1 of 187 DOCUMENTS 

JOHN H. BERRY vs. WM. H. MCLEAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 92; 1857 Md. LEXIS 25 

DECEMBER, 1857, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

Assumpsit brought by the appellant against the appellee and another for money paid, laid out and expended by the plaintiff for the defendants, and at their special instance and request. The appellee, who was alone returned summoned, plead non assumpsit.

Exception. The facts of the case, and the defendant's prayer, to the granting of which, by the court below, (FRICK, J.,) the plaintiff excepted, are fully stated in the opinion of this court. The verdict and judgment was in favor of the defendant, and the plaintiff appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

Upon the dissolution of a partnership, it was agreed in writing, between the retiring partner and the others, that the debts of the firm should be paid by the latter, which they failed to do, and one of them applied for the benefit of, and was discharged under, the insolvent laws, before some of these debts became due. In consequence of this failure, the retiring partner, being liable to the creditors, paid them subsequently to the insolvent's discharge, and then sued the insolvent for the amount so paid. HELD:

That, under our old insolvent system, the plaintiff could not, for the debts which became due and were paid after the discharge, have proved a claim against the insolvent's estate, and could, therefore, recover for such payment, notwithstanding the defendant's application and discharge.

A contract to pay debts, not stating in terms when they are to be paid, and some of them are due and payable at the date of the contract, and others subsequently, only requires the payment of the latter when they respectively fall due, and the former within a reasonable time. 

COUNSEL:
Jno. Prentiss Poe and Levin Gale for the appellant, argued:

That the instruction granted by the court below was erroneous, because the plaintiff had no right of action or debt due to him, until the McLeans failed to pay the debts due the creditors of the firm, and he, the plaintiff, paid them, and certainly not until the debts had become due to the creditors, and the McLeans, by not paying them, had broken their contract with the plaintiff. Until then the plaintiff had no ground to complain, and no debt or right of action which he could prove against [**2]  the insolvent's estate, and consequently the discharge which was granted on an application made before that time, could not operate to discharge his subsequently accruing claim. The test whether the discharge be available or not, is, was the debt provable against the insolvent's estate, under the insolvent laws? 2 Gill 173, Wharton vs. Callan; and the case of Harris vs. Oliver, therein cited. Gow. on Part., 323. 1 Johns. Cases, 73, and 2 Caines' Cases, 310, Frost vs. Carter. 9 Johns. 127, Lansing vs. Prendergast. 6 Do., 126, Buel vs. Gordon. 15 Do., 467, Mechanics Bank vs. Capron. 6 Cushing, 225, Bennett vs. Bartlett. 1 Hy. Bl. Rep., 640, Brooks vs. Rogers. Ibid, 433, Mills vs. Auriol. 4 Adol. & Ellis N. S. 393, (45 Eng. C. L. Rep.,) Toppin vs. Field. 9 Barn. & Cres., 145, (17 Eng. C. L. Rep., 344,) Boorman vs. Nash. 8 East, 318, Wadham vs. Marlowe. 4 Term Rep., 94, Auriol vs. Mills. 2 Scott, 266, Thompson vs. Thompson. 4 Maule & Selw., 333, Welsh vs. Welsh. 2 Cowp., 525, Taylor vs. Mills. Douglas, 97, Cotterel vs. Hooke. 7 How., 272, Mace vs. Wells. 2 Wilson, 13, Chilton vs. Whiffin. 1 Term Rep., 599, Fall vs. Jones.

Cornelius McLean for the appellant:

The case of Wharton [**3]  vs. Callan has never received the assent of the profession, so far as the grounds of the decision appear, but as there was no opinion filed, it is impossible to say whether the court looked upon the endorser who paid after insolvency as a mere surety with whom no contract with the insolvent existed before insolvency, or whether they intended to establish the doctrine that the kind of suretyship involved, in an ordinary business endorsement, was sufficient to enable the endorser to recover from the insolvent on payment on the note. That such had not, up to the decision referred to, been considered the true nature of an endorsement for value, there can be no doubt, because accommodation endorsers had been allowed to recover only on the ground that no contract existed until the time of payment. It is evident, however, that Wharton vs. Callan was decided solely upon the ground of suretyship; for the replication alleging that the plaintiff was surety for the insolvent, was demurred to, and the allegation of suretyship, therefore, admitted. The present case does not come within either the letter or spirit of that decision.

1st. There is no suretyship in this case. The appellant, the [**4]  appellee, and George W. McLean, were jointly bound, as partners, to pay certain debts. By the terms of the dissolution, the appellant retired from the firm, and the others took the assets and agreed to pay the debts, in consideration of being left in charge of the business and assets. Here, then, was a positive contract to do a certain thing, in consideration of another thing, which cannot be distinguished from any other contract. Most of the cases cited on the other side, are cases of suretyship; others are cases of covenants, which are not embraced in the English bankrupt acts, whereas our act of 1805, ch. 110, sec. 5, discharges the applicant "from all debts, covenants, contracts, promises and agreements due from, or owing or contracted in his individual, as also in a co-partnership capacity, by him," at the time of his application.

2nd. This is no contract of indemnity, but only a contract to pay, and in that respect this case is identical with that of Dorsey vs. Dashiell, 1 Md. 201, in which the distinction between the two kinds of contracts is very clearly and precisely shown. See, also, on this subject, 11 Ala., 702, Taliaferro vs. Brown; 3 Denio, 326, Churchill vs.  [**5]  Hunt; both referred to by the court in Dorsey vs. Dashiell, in this connection. 7 Wend., 499, Ex-parte Negus.

2rd. Even if this were a contract of indemnity, it would not alter the law, inasmuch as there is not now any question of limitations. Whenever that question arises, it is important to ascertain the nature of the contract in this respect. It has been well decided, that on contracts of indemnity, limitations run only from the time of payment, just as they run against a promissory note, from the time of maturity. But when I contract to indemnify another, that contract is as absolute as a contract to pay another money; and there certainly is no reason for saying that the former is not discharged by insolvency when the latter is discharged.

4th. If the contract between the parties was, as has been decided in Dorsey vs. Dashiell, to pay the debts of the partnership, and they did not pay in a reasonable time, or, by asking for the benefit of the insolvent laws, declared their inability to pay, and asked to be discharged from their contract to pay, the plaintiff could undoubtedly have proved his debt or claim, under the insolvent proceedings, by showing the amount of the [**6]  debts which the appellee had not paid under this contract, which would have been a good claim under the proceedings against the insolvent's assets. It is the same as the case of a promissory note not due at the time of the application. Our insolvent law has provided for a release from all contracts, and when a contract exists at the time of the application, there is no reason, whatever, why the person that claims under it should not be entitled to a portion of the assets in insolvency. There are, undoubtedly, claims which it would be difficult to ascertain, but there is no impossibility, and in this case there would have been no great difficulty.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and BARTOL, J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*96]  ECCLESTON, J., delivered the opinion of this court.
This is an action of assumpsit, brought by John H. Berry against William H. McLean and George McLean. The latter was not taken. The other defendant appeared and pleaded non assumpsit.
Prior to the 1st of October 1846, the appellant and William H. and George McLean were partners, trading under the firm of William and George McLean & Co. On that day the copartnership was dissolved,  [**7]  the appellant retiring from the firm. On the dissolution taking place articles of agreement were entered into, providing, among other things, that the debts of the firm should be paid by William and George McLean. Sundry debts, to a large amount, became due and payable at various times between the dissolution and the spring of 1847, and William and George McLean failed to pay them. In consequence of which Berry, remaining liable to the creditors, paid to them, at various times between April and December 1847, an amount equal to five per cent. on their claims, with an understanding that the creditors would not require any further sum from him. Previous to those payments, on the 23rd of December 1846, William H. McLean, the appellee, applied for the benefit of the insolvent laws, and was subsequently discharged. The greater part of the debts on which Berry made payments, and for which he claims to recover in this case, were not due and payable by the firm when William H. McLean became an insolvent petitioner.
The court, at the instance of the defendant, granted the following instruction to the jury: "That if they believe from the evidence, that any of the sums, paid by plaintiff,  [**8]  were on account of debts owing by the firm of William and George McLean & Co., before the execution of the assignment executed to R. M. McLean, and before the application of the said William H. McLean for the benefit of the insolvent laws of the State, that the said defendant did apply for the benefit thereof, and was finally discharged before the said payment by the plaintiff, the plaintiff is not entitled to recover for any such sum of money as may have been so owing, before said deed of assignment and the said application, except subject to the 

 [*97]  discharge of the said defendant, notwithstanding the jury may find from the evidence that such sums of money were not payable by the said William and George McLean & Co., until after the application of the said William H. McLean for the benefit of the said insolvent laws."
The verdict and judgment being in favor of the defendant, the plaintiff appealed. And the question presented for us to decide is, whether the court did wrong in granting the prayer of the defendant?
As the application of William H. McLean, for the benefit of the insolvent laws, was made on the 23rd of December 1846, the act of 1854, ch. 193, does not apply [**9]  to the present case, his petition having been filed under the former act of 1805, ch. 110, and its supplements.
The case of Wharton, et al. vs. Callan, 2 Gill 173, was decided under the old system; and the principle there adopted is, that if A gives his note to B, who passes it away for value, and subsequently pays it, although the maker is released, under the insolvent laws, after the note falls due, but before it is paid by B, he may maintain an action against the maker for money paid for him. There is no report of the court's opinion stating the grounds of the decision, but we understand it was based upon the case of Harris vs. Oliver, decided on the Eastern Shore, but not reported, except so far as what is said of it on page 178 of 2 Gill. There it is stated: "The note was made for the accommodation of the endorser, who, after his release as an insolvent debtor, was offered as a witness for the maker of the note; and it was held, as the witness would be liable over to the defendant, who offered him, upon his paying the note, he was incompetent."
In Gow on Partnership, 323, it is said: "Formerly, where the claim of an individual partner originated [**10]  in his having discharged joint debts, it was essential, in order to entitle him to prove against the separate estate of his bankrupt partner for his proportion, that the debts should have been discharged, and the claim should have arisen antecedently to the bankruptcy. For if the right of calling upon the bankrupt partner for contribution did not accrue until after he became bankrupt, 

 [*98]  the only redress the solvent partner had, was by action at law or by bill in equity." But by Sir Samuel Romily's act this rule was changed, so that the debt, if paid after the bankruptcy, could not be made the foundation of an action, but must be proved under the commission.
The rule, as first stated by Gow, is supported by the case of Wright vs. Hunter, 1 East, 20, and same case in 5 Ves. 792, to which he refers.
Speaking in relation to the right of the solvent partner to recover from his bankrupt partner his share of the debt paid after the bankruptcy, to the creditor of the partnership, notwithstanding the bankrupt had obtained his certificate, Lord Kenyon, C. J., says, on page 30 of 1 East: "I cannot distinguish this from the case of a surety who is [**11]  called upon to pay money for his principal after a bankruptcy, in which case there is no doubt but that the money may be recovered back from the principal, notwithstanding his certificate." And in this the other three judges, Grose, Lawrence and Le Blanc, all concur, the first two using language very much like that of the chief justice, in reference to the similarity of the case to that of a surety.
The result was a judgment in favor of Wright, the plaintiff, for £  168, 13s., 4d., that being the sum paid by him, to the creditors of the partnership, after the bankruptcy; which sum should have been paid by three of the partners, of whom Hunter, the defendant, was one. The suit being against him alone, the court, at first, entertained a doubt whether the plaintiff should have judgment for the whole or only for a third of the amount so paid, but finally judgment was given for the whole sum of £  168, 13s., 4d., as there was no plea in abatement.
The report of this case in 5 Ves., shows, that after the decision in the Court of King's Bench, when the cause came on again in chancery, "the only question was as to costs." And Mr. Richards for the plaintiff insisting,  [**12]  that the bill should be dismissed without costs, it was so dismissed.
In addition to the cases which have been noticed, we likewise refer to the following: Chilton vs. Whiffin & Comwell, 

