the jury is to make that deduction.

But where in such a case the defendant had paid the plaintiff a sum of money, and the latter had given a receipt in full, having a reference to the transaction, couched in general terms, differing in some material respects from the language of the letters containing the contract, part of the business being unsettled at the date of the receipt; it is a question of fact solely for the jury to determine, whether the plaintiff is entitled to any further compensation for his services, or whether the parties had not entered into a new contract, variant from the old.

When the contract was, that the appellant should allow the appellee a commission on all business sent by the latter to the former, the title to the commission is complete by sending the business.  

COUNSEL:
By G. M. GILL for the appellant, and

By GILMAN for the appellee.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*413]  DORSEY, J., delivered the opinion of the court.
The written contract between the parties in this case, is contained in the letter of the appellee dated New York, 29th December 1834, and [**11]  that of the appellant from Washington city, of January 10th 1835. All the testimony, oral and written, which was taken in the cause, except that taken under the rejected commission, has been received without objection. The other letters of the parties, and the other written and oral testimony, do not appear to have been taken with a view to alter, or change the written contract thus proved, but to establish the controverted fact, whether Waterman's claim, on account of the ship Mentor, was a claim covered by that contract. The terms of the contract as expressed in the two letters referred to, do not per se establish that fact; nor is it fully or distinctly shewn, by the other letters of the parties. And if such an inference might be drawn from them in the absence of all other proof upon the subject, we wish to be understood, as expressing no opinion, whether it is the province of the court or the jury to make such deduction. But when we connect the receipt of the appellee, given in evidence by the appellant, and the oral testimony with the letters, we are clearly of opinion, that it is for the jury, and not the court, to decide whether Waterman's claim was business [**12]  sent by the appellee to the appellant, under the contract in question. There was evidence legally sufficient to be left to the finding of the jury, that such was not the fact, and as evidence for such finding, it might have been argued before the jury, that there was no proof that the representatives 

 [*414]  of Waterman ever clothed the appellee with the power of sending the claim under any such contract; that on the contrary, the appellee sought the recovery of the claim, for persons who asserted rights to the fund adverse to the representatives of Waterman, who were ultimately recognized as the persons entitled; and it might also be legitimately insisted before the jury, that the appellee's account and receipt, shewed that he did not claim his commission under the contract in the two letters referred to, but under a contract evidenced by some letter, not to be found in the record. The contract in the two letters was, that the appellant should allow the appellee a commission of five per cent. on all the business sent by the latter to the former. The title to the commission was complete by sending the business, and was in no wise made to depend on subsequent or antecedent [**13]  services, to be rendered by the appellee. The account and receipt of the appellee for commission, in regard to the ship Mentor, is for "services rendered" by the appellee to the appellant, "in assisting him in proving the claim against ship Mentor, Waterman master, for French spoliations under the French indemnity," as per the appellant's letter. It might therefore be urged to the jury, that they might infer from the account and receipt before them, that a different contract, mentioned in a letter not before them, existed between the parties. We mean not to say that in point of fact, upon the testimony before them, the jury were justified in adopting either of the findings suggested by the appellant; all we mean to assert is, that in that stage of the trial, the jury is the only competent tribunal to pass upon them; and that therefore the county court erred in withdrawing the facts from their consideration.
We think that the county court inadvertently erred in the first bill of exceptions, upon another ground. The plaintiff's, the appellee's instruction, as given by the court to the jury, was, "that according to the true construction of the correspondence between [**14]  the plaintiff and defendant, as given in evidence in the shape of various letters read to the jury, the plaintiff is entitled to recover five per centum on the whole amount 

 [*415]  or sum of money, upon which the defendant received his commission of twenty-five per cent., if the jury should believe from the evidence, that the defendant did receive twenty-five per cent. commission upon the amount awarded, and received as the proceeds of the ship Mentor." By this instruction the jury were informed by the court, that the plaintiff was entitled to recover five per cent. commission, on the whole amount awarded on account of the ship Mentor; whereas the uncontroverted receipt of the plaintiff in evidence before the jury shewed, that he had received his commission on one-half the said amount; and the whole proceedings in the cause demonstrated that he only claimed in this action a commission on a moiety of the said amount, that is, on Waterman's claim.
We agree with the county court in refusing the three first prayers of the appellant in second bill of exceptions; because there was not sufficient evidence that such a conditional contract, as is stated in said prayers, was [**15]  ever entered into by the parties, to warrant the jury in finding its existence. And also in its rejection of the appellant's third prayer, being of opinion, that if the jury should find that Waterman's claim was not sent to the appellant by the appellee, there is in the account, receipt, and oral testimony, in the cause, evidence legally sufficient to have been left to the jury, to warrant them in finding that the appellee was otherwise entitled to recover five per cent. commission on Waterman's claim.
We concur with the county court in its rejection of the appellant's several prayers in the second bill of exceptions; but dissenting from the instruction given by the court to the jury in the appellant's first bill of exceptions, we reverse its judgment.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

43 of 46 DOCUMENTS 

BUCHANAN AND OTHERS, vs. TORRANCE, LORMAN AND OTHERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 G. & J. 342; 1840 Md. LEXIS 23 

December, 1840, Decided 

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

On the 28th October 1836, James A. Buchanan, Esther S. Buchanan and Samuel Smith Buchanan, filed their bill, alleging, that Eliza S. Buchanan purchased of a certain George Torrance, one undivided fifth part of the Warren Factory, lands, &c., for the sum of $ 60,000, and in order to secure the payment of such sum, executed and delivered to said Torrance a bond, with James A. Buchanan, Esther S. Buchanan and others as securities, and the said Torrance, at the same time gave the said Eliza S. Buchanan, a bond of conveyance for the said property; that said Torrance recovered a judgment on the said bond of Eliza S. Buchanan, which was assigned by said Torrance, to and for the use of William Lorman, Alexander Lorman and William Fulford, all of whom at the time of such assignment, well knew the consideration of such bond, and the origin thereof. The bill further alleged, that at the time when Torrance contracted to sell, &c., to said Eliza S. Buchanan, he had executed to said Fulford, a mortgage to secure him a large sum of money, which mortgage was afterwards assigned to William and Alexander Lorman, and a further mortgage executed by Torrance to [**2]  Lorman; that the cotton mill of said Factory being burnt down, said W. and A. Lorman received the insurance money due said Torrance; that afterwards said W. and A. Lorman, filed their bill of complaint in Baltimore county court, against said Torrance, to procure a sale of said mortgaged premises, and such proceedings were had thereupon, that the whole of said premises were sold, and the whole right, title and interest of the said William and Alexander Lorman, and George Torrance, sold and conveyed to the purchaser thereof; that the whole consideration money for which said bond was given, has totally failed; that the said Torrance and Lorman have divested themselves entirely of every vestige of title to said property, which was the consideration of said bond; that Torrance and Lormans issued an execution on their judgment against James A. Buchanan, and compelled him to apply for relief under the insolvent laws, and that S. S. Buchanan is his trustee, and has bonded as such. The bill further alleged, that Torrance, Lorman and Fulford, have, for the purpose of further enforcing their judgment, filed their bill in the Circuit Superior Court of Law and Chancery of the State of Virginia,  [**3]  for the twentieth circuit, and have obtained a decree therein for the sale of a quantity of land, asserted to be the property of the said James A. Buchanan; that it is the intention of the said Lorman and Torrance, to sell said property under and by virtue of the aforesaid decree, to the great prejudice of these complainants, and against the rules and principles of equity. Prayer for an injunction--that the judgments at law be entered satisfied, and for general relief. And Subpoena against Lormans and Torrance.

With this bill was exhibited as a part thereof, No. 1. The bond of Elizabeth S. Buchanan, J. A. Buchanan, W. B. Buchanan, Esther S. Buchanan and R. S. Buchanan, to George Torrance, dated 16th April 1829, in the penalty of $ 120,000, conditioned to pay on or before the 16th April day of 1839, $ 60,000, and legal interest thereon, in the mean time, quarter yearly on, &c.

Exhibit No. 2, was a transcript of the record of the judgment on the above bond, George Torrance, use of William Fulford, William Lorman and Alexander Lorman, against J. A. Buchanan, William B. Buchanan, Esther S. Buchanan and Robert S. Buchanan, surviving obligees of Eliza S. Buchanan, rendered on the [**4]  12th December 1832, with a ca. sa. returned cepi--J. A. B., W. B. and R. S. B., released by the insolvent laws, non sunt the others.

Exhibit No. 3, was a mortgage from George Torrance to William Fulford, of 13th August 1830, of his undivided one-fifth of the Warren Factory. Subject to the operation of his bond of conveyance to E. S. Buchanan.

Exhibit No. 4, was the assignment by William Fulford, of his mortgage to William and Alexander Lorman, dated 7th May 1834.

Exhibit No. 5, was a mortgage from George Torrance to William and Alexander Lorman, of 30th November 1831.

Exhibit No. 6, was a transcript of the proceedings in equity of William and Alexander Lorman, against George Torrance, to foreclose a mortgage of 21st August 1829, to William Fulford, assigned to complainants, and the other mortgages under which the Warren Factory was sold and transferred.

Exhibit No. 7, was the deed from the trustee under the decree of the Factory, and No. 8, the proceedings of James A. Buchanan, before the Commissioners of Insolvent Debtors.

The answer of William Lorman, Alexander Lorman and George Torrance, admitting the facts of the bill, and that they claimed under mortgages [**5]  of 21st August 1829, 13th August 1830, and 30th November 1831; and that they were proceeding in Virginia as stated, to recover the balance due on the judgment of 12th of December 1832.

A commission was issued by the complainants, but no proof was taken under it.

At December term 1837, the bill was dismissed by the Chancellor (BLAND,) and the complainants appealed.  

DISPOSITION:
CAUSE REMANDED.  

HEADNOTES:

To warrant a Court of Chancery in entering a judgment, obtained on a bond given for the whole purchase money of real property, sold and delivered to the complainant, satisfied, or perpetually enjoining the same, it must vacate the sale upon which the bond was given.

To vacate a sale of real property, the purchaser, or in case of his death, his heirs, ought regularly to be parties to the cause.

Where proceedings in another State, by an inhabitant of this, are complained of, and a party injured seeks to enjoin such proceedings, it is his duty to exhibit to them, to enable the court to act advisedly on the subject.

Where want of allegations in the pleadings, or exhibits, or parties, prevent this court from determining upon the merits of the complaint manifestly intended to be submitted, and in relation to which relief was expressly prayed, it is its duty under the act of 1832, to remand the cause for such further proceedings, as its nature may require.  

COUNSEL:
By RICHARDSON and R. JOHNSON for the appellants, and

By DAVID STEWART for the appellees.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*345]  DORSEY, J., delivered the opinion of the court.
The case now before the court, is emphatically one which it was designed to embrace under the 6th section of the act of 1832, chap. 302. Neither the reversal, or affirmance of the Chancellor's decree, will determine the merits of the cause; and the purposes of justice will be advanced by remanding the case to the Court of Chancery, and giving the parties an opportunity of amending the bill, answers, and other proceedings in the cause, making new parties thereto, filing the proper exhibits, and taking such testimony as the nature of the case [**6]  may require. The complainants have filed their bill, praying amongst other things, that a judgment obtained against them as securities of Eliza S. Buchanan, on a bond given to George Torrance, for the purchase money of one-fifth part of the Warren Factory, &c., sold by the latter to the former, 

 [*346]  might be entered satisfied, on the ground, that the said one-fifth having been sold and conveyed under incumbrances created by Torrance, the entire consideration for the said bond and judgment had failed. To warrant the Court of Chancery in entering the judgment satisfied, or perpetually enjoining the same, it must vacate the sale made by Torrance to Eliza S. Buchanan. In the case now before the court, this could not have been done, as neither Eliza S. Buchanan, nor her heirs, if she were dead, were made parties by the bill, either, as complainants or defendants. Over the rights therefore, by her acquired under the purchase, the Chancellor had no power to adjudicate; and consequently could not grant the relief sought, either as to the entry of satisfaction of the judgment, or perpetually enjoining it. Nor could the Chancery Court decree upon the merits [**7]  of the application, as respects the proceedings in the court of Virginia, against the lands of James A. Buchanan, as the complainants exhibit, in relation thereto, had never been filed; which exhibit was necessary to furnish the court with the dates and character of those proceedings, without the knowledge of which, it was impossible for the court to act advisedly on the subject. The complainant's exhibit of the first mortgage from Torrance to William Fulford, has never been filed.
For the reasons and purposes assigned, this court will sign an order remanding this case to the Court of Chancery.
CAUSE REMANDED.  

44 of 46 DOCUMENTS 

FRANCIS L. DARNALL AND WIFE vs. PHILIP HILL AND OTHERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

12 G. & J. 388; 1842 Md. LEXIS 11 

December, 1842, Decided 

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

The proceedings in this case were first commenced in Prince George's county court, and subsequently removed to the Court of Chancery.