 [*99]  2 Wilson's Rep., 13. Frost vs. Carter, 1 Johns. Cases 74. Lansing vs. Prendergast, 9 Johns. Rep. 127. Bennett vs. Bartlett, 6 Cush. Rep. 225.  Boarman vs. Nash, 9 Barn. & Cres. 145, (17 Eng. Com. L. 344.) Buel vs. Gordon, 6 Johns. Rep. 126. Taylor vs. Mills, 2 Cowper's Rep., 525.
The defendant's counsel has said, the contract in this case must be regarded, not as an agreement to indemnify Berry, but as a contract to pay the debts of the partnership, and that in a reasonable time. In support of which he refers to the decision in Dorsey vs. Dashiell, 1 Md. 198. Conceding this position to be true, still the contract does not justify the defendant in contending, as he does, that a failure to pay, before the application in insolvency, even of those debts which were not payable until after the application, gave authority to Berry to exhibit a claim [**13]  against the assets of the insolvent, in the hands of his trustee, on account of such debts, and, therefore, for them, although paid by the plaintiff after the application, he could not recover against the defendant, after his discharge, except subject to such discharge. This position necessarily assumes, that the contract to pay in a reasonable time, bound the McLeans to pay debts of the firm, before the creditors could demand payment of them. To this we cannot yield our assent. On the contrary we think that payment of a claim, so soon as it falls due, is paying in a reasonable time.
Where such a contract as the present does not, in terms, state when the debts are to be paid, and all or part of them will not be due and payable to the creditors of the partnership, until after the execution of the contract, it does not require the payment of the debts until they respectively fall due. And such as may be due, at the date of the contract, are to be paid in a reasonable time, according to the principle stated in Dorsey vs. Dashiell.
In that case the court say: "The contract before us must be construed as equivalent to a promise to pay. And as the claims in controversy were all due [**14]  prior to the dissolution of the partnership, Dorsey was bound to discharge them within a reasonable time after the date of the covenant. He failed to 

 [*100]  do this. Which failure gave the appellee a right of action against him more than twelve years prior to the issuing of the writ." The question there was in reference to the plea of limitations.
Here, instead of the debts being all due and payable at the time of the dissolution, many of them were not payable till after the insolvent's application.
This contract is not under seal, it contains no penalty, nor does it promise to pay any sum of money to Berry, but provides, that "all debts due by the firm, of whatsoever nature or description, are to be paid by William and George McLean, so that John H. Berry, Jr., is to be entirely acquitted and discharged from said debts." On account of such of those debts as were not payable until after William H. McLean applied for the benefit of the insolvent laws, there could be no breach of the contract, until after such application. And, if so, Berry could not claim dividends for those debts under the insolvent proceedings.
The prayer looks to the evidence alone, and notwithstanding [**15]  the very ingenious argument of the defendant's counsel, we cannot think, that under the proof in the cause, it was proper for the court to instruct the jury, that the plaintiff had no right to recover for any such sums of money as may have been owing from the firm of William and George McLean & Co., before the deed of assignment to R. M. McLean, and before the application of William H. McLean for the benefit of the insolvent laws, except subject to his discharge, notwithstanding the jury might find from the evidence, that such sums of money were not payable by William and George McLean & Co., until after the application of the said William H. McLean for the benefit of the insolvent laws.
Believing the court did wrong in granting the defendant's prayer, the judgment will be reversed.
Judgment reversed and procedendo awarded. 

2 of 187 DOCUMENTS 

RICHARD H. ATWELL vs. JOSEPH P. GRANT.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 101; 1857 Md. LEXIS 26 

DECEMBER, 1857, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

Assumpsit brought by the appellee, as holder, against the appellant, as endorser, of a promissory note for $ 870.14, dated on the 26th of December 1851, payable at six months to blank order, drawn by one West, and endorsed by the defendant and others. Plea, non assumpsit.

1st Exception. The plaintiff proved the defendant's endorsement, and then offered in evidence the note and the protest thereof, made at the request of the cashier of the Farmers and Planters Bank of Baltimore, stating the demand on the maker, refusal to pay, and that notices were addressed to the endorsers, "informing them it had not been paid, and that they would be held responsible for the payment thereof, which notices were left at their respective places of business." He also offered in evidence an affidavit, under the 8th sec. of the act of 1844, ch. 280, made by the plaintiff before the clerk of the criminal court of Baltimore, that he had received the note without a stamp, through inadvertence, and not with any intention to evade the stamp law, and a receipt of the same clerk for the $ 10 penalty and stamp. The defendant objected to the admissibility [**2]  of this evidence, including the note and protest, upon the grounds stated in the opinion of this court, but the court below (FRICK, J.,) overruled the objection, and the defendant excepted.

2nd Exception. The plaintiff, further to support the issue on his part, called upon the defendant to produce the notice of protest of the note in suit, served on the defendant by the notary who protested the note, and not being produced, offered to prove by the notary that he served a copy of a paper (which was produced) containing the names of the drawer and endorsers, date and amount of the note sued for in this case, upon the defendant, on the day of the maturity of the note, which paper is a notice in due form, stating that demand of payment had been duly made upon the maker, and refused. To the admissibility of this testimony the defendant objected, but the court overruled the objection, and the defendant excepted.

3rd Exception. This exception, which was also taken by the defendant, is fully stated in the opinion of this court.

The verdict and judgment were in favor of the plaintiff, and the defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

The clerk of the criminal court of Baltimore, by the 16th sec., art. 4th of the Constitution, is required to perform all the duties previously vested in the clerk of Baltimore city court, and may, therefore, take the affidavit provided for by the stamp law of 1844, ch. 280, sec. 8.

The act of 1856, ch. 352, repeals the stamp laws, and makes valid all notes, bills or bonds, which had been previously executed without a stamp.

Notice to produce is not necessary, where the instrument to be proved is itself a notice of the protest of a promissory note.

In a suit against the endorser of a promissory note, the defendant, himself, proved that the demand was made on the maker by the clerk of the notary, and that it was the universal custom of notaries public to make such demands by their clerks. HELD:

That this evidence having been offered by the defendant, and admitted without objection, the court below was right in rejecting his prayer asserting that there was no sufficient evidence of a demand upon the maker, and that the demand could only be made by the notary himself.

When evidence which would have been rejected as inadmissible, if objected to, is received without objection at the trial below, it is evidence in the cause, and must be treated as such in the appellate court.  

COUNSEL:
James Malcolm for the appellant, said [**3]  he would not urge the first exception, since the decision of the case of Reynolds vs. Furlong, 10 Md. 321. Upon the other exceptions he argued:

1st. That the evidence of the notary to prove the contents of the notice of protest served upon the defendant, should have been rejected, because the notice to produce the original was too late, having been given at the trial of the cause. 6 Md. 10, Atwell vs. Miller.

2nd. The evidence in the third exception was offered, by the defendant, for the purpose of showing that the notary did not, himself, make the demand and give the notice, as stated in the protest, but that it was, in fact, made by his clerk. This clerk was a stranger to the note. The bank placed it in the hands of the notary, as their agent, to make the demand and give the notice. The notary being thus the agent of the bank, and clothed with delegated authority, could not delegate that authority to another. The notice, therefore, which was given to the endorser in this case, being given by a third person, a stranger, and one who could not take the note up, was a nullity. The demand should have been made and given by the notary himself. Story on Prom. Notes, secs.  [**4]  300 to 302. Byles on Bills, 225. 2 Camp., 177, Stewart vs. Kennett. 15 Mees. & Wels., 234, Harrison vs. Ruscoe. 3 Hill, 56, Onondaga Bank vs. Bates. 7 Humph., 548, Carter vs. Union Bank. 4 How., (Miss. Rep.,) 567, Carmichael vs. Bank of Pennsylvania. 3 McLean, 481.

For these reasons the ruling of the court in the third exception was erroneous, and both of the defendant's prayers should have been granted.

St. Geo. W. Teackle for the appellee, stated that the clerk of the criminal court of Baltimore had authority, under the 13th and 16th secs. of the 4th art. of the Constitution, to take the affidavit mentioned in the first exception, and then argued:

1st. That it was clearly competent for the plaintiff to prove, by the notary, the contents of the notice of protest served on the defendant. There was no notice given to produce the original paper; the record merely states that the paper was called for. But no notice to produce was necessary, for it would have been but a notice to produce a notice, which is never required; and in 1 Greenlf. on Ev., sec. 561, the very case of notice to produce a notice of protest of a bill of exchange, is put as an illustration of this rule.  [**5]  

2nd. The evidence in the third exception was offered by the defendant himself, and was received without objection, and must have the same effect as if admitted according to the strict rules of evidence. 7 G. & J. 79, Farmers Bank vs. Duvall. It proves that it was the universal custom, in the city of Baltimore, for notaries to make demand through their clerks, and that the demand in this case was duly made, and the notice given, by the clerk of the notary. From the effect of this, his own testimony, the defendant cannot now escape. But in cases of inland bills of exchange and promissory notes, a protest is not necessary; and if so, the demand and notice need not be made and given by a notary, but be made and given by any party who is the agent of the holder. The clerk, in this case, was the agent of the bank, the holder of the note, and his acts the plaintiff has adopted. An agency can as well be constituted by subsequent adoption and ratification as by previous authority.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and BARTOL, J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*104]  ECCLESTON, J., delivered the opinion of this court.
The first bill of exceptions shows that the defendant [**6]  objected to the admissibility of the evidence offered on the part of the plaintiff, for the following reasons:
"Because the note had not been stamped, as required by law, and because the affidavit was not such as the act of 1844, ch. 280, sec. 8, required to be made, and because the affidavit was made, not before the clerk of the city court of Baltimore, but before the clerk of the criminal court of Baltimore, and because the penalty was paid to the clerk of the criminal court of Baltimore city, and because said affidavit did not meet the requirements of the act of 1844, ch. 280, sec. 8."
Under the 4th article and 16th sec. of the present Constitution, we are disposed to think the affidavit above alluded to, was properly made before the clerk of the criminal court of Baltimore; and that he had authority to receive the penalty. But if this be not so, still the decision below, overruling the objection to the plaintiff's proof, cannot be reversed; because the act of 1844 has been repealed by the act of 1856, ch. 352, the 5th section of which provides, "That all bills, notes or bonds that have been drawn previous to the repeal of this act, and have not been stamped, shall be as good [**7]  and valid as though they had been stamped, and all debts that have been created, where the proper vouchers are shown, shall be as valid in law as though the stamp act had never been passed."

 [*105]  In regard to this repealing law, the court say, in Reynolds vs. Furlong, 10 Md. 318, "The passage of this act will relieve the case of all difficulty, upon a subsequent trial, upon the subject of the stamp, as now no stamp is necessary to render the note a valid instrument of evidence."
The second bill of exceptions also presents a question in regard to the admissibility of evidence.
The defendant contends that the plaintiff had no right to offer evidence, by Johnson, the notary, that he served upon the defendant a copy of the notice of protest, because a call, at the time of trial, for the production of the same, alleged to have been given to the defendant, was the only notice served on him to produce it, which was not in due time. But it will be seen, by reference to 1 Greenlf. on Ev., sec. 561, that this objection to the proof offered, cannot be sustained. It is there said, that notice to produce is not necessary, "where the instrument to be proved is [**8]  itself a notice, such as a notice to quit, or notice of the dishonor of a bill of exchange."
The third bill of exceptions contains the following statement:
"And the defendant's counsel proved, by Johnson, the notary public mentioned in the 2nd exception, that he did not make the demand himself, but that said demand was made by his clerk, Mr. Long, as Mr. Long informed him, and that it was the universal custom of notaries public to make such demands by their clerks, as it was impossible for a notary public to make every demand upon notes left with him, in person. The counsel for the defendant then asked said witness whether he had any record or paper in his possession which would show that Mr. Long had made said demand, and if he had, to produce it. The witness then produced said paper. The plaintiff's counsel here asked the defendant's counsel whether he meant to make said paper evidence in the case, to which he replied, yes. The paper was then read in evidence, to wit:"
The paper, however, is omitted, and the exception proceeds by saying, "The said witness further stated that said paper is in his own handwriting, and that the initials opposite the 

 [*106]  names of the maker [**9]  and endorsers, respectively show who made the demand upon the maker, and who served the notices upon the endorsers, and that the paper showed that said demand upon the maker was made by his clerk, Mr. Long, and that the notices to the endorsers were served by him; and the witness further stated, that the said paper or memoranda were written by him either on the day the demand was made, or on the morning following, as he frequently was kept in his office until one or two o'clock in the morning; that he could not now recollect, without reference to the note in suit, or a copy, or the protest or other memoranda, the date and amount of said note, or when it was due, or the names or the order in which the names were put upon said note. Whereupon the defendant, by his counsel, prayed the court to instruct the jury as follows:
"1st. The defendant prays the court to instruct the jury that the plaintiff is not entitled to recover in this case, because there is no evidence of a demand having been made upon the drawer of the note in controversy, as required by law.
"2nd. That if the jury believe, from the evidence, that Mr. Johnson, the notary, did not make the demand upon the drawer of the [**10]  note at its maturity, then there is no evidence of a demand having been made, and the plaintiff is not entitled to recover."
The court refused to give the instructions, and the defendant excepted.
Thus it appears the defendant, himself, introduced evidence showing that it was the "universal custom of notaries public to make such demands by their clerks, as it was impossible for a notary public to make every demand upon notes left with him, in person:" that the demand upon the maker of the note in controversy had been made by the clerk of the notary, and that the notices to the endorsers were served by the clerk also.
Should it be conceded that if such proof had been offered by the plaintiff, and objected to by the defendant, it should have been rejected as inadmissible, still, when introduced by the defendant at the trial below, without objection from any quarter, it is evidence in the cause, and to be treated as such, 

 [*107]  in the appellate tribunal. In Farmers Bank of Maryland vs. Duvall, 7 G. & J. 78, it is said: "But reliance is placed upon the inadmissibility of the evidence to establish the notice, and time of notice, growing out of the want of proof [**11]  that these entries were made by the cashier, in the line of his duty, as an officer of the bank. We, however, think that no such objection can now be taken to the evidence, for it was all admitted, without objection, in the court below, and having been so admitted, it is and ought to have the same effect as if admitted according to the strict rules of evidence."
When the proof which has been given in regard to a demand by the clerk, is considered in connection with the evidence relative to the custom, as above stated, we cannot say the court below erred in refusing the defendant's prayers, or either of them.
The first assumes there is no evidence of a sufficient demand upon the maker. The second insists that the demand could only be made by the notary, himself. Neither of the prayers raises any question in reference to whether the notices to the endorsers were served by the proper person.
Judgment affirmed. 

3 of 187 DOCUMENTS 

MARGARET HAMILTON vs. JOHN WHITRIDGE and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 128; 1857 Md. LEXIS 29 

DECEMBER, 1857, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Baltimore city.

In this case an injunction was granted upon a bill filed by the appellees, on the 29th of April 1856, restraining the appellant from occupying and using a house which she had purchased, on Frederick street, in the city of Baltimore, as a house of ill-fame. The allegations of the bill and answer are fully stated in the opinion of the court below. After answer filed a motion to dissolve the injunction was made by the defendant, and testimony, to support the allegations of the bill, was taken under the act of 1835, ch. 380. The purport of this testimony is sufficiently stated in the opinion of the court below and of this court. The defendant excepted to the testimony of some of the witnesses, in so far as they speak of what they had heard as to her keeping a bawdy-house, and to their testimony as to the common rumor or reputation that she keeps a bawdy-house. She also objected to the transcripts of the records of indictments against her, so far as said indictments and confessions or pleas of guilty are offered to prove that she kept a bawdy-house at the time this bill was filed, or to prove that she intended to occupy the house mentioned [**2]  in the bill as a public bawdy-house. Upon the hearing of the motion to dissolve, upon bill, answer and the above mentioned testimony, the court, (KREBS, J.,) delivered the following opinion:

"The bill filed in this case, by the complainants above named, and others, alleges, that the defendant has been long notorious, in the city of Baltimore, as the keeper of a house of ill-fame, and now keeps such a house in another part of the city; that she has recently purchased the premises designated as No. 51, Frederick street, in said city, and is now repairing and improving the said premises with the design of occupying them for purposes of prostitution, and as a common bawdy-house, to their great detriment and injury. They allege that they reside in the immediate neighborhood of said premises, and own property adjacent thereto; one of them, Rezin Haslup, residing in the house No. 49, immediately adjoining the said premises. That in addition to the wrong and injury they would suffer with their fellow citizens generally, by the creation of the nuisance, in case those premises should be occupied by her for the unlawful and immoral purposes mentioned, they will be especially wronged and [**3]  injured, inasmuch as they will be severally deprived of the comfortable enjoyment of their property, and that it will be greatly depreciated and lessened in value, by its close proximity to the premises which, they allege, she is about occupying for the said purposes. They also aver, that they have no adequate remedy at law to prevent the evil complained of, and are remediless save in a court of equity, and pray for an injunction to restrain her from moving into and occupying the said premises, &c., which was ordered and issued.

"The defendant, in her answer to this bill, admits that she has purchased the house No. 51, Frederick street, that she has had it repaired and intends occupying it; that the complainant, Haslup, owns and occupies the house next adjoining. She denies that either Whitridge, Horton or McCandless reside on Frederick street; the former, she alleges, lives on Gay street, in a house which is not in sight of her's; that Horton's dwelling is in another part of the city, though his shop, in which he carries on his business, is in Frederick street, some six or eight doors from hers, and that McCandless carries on his trade in a shop in that street, at a still greater [**4]  distance from her house. She declines answering any of the allegations in the bill, in regard to the character for which she has been notorious in the city, and the manner in which she is now employed, and the purposes for which she is now repairing and improving, and intends occupying the said house, and insists, that she is not bound, by the law of the land, to answer them, or any of them.

"Her answer contains no denial of the allegations in the bill, in regard to the detriment and injury that will ensue to the complainants, or the special wrong and injury they will sustain by reason of the occupation of the said premises, for the purpose alleged, by depriving them severally of the comfortable enjoyment of the property, and that it will, in consequence of such use and occupation, be greatly depreciated and lessened in value, nor of the allegation that they have no adequate remedy at law.

"After the defendant filed her answer the complainants examined several witnesses in reference to the allegations in their bill, under a commission ordered in pursuance of the act of 1835, ch. 380, and their testimony is amongst the proceedings. The motion to dissolve the injunction issued [**5]  has been heard upon bill, answer, and the said testimony. Upon this hearing the allegations in the bill, not denied by the answer, must be taken to be true, at least, such as she was bound to answer. Upon an examination of the averments in the bill, in connection with the denials in the answer, I find that these facts may be assumed, some of them being admitted, some conclusively proved, and some sufficiently proved to be stated as facts in the consideration of this motion, viz., that the defendant has purchased the house No. 51, Frederick street, and intends to occupy it; that the complainant, Haslup, owns the adjoining house, and lives in it with his wife and three daughters, aged, respectively, fourteen, sixteen and eighteen years; that the complainant, Whitridge, lives on Gay street, on a lot extending back to Frederick street, opposite to the defendant's house, and that her house is in view of the two back windows of the second and third stories of his house; and that he also owns a dwelling house, occupied by a tenant, on Frederick street, directly opposite to the defendant's; that the other complainants own houses near, and carry on their trades, respectively, in these houses;  [**6]  that the defendant keeps a house of ill-fame, and intends moving into this house and using it for the purposes of prostitution; (this, I think, sufficiently appears from the fact shown by the records of the criminal court of Baltimore city, that she was convicted for keeping a bawdy-house on the 22nd of June 1855, and again on the 12th day of November 1855, on both occasions upon her own confession of guilt, taken in connection with the statements recently made by her, in her conversation with the witness, Michael E. Myers, as detailed by him;) that if she occupies this house for the purposes charged, the complainants will be specially wronged and injured; that they will be severally deprived of the comfortable enjoyment of their property, and that it will be greatly depreciated and lessened in value; (the allegations in the bill, in regard to these mischiefs and injuries, not having been denied by the defendant in her answer, the complainants are entitled to assume them as facts;) and that they have no adequate remedy at law.

"The keeping of a bawdy-house is confessedly a public nuisance. The law abhors the offence to good morals which such an occupation encourages, and spurns [**7]  every contract whose consideration looks to the indulgence or accommodation of the vice involved in it. It punishes, by indictment, the landlord who rents his premises for such a purpose, and the keepers of such houses are constantly arraigned in the criminal courts of the State and condemned for the act. This defendant, then, intending to create or establish a public nuisance indictable as a criminal offence, at the place designated in the bill of the complainant, has this court the power, by injunction, to restrain her from so doing? Story in the 2nd Vol. of his Eq. Jurisprudence sec. 924, says: 'Courts of equity interfere to restrain and prevent such nuisances which are threatened or in progress, not only upon the information of the attorney general, but also upon the application of private parties directly affected by the nuisance;' and in sec. 924, (a,) or 'when private individuals suffer an injury quite distinct from that of the public in general, in consequence of a public nuisance, they will be entitled to an injunction and relief in equity.' The law, as thus stated, is firmly settled by numerous English and American authorities. 9 Eng. Law & Eq. Rep., 104, Soltau vs. De Held.  [**8]  8 Sim., 193, Spencer vs. London & Bir. Railway Co. Ibid., 272, Sampson vs. Smith. 12 Pet., 91, City of Georgetown vs. Alexandria Canal Co. 20 Conn., 120, Frink vs. Lawrence. 14 Do., 577, Bigelow vs. Hartford Bridge Co. 4 H. & McH., 540. Harrison vs. Sterrett. 8 G. & J. 479, Delaware & Md. Rail Road Co. vs. Stump.