On the 2nd October, 1833, the appellants filed their bill, alleging, that Richard Hill died some time in the spring of 1816, intestate, leaving the following children his heirs and representatives, to wit, Philip Hill, aged 13 years; Mary Ann, aged 11 years; William, aged 9 years; and Elizabeth, aged 6 years: that letters of administration upon his estate were granted to Margery Darnall, wife of Francis L. Darnall, and a certain Joseph H. Wilson, who returned an inventory of said estate, but no account of their administration; that the complainants intermarried in the year 1817; that the personal estate of the said Richard has been finally settled, and his several representatives respectively paid their portions of his estate; that complainant F. L. D., in the year 1820, was appointed guardian to all the said children, and took possession of their property, upon the express condition assented to by the orphans court, from which he derived his appointment; that he should, out of the interest and profits of [**2]  their estate, real and personal, maintain, clothe and educate the said wards or minor children, and that upon so doing he should not be charged with said interest, rents and profits, during the continuance of his said guardianship, which undertaking he has faithfully performed; that the profits of their proportion of their father's estate, was not more than sufficient to enable him to execute the trust undertaken by F. L. D. with the orphans court; that his guardianship has some time since expired, and he has fully paid off his said wards; that Philip Hill relinquished all his right to any part of his father's estate, in consequence of a devise made to him by his aunt Ann Magruder, as per exhibit A; that the said Richard died seized and possessed of a tract of land called Baltimore, containing 443 acres, to her dower in one-third of which your oratrix was and is entitled, together with the rents and profits therefrom arising; that after the marriage of complainants the said F. L. D. resided upon the said tract, and cultivated the same until March 1832, when he left the same; that at the time he removed from the said tract, there was on the same a large and valuable crop of wheat and [**3]  tobacco, to one-third of which complainants were entitled, in virtue of the right of dower of the said Margery, which said crop has been since sold by William Hill for a large sum, the whole of which has been appropriated by him to the use of himself, Mary Ann and Elizabeth Hill; that the said M. A., E. and W. H., do now reside, and have resided upon the said tract of land, ever since your orator removed from the same, and have made large crops upon the same, and disposed thereof; to one-third of which the complainants allege they are entitled, in right of the said M. D. The bill then alleged, that the defendants were indebted to F. L. D. for sundry specified advances and payments made by him to and for their account, and that all the children were of full age except Elizabeth, now about 18 years of age. Prayer for subpoena, and an account of the rents and profits of the land, and payment of the advances made, and for general relief, &c.

The will of Ann Magruder, dated 14th June, 1824, and admitted to probat 21st Dec. 1824, devised a tract of land to Philip Hill, in consideration that he would relinquish all his interest in his father's estate to his brother and sisters.

The [**4]  account filed with the bill stated the claims of F. L. D. against the heirs of Richard Hill, and was brought down to 20th May, 1833.

This record also contains another bill filed by F. L. D. and wife, on the 3rd October 1833, for an assignment of dower by commissioners, to Mrs. Darnall, as widow of Richard Hill, and an account for rents and profits, against the same defendants, as the first bill.

The answers of Mary Ann, William and Elizabeth Hill, to the bill for dower, admitted the death of their father, his seizen in fee, his marriage with their mother and her subsequent marriage with F. L. D.; that after the intermarriage of complainants, which took place in the year 1817, the complainants took possession of the real and personal estate of R. H., and worked the land with the negroes left by R. H. up to the year 1832, making upon the same large crops, which were sold by F. L. D., who after the mere pittance applied by him to the support, &c., of your respondents, applied the residue of the proceeds to his own immediate purposes; that F. L. removed from the farm left by R. H. in the year 1832, and stated to these defendants at the time, that he did not intend to claim the [**5]  dower of his wife in the said land; that he never mentioned any thing about the dower aforesaid until some time in the summer of 1833, at which time he claimed one-third of the crop which had been made since he left the land; that he was then informed by one of these defendants, W. H., that he F. L. D. had taken away all his wife's proportion of the personal estate, and that the defendants would not agree to give him any part of the crops, but that they were willing the dower might be laid off whenever he might think proper to apply for it, and are now willing that M. D's. dower may be assigned her, as the court shall direct, but are not willing to pay the complainants any part of the proceeds of the land.

The answer of Philip Hill to the bill for dower, disclaimed all interest in his father's land, and alleges that he had frequently heard F. L. D. say, that he never intended to claim his wife's dower in the land in the proceedings mentioned, and he also stated, that when he left the estate the children should not owe one cent to any one.

The answers of P. H., John B. Magruder and Mary Ann his wife, William and Elizabeth Hill, to the bill of 2nd October, 1833, admitted that [**6]  their father R. H. died intestate, in 1816, leaving the complainant Margery, his widow, and the above defendants his children, heirs at law; that M. and J. H. W. became his administrators; that in 1817 F. L. D. intermarried with the widow, and was appointed their guardian in 1820; that he immediately after his marriage took possession of the valuable real estate left by their father R. H., and with the negroes, stock, &c., left by him, worked the same, and received and applied the proceeds thereof from the time of his marriage until his appointment as guardian, to wit, for the years 1817 to 1820 inclusive, to his own use, except so far as finding and clothing the defendants, who lived with him on the estate of their father; that they are ignorant of the conditions on which F. L. D. became their guardian, and deny those alleged by him, or that he faithfully performed his duty as guardian. The answer then imputed various delinquencies to said F. L. D. as guardian, and alleged, that from his appointment in 1820, up to 1832, some years after the expiration of his guardianship, he remained upon the estate of the defendants, and for the whole of said time, except the crop made in 1831, received [**7]  the proceeds of said estate, and during the whole of said time applied the balance, after paying the expenses of the family, to his own individual use; that he is largely indebted to them; that in 1828, ignorant of his liability, they gave him receipts, but two of defendants were then minors. The answer then admitted that R. H. died seized of the real estate in the bill mentioned, to dower in which, they also admit the complainant Margery to be entitled, but deny the right of complainants to rents and profits of said estate, as claimed by them; that the complainants have filed a separate bill in this court for their dower in said estate, and their proportion of rents and profits, in virtue of said right of dower, which bill has been fully answered. The answer further stated, that the crops alleged by the complainants to have been left by them on said estate, when they removed therefrom, were sold by the defendant William Hill, but that the proceeds were not applied to his own use, but were applied to the payment of the debts which had been contracted by the said F. L. D. and the defendant W. H., for the use of the estate, by the advice and direction of F. L. D.; that complainants never [**8]  made a demand on defendants to have the dower now claimed, laid off, but on the contrary, F. L. D. always stated to the defendants, that he should not claim his wife's dower in said land, until some time in the year 1833, when he for the first time stated that he intended to claim it. The residue of the answer related to the personal estate of R. H., and proceeds of the crops, their receipt and application.

On the 6th May, 1836, and on the petition of complainants, a commission was ordered and issued to lay off the dower of Margery Darnall.

On the 1st December, 1836, the commission to lay off dower was remanded, as erroneous, by the county court, to the commissioners. This was executed on the 12th April, 1837, and returned to the county court, with a plat.

Commissions to take testimony were also issued, executed and returned.

On the 6th February, 1838, the county court (C. DORSEY A. J.) on the bill of 3rd October, 1833, being satisfied that the complainant Margery, as the widow of Richard Hill, deceased, is entitled to a right of dower in his real estate, by the consent of parties, decreed, that the return made to this court by the commissioners since the commission [**9]  was remanded, who were heretofore appointed by this court to assign and lay off said dower, be and the same is hereby ratified, &c.

On the 11th July, 1839, by consent the cause was referred to the auditor to report accounts, the equities of the parties being reserved until the hearing of said accounts on such exceptions as may be taken to them respectively. The auditor stated and reported two accounts, A and B, which are sufficiently set forth in the opinion of the appellate court.

On the 16th January, 1840, the causes were removed from Prince George's court, upon the suggestion of the defendants, to the Court of Chancery, where after exceptions by both parties to the proof, and by the defendant to the sufficiency of the bill, as not containing any allegation of a demand and refusal of dower, nor the annual value of the rents and profits, and that the bill made no case. The Chancellor (BLAND) decreed that the bill filed on the 2nd October, 1833, be dismissed with costs, being of opinion that there was no just foundation in fact for the claim of the plaintiffs for rents and profits of so much of the real estate in the proceedings mentioned in which she was entitled to dower,  [**10]  and that the said claim for rents and profits, having been fully put in issue under the bill of complaint, filed by them on the 3rd October, 1833, has been finally adjudicated upon and barred by the decree passed in that cause on the 6th February, 1838.

From which decree the complainants appealed.  

DISPOSITION:
CAUSE REMANDED TO CHANCERY.  

HEADNOTES:

R died in 1816, leaving a widow and minor children. In the following year the widow married D, who, with his wife and her children went into possession of the estate of R. In 1820, D was appointed guardian of the children; he remained in possession, cultivating and using the lands and negroes, &c., until 1832, receiving and selling the crops, and using their proceeds, when he delivered up the estate to the children, declaring he should not claim any thing for his wife's thirds of her first husband's estate. Upon a bill filed in 1833, by D and wife, against the heirs of R, claiming her third of the rents and profits of the estate, her right to dower being admitted, it appeared that D had delivered the crop of 1831, to W, one of the children. HELD, that if D had any claim for a proportion of the crops of 1831, it was against W, at law, and that he could not recover against the other defendants, prior to filing his bill in 1833, and that, under the circumstances the complainants were not entitled to interest on their portion of the rents and profits, when ascertained.

It is against equity to permit a party to take advantage of a course of conduct, pursued by another in consequence of the declared intentions of the claimant, made with full knowledge of his rights.

Where a widow's right to dower is admitted, she is, before its assignment, entitled to an account of the rents and profits of the land, and one-third of the nett amount thereof, as her proportion.

In a bill for a widow's proportion of rents and profits in lieu of dower, her right being admitted, no allegation of a demand for an assignment of dower is necessary. The heir in possession is answerable for damages from the death of the husband, even without demand, unless he plead tout temp prist; and even then, he is liable from the date of the subpoena against him.

Upon a bill by husband and wife, claiming a portion of rents and profits, as damages for the detention of her dower or in lieu of dower, the defendants, the heirs of the first husband, cannot set-off a demand which they may have against the second husband, for the use and occupation of the land during their minority. The two claims are not due in the same right; and that for damages would survive to the wife.

Where the proof shews that the defendants were in possession of land, as heirs at law, the legal presumption would be, that such possession continued until the contrary was shown.

According to the practice of the court, an account charging rents and profits may be brought down to the date of the decree in this court, or the Court of Chancery, or to the time of the delivery of possession of the dower assigned to a widow.

On the 2nd October, 1833, the complainants filed a bill claiming an account of rents and profits, and a proportion thereof as due one of them for dower in her deceased husband's estate. On the 3rd of the same month, the same complainants filed another bill against the same defendants, claiming an assignment of dower, and an account and proportion of rents and profits up to her assignment. Upon the latter bill a commission to assign dower was issued, executed, returned, and finally ratified in 1838; but the decree took no order, and passed no judgment upon the subject of anterior rents and profits. HELD, that the proceedings and decree under the second bill was no bar to a recovery under the first.

Under the act of 1832, chap. 302, sec. 6, this court will notice judicial proceedings embodied in the record, not excepted to, neither pleaded in bar, nor offered in evidence, but which may materially affect the state of the accounts between the parties, so far as to remand the cause with instructions for further proceedings.

Where two bills are depending in the same court, between the same parties, upon the same subjects matter, at the same time, and various steps are taken by consent in both, the court under circumstances will infer, that it was the intention of parties to litigate one portion of their claim under one bill, and another part under the other and not treat a decree, under the bill which covered the whole ground, as a technical bar to the other.  

COUNSEL:
By ALEXANDER and J. JOHNSON for the appellants, and

By C. C. MAGRUDER and T. G. PRATT, for the appellees.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*394]  ARCHER, J., delivered the opinion of this court.
The complainants, on the 2nd of October, 1833, filed their bill in Prince George's county court, alleging, among other things, that Richard Hill, of Prince George's county, died seized of certain lands in the said county, leaving one of the complainants his widow, who afterwards intermarried with the other complainant, and that she was entitled to dower in the said lands, and that the complainant Francis L. Darnall, who intermarried with Mrs. Hill in the year 1817, was in the year 1820 appointed guardian of the children of Richard Hill, and received the rents and profits [**11]  of the said lands as such guardian until the year 1832, and expended said rents and profits in the 

 [*395]  education and maintenance of the children of Richard Hill, except the crops of 1831, which the complainant Darnall passed over to William Hill, one of the children of Richard Hill, and that since the year 1832, the children of Richard Hill, except Philip Hill, who relinquished his interest in his father's estate to the other representatives of Richard Hill, have been in possession, and have made large crops of "wheat, corn and tobacco, to one-third of which they allege they are entitled, in virtue of the right of dower of Mrs. Hill." And they pray an account of their proportions of the crops and monies by them received, and for other and further relief, as to the court shall seem meet.
The answer to this bill is filed 9th April, 1834, and by this answer the right of dower is admitted, but the claim to the rents and profits is denied.
It appears from the evidence in the cause, that the complainants occupied the land from the day of their intermarriage in the year eighteen hundred and seventeen, until the year 1832, when the lands were given [**12]  up to the devisees of Richard Hill. It is further proved, that the complainant, Francis L. Darnall, declared, just before and a short time after he delivered possession to the devisees, that he should not claim any thing for his wife's thirds of her husband's estate, and there is no evidence in the cause that he interposed any claim until the filing of this bill.
Accounts have been stated by the auditor. The one account A, stating the complainant's claim from the death of Richard Hill to the time when it is alleged dower was assigned to Mrs. Darnall. The other account B, states the claim from 6th May, 1832, to 6th May, 1838, and besides, allows the complainants one-third of the crop raised on the lands in 1831. In both these accounts interest is allowed.
The complainants having been in possession of the whole lands until 1832, do not seek, in this court, to recover the rents and profits according to account A, but insist that account B is stated upon proper principles, and they claim its allowance at the hands of this court.

 [*396]  The allowance in account B, for one-third of the crop of 1831, could not be allowed in this case. The crop of that year, or its [**13]  proceeds, were, by Francis Darnall, one of the complainants, placed in the hands of William Hill, one of the defendants, from whom, if he be entitled to recover it, he must seek redress in a different form of proceeding, and before another forum. The defendants were not in possession of the lands during the year 1831, but the complainants were in possession, and could have no pretence for charging damages against the defendants for that year, nor do we think the complainants could recover mesne profits at any time before the filing of the bill of the 2nd October, 1833, because, according to the proof, the complainant, Francis L. Darnall, frequently declared that he did not intend to claim any thing for his wife's thirds of her first husband's estate, and no contrary intention is manifested until the filing of the bill in this cause. But for this declaration, it is probable, that the defendants would have assigned dower to their mother, and we think, therefore, that it would be inequitable to permit the complainant to take advantage of a course of conduct pursued by the defendants, in all probability, in consequence of the declared intentions of the complainant.
The bill [**14]  is inartificially drawn, but the widow's right to dower is distinctly stated; the possession of the defendants is also averred, and that large crops were made on the lands, and although strictly, the widow would not be entitled to one-third of the gross amount of the crops, she would have a right to one-third of the net amount thereof, and she would be entitled to an account of the crops, so that the net annual value might be ascertained, and under the prayers in the complainant's bill, so far as the frame of the bill is concerned, would be entitled to a decree for one-third of such balance as her proportion of the rents and profits.
No allegation of a demand for an assignment of dower was necessary to have been made in the bill. The heir in possession is answerable for damages from the death of the husband, even without demand, unless the heir plead tout temp prist; 

 [*397]  and in Park on Dower, 303, it is asserted, that even when the heir plead tout temp prist with success, the demandant shall recover damages from the test of the original to the execution of the writ of enquiry, so that if we were to consider that the answer in this case was equivalent to a valid [**15]  plea at law of tout temp prist, and that it was put in, in time to be available, still damages might be decreed from the date of the subpoena.
We think the circumstances of this case would preclude the allowance of interest to the complainants, if the cause were in a condition to enable us to decree rents and profits.
It is unnecessary to determine whether the answer was filed in time, admitting a right of dower, and declaring a readiness at all times to assign dower, if it had been demanded, so as to enable us to determine whether damages could be claimed from the death of the husband, or for any period anterior to the filing of the bill, because we have seen that complainants, from other considerations, are not entitled to damages anterior to the filing of the bill.
Whether a claim exists on the part of the heirs against the complainant, Darnall, for the use and occupation of the land from the date of his marriage in 1817, he having occupied the same from that period until 1832, and what, if any, may be the amount of such claim we have not deemed it necessary to examine, because we are satisfied that such a claim could not be set off against the demand of the husband and [**16]  wife for the wife's proportion of the rents and profits of the land. The two claims are not due in the same right, and the claim, if recovered in this case, surviving to the wife.
It is said, that as there is no proof of possession in the defendants, after the year 1834, that no decree for rents and profits, accruing after that period, could be passed against the defendants. But if there existed this defect of evidence, we apprehend, as the proofs show the defendants to be in possession, the legal presumption would be, that such possession continued until the contrary is shewn, and according to the practice of the court, the account charging the rents and profits might be brought down to the date of the decree in this 

 [*398]  court, or the Court of Chancery, or the delivery of possession of the dower assigned to the widow.
But the case, as we view it, is not in a condition to enable us to do substantial justice to the parties. There is no legal evidence before us, that dower has ever been assigned under the bill of the 3rd of October, or that possession has ever been delivered to the widow. The bill in the case before us is sufficient in its terms to justify both a decree for [**17]  dower and rents and profits. It will of course be perceived in the present state of the evidence, we should be at a loss to prescribe the terms of any decree which would meet the justice of the case.
The decree on the bill of the 3rd of October is neither pleaded in bar, nor are the proceedings under that bill made evidence in the case, so that we could found any decree upon them, or take any other judicial notice of them, than to furnish grounds to enable us, under the act of Assembly of 1832, chapter 302, to remand the case for further proceedings in Chancery.
As this case must be remanded to the Chancellor for the introduction of such evidence as may furnish a proper foundation for a decree, and as the bill of the 3rd of October, and the proceedings under it, may be relied upon as a bar to the recovery of rents and profits, we deem it proper to say, as the question has been fully argued, that we do not consider such proceedings a bar to the complainant's recovery.
It is apparent to us, that the question as to the rights to rents and profits was never adjudged by the court under the bill of the 3rd of October. The right to dower had been assented to in the answer, and the complainants [**18]  had petitioned the court to appoint a commissioner to lay off the dower, grounded on the assent contained in the answer. After the commissioners had made their return, the case is set down for hearing, and a decree, with the consent of the parties, passes for the widow's dower. Nothing is said on the subject of the rents and profits, although two commissions had issued, and the testimony of numerous witnesses had been taken, having reference to that question. After this decree had thus 

 [*399]  been taken by consent, the parties under the bill of the 2nd of October, by consent, obtained the decree of the court for an account, and such equities are only reserved, as may be the subject of exceptions to the account when stated. From such proceedings of the parties we deduce the conclusion, that by mutual agreement a decree was to pass for dower in the one case, and that the question of the right to the rents and profits should be litigated in the other. Unless this were so, it would be difficult to account for the consent with which both decrees were passed, for the silence of the decree on the bill of the 3rd of October, on the subject of the rents and profits, and [**19]  for the reservation of the parties, equities, on such exceptions as might be taken to the accounts, when stated in pursuance of the decree.
CAUSE REMANDED TO CHANCERY.  

45 of 46 DOCUMENTS 

ANDREW HALL AND WIFE vs. CHARLOTTE HALL AND OTHERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 Gill 383; 1843 Md. LEXIS 33 

December, 1843, Decided 

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

The amended and supplemental bill in this cause was filed on the 6th July, 1836, by the appellants, and alleged that in the year 1815, Aquila Hall died, having executed his last will, whereby he devised to his widow, Ann Hall, for life, a valuable real estate and some personal property; after the decease of his wife, remainder to his daughters, Charlotte and Maria Hall, in fee. The will also contained various devises of specific parcels of real property to his children respectively, except Delia, who had intermarried with a certain Philip Moore, and his son, Edward C. Hall; and to Delia Moore he devised $ 5,000 out of certain real estate directed by his will to be sold, and the residue of the money arising from such sale to be applied to the use of his son Edward C. Hall. A copy of the will was exhibited with the bill of complaint.

The bill then alleged, that the real estate, when sold, produced nothing for Edward, who was in fact left unprovided for, and that in order to equalise the bequests of said testator, and to prevent an entire failure of his intentions, and wishes in respect to the said Edward, his mother, the said Ann Hall, and [**2]  his sisters, the said Charlotte and the said Maria, to whom the largest and most valuable parts of the testator's estate were devised, agreed to give, and did give, to him the said Edward, the lands and premises particularly mentioned and described in the original bill in this cause, and placed him in possession thereof as the absolute owner in fee; that the said Edward had in actual possession, used, enjoyed and claimed as sole owner, for many years, the said land and premises, under and in virtue of the said gift, and that while he was so possessed thereof and holding himself out to the public as the absolute proprietor, to wit, during the year 1825, he sold the lajds and premises to the said Philip Moore, for a valuable consideration, to wit, $ 4,000, and received from said P. M., at various times, the whole amount of purchase money; and the complainants charged that the said sale was made with the knowledge, acquiescence and assent of the said Ann, Charlotte, and Maria, and that they were apprised of the consideration and payment of the purchase money by said Moore, and acquiesced in the same; that in the year 1825 the said E. C. H. transferred on the public records of the levy [**3]  court or commissioners of Baltimore county the said lands and premises to P. M., and that the said Moore had before been and was then placed in the quiet possession of the said estate, and always afterwards, up to the period of his decease, continued peaceably to possess and enjoy the same, and to pay all the county taxes and assessments thereon; and they expressly charge that at no time during the said possession of said estate by said Edward, or at the time he transferred the possession thereof to the said Moore, or afterwards, during the life of the said Moore, did either the said A. C. or M., or either of them, ever claim the said estate, or pretend to have any title thereto, or in any manner question the validity of the said P. M.'s purchase, but on the contrary the said A. C. and M. all promised and agreed to convey the said estate to the said P. M. The bill then proceeded to allege various other circumstances, resting on parol proof, by which the title of the said P. M. had been virtually admitted by the defendants, and alleged his death intestate, the wife of the complainant Andrew, being his only child. The bill prayed for a discovery and conveyance from the appellees, and [**4]  for general relief.

The answer of Charlotte and Maria Hall, denied that they, or either of them, or Ann Hall, their mother, ever gave, or agreed to give, the said lands and premises to the said Edward C. Hall, with the views alleged in the bill, or "on any account whatever," or that they ever placed him in possession as absolute owner; that he never held or owned the lands in that character, nor claimed them as, or held himself out to be, absolute owner thereof. They deny that he ever attempted to sell, or sold, the said lands to P. M., or that the said P. M. ever paid him any money on that account. The answer also denied knowledge, assent, or acquiescence, as imputed to them in the bill. They allege that E. C. H. had only possession for two years as tenant of Ann Hall, upon whose death the possession of the said lands vested in these defendants, and has so continued ever since. The answer also denied any agreement to convey to P. M., or that he was ever in possession, with their consent.

The answer of Edward C. Hall, corresponded in substance with the answers of his sisters, C. and M.

On the 21st April, 1842, the Chancellor, (BLAND,) after much testimony taken, on which [**5]  the cause had been argued before him by the defendants, being of opinion that there was "no proof of any written agreement, nor any evidence of an adequate part performance of any parol contract for the conveyance of the real estate in the proceedings mentioned from the defendants, or any of them, to the ancestor of the plaintiff, Ann G. Hall," decreed that the bill be dismissed with costs.

From this decree the complainants appealed to this court.  

DISPOSITION:
DECREE AFFIRMED WITH COSTS.  

HEADNOTES:

It is a general rule that, if the answer to a bill denies the existence of any parol contract for the sale of lands, and insists upon the benefit of the statute of frauds, the case cannot be made out by parol proof, and the bar of the statute is complete: but there is an exception to this rule, resulting from a part performance of the contract, established by many decided cases.

The evidence of part performance of a parol contract for the sale of lands, in the delivery of possession, or payment of purchase money, need not to be in writing, where such evidence is admissible as acts of part performance, to take a case out of the statute of frauds.

The statute of frauds was designed to exclude oral evidence of the agreement of sale; not oral evidence of the acts of part performance, or things done in execution of the agreement.

Where a complainant relies upon acts of part performance, to take a parol agreement for the sale of lands, (denied by the answers,) out of the operation of the statute of frauds, it is his duty to offer full and satisfactory evidence of the terms of such agreement, and of the performance of it on his part, to entitle him to a decree for specific execution. 

COUNSEL:
By N. WILLIAMS for the appellants, and

By W. SCHLEY and R. N. MARTIN for the appellees.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*386]  DORSEY, J., delivered the opinion of this court.
The first point relied on by the appellees is not disputed, and on an inspection of the record, is a self-evident proposition. It simply asserts, "that there is no proof of any written agreement for the conveyance of the real estate, mentioned in the said proceedings, by the appellees to Philip Moore, the ancestor of Ann G. Hall, one of the appellants."
The second point on which one of the solicitors of the appellees has very confidently relied is, "that [**6]  the existence of any parol agreement for the conveyance of the said estate, as alleged in the bill of the appellants, being denied by the appellees in their answer to the said bill, and the appellees having insisted on the benefit of the statute of frauds, the statute constitutes a complete bar to the relief prayed for by the bill, and that it was not competent for the appellants to make out a case by parol evidence."
To sustain this proposition, which if sustainable, would interpose an insuperable bar to the relief sought by the bill, several authorities have been cited; but that most strongly pressed upon the court, is the general rule upon the subject, stated by 

 [*387]  Justice Story in the 2nd vol. of his Equity Jurisprudence, 60, sec. 758, where, in speaking of the validity, in a court of equity, of a parol agreement for the sale of land, &c., under the 4th sec. of the statute of frauds, he says, "it follows from what has been already said, that if the answer denies the existence of any parol contract, and insists upon the benefit of the statute, the case cannot be made out by parol evidence; and that the bar is complete." In thus stating a general rule applicable [**7]  to the operation of the statute, to impute to the learned commentator a design to overrule all the cases that established an exception to the rule resulting from a part performance of the contract, would be doing him great injustice. Such exception being upon authority as universally recognized and sanctioned as the general rule which he so clearly announced. And that such was not his meaning and intention, is obvious from his succeeding section, (No. 759,) which he commences by saying: "In the next place, courts of equity will enforce a specific performance of a contract within the statute, where the parol agreement has been partly carried into execution. The distinct ground upon which courts of equity interfere in cases of this sort, is that, otherwise one party would be enabled to practice a fraud upon the other; and it could never be the intention of the statute to enable any party to commit a fraud upon another with impunity. Indeed, fraud in all cases constitutes an answer to the most solemn acts and conveyances, and the objects of the statute are promoted instead of being suppressed by such a jurisdiction for discovery and relief." Upon all principles of fair construction, therefore,  [**8]  the reverse of the doctrine contended for as aforesaid, by one of the solicitors of the appellees, is established by the sections of the commentaries of Justice Story, to which we have referred. And no support whatever is given to the position thus insisted on for the appellees, by any of the authorities referred to as sustaining it, unless it be the case of Givens vs. Calder, 2 S.C. Eq. 171, 2 Desaus. Eq. 171; to the doctrines of which case, (as applicable to the case before us,) if rightly interpreted by the solicitor of the appellees, we announce our unqualified dissent, regarding 