"Such being the rights of individuals to the interposition of a court of equity, to restrain a public nuisance from which they suffer a special injury, the next inquiry is, do these complainants sustain such damage and injury, from this nuisance, as entitles them to the relief they pray for? Their uncontradicted allegations, in regard to damage, which are to be taken as true to their full extent, show that they will be severally deprived of the comfortable enjoyment of their property, and that it will be greatly depreciated and lessened in value, to their great detriment and injury. In the judgment of this court this is such a degree of damage and injury as meets the requirements of the decisions, in cases which the courts have granted such relief as these complainants ask for. It is insisted, however, that they have not alleged and proved any such damage or injury [**9]  to be sustained by them, as meets the demand of the rule established in those cases; that such damage must be irreparable, and that depreciation in the value of their property is insufficient. I have carefully examined the cases in which courts of equity have restrained public nuisances, upon the application of individuals sustaining special damage therefrom, and find that they furnish no authority for the position, that they are not entitled to relief, unless the damage to them, from public nuisances, be irreparable. In some of these cases the attention of the court has been specially drawn to the distinction between irreparable damage and damage of an inferior degree, and in view of this suggestion they have not deemed it proper to countenance or establish the rule contended for in behalf of the defendant. In the case of Bigelow vs. Hartford Bridge Co., 14 Conn., 565, which was an application for an injunction against the Bridge Company to restrain certain acts it was about committing, the point was made, 'that an injunction will not be granted against the company, unless the injury is irreparable; a mere diminution of the value of property by a nuisance, without irreparable mischief,  [**10]  will not furnish any foundation for the relief sought,' (page 577.) The judge in deciding upon the application says, that the bill cannot be sustained merely on the ground that the contemplated acts of the Bridge Company will constitute a public nuisance, nor 'unless it shows that the plaintiff will sustain a special or peculiar damage from it, an injury distinct from that done to the public at large,' (page 578.) And upon the question, whether the plaintiff has shown that there is such a particular and special injury, which he has reason to apprehend from the acts contemplated, that he was entitled to an injunction? the judge by no means adopts the rule of irreparable damage, but says it is necessary, in order to lay the foundation for this remedy, that the injury shall 'be substantial and not merely a technical or inconsequential injury; there must be such a violation of the plaintiff's rights as will be attended with actual and serious damage,' (page 580.) The injunction in that case was not granted, for the reason, as the court say, that the decay and depreciation of the property, and the inconvenience which will ensue to the plaintiff are found to be 'very small, and not such [**11]  as will lessen materially the intrinsic value of the plaintiff's property,' (page 581.) In the case of Frink vs. Lawrence, 20 Conn., 118, there was an application for an injunction to restrain a public nuisance from which special injury would result to the complainant. He did not allege irreparable damage in his bill, but it appeared that the act complained of would 'seriously impair the value of his property,' (page 119.) The court say: 'We have had occasion, in several recent cases, to consider the question, whether a private individual can sustain a bill in equity, for an injunction against a public nuisance. And we held, that if the party complaining will sustain a special or peculiar damage, distinct from that done to the public at large, the relief would be granted. Indeed such now seems to be the well established rule in equity, especially where the object is to prevent some irreparable injury.' But the court, so far from restricting the relief to such cases, advised the Superior Court to grant the prayer of the bill and decree a perpetual injunction, and this is a case in which there was no allegation or proof of irreparable damage. So in the case of The City of Georgetown [**12]  vs. The Alexandria Canal Co., 12 Pet., 91, the Supreme Court of the United States, after assuming the law to be settled as to the rights of private individuals to the remedy, by way of injunction, against public nuisances when they aver and prove special injury, say, 'the complainants then must, to maintain their position in a court of equity, for relief against a public nuisance, have averred and proved that they were the owners of property liable to be affected by the nuisance, and that in point of fact were so affected, so as that they thereby had suffered a special damage,' (page 99.) It is perfectly manifest from this, and from other passages in the opinion of the court, that they did not deem it necessary for the complainant, in such case, to charge and prove irreparable damage to entitle him to an injunction. The cases of Spencer vs. The London & Birmingham Railway Co., 8 Simons, 193, and of Sampson vs. Smith, Ibid., 272, both leading cases on this subject, was each a case of a bill filed for an injunction to restrain a public nuisance, on the ground of special damage, to private individuals. Neither of the bills alleged irreparable damage. The defendants demurred in each case [**13]  on the ground that the nuisance was a public one, and, therefore, the relief prayed ought to have been sought by information and not by bill, but the demurrer was overruled in both cases, the vice chancellor deciding, in substance, that where certain individuals suffer an injury from a public nuisance quite distinct from that done to the public at large, the court will entertain a bill by them to be relieved from the nuisance, but not at all regarding it indispensable that the injury should be irreparable. In Peck vs. Elder, 3 Sandford's Superior Court Rep., 126, the bill was filed by private individuals to restrain a public nuisance, alleging that it would materially injure and impair the value of their property. The chancellor said, 'it is sufficient that the nuisance is calculated directly to diminish its value by preventing its being occupied by the complainant, or by good tenants who are able and willing to pay the rent, or to destroy the value of the property as building lots,' (page 129, note,) and decided that the injunction must be continued until the hearing. This case was afterwards brought before the Superior Court, and it declared that a perpetual injunction must issue.  [**14]  The case of Corning & others vs.  Lowerre, 6 John's Ch. Rep., 439, was a bill to restrain a public nuisance, averring that it would cause 'great injury to the plaintiff,' as owners of certain lots. Chancellor Kent granted the injunction, saying, 'here was a special grievance to the plaintiffs, affecting the enjoyment of their property and the value of it. The obstruction was not only a common or public nuisance, but worked a special injury to the plaintiffs.'

"The above authorities demonstrate conclusively that the position assumed by the defendant, in reference to the degree of damage to be alleged and proved, to entitle the complainant to relief, cannot be maintained, and they also show clearly what the courts have regarded as the true rule upon this subject, viz: that the injury should be substantial, and attended with actual, serious damage, such as will materially lessen the intrinsic value of the property, or as the chancellor said, in Peck vs. Elder, such as is calculated directly to diminish its value by preventing its being occupied by the complainants, or by good tenants, who are willing and able to pay the rent; or, in the words of Chancellor Kent, affecting the enjoyment [**15]  of the property, and the value of it. In addition to the cases above referred to, there is one that recently came before the English court of chancery, and is reported in 9 Eng. Law & Eq. Rep., 104, in which the principal questions in this case were thoroughly argued at the bar, and so elaborately discussed and clearly settled by the learned vice-chancellor, as to show that in the English courts they would be no longer regarded as debatable. The object of the bill, in that case, was to restrain the ringing and tolling of bells in a chapel adjoining and contiguous to the dwelling of the complainant. It complained of this ringing as a great nuisance to the complainant and his neighbors, and the inhabitants of the parish, and it charged, that if the ringing of the bells, as they were then tolled and rang, was continued, it would considerably diminish the value of the plaintiff's house, and he should be obliged to leave it, and would have great difficulty in disposing of it, except at considerable pecuniary sacrifice. And the proof in the case showed that this would be the effect. There was a demurrer to the bill, on the ground of want of equity in the bill. The 1st ground of demurrer,  [**16]  as stated by the vice-chancellor, (page 111,) was 'that it was a public nuisance, and that it was not competent for the plaintiff to file a bill as for a private nuisance.' He then proceeds upon the assumption that it was a public nuisance, and reviews all the authorities upon the subject, in all of which, he says, 'it has been held, and acted on over and over again, that if an individual suffers a special and particular damage from an act, he may have the interference of a court on a bill, although the act complained of, be a public nuisance. In commenting upon the objection urged in that case, as in this, against the issuing of the injunction, he says: 'It is said that part of what is alleged by the plaintiff as the mischief arising to him, is the diminution of the value of his house. But although it is perfectly true the mere diminution of value does not per se constitute a nuisance, surely the extent of the nuisance, if it be a nuisance, may be materially shown by this, that so great is the annoyance that no respectable person, that is, no person who is able to live in such a house as this, would take it with such a nuisance, and the only person who could be expected to take it,  [**17]  would be one who would bear with the nuisance for the sake of the smaller rent which he paid. I say in that way diminution in value is of great moment,' (page 123.) 'Under these circumstances,' the vice-chancellor says, 'The question which I have to ask myself is this,' (and he put it in the language of Lord Justice Knight Bruce, in Walter vs. Selfe,) 'ought this inconvenience to be considered, in fact, as more than fanciful, or as one of mere delicacy and fastidiousness, or as an inconvenience materially interfering with the ordinary comfort, physically, of human existence? That, I think, enunciates distinctly the question which is to be tried on such an occasion as this, and I must add, in the very words in which Vice-chancellor Bruce goes on there: and I am of opinion that this point is against the defendant; that this is such an inconvenience, such an invasion of the domestic comfort, and invasion of a man's house, that he is entitled to come and ask this court to interfere. And upon that point, I would just refer to the language of Lord Eldon, in the case of The Attorney General vs. Nichol. He says, the foundation of this jurisdiction, that is, interfering by injunction, is that [**18]  head of mischief alluded to by Lord Hardwicke, that sort of material injury to the comfort of the existence of those who dwell in the neighboring house, requiring the application of a power to prevent, as well as remedy, an evil for which damages, more or less, would be given in an action at law. That (says the vice-chancellor) is the ground for interference by injunction, and that is the ground upon which I conceive that I ought to grant an injunction in this case, which he accordingly ordered; and that in a case in which he assumed the nuisance complained of to be a public nuisance, and in which the bill neither alleged nor the proof showed any irreparable damage, and in which, in rebutting the objection that the complainant relied merely on depreciation in the value of his property, he defines what the courts regard as depreciating and impairing the value of property by a nuisance, so as to entitle parties to relief by injunction, in such terms as to embrace and extend to the very kind of damage and injury alleged and shown in this case.

"This court cannot, without utterly disregarding the principles and positions established in these cases, refuse to the complainants the relief [**19]  they ask. They show a public nuisance of the most offensive character, about to be established, adjoining and contiguous to their respective houses. They show, further, all that courts in such cases require complainants to show, to entitle them to an injunction, that they will be severally deprived of the comfortable enjoyment of their property, and that it will be greatly depreciated and lessened in value, if the defendant is permitted to set up this nuisance. Their right to the interposition of the court seems to follow, as a matter of course.

"It will be found, upon a careful examination, that the decisions referred to on behalf of the defendant, to sustain the position that these complainants cannot have relief, without showing irreparable damage, apply to cases of private nuisance, (2 Story's Eq., sec. 925,) and I do not think that the rule is settled, even in regard to nuisances of that description, unless it be taken in the terms used by Story, in his Equity Jurisprudence, 2 vol., sec. 926, in reference to private nuisances, where 'the injury is material, and operates daily to destroy or diminish the comfort and use of the neighboring house, and the remedy, by a multiplicity [**20]  of actions for the continuance of it, would furnish no substantial compensation.'