 [*388]  them as in conflict with all the established adjudications upon the subject. In the case of Givens vs. Calder, the vendor and vendee were dead, and the complainants were the contracting agent of the vendee and his wife, who was the residuary devisee of the purchaser. The respondent, the heir of the vendor, did not deny the agreement alleged, but his knowledge of it, or the assent of the vendor to the delivery of the possession, and says he therefore cannot admit it and pleads the statute of frauds. Chancellor Rutledge, who delivered the opinion of the court, says:  [**9]  "we are clearly of opinion, that in the case of a parol agreement, not tinctured with fraud, if the defendant chooses to avail himself of the statute, it is not necessary that he should by answer confess or deny the agreement, the law having declared it void. Neither ought he to be compelled to confess or deny part performance of it, although charged in the bill. That to permit parol evidence of a parol agreement, would be in effect to repeal the statute, and introduce all the mischief, inconvenience and uncertainty it intended to prevent. That to admit parol proof of part performance of a parol agreement would be equally improper, and is not warranted by any of the cases in the books; for it is clearly held, that if the part performance alleged, be possession of land or the payment of money, the complainant must prove delivery of possession in the first case, or receipt or written evidence of payment in the other, to entitle him to a specific execution of the agreement. All the parol testimony, therefore, which has been adduced in the case to prove the parol agreement, or the part performance of it, is made inadmissible, and must be laid aside." "The case thus standing without proof [**10]  on the part of complainant, the facts of part performance, namely, payment of part of the purchase money, and delivery of possession not being admitted, but denied by the answer as fully and explicitly as defendant could do so, the bill must be dismissed with costs."
If in this opinion the court meant to assert, that by the statute of frauds the evidence of part performance of a parol contract, in the delivery of possession or payment of the purchase money must be in writing, to such an assertion we cannot 

 [*389]  yield our assent. From the very nature of the act of delivering possession, written evidence of it rarely, if ever, exists. It is in its nature a matter in pais, of which written evidence is not to be predicated. The admission or denial by the answer, of the acts of part performance, does not affect or in any wise change the statutory bar to the relief prayed. The statute was designed to exclude oral evidence of the agreement of sale, not oral evidence of the acts of part performance or things done in execution of the agreement. The payment of the purchase money stipulated by the contract may be proved by oral testimony, as well where the agreement is reduced to [**11]  writing, as where it rests wholly in parol. In reference to the proof, by which such payments are to be established, the statute referred to has made no provision. The same may be said of the act of part performance, by the delivery of possession, or of the expenditures made, or improvements erected in virtue of the agreement.
To refer to authorities to shew that courts of equity will decree the specific performance of an oral agreement, on the ground of part performance, may well be regarded at this day as an useless waste of time; but as the contrary doctrine, as applicable to the circumstances of the case, has been so confidently urged by one of the solicitors of the appellee, it may not be out of place, perhaps to advert to a few of such authorities. 1 Fonb. Eq., ch. 3, s. 8, 153, in commenting on the statute and the decreeing of the specific execution of verbal contracts, states that, "so if it be carried into execution by one of the parties, as by delivering possession, and such execution be accepted by the other, he that accepts it must perform his part; for where there is performance the evidence of the bargain does not lie merely upon the words, but upon the fact [**12]  performed, and it is unconscionable that the party that has received the advantage should be admitted to say, that such contract was never made."
In Roberts on Frauds, 131, it is stated, that the relief against the statute in the cases of part performance was originally founded on fraud.

 [*390]  In Phillips vs. Thompson, 1 Johns. 129, Chancellor Kent says, "the ground of the interference of the court is not simply that there is proof of the existence of a parol agreement, but that there is fraud in resisting the completion of an agreement partly performed;" and in Hamilton vs. Jones, 3 G. & J. 127, this court have said, "the ground upon which Chancery interposes its aid, in the case of a clear part performance of a verbal agreement, is, that to withhold relief would be to suffer a party seeking to shelter himself under the statute of frauds, himself to commit a fraud."
This doctrine of decreeing the specific execution of verbal contracts, in part performed, is also fully recognised and established by Lindsay vs. Lynch, 2 Sch. & Lefr. 1. Morphett vs. Jones, 1 Swanst. 172. Frame vs. Dawson, 14 Ves. 386. [**13]  Exparte Hooper, 19 Ves. 479. Caldwell and others vs. Carrington's Heirs, 34 U.S. 86, 9 Peters 86, 9 L. Ed. 60. Phillips vs. Thompson, 1 Johns. 129. Graham and wife vs. Yates and Myer's Heirs, 6 H. & J. 229; and Moale and others vs. Buchanan and others, 11 G. & J. 314, and a host of other cases, almost without number, to which it is unnecessary to refer.
It was insisted by the appellee's solicitor that the specific execution of a parol agreement had in no case been decreed where, by the answer, the fact of the agreement was denied, and the statute pleaded. A reference to the authorities will at once shew that this position cannot be sustained.
In Morphett vs. Jones, 1 Swanst. 172, the bill was filed for the specific performance of an oral contract for a lease of land for twenty-one years. The answer denied the agreement, also the acts charged to have been done in part execution of the agreement, and pleaded statute of frauds. The master of the rolls decreed the specific performance of the contract, and in delivering his opinion says, "the plaintiff has established a parol agreement [**14]  in part performed."
A party, who has permitted another to perform acts on the faith of an agreement, shall not insist that the agreement is bad, and that he is entitled to treat those acts as if it had never existed. In Caldwell and others vs. Carrington's Heirs, 9 Peters, 

 [*391]  86, the bill sought the specific performance of a verbal contract in behalf of one who had partly performed. The answers denied the contract and pleaded the statute of frauds. The specific performance was decreed. Chief Justice Marshall, in delivering the opinion of the court, saying: "if, therefore, it be clearly shewn what the agreement was, and that it has been partly performed, that is, that an act has been done, not a mere voluntary act, or merely introductory or ancillary to the agreement, but a part execution of the substance of the agreement, and which would not have been done unless, on account of the agreement, an act, in short, unequivocally referring to, and resulting from, the agreement, and such that the party would suffer an injury, amounting to fraud, by the refusal to execute that agreement, in such case the agreement will be decreed to be specifically performed.  [**15]  " And the reverse of the doctrine insisted on by the solicitor of the appellees is clearly conceded or admitted by necessary implication, in the cases of Lindsay vs. Lynch, 2 Sch. & Lefr. 1. Frame vs. Dawson, 14 Ves. 386, and in the cases decided by this court of Graham and wife vs. Yates and Myer's Heirs, 6 H. & J. 229.
No principle is better settled, than that by no device or form of proceeding or solemnity of the instruments, or means used for its perpetration or concealment, can you deprive a court of equity of the power of "unkennelling a fraud." To permit a defendant, when charged with fraud, to shield himself from a disclosure by a denial of the agreement, and pleading the statute, would be to cloak or conceal a fraud, by means of a perjury. And if such a proceeding were tolerated, instead of its being "a statute for the prevention of frauds and perjuries," it might not inaptly be termed a statute for the encouragement of frauds by the rewarding of perjuries. But, says the solicitor of the appellees, conceding that cases may be found where a specific performance has been decreed, notwithstanding the denial in the answer, of [**16]  the parol agreement charged, and of the acts of part performance alleged, and the plea of the statutory bar, yet no case can be found in which relief has been granted, where the point on which he now relies was distinctly presented for the 

 [*392]  determination of the court. It may, with equal confidence, be asserted, that no case can be found in which a court of equity refused relief in such a case, sustained by adequate proof, upon the objection being raised which is now relied on. Indeed, notwithstanding the elaborate research made by the solicitor, he has not been able to find a case where, even in the argument of counsel, such a defence has ever been presented to the consideration of a Court of Chancery. The natural inference from which is, that, until the present occasion, it never was deemed by counsel an available defence. The only case which can be regarded as giving even a momentary countenance to such a principle, is that before referred to in 2 Des. 190, where such a question did not necessarily arise, as in the opinion of the court there, the act of part performance charged, in relation to the delivery of possession to the vendee, was unsustained by [**17]  proof.
This preliminary objection to the powers of the Court of Chancery to grant any relief to the appellants (no matter what may be their proof,) being disposed of, our next inquiry is, are the appellants upon the case, as established by proof, entitled to the relief they have sought? To sustain such title, they must surmount double the difficulties ordinarily encountered by a vendee seeking the specific execution of a parol contract by the vendor, on the ground of part performance. They must not only shew the contract made between Edward Hall and Philip Moore, and such acts in part performance thereof, as would entitle them to its specific execution, but they must shew themselves entitled to a conveyance from the appellees, Charlotte and Maria Hall, under the parol gift, alleged to have been made by them to Edward Hall. That Edward Hall, at the time of his alleged sale to Philip Moore, had made no such expenditures or improvements on the lands in controversy, or done any such acts in relation thereto, as would, as far as is disclosed by the testimony, entitle him to a decree for a conveyance from Charlotte and Maria Hall, is, we think, a proposition [**18]  too clear to require, in its support, either argument or authority Philip Moore, by his purchase, at the date thereof, acquired in the 

 [*393]  lands no greater interest or superior rights than those possessed by Edward Hall. The proof in the cause does not shew that Charlotte and Maria Hall were present at the time of sale, assenting thereto, or that any such assent had been previously given; nor does it shew any such expenditures or improvements on the lands in question as would make it a fraud on the part of Charlotte and Maria Hall to withhold a conveyance thereof under the alleged parol gift; nor indeed, does the bill filed in this cause charge the making of any such expenditures or improvements.
But suppose it were conceded that the gift made to Edward C. Hall was binding on Charlotte and Maria Hall, and that in virtue of it he could, in a court of equity, have compelled them to convey to him, have the appellants offered that full and satisfactory evidence of the terms of the agreement, and of its performance on their part, as to entitle them to a decree for its specific execution? It must be borne in mind that Edward C. Hall, by his [**19]  answer, denies all the allegations in the bill in relation to the contract, or that any portion of the alleged purchase money was ever paid him by Philip Moore. Not a witness in the cause states what, by the terms of agreement, was the amount of purchase money stipulated to be paid. The only two witnesses deposing upon this subject are, first, William F. Giles, who said that Edward C. Hall stated to him that "Philip Moore had paid him four thousand dollars, but deponent cannot recollect, at this time, on what account he stated the said sum of money was paid him by Mr. Moore; and he stated in said conversation that Mr. Moore did not owe him any thing; since that he had made a verbal claim, and accounted for the inconsistency, by stating that his claim was for the interest due him on some legacy under his father's will."
The second witness is James C. Gittings, who states that Edward Hall told him "that it was true that he had sold said farm to Mrs. Moore, and that he had received from said Moore, a part, but not all, of the purchase money." If the testimony of these two witnesses stood unexplained by any other testimony 

 [*394]  in relation [**20]  to the said payment of four thousand dollars, it might well be doubted whether it would be deemed sufficient evidence to over-rule the positive denials in the answer, and to prove payment of the entire purchase money. But when we advert to the fact that no proof has been offered to show that four thousand dollars was, by the alleged agreement, the price at which the land was sold, and that it is undeniably proved, that under the will of Aquila Hall, Philip Moore was bound to pay Edward C. Hall four thousand dollars, the insufficiency of the proof to over-rule the answer is most apparent. Nor does this proof, for such a purpose, derive any aid from the numerous orders, checks and receipts which have been exhibited to establish the payment of four thousand dollars by Moore to Edward C. Hall. Indeed, they rather disprove, than prove, that such payments were made on account of the purchase money for the land--a portion of them having been made a year or years before the time of the alleged sale to Moore, and not a receipt given for any of them, giving the slightest intimation that the payment was made on account of purchase money due for land sold. Having failed to [**21]  establish the payment of the purchase money for the land alleged to have been sold, the Chancellor could not have done otherwise than refuse to the appellants the relief sought by their bill. His decree is therefore affirmed with costs.
DECREE AFFIRMED WITH COSTS.  

46 of 46 DOCUMENTS 

CHARLES B. CALVERT, EXECUTOR OF GEORGE CALVERT, vs. RICHARD S. COXE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 Gill 95; 1843 Md. LEXIS 9 

December, 1843, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Prince George's County Court.

This was an action of Assumpsit, commenced by the appellee against the appellant, on the 7th February 1837, to recover the value of certain professional services as an attorney and counsellor at law, rendered by the appellee to the testator of the appellant, and at his special instance and request.

At October term 1837, the defendant pleaded non-assumpsit, on which issue was joined.

At the trial of the cause, the plaintiff offered in evidence the proceedings under a commission which issued on the 17th October 1838, which was rejected by the county court. The plaintiff excepted, but as the appeal was only taken by the defendant, that exception was not reviewed by this court.

1ST EXCEPTION. At the trial of this cause, the plaintiff to maintain the issue on his part, offered to read to the jury the depositions taken under the following commission, which issued on the 23rd July 1839, and returned on the 6th April 1840, which is as follows:

PRINCE GEORGE'S COUNTY, Sct. The State of Maryland to Joseph H. Bradley, Philip R. Fendall, James M. Carlisle and James Hoban, of the District of Columbia, gentlemen, greeting: Be it [**2]  known that you are appointed commissioners to examine evidences in a cause depending in Prince George's county court, between Richard S. Coxe, plaintiff, and Charles B. Calvert, executor of George Calvert, defendant. Therefore you are requested, (having first taken the oath hereunto annexed, and also administered the annexed oath to the person whom you shall appoint as clerk to attend the execution of this commission,) that at such time and place as to you shall seem convenient, you cause to come before you, all such evidences as shall be made or produced to you, either by the plaintiff or defendant; and that you examine them upon their corporal oaths, &c.; and that you cause notice to be given to the parties or their attorneys, of the execution of this commission, before you execute the same; and, &c.

Interrogatories to be administered to Thomas Swann, Esq., a witness to be examined on the part of the plaintiff.

1st. Do you know the above named parties, or either, and which of them.

2nd. Do you know whether the said plaintiff was employed as counsel by George Calvert in a certain case touching the validity of a supposed will of the late Thomas Cramphin, deceased, which [**3]  was contested by a certain Mrs. Davis, and during his life time by her husband.

3rd. In what court or courts was such suit pending.

4th. State as fully as practicable the nature, extent and value of the services rendered by said plaintiff to defendant's testator.

5th. How frequently, and for what length of time was said plaintiff so occupied and employed as counsel in said controversy at Rockville and Annapolis, in the orphans court, county court and Court of Appeals.

6th. In what manner was said controversy finally settled.

7th. State any thing further material to the plaintiff's case.

THOMAS G. PRATT, for R. S. Coxe.

True copy--Test, AQUILLA BEALL, Clk.

WASHINGTON, 11th November, 1839.

CHARLES B. CALVERT, Esq., Executor of George Calvert, deceased. Sir,--Notice is hereby given to you, that on Saturday next, the 16th inst., between the hours of twelve at noon and six in the afternoon, at the dwelling house of Thomas Swann, esquire, near the town of Leesburg, in the county of Loudoun, in the State of Virginia, we shall proceed, by virtue of a commission from the State of Maryland, to us directed, to take the depositions of the said Thomas [**4]  Swann, and such other witnesses as, &c., &c. And that on Monday next, the 18th inst., between the hours of ten in the morning and six in the afternoon, at the office of Joseph H. Bradley, one of us, in the city of Washington, in the District of Columbia, we shall proceed, by virtue of the commission aforesaid, to take the depositions of, &c., and that at the said several times and places you may attend, if you think proper.

Yours, respectfully,     Jos. H. BRADLEY, &c.

The plaintiff acknowledged service of the notice on him 12th November 1839, and there was proof of service of same on the defendant, by leaving it at his residence on the 11th November 1839, by an affidavit made before the commissioners.

At the execution of a commission, issued, &c., directed to Messrs. Joseph H. Bradley, &c., empowering them to examine evidence in a cause, &c., we the said Joseph H. Bradley, &c., in the said commission named, having met on the 16th day of November 1839, at the house of Thomas Swann, esquire, in the county of Loudoun and State of Virginia, pursuant to notice, and taken the oath to the said commission annexed, proceeded to take the deposition of Thomas Swann, esquire,  [**5]  which is reduced to writing, and transcribed by Robert Ould, junior, who was appointed clerk by the said commissioners, and took the oath prescribed for such clerk, and to the said commission annexed.

The said Thomas Swann, of lawful age, being first sworn, &c., to the first interrogatory--He knows both.

To the second he answers--Yes.

To the third he answers,--The suit was first pending in the orphans court of Montgomery county, Maryland; the issues were tried in the county court of said county, and the cause was afterwards carried to the Court of Appeals of Maryland.

To the fourth, fifth, sixth and seventh, he answers,--Sometime previous to the first trial of the issues in Montgomery court, upon Mr. Cramphin's will, I met the late Mr. George Calvert in one of the streets in Washington, and he stopped me and told me he wished to engage me in the contest which was about to take place in relation to this will; I said to Mr. Calvert, that I had understood that he had already engaged counsel in that case, and that I did not wish to interfere with my brethren in their professional engagements; he said that he had fixed upon or first engaged Mr. Key and Mr. Forrest, to [**6]  act as his counsel, but that a misunderstanding had taken place between them, and that he had determined to have nothing more to say to them. I asked if nothing could restore the breach between them, and as they knew more about the case than a stranger, it would be better to adhere to them if possible. He told me he had made up his mind to have nothing more to say to them, and that if he could not get counsel here, he had decided to go to Baltimore and get counsel there. I then said, that if that was the case I could see no objection in undertaking the case for him, and that I would think about it, and let him know when I saw him again. I asked Mr. Calvert, what sort of a case it was; whether there would be any difficulty in establishing the will; he said that he knew of no difficulty in the case, and I was under the impression that the trial would be a short one. Mr. Calvert asked me, if I should consider a thousand dollars a sufficient compensation to try this case before the jury, and I said it would, being persuaded from his representation at the time, that the labor would not exceed a week. Mr. Calvert and myself parted, and before I saw him again, I saw Mr. Dunlop of Georgetown,  [**7]  who I understood was to have been engaged with Mr. Key, in the contest respecting this will. I asked Mr. Dunlop if their engagement with Mr. Calvert had been broken off; he told me it had. When I saw Mr. Calvert again, I told him I would undertake his cause for him, and would argue his issues before the jury for the thousand dollars which he had proposed to give. In this engagement I did not consider myself bound to go beyond the jury trial, and expressed this opinion repeatedly after the engagement. Mr. Calvert mentioned to me, that assistant counsel would be necessary, and asked me how I should like Mr. Coxe; I told him very well, and he promised that he should be engaged. I am not certain, but it is probable he requested me to engage him. I well recollect applying to Mr. Coxe, and stating to him the nature of my engagements, and assuring him, that he should be put on the same footing with myself. He consented to join me upon these terms. In this first engagement, I considered the fee of one thousand dollars as a certain fee, to be paid at all events. The impression then was, that the orphans court would allow it, whether we should succeed or not, but at all events we were to have [**8]  it. Before however we entered upon the trial, we made a change in our contract; we agreed to take a contingent fee of two thousand dollars, in the event of success, and in case we did not succeed, to take our chance of getting what we could from the orphans court. I had little expectation from the orphans court, and always looked to our success in the verdict as the only chance of payment. We did succeed in this verdict, after a most troublesome trial of about twenty days, and Mr. Calvert paid us over two thousand dollars a piece. And so the engagement, as I certainly supposed, was at an end. At the time that this verdict was obtained, there was no law, as I understood, that would authorise the taking of this case to the Court of Appeals; but some short time afterwards a law was passed authorising an appeal, and the case was removed to the Court of Appeals under this new law. When it was about to come on in that court, Mr. Calvert sent me a message, requesting that I would attend the trial in the Court of Appeals. I felt some reluctance about going, never having been in the Maryland Court of Appeals before. I determined however to go, and left my farm in Loudoun, and went to Annapolis [**9]  and made the argument in the case. Mr. Coxe was there also and assisted in the argument, and so did R. Johnson, esquire. Mr. Calvert was there also. I think we spent about a week in the argument. Nothing was said about compensation in this trial. Mr. Coxe wished an understanding about it, and I begged him not to press it, saying that Mr. Calvert would do what was right. The Court of Appeals set aside the verdict, and the cause was sent back for another jury trial. This decision opened a new course of labor, not in the contemplation of any of us, and not provided for in our original agreement. When the cause came back for another jury trial, we were all aware of the trouble which would attend it. Mr. Calvert saw and conversed with me about the further trial of the cause; he said to me, "you must see it out; I have made considerable advancements out of my own personal funds to carry on this controversy, and can go no further, but go through the business, and I will do you justice, liberal justice. If I get possession of the estate, you shall have no cause to complain." I thought he was right in this course, and agreed to go through the business, and to let my compensation depend upon [**10]  his getting possession of the estate. Mr. Coxe asked me several times, what he was to have for his further services, and I informed him what had passed between Mr. Calvert and myself, and expressed my wish, that he should fall into this arrangement, and he agreed so to do, and we went through this business with this understanding. We had another jury trial of about twenty days, in which the jury did not agree, and we attended another after that of nearly twenty days; besides this, we repeatedly attended the court to press the trial, and prevent the further continuance of the case. In the course of the last trial, Mr. Calvert compromised the case, mostly through the agency of Judge Kilgour. I was opposed to the terms, thinking the sum which Mr. Calvert had agreed to pay too high; but as slaves then were very high, and there was always a doubt about the jury's verdict, I acquiesced in the arrangement of compromise, and Mr. Calvert got possession of the estate. Mrs. Davis executed a deed to carry this compromise into effect, and in that deed provision was made to re-imburse to Mr. Calvert the money which he had advanced, and for what further moneys he might advance on account of this [**11]  estate. This provision in the deed was made, among other things, to cover any further compensation that he might make to his counsel for their further services. When this business was ended, Mr. Coxe claimed his further compensation. I told him Mr. Calvert was a particularly tempered man, and perhaps if I dunned him he might take offence, and that I expected he would apply to me, and as soon as he did I would let him know. Mr. Calvert did not apply, and believing that he did not mean to do so, I mentioned the subject to him. He said he would never advance another cent without the sanction of the court, but referred me to his son Charles, who would act for him in the matter. I accordingly applied to his son, and he repeated what his father had said. I told him we should be content to take what the court should say was reasonable, but afterwards, perhaps the next day, he said his father was not content to leave it to the court. I then proposed to make a friendly case, and to leave it to the jury; he said his father would not be ready to try it at the first term. I told him he could take further time if he wished, upon which he said he could see no objection to this, and that he would [**12]  see his father and let me know. In a day or two after I saw him, and he told me his father would not consent to this, and I think on the same day I saw Mr. Calvert, and he said "he would not consent to leave it to the court or jury." I asked him what then was to be done. Upon the footing which we had stood, and the respect I had for him, I could not send a sheriff after him; he said, &c. The two thousand dollars herein mentioned, were paid to me, and the same sum to Mr. Coxe, for services rendered and past at the time of such payment, and were not in any sense advanced or in consideration of services to be rendered, but wholly in fulfilment of the original agreement, which had been satisfied on our part, before the first verdict in the cause. As to the value of the services, I always supposed that as our labors upon the subsequent jury trials were much greater than those performed by us upon the first trial and previous thereto; and as Mr. Calvert himself had estimated the value of such services, up to and inclusive of said trial at $ 2000, we were justly entitled to a similar sum for said subsequent services, and likewise to an additional compensation of $ 500 each, for the argument [**13]  in the Court of Appeals. I have been in the profession of the law upwards of forty years; I have never been considered immoderate in my charges, and my brethren have frequently complained of me, as being too low in my charges. From the amount in controversy in this case, the number of days spent by us in prosecuting it, and the peculiar character of the cause itself, I consider $ 2,500 each, as a very moderate fee for the services rendered by us subsequent to the first verdict. Mr. Coxe often said, that he expected Mr. Calvert would give us more than that sum, but I told him I doubted it; yet, that to the extent of $ 2,500 each, I had no doubt he would go. Mr. Calvert, in stating to us in advance, the nature and extent of the services required of us, always much depreciated them, telling us that it was a plain case, and would require no great exertion. We found it however very much the contrary, and one of the most laborious causes that I had ever tried. And further the said deponent saith not.

And we, the said commissioners, do further certify, that pursuant to the said notice to the parties to the said suit, which is hereunto annexed, we did, on Monday the 18th day of November,  [**14]  1839, meet between the hours of ten in the morning and six in the afternoon of that day, at the office of Joseph H. Bradley, one of us, in the city of Washington, in the District of Columbia, and that some one or more of us was in the said office from the said hour of ten o'clock in the morning until six in the afternoon of that day, and that no other witness was produced by either of the parties before us. And we do herewith return the said commission, interrogatories, notice and depositions to the honorable the judges of the said court, under our hands and seals.

JOS. H. BRADLEY, &c. &c., Commissioners.

The plaintiff then gave in evidence the following proceedings in this cause upon his motion for a commission, viz:

RICHARD S. COXE vs. CHARLES B. CALVERT, Ex'r of Geo.

Calvert. In Prince George's county court.

Commissioners in the Case. Joseph H. Bradley, Philip R. Fendall, James M. Carlisle and James Hoban, of the District of Columbia. Let the commission issue as prayed.

May 27, 1839.     C. DORSEY.

Interrogatories to be administered to Thomas Swann, esquire, a witness to be examined on the part of the plaintiff.

Then followed the interrogatories [**15]  Nos. 1 to 7, as set forth under the commission, which were signed by the plaintiff's counsel and dated 27th May 1839.

To the reading of this evidence the defendant by his counsel objected.

1st. Because the said commission issued irregularly.

2nd. Because the commissioners therein named had no right to execute the same in the State of Virginia.

3rd. Because the said commission could not be executed at a private house.

4th. Because the commission did not appear to have been executed at the time and place mentioned in the notice, and

5th. Because the time allowed by the notice to the defendant was too short.

But the court (STEPHEN, C. J., and DORSEY, A. J.,) overruled the said objections and permitted the said deposition to be read to the jury, which was accordingly read; to which opinion of the court, overruling the said objections and permitting the said deposition to be read to the jury, the defendant excepted.