"But it is insisted by the solicitor for the defendant, that, conceding there are sufficient facts alleged and proved in this case, to entitle the complainants to the injunction prayed, if the nuisance of which they complain, were one offensive to the physical senses, yet inasmuch as this alleged nuisance is of such a character as to offend only the moral senses, the court will not interfere, and that for the reason that this court does not exercise the functions of a moral censor, or set itself up to protect the morals of the community; and that if it assumed the exercise of such powers, it would be compelled to go the length of interfering in behalf of persons of fastidious sensibilities, against neighbors whose habits or conduct might be grossly immoral and shocking to persons of virtuous sentiments, powers which it would be absurd to claim for the court. But it is not necessary for this court to vindicate its power to issue the injunction prayed for, by claiming to have the morals of the community under its care. It is sufficient for it to say that the pecuniary interests and property of the [**21]  citizen are committed to its charge, and that under certain circumstances it must interfere to protect them from damage. The ground on which it interferes in this case, is not that this defendant, or those around her, or even her establishment, is offensive to the moral senses of the complainants, but that the business and occupation which she intends to follow, has been condemned by the courts as an illegitimate employment, and a public nuisance, and is punished as such, and that by establishing this nuisance alongside of their property, they will be severally deprived of the comfortable enjoyment of it, and it will be greatly depreciated and lessened in value. Nor is the action of this court directed against the defendant as an immoral or vicious neighbor simply, but as an individual conducting an offensive business, regarded by the law as a nuisance, and interfering with the enjoyment, and impairing the value of their property. I can discover no authority, whatever, for the distinction relied upon in this case, between nuisances offensive to the physical senses, against which the court will grant relief, and such as are offensive to the moral senses only, against which they will [**22]  not interfere. So far from this being the case, I find that the standard elementary writers, in enunciating the classes of public nuisances in which the courts interfere, mention this very description of nuisance by name. 2 Wart. Eden on Injunctions, 264, note 3. Willard's Eq. Jurisprudence, 390.

"But it is insisted, on behalf of the defendant, that if this last position must be rejected, there is still another which would preclude the complainants from relief, which is, that they have all united in one bill, complaining of special and several injury to each, and praying relief accordingly, and that for this reason the bill must be dismissed. This objection is not new, but has been seriously urged in other cases of this description. In the case of Murray & Blount, vs. Hay, 1 Barb. Ch. Rep., 59, where several parties had united, complaining of special injury to each, from a public nuisance, it was relied upon by the defendant, but Chancellor Walworth, after reviewing all the previous decisions, both English and American, touching the point, and giving to them the fullest consideration, decides that the objection is not valid, and does not debar the complainants from such relief [**23]  as is prayed in this bill, framed as it is. The same point, the chancellor says, was previously decided by Chancellor Sandford, in the case of Reid and others, vs. Gifford, Hopkin's Ch. Rep., 416.

"For the foregoing reasons, I must continue the injunction heretofore granted in this case, until final hearing."

From the order so continuing the injunction, the defendant appealed.  

DISPOSITION:
Order affirmed, and cause remanded.  

HEADNOTES:

Where a motion to dissolve is heard upon bill, answer and testimony, taken under the act of 1835, ch. 380, if the bill shows a case entitling the parties to the injunction, it will not be dissolved if the equity is not denied by the answer.

A court of equity has jurisdiction to prohibit, by injunction, a party from creating or erecting the public nuisance of a bawdy-house, upon a bill filed by private individuals, alleging that the close proximity of such a nuisance will deprive the complainants of the comfortable enjoyment of their property, and greatly depreciate and lessen its value.

The absence of precedents, though not to be overlooked entirely, does not, of itself, determine questions of jurisdiction; adjudged cases are consulted to ascertain their reason and spirit, which are the foundation of the law.

Courts are not to assume jurisdiction, but they may amplify remedies and apply rules and general principles for the advancement of substantial justice.

A party injured by a public nuisance may apply to a court of equity to prevent such nuisance, if its existence will cause a substantial prejudice to his property, or the reasonable enjoyment thereof.

The usual practice of raising the objection of multifariousness, as to parties, is by demurrer, but when raised at the hearing it is not always fatal, and will be allowed at the discretion of the court.

But where the court can see that the reason of the rule, upon which such objections are founded, does not apply, and the objection is not made by demurrer, the court ought not to interfere sua sponte.

Where the answer to a bill filed by several parties, to prevent the erection of a public nuisance, takes no defence upon the ground of multifariousness, and under such bill the real point in controversy can be determined, as well as if there were as many suits as there are plaintiffs, an objection of multifariousness, taken at the hearing, cannot be sustained.  

COUNSEL:
Chas. J. M. Gwinn for the appellant:

The court below was in error, because it passed this order in the absence of any testimony in the case to show that the defendant did intend to use the house as a house of ill-fame. The court, in its opinion, admits that such evidence was necessary, but assumes that it was supplied by the failure of the defendant to answer the allegations of the bill, which charged that she was keeping, at the time of the purchase of the house, a house of ill-fame, and especially by her failure to deny that she intended occupying the house in Frederick street for that purpose. The defendant was not bound to criminate herself by her answer to the allegation of her existing occupation, (2 H. & J. 487, Singery vs. Attorney General;  [**24]  3 Bland, 125, Salmon vs. Clagett,) and her refusal or neglect to answer the allegation that she intended to occupy the house purchased as a house of ill-fame, cannot be construed into an admission of the fact. 2 H. & J. 301, Hopkins vs. Stump. 1 G. & J. 503, Warfield vs. Gambrill. The true course of the complainants, if they were dissatisfied with this answer, was to have excepted to it, and if the court had ruled it insufficient, it would have been no answer, and the defendant would have been in contempt, which could have been purged only by a further answer. The court, therefore, plainly erred in its order, for it is founded upon a presumption of testimony where there does not exist any testimony in the case.

The court erred in admitting that testimony which has been excepted to. Evidence of reputation must be founded upon the opinion of the public, or, at least, of the neighborhood, and no less basis can suffice. And it was still more inadmissible to permit evidence of a conviction for a past offence to stand as proof of a present occupation. The presumption of the law being, as far as any presumption can be raised, that the sentence of the law had deterred the offender.  [**25]  

Assuming that the court was right in its assumption that the house was to be used as a house of ill-fame, it does not seem that there was any right to issue the injunction at the suit of private parties. There did exist a full remedy at law in the name of the commonwealth, for the evil, not only for its punishment, but for its abatement, for this may be a part of the judgment and remedy on such judgment. 3 Wart. Arch., 204, 238. And this is not of that species of public nuisance, in which a resort to private remedy is contemplated, because it is not one from which any physical damage results, or which interferes with the physical enjoyment of the comfort of the tenements of the complainants. Every case cited by the complainants, or referred to by the court below, in its opinion, hath this ingredient. And the absence of any case in the books, in which this remedy has been sought to be enforced in such a case, is a strong presumptive argument against the exercise of the power. If it is a good exercise of it, an eaves-dropper and a common scold can be enjoined from moving into any house they have purchased, for these are common nuisances, (4 Bl. Com., 168,) and the disposition is [**26]  more inseparable from the identity of the person than any occupation can be. The true rules seem to be: 1st. That equity, in case of a public nuisance, will enjoin where the nuisance works a direct physical injury to the property, or to the comfort of the occupant. 2nd. Where the nuisance consists in the violation of public morality, as recognized by law, the remedy to the person aggrieved by the proximity of the evil to himself, is found in the abatement of the nuisance which the court may order in its judgment, upon the indictment for such nuisance.

The law in Maryland cannot be strained beyond these principles, and, as yet declared, it does not even reach thus far. In this State the remedy, so far as a private right is concerned, only arises where a special injury has been inflicted. 8 G. & J. 510, Delaware & Md. Rail Road Co. vs. Stump. And this injury must be irreparable. 4 Gill 38, Hamilton vs. Ely. 8 Gill 433, Richardson vs. Mayor & C. C. of Balto. 1 Md. 543, White vs. Flannigain. 3 Md. 489, Ches. & Ohio Canal Co. vs. Young. 7 Md. 416, Shipley vs. Ritter. These cases follow the case of Attorney General vs. Nichol., 16 Ves., 342, and Wynstanley vs.  [**27]  Lee, 2 Swans., 336. See, also, as to the principle that a court of equity is not custos morum, 2 Story's Eq., secs. 936, 945.

No counsel appeared for the appellees.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and TUCK, J.  

OPINIONBY:
TUCK 

OPINION:

 [*143]  TUCK, J., delivered the opinion of this court.
The injunction in this case was granted upon a bill stating that the appellees are owners of property in the city of Baltimore, in the immediate vicinity of a house which the appellant had purchased, and to which she intended to remove, for the purpose of keeping a house of ill-fame, in which business she had been for a long time, and was then engaged. The bill charges, also, that in addition to the wrong and injury inflicted upon them, in common with other citizens of that city, by the occupation of the premises for the unlawful and immoral purpose complained of, "the complainants will be especially wronged and injured, inasmuch as they will be severally deprived of the comfortable enjoyment of their property, and that it will be greatly depreciated and lessened in value, by the close proximity of their said property to the premises in which it is charged that the defendant [**28]  is about to open a bawdy-house." The defendant, by her answer, admits the averments of residence and ownership of property by the complainants, setting forth particularly their relative situation to the house she had purchased; but declines to answer the averments that she had previously kept a bawdy-house, and intended to keep one at the house mentioned in the bill.
The case comes before us on appeal by the defendant from an order continuing the injunction, passed on motion to dissolve, and a hearing on bill, answer and affidavits, under the act of 1835, ch. 380. In this stage of the cause, if the bill shows a case entitling the parties to the injunction, it will not be dissolved, if the equity is not denied by the answer.  Hardy 

 [*144]  vs. Summers, 10 G. & J. 316. Hutchins vs. Hope, 12 G. & J. 244. This rule of practice is an answer to the objection taken on the part of the appellant, that the judge below had passed the order appealed from in the absence of evidence that she was, at the time of filing the bill, the keeper of a bawdy-house, and intended to pursue that business at her new residence. But we think that the case authorizes [**29]  the conclusion, as a matter of fact, that the appellant purchased and was fitting up this house for the offensive purpose stated in the bill. As late as November 1855, she had been convicted, on her own confession, of having been so employed, and two previous convictions had been obtained, in the same manner, in the years 1854 and 1855. Between the last of these convictions and the month of April 1856, when the bill was filed, not one circumstance is shown from which we can infer that she had changed her course of life. On the contrary, the inference is most strongly rebutted by her conversation with one of the witnesses, when she was having the house repaired. This view of the case derives strength from her refusal to answer the allegations of the bill on this point. Touching, as it did, her reputation, she would doubtless have denied the fact alleged, if it had been false. By her silence, or refusal to answer, we think she subjects herself to the remarks of the late Chancellor Bland, in 3 Bland 132, "that a defendant who manifestly omits to answer, or answers evasively any substantial part of the bill, who evidently and purposely holds back something, cannot complain [**30]  if he should find himself regarded with suspicion and distrust, and be refused that to which he may, in truth, be entitled, and, under other appearances, might have obtained." So, in Bentley vs. Cowman, 6 G. & J. 152, it is said, "Pleadings in equity are founded in the purest principles of ethics, and marked by frankness and fair dealing." It is no answer to say that the defendant was not obliged to criminate herself, for, conceding that this would have relieved her from answering the allegation that she was then carrying on that business, it is very clear that she would not have subjected herself to a prosecution, by denying that she had purchased this house with a view to continue 