2ND EXCEPTION. After the evidence offered in the preceding exceptions, and which by agreement shall constitute a part of this exception, and after the court had decided that the objections urged by the defendant to the reading of the deposition [**16]  taken under the commission, which issued on the 23rd of July 1839, were insufficient to exclude it from the jury, the defendant by his counsel, (when the counsel of the plaintiff was about to read the said deposition to the jury,) objected to the following portions of the said deposition:

1st. To that portion of the said deposition which is contained within brackets, commencing with the word "In" and ending with the word "engagement." ["In this engagement I did not consider myself bound to go beyond the jury trial, and expressed this opinion repeatedly after the engagement."]

2nd. To that portion of said deposition on the same page in the brackets, commencing with the word "In" and ending with the word "events." ["In this first engagement I considered the fee of $ 1,000 as a certain fee, to be paid at all events."]

3rd. To that portion of said deposition on the same page in the brackets, commencing with the word "And" and ending with the word "end." ["And so the engagement, as I certainly supposed, was at an end."]

4th. To that portion of said deposition in the brackets, commencing with the word ["Mr." and ending with the word "right."] ["Mr. Coxe wished [**17]  an understanding about it, but I begged him not to press it, saying that Mr. Calvert would do what was right."]

5th. To that portion of said deposition in brackets, commencing with the word "Mr." and ending with the word "understanding." ["Mr. Coxe asked me several times what was he to have for his further services, and I informed him what had passed between Mr. Calvert and myself, and expressed my wish that he should fall into this arrangement, and he agreed to do so, and we went through the business with this understanding."]

6th. To that portion of the said deposition in the brackets, commencing with the word "And" and ending with the word "services." ["And in that deed provision was made to reimburse to Mr. Calvert the money which he had advanced, and for what further moneys he might advance on account of this estate. This provision in the deed was made among other things to cover any further compensation that he might make to his counsel for their further services."]

7th. To that portion of said deposition on the same page in the brackets, which commences with the word "When" and ends with the word "know." ["When this business was ended, Mr. Coxe claimed his [**18]  further compensation. I told him that Mr. Calvert was a particular tempered man, and perhaps if I dunned him him he might take offence, and that I expected he would apply to me, and as soon as he did I would let him know."]

8th. To that portion of the said deposition included in the brackets, which commenced with the word "The" and ends with the word "cause." ["The two thousand dollars herein mentioned were paid to me, and the same sum to Mr. Coxe, for services rendered and past at the time of such payment, and were not in any sense advanced or in consideration of services to be rendered, but wholly in fulfilment of the original agreement, which had been satisfied on our part before the first verdict in the cause."]

9th. To that portion of the said deposition in the brackets, which commences with the word "I" and ends with the word "charges." ["I have been in the profession of the law upwards of forty years; I have never been considered immoderate in my charges, and my brethren have frequently complained of me as being too low in my charges."]

10th. To that portion of the same deposition which commences with the word "Mr." and ends with the word "go." ["Mr. Coxe [**19]  often said that he expected Mr. Calvert would give us more than that sum, but I told him I doubted it, yet that to the extent of $ 2,500 I had no doubt he would go."]

The court sustained all the objections made by the counsel of the defendant to the said deposition, except to that portion of the latter clause of the first part excepted to on the 5th page, which in the clause commences with the word "this" and ends with the word "services." See the 6th objection above. That portion of the said deposition the court (STEPHEN, C. J. and DORSEY, A. J.) decided to be admissible, and suffered the same to be read to the jury. The plaintiff excepted to so much of the opinion of the court as excluded the other portions of the deposition objected to.

The counsel of the defendant excepted to that part of the court's opinion under which the aforesaid part of the said deposition, commencing with "this" and ending with "services" was admitted.

3RD EXCEPTION. In the trial of this cause, and in addition to the testimony before offered, and which it is agreed shall be considered a part of this exception, the plaintiff to maintain the issue joined on his part, offered proof, that in a [**20]  former trial of this case, a certain Benjamin S. Forrest was examined as a witness, and that the said Forrest is since dead; thereupon, the plaintiff offered to prove by a competent witness, who was present at the time of the trial, what facts were proved by the said Forrest as a witness; and during his examination in the cause, the defendant by his counsel objected to the admissibility of said proof, but the court admitted it, and suffered the evidence to be given to the jury; to which opinion of the county court, admitting the said evidence, the defendant excepted.

4TH EXCEPTION. At the trial of this cause, after the evidence contained in all the preceding exceptions had gone to the jury, which by agreement shall constitute a part of this exception, the defendant, to maintain the issue joined on his part, proved to the jury by a competent witness, that he the witness, as the agent of the defendant's testator, on the 12th December 1832, shortly after the first trial in Montgomery county court, of the issues growing out of the will of Thomas Cramphin, deceased, and which were sent by the orphans court of the county to be tried in the said county court, which trial resulted in [**21]  a verdict in favor of the will, paid the sum of $ 2,000 to the plaintiff; that on the day the money was so paid, Thomas Swann, Esq., and Z. C. Lee, Esq., who were also employed as counsel for said Calvert, (together with the plaintiff,) called at the office of the witness, when the said Swann, after an examination of the law upon the subject, said the case affecting the validity of said will was finally settled by the said verdict; that the defendant's intestate was also present, and that thereupon after the expression of the said opinion by the said Swann, he the said Swann and the said Lee asked the said Calvert for the fees which had been respectively promised to be paid to them, telling him he would soon be able to get it out of the estate of said Cramphin; that the said fees were accordingly paid to them, and on the same day the sum of $ 2,000 as aforesaid was paid to the plaintiff as his fee. And the defendant then read in that connexion a letter from the plaintiff to the said Swann, dated the 16th February 1836, which is as follows, to wit:

Dear Sir,--On examining your draft of a letter to Mr. Calvert, it occurs to me to make a suggestion or two as matters of fact. In the [**22]  first place the entire arrangement was made between Mr. Calvert and yourself. I was confined to my bed by a severe fit of illness, and unable to enter into the merits of the controversy, or to estimate the amount of compensation, and equally unable to investigate the question, which I deemed a preliminary one, viz: whether the circumstances which had led to the separation of Mr. Calvert from his former counsel were such as to permit us to assume their position without a viola of professional courtesy. This situation induced me to repose the whole matter to you.

In consequence of this arrangement I have had no personal understanding with Mr. Calvert on the subject. Your first information was that Mr. C. would pay us $ 1,000 each, for the trial of the issues, without any contingency, it being the opinion of all of us, that it was Mr. Calvert's right and duty to defend the case, and that his expenses would be allowed him by the orphans court out of the estate, whatever might be the final result. In this state of things, Mr. Lee and myself attended at Montgomery for the purpose of having the issues amended. Before I was able myself to attend, they had been prepared. We did not succeed,  [**23]  and our proposed amendments were disallowed. Between this time and the trial we learned that the orphans court would not allow Mr. C. his expenses if the will should be set aside. And you then apprised me that Mr. Calvert, fearful of committing himself personally, had suggested a change in the terms of our arrangement, and preferred giving us $ 2,000 in case we succeeded, to $ 1,000 absolutely. Concurring with him in his views, we both acceded to this modification of the contract. We tried the issues, succeeded, and the fee was paid as had been agreed. At this time every one believed the cause was terminated. There was no act of the legislature allowing an appeal, and none could be taken. During that winter a law was obtained authorising an appeal to be taken, and the cause was carried to the Court of Appeals. We attended and argued the cause without anything passing between Mr. Calvert and myself personally on the subject of compensation, but with a distinct understanding on your part and mine that we were to be paid, and I had made up my mind, and I believe you also, that we would endeavor to obtain an allowance from the funds of the estate to re-imburse Mr. Calvert. The same thing [**24]  occurred at the several terms when we were at Montgomery to try the issues; three or four times I believe.

When the compromise was arranged, the clause providing for the re-imbursement of moneys already and thereafter to be paid was introduced to protect Mr. C. from every difficulty, and you may remember the particular phraseology I employed in my draft, leaving Mr. C. free to exercise his own discretion on the subject.

My position in the cause prevented me from making any arrangement with Mr. C., considering myself as having reposed that in your hands, fully satisfied to confirm any arrangement you might make; but you always stated that we should be fully and liberally compensated if Mr. C. should succeed; and if he failed we would endeavor to obtain remuneration for him and compensation to ourselves through the orphans court. If I had entertained any difficulty on the subject it would have been removed by a remark which Mr. C. made in my presence, that his objection to paying his former counsel did not arise from any question as to the amount to be paid to such of them as he had wished to be employed, but there were too many of them, some whom he did not want. This I considered [**25]  as a pledge that we should each receive for our services in the will cause, at least as much as the counsel were each to receive under that arrangement.

In reference to the other matters; the suit against Mr. C. by his former counsel; the claim of Forrest; the attempt to revoke the letters of administration, I considered them as wholly independent of this original understanding, and to be the subject of distinct charge.

The foregoing may suggest some views of the matter worthy your attention.     Very truly yours,

RICH'D S. COXE.

Feb. 16th, 1836.

P. S. I may as well mention, that the views I had taken of the subject were confirmed by every conversation with Caroline and her children, all of whom professed themselves willing and desirous that we should be paid far beyond the amount asked by the former counsel, and who, I have no doubt, would now approve of such a course.

Thomas Swann.     R. S. C.

And he further proved, that the plaintiff had told the witness that the said Swann had made the contract for the fee, and had authority from him the plaintiff for that purpose. And the defendant further proved by the said witness, that he had heard [**26]  the said Swann say that the original contract made by him with the said Calvert, upon the subject of fees to be paid him and the said plaintiff, was that they were each to receive a certain fee of $ 1,000 each; that this contract was subsequently changed, and instead of the said certain fee, they were to have each the sum of $ 2,000, in the event of their succeeding in obtaining a verdict in favor of the will; and upon the defendant's testator, who was named as executor and trustee in said will, getting thereby the possession of the estate of the said testator, that the said sum of $ 2,000 to the said Swann and the plaintiff, was to be paid contingently upon the said defendant's testator getting possession of the estate of the said Cramphin, and to be paid out of the estate.

The defendant then prayed the court to give the following instructions to the jury:

1st. Upon the evidence, the defendant by his counsel prayed the court to instruct the jury, that if the jury shall find that the compensation claimed by the plaintiff of the defendant was according to the agreement of the parties, to be paid out of the estate of the said Thomas Cramphin, in the hands of the said George [**27]  Calvert; if the jury shall find that such agreement was made, then the plaintiff is not entitled to recover the same from the present defendant, the personal representative of the said George Calvert, and the verdict of the jury must be for the defendant.

2nd. If the jury find from the evidence that the sum of two thousand dollars, which was paid to the plaintiff on the 12th December 1832; if the jury find it was paid, was according to the contract between the parties to be paid upon the contingency of the final decision of the cause in favor of the will of Thomas Cramphin, then the plaintiff was entitled to no additional compensation, and the verdict of the jury must be for the defendant.

But the court, (STEPHEN, C. J. KEY and DORSEY, A. J.,) refused to give the instructions prayed by the defendant's counsel, and instructed the jury as follows:

If the jury find from the evidence that the sum of two thousand dollars which was paid to the plaintiff; if the jury find it was paid, was according to the contract between the parties, to be paid upon a finding of the issues by the jury in favor of the establishment of the will in Montgomery county court, and that such issues [**28]  were found by the jury in favor of the will, either of their own accord and free will, or by direction of the parties under a compromise, after the cause had been carried to the Court of Appeals and sent back for a new trial under a procedendo, that then the defendant's intestate was personally bound to pay the stipulated contingent fee of two thousand dollars, and such additional compensation as the jury may find the plaintiff's professional services were worth for trying and conducting the case in the Court of Appeals.

If the jury shall find from the evidence that the compensation claimed by the plaintiff from the defendant was to be paid in the event of the jury finding a verdict upon the issues in favor of the establishment of the will, in which the defendant's intestate was appointed executor, and that the verdict was found by the jury in favor of the will, either of their own free will and accord, or by the direction of the parties under a compromise, that then the defendant's intestate was personally bound to make the compensation stipulated, and the defendant is answerable for the same, if it has not been paid.

To the giving of which instructions, and to the refusal [**29]  of the court to give the instructions as prayed by the defendant's counsel, the defendant excepted.

5TH EXCEPTION. After the evidence in the preceding exceptions had gone to the jury, and which it is agreed shall form a part of this exception, the defendant, for the purpose of enabling the jury to estimate the value of the plaintiff's services for the argument of the case affecting the validity of the will of Thomas Cramphin in the Court of Appeals, and for the purpose of showing that the jury might not allow as much therefor upon the quantum meruit, as the estimate placed thereupon by other witnesses examined in the cause on the part of the plaintiff, offered to prove by a competent witness, that Reverdy Johnson, Esq., an attorney of the Court of Appeals, argued the same case there, together with and as an associate of the plaintiff, and then was about to prove by the same witness the amount of the fee which the said R. Johnson received from the defendant's testator for the said argument in the Court of Appeals, as a circumstance to assist the jury in fixing the amount of compensation to be allowed the plaintiff for the same service. But upon an objection made to the said proof [**30]  by the plaintiff's counsel, the court would not suffer it to go to the jury; and to the refusal of the court to suffer the said evidence to go to the jury, the defendant excepted.

6TH EXCEPTION. Upon the testimony stated in the several bills of exceptions, and which it is agreed shall be a part of this exception, the defendant by his counsel prayed the court to instruct the jury, that if the jury should be of opinion from the evidence, that by the terms of the contract between the plaintiff and defendant, the plaintiff was bound to prosecute to a successful issue the controversy then pending in the orphans court of Montgomery county, and has been paid the two thousand dollars, the contingent fee, then the plaintiff is not entitled to claim any further compensation for his services proved to have been rendered as aforesaid in the Court of Appeals, but the court refused to give the instruction asked as aforesaid; to which refusal the defendant excepted.

7TH EXCEPTION. In the further progress of this cause, and after the evidence in the previous exceptions had gone to the jury, which by agreement shall make a part of this exception, the plaintiff further to maintain the issues [**31]  joined on his part, proved by Z. C. Lee, Esq., that he was one of the counsel employed by the testator of the defendant, to defend the will of the late Thomas Cramphin. That according to the original contract between the said defendant's intestate and his counsel, consisting of himself, Mr. Swann and the plaintiff, the said Swann and the plaintiff were each to receive a certain fee of $ 1,000, and the witness a similar fee of $ 750. That this contract was subsequently changed, and that by the substituted contract, Mr. Swann and the plaintiff was each to receive $ 2,000, contingent upon the event of the finding of a verdict by a jury in favor of the will, and that the witness was to receive a fee of $ 1,500, contingent upon the same event.

And the plaintiff further proved that at the November term of the Montgomery county court, a jury of that county found a verdict in favor of the will; that there being at that time no law which authorised an appeal to the Court of Appeals, by by which the opinions pronounced by the county court in the progress of the said trial, could be revised, although exceptions were taken by the parties to many of the opinions of the court; that immediately [**32]  upon the rendition of the said verdict, a motion was made by the parties who contested the will for a new trial, which motion was not disposed of during the then term of the county court, which closed the day after the verdict, and which was not disposed of when the Act of Assembly of 1832, ch. 208, was passed by the legislature.

The plaintiff then further offered evidence, that though the motion for a new trial was not disposed of when the said law passed, yet according to the recollection of the witness, it was disposed of and overruled by the county court before the case was carried to the Court of Appeals. And it was further proved, that the case was carried to the Court of Appeals, and the judgment of the county court reversed by the Court of Appeals at June term 1833.

And thereupon the following instructions were prayed by the counsel of the respective parties:

The plaintiff asked the following instructions to the jury:

If the jury shall believe from the evidence that the contract as existing between the plaintiff and the defendant's testator, in November and December 1832, was that the said plaintiff was to receive from the said testator the sum of two thousand [**33]  dollars, as a fee in case the verdict of the jury should be in favor of the will on the issues then pending in Montgomery county court, and that the verdict of the jury was in fact in favor of the will on said issues, and the said sum of $ 2,000 was then paid to the plaintiff by the defendant's testator, in fulfilment and execution of said contract, and that said plaintiff subsequently rendered other and further services for said defendant's testator, at his instance and request, for which he has not been compensated, then the jury may find for the plaintiff such amount as they shall believe from the evidence the plaintiff reasonably deserved to have for such compensation.

The defendant by his counsel objected to the court's granting the said instructions, but prayed the court, in case they should grant the same, to add thereto the following modification:

That if the jury should find from the evidence, that the contract between the plaintiff and the testator of the defendant, upon which the sum of $ 2,000 was to be paid, only entitled the plaintiff to receive the said sum upon obtaining such a verdict in favor of the will, as would procure its admission to probate in the [**34]  orphans court, then the plaintiff was not entitled to the said sum of $ 2,000, until such a verdict was rendered; and the plaintiff in that event can only recover such reasonable compensation as the jury may think he was entitled to, for the argument of the case in the Court of Appeals.

To this modification the plaintiff moved the following addition, but that as the law stood, at the time of the making of the said contract and its execution by the parties respectively, no appeal or writ of error was allowed to the Court of Appeals, and that the law subsequently passed in 1832, gave for the first time a right of appeal, under and in consequence of which, the said verdict and judgment thereon was reversed and set aside by the Court of Appeals, and that independently of said law, said verdict was a final termination of said issues, then the contract between the said plaintiff and the defendant's testator, is to be expounded with reference to the law as it stood when it was made by the parties, and the services imposed on and performed by the plaintiff in consequence of said law, and subsequent to its passage, at the instance and request of defendant's testator, are not within the [**35]  contract and provided for by it.

To which the defendant moved this further addition, "that if the jury find, that at the time the sum of $ 2,000 was paid the plaintiff, the motion for a new trial had not been disposed of, then the verdict referred to was not a final verdict."

And to this, the plaintiff moved this further addition, that the said verdict became a final verdict afterwards, and before the appeal was taken to the Court of Appeals.

The court gave these instructions, with their several modifications and additions; and to the giving of each and all of them, with their several modifications and additions, the defendant excepted.

The jury found a verdict for the plaintiff in the sum of $ 2,000, and the defendant appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

In the absence of all proof to the contrary, judicial courtesy requires this court to presume, that the county court discharged its duty according to the rules and practice of such court, in awarding a commission to take testimony.

So where the county court assembled on the first day of the month, and proceedings were had in a cause, which resulted in the withdrawal of a juror, and on the twenty-seventh of the following month, the court ordered a commission on the motion of the plaintiff to be issued; but it did not appear when such motion was made, nor when, nor by whom commissioners were named, it is fair to presume, either that the defendant did name and strike commissioners, or that after reasonable notice, he failed to do so.

The motion of a suitor seeking a commission to take proof, is that a commission be issued, naming the place to which he wishes it to be addressed. The court then grants the usual order to name and strike commissioners.

The power of selecting the time and place of executing a commission to take testimony, addressed to commissioners out of Maryland, is confided by the terms of the commission, to their sound discretion.

A commission, addressed to commissioners of the District of Columbia, may be executed in Virginia.

In the execution of a foreign commission, no notice to the parties of the time and place of its execution is necessary. All the notice required, is that of the interrogatories sent out with the commission. Actual or constructive notice should be given to the opposite party in time for him to exhibit cross interrogatories before the transmission of the commission.

Five days notice given to a defendant, a resident of Maryland, of the time and place of executing a commission in Virginia, about forty miles distant from his residence, is sufficient, and it is no objection that it was executed at the private residence of the witness.

A witness cannot be permitted to state the contents or effect and operation of a written instrument without producing it.

Facts proved on a former trial by a deceased witness, are admissible on a second trial of the same case. They could only be rejected on the presumption, that facts were proven on the first trial, which were inadmissible as evidence, which is not to be intended. The reasonable presumption is, that such facts were alone proved as were admissible. The court should act on this presumption upon the offer of proof of the deceased witness' testimony, until the contrary appeared.

A defendant who places his defence upon the finding by the jury, "that the compensation claimed by the plaintiff of the defendant, was, according to the agreement of the parties, to be paid out of the estate of C, in the hands of the defendant's testator," cannot ask the court to instruct the jury, that his testator was not personally liable, though the compensation had not been paid. The failure to pay out of C's estate was a breach of the contract, for which the testator was personally liable.

In an action to recover compensation for professional services, the defendant placed his defence upon the finding by the jury, that a sum certain paid to the plaintiff, "was, according to the contract between the parties, to be paid upon the contingency of the final decision of the cause in favor of C's will," and if they so found, then the plaintiff was entitled to no additional compensation. At the time of making the contract, the law did not authorise, but shortly after the verdict in the will cause, an act was passed, which did authorise an appeal in such cases; services were rendered upon an appeal, and subsequently upon the reversal of the first judgment. The compensation first agreed upon had been paid between the time of rendering the verdict and the passage of the act authorising an appeal; HELD: as there was other evidence tending to show, that by additional or subsequent agreement, the defendant's intestate promised to pay the plaintiff a further compensation, that question was open for the consideration of the jury.

In an action by an attorney for compensation for professional services upon a quantum meruit, it is not competent for the plaintiff to offer evidence as to what sum was paid to, or demanded by, any attorney in particular, for like services. The usual and customary compensation for services of the like kind, is admissible evidence; but what was paid to any particular individual, standing per se, is inadmissible. Per Prince George's county court--affirmed by a division of this court.

The common law of England, in relation to fees of counsellors at law, is inapplicable to the State of Maryland. In a quantum meruit, they may recover for professional services rendered.

A defendant below, cannot assign for error (when appellant,) the results of any of his own modifications or additions to the prayer of the plaintiff below. If there be any error for which a judgment in this case should be reversed, it must be found in the addition made by the plaintiff to the instruction as modified and amended at the defendant's instance.

It is error in the county court to instruct a jury absolutely, though they might have been authorised to grant the same instruction hypothetically.

Where the proof is wholly oral, of the credit due to which the jury only are competent to decide, the court should not decide the matter of fact, and so withdraw from the jury the credibility of the witnesses and the truth of their statements.  

COUNSEL:
By J. JOHNSON and A. C. MAGRUDER for the appellant, and

By REVERDY JOHNSON and T. G. PRATT for the appellee.  

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

OPINIONBY:
ARCHER; DORSEY 

OPINION:

 [*116]  ARCHER, J., delivered the opinion of this court.
I am directed by the court to say that they approve of the opinion expressed by Judge Dorsey on all the [**36]  exceptions in this case, except on the third and fifth exceptions of the appellant.
I am further directed by a majority of the court on the third exception, to say that they think the court below were right in the opinion by them expressed in this exception.
This court has, heretofore decided, that facts proved on a former trial by a deceased witness are admissible on a second trial of the same case. They would only be rejected on the presumption, that facts were proven on the first trial which were inadmissible as evidence. This we think we cannot intend; but the reasonable presumption is, that such facts were alone proved as were admissible, and it was proper the court should act on this presumption, upon the offer of the evidence, until the contrary appeared.
On the fifth exception the court are divided. Those of us who maintain that the evidence offered as to what sum was paid to Mr. Johnson was inadmissible, think that what was paid to or demanded by one attorney, was not evidence in the cause. We cannot judicially know the standing of any one member of the bar, or the circumstances under which he was paid, or demanded a given sum for his services. What is the [**37]  

 [*117]  usual and customary compensation for services of the like kind is admissible testimony, but what was paid to any particular individual, standing per se, is in our opinion inadmissible.
DORSEY, J., delivered the following opinion:
Differing in opinion with a majority of the court on some of the bills of exceptions, I proceed to state my own views of this case.
Whether the court below erred or not, in rejecting the testimony taken under the first commission issued in this cause, is a question not before us for decision, on the present appeal.
Our first inquiry is, was there error in the county court's admitting the testimony under the second commission, to go to the jury? For its rejection various reasons have been assigned; as well in respect to the time and manner of its issue, as of its execution. It is asserted in the argument for the appellant that it was ordered on the same day that it was applied for; and that no opportunity was given to the appellant to name and strike commissioners. If this assertion be true, it does not satisfactorily appear to me by the record before us. The proof of what transpired in the court below in relation to the issuing of the second [**38]  commission is not presented to us, as it is in relation to the first. In regard to the latter, it was proved by competent testimony, that it was applied for by the plaintiff on the 17th of October, 1838, and that on the same day it was ordered to four commissioners named by the plaintiff. But as to the second commission; of the day on which it was applied for; of the number of days which intervened between such application and the naming of commissioners by the plaintiff; and the order for the issuing of the commission, the record furnishes us no definite information. All that we can there learn upon the subject is, that Prince George's county court sat on the first Monday of April, 1839. That the return to the first commission was made to it at that term; and that a jury was then sworn, and a juror withdrawn; and "whereupon" it was "ordered by the court, on motion of the plaintiff by his counsel, that commission issue to take depositions 

 [*118]  in this cause, directed to Joseph H. Bradley, Philip R. Fendall, James M. Carlisle and James Hoban, Esquires, of the District of Columbia, which said commission accordingly issues to the said commissioners, as ordered by the court.  [**39]  " Thereupon, &c., the cause was continued. Whether these commissioners were exclusively named by the appellee, or were constituted by both parties having exercised the right of striking, the record gives no means of ascertaining. Nor does the order of the judge upon the subject, furnish any definitive evidence upon this question. After giving the titling of the cause, it is in these words: "Commissioners in the case, Joseph H. Bradley, Philip R. Fendall, James M. Carlisle and James Hoban, of the District of Columbia. Let the commission issue as prayed, May 27th 1839." From the length of time which elapsed between the commencement of the term and the date of the judge's order, in the absence of all proof to the contrary, it is fair to presume either that the appellant did name and strike commissioners, or that after reasonable notice he failed to do so, and the phraseology of the order rather repels than sanctions the presumption, that, as soon as the motion was made, the commission was directed to issue to the commissioners named by the appellee. Had such been the action of the court, their order, instead of assuming the shape it did, would have been couched in language [**40]  like the following: "on motion of the plaintiff ordered, that commission issue to the commissioners by him named." The motion of a suitor seeking a commission to take testimony, is not that a commission issue for that purpose to A, B, C and D, but that a commission issue to take testimony; naming the place to which he wishes it to be addressed. Whereupon the court gives the usual order for naming and striking commissioners. How long this motion was made before the court's order of the 27th of May, does not appear; but in the absence of all proof to the contrary, judicial courtesy requires us to presume, that in issuing this commission the county court discharged its duty according to its rules and practice regulating the exercise of such authority. And in this presumption 