 [*145]  it there. We are constrained, therefore, to consider the appellant as a person about to open the premises as a house of ill-fame, and the prominent question for decision is, whether the jurisdiction of courts of equity embraces the prohibition of such public nuisances, where the complaint is, that they will, by reason of their close proximity, deprive other persons of the comfortable enjoyment of their property, and greatly depreciate and lessen its value.
As was observed [**31]  by the appellant's counsel, no decision has been found in which the power was exercised in such cases as the present. Nor is there any in which the writ of injunction has been applied for and denied. But the absence of precedents, though not to be overlooked entirely, does not, of itself, determine questions of jurisdiction. We consult adjudged cases to ascertain their reason and spirit. These are the foundation of the law.  3 Bland 133. Fisher vs. Prince, 3 Burr. 1364. Rust vs. Cooper, Cowp., 632. Courts are not to assume jurisdiction, but they may amplify remedies, and apply rules and general principles for the advancement of substantial justice. Broom's Maxims, 36. 50 Law Lib. 50.  Russell vs. Smyth, 9 Mees. & Wels. 818, per Ld. Abinger. If this were not so, and courts were confined to particular precedents, there would be no power to grant relief in new cases constantly occurring. And, hence, when they do arise, and rights can be asserted, or wrongs prevented or redressed, consistently with established principles, it would be a great failure of justice to deny relief, merely because no decision could be found [**32]  in which the jurisdiction had been invoked and exercised. The point on this appeal, then, is not whether an injunction has ever issued to prevent the establishment of a public nuisance of this kind, but whether the doctrines of equity, applicable to nuisances, should be applied to the present case.
Although at law, the remedy in respect to public nuisances is by indictment, and in respect to private ones, by action at the instance of the person injured, yet, in the common law tribunals, redress may be had for damage resulting from public as well as private nuisances. These remedies can only abate 

 [*146]  or afford compensation for an existing nuisance, and are ineffectual to restrain or prevent such as are threatened or in progress. Hence there is a jurisdiction in equity to enjoin, whenever the nature of the injury is such that it cannot be adequately compensated by damages, or from its continuance or permanent mischief, will occasion a constantly recurring grievance. And as a party injured by a public nuisance may have his action at law for damages thereby sustained, so he may apply for an injunction to prevent such nuisance, if its existence will cause a substantial prejudice [**33]  to his property, or the reasonable enjoyment thereof. Drewry on Injunctions, 240. 36 Law Lib. 165. Adams' Equity, 210. 68 Law Lib. 185. 2 Story's Eq., sec. 920 to 926. Jeremy's Equity, 309, 310. This author says: "The foundation of this court's jurisdiction on the subject of nuisance, is the probability of irreparable mischief; that sort of material injury by one to the comfort of another, which requires the application of a power to prevent, as well as to remedy, the evil."
We need not review here the cases on which these writers rely. They generally sustain the doctrine as laid down by them. Formerly the jurisdiction was more restricted than at present; but, for many years, both in England and in this country, this process has been more extensively employed, as the exigencies of society created a necessity for its use, according to recognized doctrines of equity. The English decisions were examined by the vice-chancellor, in Soltau vs. De Held, 9 Eng. Law & Eq. 104, upon the authority of which, he considered himself warranted in applying the remedy in restraint of ringing church bells, "so as to occasion any nuisance, disturbance, or [**34]  annoyance to the plaintiff, and his family residing in his house," upon the ground that a private person may bring his bill in equity, where he apprehends injury or disturbance in the enjoyment of his property from a public nuisance.
In this country, too, there are decisions full to the point. We mention, particularly, Corning vs. Lowerre, 6 Johns. Ch. Rep. 439, recognized in 12 Peters 91, where Chancellor Kent allowed the writ, "inasmuch as there was a special 

 [*147]  grievance to the plaintiffs, affecting the enjoyment of their property, and the value of it. The obstruction was not only a common or public nuisance, but worked a special injury to the plaintiffs." The Supreme Court, in 12 Peters 91, said, that "a court of equity, pursuing the analogy of the law, that a party may maintain a private action for special damage, even in case of a public nuisance, will now take jurisdiction in case of a public nuisance, at the instance of a private person, where he is in imminent danger of suffering a special injury, for which, under the circumstances of the case, the law would not afford an adequate remedy." This principle [**35]  appears to have been acted upon in this State; for in the case of Harrison vs. Sterett, 4 H. & McH. 540, a claim for damage resulting from a public nuisance, was sustained at law; and in The Del. & Md. R. R. Co. vs. Stump, 8 G. & J. 479, the jurisdiction of courts of equity in such cases was recognized, but not enforced, because the bill did not state a case of private grievance.
But the appellant's counsel suggested that a distinction should be taken between the cases relied on in support of this power and the present, because here the object is to prevent what is offensive to the moral senses. We need not inquire how far this jurisdiction can be defended on grounds of morality, and to preserve the decencies of life from gross violation. The case does not require this. But it would be strange, indeed, if when the court's powers are invoked for the protection and enjoyment of property, and may be rightfully exercised for that purpose, its arm should be paralyzed by the mere circumstance that, in the exercise of this jurisdiction, it might incidentally be performing the functions of a moral censor, by suppressing a shocking vice denounced by [**36]  the law, and amenable to its penalties from the earliest times. And if, as the authorities show, the court may interfere where the physical senses are offended, the comfort of life destroyed, or health impaired, these alone being the basis of the jurisdiction, the present complainants, presenting as they do a case otherwise entitling them to relief, should not be disappointed merely because the effect of the process will be to protect their families 

 [*148]  from the moral taint of such an establishment as the appellant proposes to open in their immediate vicinity.
The objection of multifariousness as to parties, was made at the hearing, and not by demurrer, which is the usual practice. When raised at the hearing, it is not always fatal, but will be allowed at the discretion of the court. Story's Eq. Pl., secs. 271, 284, a. 530, 540, 541. One ground for such objections is, that the defendant might be required to unite in one answer defences not applicable to all the complainants, thereby presenting various issues in the same cause, and involving the defendant in unnecessary litigation and expense. Where, however, the court can perceive that the reason of the rule does not [**37]  apply, and the objection is not made by demurrer, it ought not to interfere sua sponte. Here the objection has been waived by the answer, which takes defence as to all the complainants, and under it, the real point in controversy can be determined as well as if there were as many suits as there are plaintiffs. Therefore, without deciding whether the bill be demurrable or not, we are of opinion that the point was properly ruled against the appellant.
Order affirmed, and cause remanded. 

4 of 187 DOCUMENTS 

ANDREW ARMSTRONG vs. PHINEAS THRUSTON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 148; 1857 Md. LEXIS 30 

DECEMBER, 1857, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

Assumpsit brought by the appellee, as holder, against the appellant, as endorser, of a promissory note for $ 1257.54, dated October 28th, 1850, drawn by Neale, Armstrong & Co., payable at six months to blank order and endorsed by the defendant and others. Plea, non assumpsit.

1st Exception. The plaintiff proved by McKee, one of the clerks of the firm of Neale, Armstrong & Co., that the note in question, drawn by them, was handed to him by a member of that firm, with directions to take it to defendant for his endorsement; that witness delivered it to defendant at his counting-room, and the latter handed it back to witness endorsed; witness did not see him endorse it, because he did not pay particular attention, but is confident he did endorse it, because it was not endorsed when handed to him and it was endorsed when handed back to witness by him, and to the best of witness' knowledge, there was no person in his counting-room but defendant and witness.

The plaintiff then offered in evidence the protest of the note, which, in reference to demand upon the makers, states that the notary "presented the said promissory note [**2]  at the place of business of Mr. Horwitz, the trustee for the matters thereof, and demanded payment therefor, and was answered by his brother, "it cannot be paid;" and in reference to notice, that he "addressed written notices to the endorsers of the said promissory note, informing them it had not been paid, and that they would be held responsible for the payment thereof."

The defendant then proved by Rowe, who was the defendant's book-keeper from October 1848 to August 1851, that he was familiar with defendant's handwriting, being in the habit of seeing him write, during that period, almost every day; that in his opinion the endorsement on this note, purporting to be that of the defendant, was not genuine, and that the defendant writes a heavier hand. Whereupon the plaintiff, for the purpose of testing the accuracy of his judgment, in cross-examining this witness, produced certain papers with the words, "Andrew Armstrong" written upon them, and offered to show these words to him, and without disclosing or allowing the witness to examine the contents of these papers, to ask him whether these words were the genuine handwriting of the defendant; to which offer and evidence the defendant [**3]  objected, and insisted that the same were inadmissible. But the court, (FRICK, J.,) was of opinion that the testimony was admissible, and permitted it to be given to the jury, and the witness thereupon said that three of these papers, so shown him, bore the genuine signature of defendant, and in regard to the fourth he had doubts about its genuineness. The defendant excepted.

2nd Exception. The defendant then proved by Mr. Savin, that he was well acquainted, and had been for several years, with defendant's handwriting, and in his opinion, and from his knowledge then acquired, the endorsement on this note, purporting to be that of the defendant, was not genuine, and that defendant writes a heavier hand. Whereupon the plaintiff, upon cross-examination, offered to prove by this witness, that there had been a change in defendant's handwriting within eighteen months past, but the defendant objected to the admissibility of such testimony without the production of some of defendant's handwriting within said period. But the court was of opinion the testimony was admissible and permitted it to be given to the jury. The witness then said the defendant's signature was heavier now than it [**4]  formerly was. The defendant excepted.

3rd Exception. The plaintiff thereupon, for the purpose of testing, in the judgment of the jury, the accuracy of the judgment of the defendant's witnesses, as to defendant's signature and the peculiar characteristics thereof, as testified to by them, offered to prove by William Chesnut, that the words, "Andrew Armstrong," written upon the four papers offered in evidence by the plaintiff, and mentioned in the first exception, were endorsements in the genuine handwriting of the defendant, to wit: (These papers are four promissory notes purporting to be endorsed by the defendant;) to which offer the defendant objected, but the court overruled the objection and permitted said endorsements to be proved by the witness, who testified that they were in the handwriting of defendant, and suffered the same to be submitted to the jury for inspection and examination. To this ruling the defendant excepted.

4th Exception. The defendant further proved by several witnesses, well acquainted with defendant's handwriting, that in their opinion the endorsement upon this note was not genuine; several of these witnesses, on cross-examination, stated, as the [**5]  grounds for their opinions, that defendant's genuine signature was heavier and not so round a handwriting, and that particular letters, to wit, the "A," "t" and "g" in Armstrong were not like those in the genuine signature. The plaintiff then proved by several witnesses, acquainted with defendant's handwriting, that, in their opinion, said endorsement was genuine; and further proved by Mr. Horwitz, that Neale, Armstrong & Co., the drawers of the note, failed about the 7th of January 1851, and executed to witness an assignment of all their property for the equal benefit of all their creditors, and shortly afterwards applied for the benefit of the insolvent laws, and witness was appointed their permanent trustee. (This assignment and their insolvent papers were offered in evidence, but do not appear in the record.) Whereupon the defendant prayed the court's instructions to the jury:

1st. That no sufficient evidence of demand upon the makers of the note in suit to charge the defendant, as endorser, has been offered in evidence in this case, and that the plaintiff, therefore, is not entitled to recover.

2nd. That no sufficient evidence of demand upon the makers of the note in [**6]  suit, and of notice to the endorser, has been offered in this cause, so as to charge the defendant as such endorser, and that the plaintiff, therefore, is not entitled to recover.

The court refused to grant these instructions, or either of them, and to this refusal the defendant excepted, and the verdict and judgment being against him appealed.  

DISPOSITION:
Judgment reversed.  

HEADNOTES:

Where the defendant's signature to a note in suit is disputed, and a witness had stated that the signature was not genuine, it is competent for the plaintiff, on cross-examination, to prove by this witness, that there had been a change in the defendant's handwriting since the signature in question was written, and that his signature is heavier now than it formerly was.

But it is not competent for a party to introduce, at the trial, other papers, irrelevant to the issues, for the purpose of enabling a witness or the jury to institute a comparison of handwriting.

Where a firm, the makers of a note, failed and made an assignment of all their property for the equal benefit of creditors, and took the benefit of the insolvent laws, a demand at the office of the assignee and trustee in insolvency is not sufficient, but must be made on the makers or at their place of business; their insolvency does not excuse the holder of the note from a compliance with the statute in order to charge the endorser.

A notice to an endorser informing him "that the note had not been paid, and that he would be held responsible for the payment thereof," without stating that demand had been made on the makers, is insufficient.

According to the well established practice in Maryland, and the uniform course of the appellate court, bills of exception must be considered wholly distinct from each other unless they contain sufficient words of connexion.  

COUNSEL:
William B. Perine and John Nelson for the appellant, argued:

1st. That the court erred in permitting the evidence to go to the jury as stated in the first and third exceptions, 1st. Because it introduced into the cause papers not relevant and not properly in the cause, thereby raising new and collateral issues as to their genuineness. 2nd. Because it operated as a surprise to the defendant, who did not know that such documents were to be produced and was not prepared to show that they were not genuine. 3rd. Because the papers may have been selected from many others for the express purposes of this cause, on account of their bearing an accidental similitude to the alleged handwriting of the defendant, thereby misleading both the witness and the jury. 4th. Because the offer of the evidence was, in point of fact,  [**7]  an attempt to enable the witness and the jury to come to an opinion of the genuineness of handwriting by a comparison of the papers with the note sued upon, which is clearly inadmissible. 5th. Because the offer to prove the genuineness of the signature of the papers by the witness, Chesnut, was before any proof had been offered by the plaintiff of any knowledge by the witness of the defendant's handwriting, and before the defendant had any opportunity, upon cross-examination, of exploring the sources of his information. 6th. Because the witness, Rowe, was entitled to see the contents of the papers, or some part thereof, in order to enable him to express a fair and impartial opinion. For these positions see 1 Greenlf. on Ev., secs. 580, 581. 2 Philip's Ev., (Cowen's & Hill's 3rd Ed. by Van Cott,) 254, 255, 256, 257. 1 Nev. & Perry, 1, Doe vs. Newton. 7 Car. & Payne, 596, Waddington vs. Cousins. Ibid., 548, Bromage vs. Rice. 11 Adol. & Ellis, 322, Griffits vs. Ivery. 8 Gill 86, Smith vs. Walton. 9 Cowen, 112, Jackson vs. Phelps. The same rule in regard to the comparison of handwriting which prevails in England is recognised in this State. There can be no doubt such a comparison was [**8]  attempted in this case; the papers were submitted to the jury purely for the purpose of comparing them with that in suit in regard to the handwriting. The witness, Chesnut, was not asked whether these papers contained the peculiarities in the handwriting which had been spoken of, but this was submitted to the jury for them to decide, and surely this is a comparison of handwriting. This case does not come within the decision in Young vs. Horner, 1 Car. & Kir., 51; that case has gone a great way, but is clearly distinguishable from this. The decision there is, that you may cross-examine a witness to test the accuracy of his judgment in reference to certain peculiarities which he, (the witness,) said existed in the genuine signature; here no such question was asked the witness, but this was left to the jury, they were to decide it. The case of Brookes vs. Tichborne, 2 Eng. Law & Eq. Rep., 374, is similar to that of Young vs. Horner.

2nd. That the court erred in permitting the evidence mentioned in the second exception to go to the jury, because the witness referred to papers bearing the defendant's handwriting without producing such papers.

3rd. That the court erred in refusing [**9]  the defendant's prayers in the fourth exception, 1st. Because there was no evidence of any demand of payment of the note, so as to charge the defendant as endorser; the demand upon their assignee or trustee being, in law, insufficient; and 2nd. Because there was no sufficient notice to the endorser. Story on Bills, sec. 318 and note, 326, 346, 230, 279, 306. Story on Prom. Notes, secs. 237, 241 and note 4. Chitty on Bills, (11th Am. Ed.,) 330, 355. Byles on Bills, 158. Bayley on Bills, 240. 3 Md. 256, Nailor vs. Bowie. 1 Do., 66, Graham vs. Sangston. Ibid., 511, Hunter vs. Van Bomhorst. 3 Do., 210, Boehme vs. Carr. 4 Do., 294, Farmers Bank vs. Bowie. 6 Do., 10, Manning & Co., vs. Hays. It is objected that these prayers are based solely upon the evidence in the fourth exception, but we do not so read this exception. It says, "whereupon;" that is, upon the whole evidence in the cause, and this exception is connected with the preceding ones by the statement that the defendant "further proved," &c. But it has been decided, that if no facts appear in the record, and the prayer contains a proposition of law, this court will retain the exception, and act upon it. 2 H. & J. 376, Barnes [**10]  vs. Blackiston. If the court should reverse upon this fourth exception, no procedendo will be awarded, because it is clear the plaintiff cannot recover, there being no sufficient demand on the makers, and notice to charge the endorser. 8 Md. 287, Cline & Francis vs. Miller.

Levin Gale for the appellee, stated that it must affirmatively appear that the plaintiff cannot recover, before this court will refuse a procedendo upon reversing the judgment; the appellee is not bound by the evidence of demand and notice contained in the protest, but may prove the sufficiency of the notice and demand outside of the protest, and this the plaintiff thinks he can prove, and should be allowed to do so under a procedendo, in case the judgment should be reversed. He then argued:

1st. That the evidence excepted to in the first three exceptions was properly received, because the witness examined in chief by the defendant, having testified that the signature of the endorsement on the note sued on was not genuine, on account of its want of certain peculiarities, it was competent, on cross-examination, to submit other signatures to the witness, to test his accuracy, by showing that genuine [**11]  signatures wanted the peculiarities specified by the witness, and to exhibit such writings to the jury for that purpose. 1 Car. & Kir., 51, Young vs. Horner. 2 Eng. Law & Eq. Rep., 374, Brookes vs. Tichborne. 1 Gallison, 175, Smith vs. Fenner. We do not attempt to prove the handwriting by a comparison of hands, but disclaim such a purpose. The handwriting was proved by at least one witness, whose testimony is unimpeached, and we merely attempted, on cross-examination, to test the accuracy of the judgments of the witnesses for the defendant, and this it was competent for us to do. But these papers were admissible upon another principle, viz: that being once in evidence without objection, the jury must consider them.

2nd. That it was not necessary to state, in so many words, in the offer of the testimony of Chesnut, that he was acquainted with the handwriting of the endorser, the offer to prove that the signature was genuine, sufficiently showing that fact; the testimony being objected to for other reasons. The objection, if to the knowledge of the witness, should have been made more clearly, when it would have been removed. But the testimony itself shows that he did have knowledge,  [**12]  and the other side should have searched the witness, if they doubted his knowledge.

3rd. That the defendant's first prayer was properly rejected, because it took away from the jury the questions whether Horwitz was the agent of the makers, and also whether the place where the demand was made, was not, in fact, the then place of business for the transaction of the co-partnership affairs, and so properly made. Byles on Bills, 158. The assignment of all the property constituted the trustee their agent, and gave the endorser security, so that demand was unnecessary. 7 Wend., 165, Mechanics Bank vs. Griswold. 9 G. & J. 31, Duvall vs. Farmers Bank.

4th. That the second prayer was properly rejected, because it included the proposition of the first prayer, and if that were properly rejected, the court would have stultified itself in granting the second prayer.

5th. That the fourth exception does not set out the whole evidence, and, therefore, the court cannot say whether the prayers were properly rejected or not, and cannot, therefore, reverse the rulings on these prayers. The other bills of exception are not incorporated and made part of this, by express terms, as they [**13]  ought to have been. 4 Md. 273, Burtles vs. The State.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and BARTOL, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*155]  BARTOL, J., delivered the opinion of this court.
This is an action instituted by the appellee, as holder of a promissory note, against the appellant, as endorser. The defences set up were: first, that the handwriting of the defendant's endorsement was not genuine; secondly, that there was no demand of payment upon the drawers; and lastly, that the notice to the endorser, Andrew Armstrong, was insufficient.

 [*156]  In the course of the trial below, several questions of evidence arose, the decision of which forms the subject of the 1st, 2nd and 3rd bills of exceptions. We think that the objection of the appellant to the evidence stated in the 2nd bill of exceptions is not well taken. That evidence was competent and proper to go to the jury. It was not only unnecessary, but would have been clearly inadmissible for the appellee to have introduced into the cause other handwritings of the defendant, for the purpose of showing that his handwriting had undergone such a change as was spoken of by the witness. And, for the [**14]  same reason, we are of opinion that the Superior Court erred in admitting the evidence stated in the 1st and 3rd bills of exceptions. It is not competent for a party to introduce, at the trial, other papers irrelevant to the issues, for the purpose of enabling a witness, or the jury, to institute a comparison of handwriting. This rule of law rests upon the soundest reasons. It is established by the English authorities, and has been approved and adopted in Maryland. See 8 Gill 86. Doe vs. Newton, 1 Nev. & Per. 1, and same case in 5 Ad. & El. 514. Bromage vs. Rice, 32 Eng. C. L. Rep. 625. Griffits vs. Ivory, 39 Eng. C. L. Rep. 104. 1 Greenleaf's Evidence, secs. 580, 581. 2 Phil. Ev., (Cowen & Hill's 3rd Ed., 1849,) 254, 255, 256, 257.
The 4th bill of exceptions presents the questions of the sufficiency of the demand and notice proved in this cause. The law is well settled, by repeated adjudications in this State, that to entitle the plaintiff in such action to recover, he must aver and prove a demand upon the maker for payment of the note at its maturity, and his failure to pay, and  [**15]   also that notice of such demand and non-payment was given to the endorser. The responsibility of an endorser is contingent, it arises under the statute, and to fix it, the requirements of the statute must be complied with by the holder. Graham vs. Sangston, 1 Md. 59, 66. 3 Md. 202 and 251. 6 Md. 5.
In this case, the only proof of the demand and notice is found in the notary's certificate, which states "that he presented the said promissory note at the place of business of Mr. Horwitz, the trustee for the matters thereof, and demanded 

 [*157]  payment therefor, and was answered by his brother, 'It cannot be paid.'" The note was drawn by the firm of Neale, Armstrong & Co., composed of John Thomas Neale, George B. Armstrong, and Edmund Landis. The firm failed in business on or about the 7th day of January 1851, and executed to Mr. Horwitz an assignment of all their property, for the equal benefit of their creditors, and shortly afterwards applied for the benefit of the insolvent laws, and said Horwitz was appointed their permanent trustee. A demand at the office of Mr. Horwitz is not sufficient, it ought to have been made [**16]  on the makers, or at their place of business; their insolvency does not excuse the holder from a compliance with the statute. Story on Bills, sec. 318, note 1. Story on Prom. Notes, sec. 241.  9 Gill 360.
The exception to this rule, found in cases of agency, by no means applies to this case; the relation of Mr. Horwitz to the makers of this note, was not that of agent, in the sense spoken of, but simply that of assignee or trustee, which imposed on him no duty to pay the note, or authorized him to do so; and no case has been found where a demand of payment on a person standing in that relation to the maker of a note, has been held sufficient. The notice given to the endorsers in this case, which is also proved by the notary's certificate, is clearly insufficient. It simply states that the note "had not been paid, and that they would be held responsible for the payment thereof." The law requires notice of the demand on the makers, as well as of the non-payment of the note.  Graham vs. Sangston, 1 Md. 59.
Entertaining these views, we consider that the court below erred in refusing the prayers of the appellant, contained in the [**17]  fourth bill of exceptions. Whether we confine our attention to the evidence contained in that exception alone, or consider all the other evidence presented in the other bills of exception and appearing upon the record, the result in this case will be the same. We deem it proper, however, to say, that according to the well established practice in Maryland, and the uniform course of the appellate court, bills of exceptions must be considered wholly distinct from each other, unless they contain 

 [*158]  sufficient words of connection.  Gist's Adm'r vs. Cockey & Fendall, 7 H. & J. 134.
Judgment reversed. 