 [*119]  we are fortified by the fact, that no proof was offered of the non-conformity of the court in this respect, as was attempted to be shown as regards the first commission. Neither does it appear that at the trial below it was made a distinct ground of objection to the testimony under the second commission, as it was to the first; that "the said commission issued to commissioners named exclusively by the [**41]  plaintiff, without allowing time to the defendant to name any on his part." As far as this objection is concerned, therefore, I think the county court did not err in permitting the testimony under the second commission to go to the jury.
The next objection to the evidence in question is, that it was executed in the State of Virginia, in which the commissioners had no authority to act. And in support of this objection the cases of Bondereau and al vs. Montgomery and al, 4 Wash. C. C. 186, and Lessee of Rhoades and Snyder vs. Selin and al 4 Wash. C. C. 715, have been relied on. But those cases are not analogous to that now before this court. There by the terms of the commissions they were to be executed at designated places; and having been executed elsewhere, they were suppressed by the court. In the commission under consideration, there is no designation of the place of its execution. The power of selecting it is confided to the sound discretion of the commissioners, and of its exercise on this occasion, the appellant has no right to complain. That the commission was executed at a private house, detracts nothing from its validity. And in my opinion [**42]  it does sufficiently appear to have been executed at the time and place mentioned in the notice. In answer to the fifth objection, that "the time allowed by the notice was too short," it has been urged, that this being a foreign commission, no notice to the parties of the time and place of its execution was requisite. And in support of this doctrine, the cases of Owings vs. Norwood, 2 H. & J. 96, and Law vs. Scott, 5 H. & J. 438, have been cited; and I think fully sustain it. In the former of these cases the court decided that "in executing foreign commissions, notice is not necessary; but time should be given, that the opposite party might 

 [*120]  exhibit cross interrogatories:" and in the latter it is fully settled that, in executing foreign commissions, no notice of the time and place of so doing need be given to the parties to the suit. All the notice required is, that of the interrogatories sent out with the commission; actual or constructive notice should be given to the opposite party, in time for him to exhibit cross interrogatories before the transmission of the commission. It is true that it is not perfectly obvious that the opinion of [**43]  the learned judge who decided the case of Boreing vs. Singery, is in perfect harmony with the above recited extract from the opinion of the same judge, delivered in the case of Owings vs. Norwood. In Boreing vs. Singery, the defendant offered in evidence a commission issued at his instance, the return to which, "after setting forth the meeting of the commissioners, and their having taken the deposition of a witness in answer to certain interrogatories," concludes by the commissioners certifying that "the foregoing interrogatories were taken at the instance of Joshua Stevenson, on his asserting that the plaintiff had knowledge of his coming and intention of having this commission executed." In support of this statement made to the commissioners, no evidence was offered, and it would appear from the report of the case that no interrogatories were filed and sent with the commission; nor any notice given the plaintiff of the interrogatories propounded to the witness; nor was time or opportunity afforded him of filing cross interrogatories; nor any notice given him of the time and place of executing the commission. Upon the objection being raised to the admissibility of [**44]  the deposition taken, on the ground that legal notice had not been given to the plaintiff of the time of executing the commission, the learned judge, above referred to, who delivered the opinion of the court below, said, "this case is not similar to the case of Norwood vs. Owings. In that case the commissioners certified that they had given notice; but in this case it does not appear, by the return of the commissioners, that they had given any notice, or that proper notice had been given. The court are of opinion, that the commission and return are not legal evidence." That the 

 [*121]  court were right in rejecting the testimony offered, is too obvious to admit of discussion. It was affirmed on appeal to this court. It is true the learned judge was mistaken as to a fact which he stated in reference to the case of Norwood vs. Owings, viz: that "the commissioners certified that they had given notice." The return of the commissioners certified no such fact. But in that case the defendant, on whose behalf the commission issued, filed in court his interrogatories, (a copy of which was annexed to the commission,) and ample opportunity was given to the plaintiff to have filed [**45]  cross interrogatories. In the interpretation given by the counsel of the appellee to the opinion of the learned judge in Boreing and Singery, he is perhaps misunderstood. He did not mean, as is imputed to him, to impugn the principle, so distinctly announced by him in the case of Owings vs. Norwood, in reference to the execution of foreign commissions; but speaking in reference to the commission before him, where no notice of the interrogatories, or opportunity to exhibit cross interrogatories had been given to the plaintiff; he, in rejecting the testimony, says, "but in this case it does not appear, by the return of the commissioners, that they had given any notice, or that proper notice had been given;" thus it may be inferred, confirming and extending, rather than overruling the doctrine he had so emphatically laid down in Norwood vs. Owings, to which he most probably alluded in his alternative reason assigned, "or that proper notice had been given."
In the case before us, however, notice of the time, place, &c., of executing the commission was given by the commissioners to the appellant; and I do not regard the shortness of the time complained of an adequate ground [**46]  for suppressing the testimony taken under the commission. In the appellant's first exception, therefore, I see no ground for reversing the judgment of the county court, rendered in the case before us.
On the second bill of exceptions, I think the county court erred. Having permitted a witness to state the contents or effect and operation of a written instrument, without producing it, notwithstanding the appellant's objection to the admissibility 

 [*122]  of the testimony. The testimony, thus given, might have had a material influence on the minds of the jury in forming their verdict.
I cannot consent to affirm the act of the county court in admitting, under the circumstances in which it was done, the witness to give evidence of what facts were proved by a certain Benjamin S. Forrest, a deceased witness, examined in a former trial of this cause. The testimony being objected to, before the court could determine that it was admissible, it must be satisfied that it was not immaterial and irrelevant to the issue in the cause, of which it was wholly incompetent to judge, without a statement of the facts of which the proof was offered. The objection being overruled, and the evidence [**47]  admitted without any such statement, I do not see how this court can determine that it was admissible, without knowing what it was. When testimony is objected to, before it can be submitted to the jury, the party offering it, must show its competency, or it must be made appear to the court that it is not immaterial or irrelevant. His obligation to do so, is in nowise changed, by proof of the fact, that it was given in evidence to a jury in a former trial of the same cause between the same parties. Reasons, almost without number, may be assigned, why a party not objecting to incompetent testimony on a first trial, should prefer his objections on the second. His omission or waiver of his rights in a first trial, do not impair or restrain his exertion of them in the second. A principle of striking analogy to that now in question, was decided by the Court of Appeals in the case of Ragan vs. Gaither, 11 G. & J. 472, where the judgment of the county court was reversed, because two deeds referred to in the bill of exceptions were not inserted at length, that the court might judge of their legal effect and operation. By admitting the testimony offered to go to the jury, the [**48]  court in fact decide that the facts offered to be proved, were pertinent and material to the issue, without the semblance of any knowledge of what the facts were.
I see no sufficient ground for the reversal of the judgment of the county court, either for its refusal to give the defendant's 

 [*123]  instructions as prayed, or for the giving of the court's instructions as set forth in the defendant's fourth bill of exceptions. Notwithstanding the facts put to the finding of the jury by the appellant's first instruction in this bill of exceptions, the jury were not bound to find for the appellant. If the appellant's intestate did contract with the appellee to pay him for his services out of the estate of Thomas Cramphin, in the intestate's hands, and failed to do so, his contract was broken; he was personally bound for its performance, and the present action, for the breach thereof, might well be sustained against the appellant, his personal representative. So also as to the second instruction prayed for by the appellant; although the $ 2,000 paid to the appellee, was, according to the contract between the parties, to have been paid upon the contingency of the final decision of [**49]  the cause in favor of the will of Thomas Cramphin, yet the jury were not thereby bound to find a verdict for the defendant, because there was other evidence before the jury legally sufficient to warrant them in finding that, by an additional or subsequent agreement between the parties, the appellant's intestate promised to pay to the appellee a further compensation for the services rendered, or a portion thereof. With the two instructions given by the court to the jury in this exception, I see nothing of which the appellant has such ground of complaint as would require of this court the reversal of the judgment.
I cannot concur with the county court in the rejection of the testimony offered by the appellant in his fifth bill of exceptions. No contract for a stipulated compensation for the services rendered having been proved, the appellee's right to recover was upon the ground of a quantum meruit. The estimate which the jury, by their verdict, should place on the services for which compensation was sought, was the price at which like services, by counsel of the same eminence, are ordinarily obtained. How then can the value of such services be ascertained so satisfactorily,  [**50]  as by proving what the same party or other persons paid for similar services. Suppose that a witness were produced, who proved that the ordinary compensation 

 [*124]  allowed to such counsel for such services was a specified sum by him stated. Upon what knowledge of facts must his statement, to be evidence at all, be necessarily founded? Why that A, B, C and D, &c., under like circumstances for like services paid, or were required to pay, that, or nearly that sum of money. If then it be admissible to show what others paid, under similar circumstances, is it not competent for the appellant to prove the sum paid by him for services identical, and in the same cause, to other counsel, who, for aught that appears in the record before us, may have been of equal professional ability and eminence with the appellee himself. Indeed the circumstances under which the proffered witness was enlisted in the cause, repel the idea of his great professional inferiority to the appellee, with whom he was associated solely for the purpose of trying the case in the court of last resort. It is not the usage of clients, on such occasions, to call in as associate counsel, a member of the bar of inferior [**51]  standing to him who tried the cause in the court below. But, if contrary to this usage, the appellant's testator had done so, it was competent for the appellee to have shown it by evidence before the jury.
It has, however, been insisted, that the charges of lawyers are so wholly dissimilar in amount; the value of their services so disproportionate, that the mode suggested of ascertaining the value of their services, is wholly inapplicable. If this be true, the same may be predicated, in a greater or less degree, of all other professions, arts and trades. What other measure of value can you in reason and justice apply to services rendered by counsellors at law. It will not, I presume, be contended, that where no contract for specific compensation has been entered into, the client is bound to pay whatever charge his counsel may see fit to make for his services. When the common law of England, in relation to the fees of counsellors at law, was determined to be inapplicable to the State of Maryland, and that in a quantum meruit they might recover for professional services rendered; that decision necessarily drew with it the standard I have mentioned, for the ascertainment [**52]  

 [*125]  of the value of such services. The materiality and relevancy of the testimony offered, was too obvious to require from the counsel an assurance to the court that it would so appear in the progress of the cause.
I concur with the county court in their refusal of the defendant's prayer for an instruction to the jury, which forms the basis of his sixth bill of exceptions. Although the jury might find that by the terms of the contract the appellee was bound to prosecute, to a successful issue, the controversy then pending in the orphans court of Montgomery county, and that the contingent fee of two thousand dollars had been paid to him; yet the county court were not authorised to instruct the jury, that the appellee was not entitled to claim any further compensation for his services proved to have been rendered as aforesaid in the Court of Appeals; because in doing so, the instruction would have excluded, from the consideration of the jury, all the testimony offered by the appellee, to show that the appellant's intestate had promised to make the appellee an additional compensation for his services, besides the contingent fee of two thousand dollars, of which there was [**53]  testimony offered, legally sufficient to have been left to the jury; and from which the jury might have found the existence of such agreement for additional compensation, if they regarded the testimony sufficient, in point of fact, for that purpose. Such an exclusion of evidence would have been an unwarrantable invasion of the province of the jury, which the court below very properly refused to perpetrate.
To the granting of the plaintiff's prayer, for an instruction to the jury, as it stood in the defendant's seventh bill of exceptions, unmodified by either of the parties, I can see no reasonable ground for objection. And the defendant cannot assign for error, the results of any of his own modifications or additions to the prayer of the plaintiff. If there be error then, for which the judgment should be reversed, it must be found in the additions made by the plaintiff to the instruction as modified and amended at the defendant's instance. And in the adoption of each of those additions I think there is such 

 [*126]  error as calls for the reversal of the judgment before us. The first of these additions, (if not so in express terms, would in all probability, have been so understood [**54]  by the jury,) called on the court to say that for all services performed by the plaintiff, at the instance of the appellant's intestate, in consequence of the act of 1832, granting an appeal from the trial of the issues in Montgomery county court to the Court of Appeals, he was entitled to recover of the appellant a reasonable compensation in addition to the contingent fee of two thousand dollars. This addition to the defendant's modification might with propriety have been hypothetically granted by the court to the jury; that is the jury might have been instructed that such was the law, provided they found, as contended for by the appellee, that by the contract between the parties, the contingent fee of two thousand dollars was to have been paid him for his successful trial of the issues then pending in Montgomery county court. But suppose the jury had been of opinion, as I have said they had the power to be, that the appellant's version of the contract was the true one; and that the two thousand dollars was only to have been paid upon the successful termination of the controversy about the will, and the appellant's intestate being put into possession of Cramphin's estate;  [**55]  could the court then have instructed the jury as required by this first addition to the defendant's modification of the plaintiff's prayer? unquestionably not.
In the grant of the instruction asked for in the plaintiff's second or further addition to the instruction to be given to the jury, the court undertook to decide a matter of fact, which the jury only were competent to determine. The county court, as called on to do by the plaintiff, determined that the motion for a new trial was decided or disposed of by the court, before an appeal was taken to the Court of Appeals. Of this fact, no record evidence was offered; but the proof was wholly oral; of the credit due to which the jury only were competent to judge. In withdrawing from the jury the right to judge of the credibility of the witnesses and the truth of their statements, I think the county court erred.

 [*127]  I concur with the county court on the appellant's first, fourth and sixth bills of exceptions, but dissenting on the second, third, fifth and seventh, I think, its judgment should be reversed and a procedendo awarded.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.