5 of 187 DOCUMENTS 

CHARLES CROOK and Wife, vs. STEWART BROWN and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 158; 1857 Md. LEXIS 31 

DECEMBER, 1857, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Baltimore city.

The original bill in this case was filed by the appellants, Crook and wife, on the 3rd of April 1854, against the heirs at law of Stewart Brown and Mary Lancaster. It alleges that said Brown and Lancaster, on the 16th of October 1826, executed a bond of conveyance, covenanting to convey certain real estate in the city of Baltimore to the complainant, Crook, in trust for his wife, in consideration of $ 1214, to be paid out of the wife's separate estate; that the purchase money has been fully paid, and that the complainants are entitled to have a conveyance, according to the purport of the bond. The prayer of the bill is for the appointment of trustee to convey the legal title to the complainants, and for general relief.

The infant heirs of Mary Lancaster answered by their guardian ad litem, neither admitting nor denying the allegations of the bill. The heirs of Brown, in their answer, admit the execution of the bond of conveyance and payment of the entire sum due their ancestor, claim no further interest or title in or to the property, submit to such decree as the court may think proper to pass, and in conclusion say: "They,  [**2]  however, deem it their duty to state, that they have been informed that said Charles Crook and wife, heretofore, by mortgage or otherwise, conveyed said property to the late Judge John Glenn, and that the heirs or representatives of the late Judge Glenn claim some interest or estate therein, of the extent or nature of which your respondents are not informed."

The complainants then, under leave, filed an amended bill, in which they allege, by way of amendment, that the defendants, the Browns, in their answer, have suggested that, by some sort of deed or instrument of writing, the property was conveyed to the late Judge John Glenn, by the complainants, and that the heirs and representatives of the late Judge Glenn claim some interest or estate therein, under a conveyance from the complainants, of the extent or nature of which the said defendants are not informed; that said heirs and representatives are in possession of the property, and that a solicitor of the court has entered his appearance in this case, ostensibly for the defendants, but, in truth, as the solicitor of said heirs and representatives, and with a view not of protecting the interests of the real defendants, but for [**3]  the benefit of said heirs and representatives, and in order to protect them in the enjoyment of the property under said alleged conveyance, which interest they are now claiming under some such pretended conveyance; that it is right and equitable, if said heirs and representatives should have the advantage of any difficulties that may be interposed in the way of a decree for the complainants, by the services of such solicitor, that they should also be made parties, and bound by the proceedings in the case, and that they should be required to show what interest they have or claim in the property, or right to oppose the decree in this case. The prayer is, that said heirs and representatives of Judge Glenn may answer both the original and amended bill, and may be decreed to deliver possession of the property to the complainants, and for such other and further relief as the complainants' case may require.

To this amended bill the representatives of Judge Glenn demurred, upon the grounds--1st. That it does not state such a case as entitles the complainants to any such discovery or relief as is thereby sought and prayed for. 2nd. That neither the original nor amended bill, separately [**4]  or together, state such a case as entitles the complainants to any such discovery or relief as is sought and prayed for by either of them, from or against these defendants. 3rd. That if the matters stated give the complainants any cause of complaint against these defendants, the same is properly determinable at law. 4th. That the so called amended bill is in no wise an amendment of, and introduces no matter essential to, or connected with, the relief prayed by the original bill, but refers to and embraces an entirely distinct and different matter, remediable, if at all, in equity, by a separate and distinct bill only. 5th. That the amended bill is multifarious, seeking discovery and relief in regard to matters totally separate and distinct, as against parties in no wise connected, in regard to the said or the same matters, with each other, and not proper to be made parties defendants to one and the same bill, touching said matters and their several and distinct interests therein. 6th. That the relief prayed against the parties to the amended bill is distinct and unconnected, not depending upon the same, or upon analogous or common liabilities or equities, not applicable to the same [**5]  or a common subject matter, or to any common interest or liability in the parties, or any common relation to the same subject matter. 7th. That there is no allegation in the amended bill of any wrong, whatever, done by these defendants to the complainants, that furnishes ground for the interposition of any court, either of law or equity. 8th. That there is no foundation laid in the amended bill for the discovery therein sought, and no allegation of any fact or equity entitling the complainants thereto, and that the discovery thereby sought is not material to the relief therein prayed, even if the same were properly sought. 9th. That the defendants to the original bill are not made parties to the amended bill, (this ground of demurrer was abandoned in argument.) 10th. That the discovery prayed by the amended bill is in regard to matters contained and alleged in the original bill, in regard to which no relief is prayed by the amended bill against these defendants.

The court (KREBS, J.,) passed an order sustaining the demurrer, from which order the complainants appealed.  

DISPOSITION:
Order affirmed, and cause remanded.  

HEADNOTES:

To a bill to enforce performance of a contract for the sale of land, and a conveyance of the title from the heirs at law of the vendors, the adult defendants, in their answer, admit the contract and payment of the purchase money, so far as they are concerned, disclaim title, and submit to a decree, but suggest to the court that they have been informed that the complainants, by mortgage or otherwise, had conveyed the property to G., now deceased, and that his heirs or representatives claim some interest or estate therein, of the nature or extent of which the defendants are not informed. An amended bill was then filed, in which, after stating the above suggestion, the complainants allege that the heirs of G. are in possession of the property; that a solicitor has appeared in the cause, ostensibly for the original defendants, but, in truth, for these heirs, in order to protect them in the enjoyment of the property which they are claiming, under some such pretended conveyance; that if they can have the advantage of the services of such solicitor, they should be bound by the proceedings, and be required to show what interest they have or claim in the premises. The bill then prays an answer from G's heirs to both bills, that they may be decreed to deliver the possession to the complainants, and for further relief. To this amended bill the heirs of G. demurred. HELD:

That this demurrer must be sustained, because the complainants could not, upon this amended bill, make the heirs and representatives of G. parties to the cause, for the purposes stated in their pleadings.

The heirs of G. could not, under this answer of the original defendants, and through them as defendants to the original bill, have defeated the complainants' right to the relief sought against such defendants, representing the vendors of the property.

The answer of the original defendants makes no defence upon any claim of G's heirs to the property, and if designed to do so, is insufficient for the purpose, the reference to such claim being but a mere suggestion to the court, containing no issuable averment or allegation of fact.

The rules of pleading require something more than loose hearsay declarations, especially when they are not relied on as matter of defence to the bill: a party will not be permitted to delay the bringing of a suit to issue, by merely alleging an interest in third persons.

The vendee of a purchaser may proceed in equity both against such purchaser and his vendor, to obtain the legal title, but it does not follow that when a purchaser files a bill against his vendor, his assignee or vendee must necessarily be made a party, merely because such vendee has an interest in the property.

The purchaser and his vendee may join in a bill against the original vendor, in order to obtain a title directly to the second vendee, but in such case there should be no conflict between the complainants themselves; their interests should be consistent.

In this case the complainants and the heirs of G. could not unite in a bill against the defendants, the original vendors, except upon the concession that the title of the complainants had passed to G., and that his heirs were entitled to a conveyance.

The question, who are necessary parties to a suit in equity, depends in a great measure upon the object as well as the subject of the bill, the relief sought, the privity between the parties, and the manner in which their several interests may have arisen: it is impossible to state a general rule applicable to all cases.

This amended bill is not a bill of discovery, and besides, if the complainants have assigned their interest to G., they knew what the transaction was, and desiring to invalidate it, should have stated a case which his heirs can answer and defend.

The property being the same, all the parties to this case may be said to be proper and necessary, as having an interest in the subject matter of controversy, yet the equity against G's heirs, who claim under the complainants, and the other defendants who are the complainants' vendors, is not the same, nor of the same character; their titles are perfectly distinct and unconnected.

A bill framed with the double aspect of first acquiring a title from the complainants' vendors, and then in the same case to litigate the title of other parties in no privity with such vendors, but who claim under the complainants themselves, is multifarious.

There is no head of equity jurisprudence under which a party, in possession of land, can be brought into court and made to show his title, in order that that title may be defeated, and the possession delivered to the complainants, for this would be substantially to give to a chancery suit the effect of an action of ejectment.

Where the only relief prayed for, and the only case made by the bill against one of several defendants, is to make him show his title and deliver possession of land, no decree can be passed against him, and it is clear that no one ought to be made a party defendant, against whom no decree can be passed.

There are some circumstances under which a court of equity will amove a party in possession and put another in, but these cases are of peculiar character.

This amended bill cannot be sustained on the principle of bills quia timet, the complainants not having the legal title, and not being in possession, which are essential facts in such cases, and such an equity cannot be blended with the case made and relief sought against the original defendants.  

COUNSEL:
Jervis Spencer for the appellants:

The question in this case is,  [**6]  whether the amended bill sufficiently states an interest in the Glenns to make them parties to the proceedings. The bill is simply for the conveyance of a legal title, according to the covenants in a bond of conveyance, and the Glenns are made parties as claimants of a supervening equity, which, if well founded, takes away the equity of the complainants. The complainants could not obtain their rights until this supervening objection of the Glenns was removed, and, in this respect, the amended bill is like the case of a bill of interpleader. If they do not set up such a claim as the demurrer admits, their proper defence is a disclaimer, (1 Harrison's Ch. Pr., 341; 2 Madd. Ch. Pr., 336; Equity Draftsman, 620; Story's Eq. Pl., secs. 838, 838, (a.) note 3,) and if they maintain their claim, they should present it to the court, in order that the court may know how far they have equity. It is also necessary that the court should know the ground of their claim, in order to understand whether it cuts out the complainants' equity, and whether it would be proper to pass the decree against the other defendants. The complainants were not bound to set out what the title of the Glenns was, and thereby [**7]  stultify and estop themselves, and especially not where the rights of a feme covert are concerned. The bill alleges the claim to be a pretended one, supported by possession. It is said we ought to know what this title is, but how are we to know this--especially how is a feme covert to know it? Suppose the instrument under which they claim was forged, or there was fraud or duress in obtaining it? In such a case, should we be bound to state what that title is, further than to say it is a pretended one?

Courts of equity always embrace in one suit every thing relating to the same subject, in order that complete relief may be given ut sit finis litium. This could not be done without making the Glenns parties, and even if they are not necessary parties, they are competent parties, and their being included is not a vice in the proceedings. The matters stated in the amendment immediately affect the equities of the case, and the complainants could have no complete relief without embracing the subject of the amendment. The defendants, the Browns, might be liable to another suit by the Glenns, after a decree against them in this case, if the latter are not made parties, and bound by the [**8]  proceedings, and thus to avoid multiplicity of suits, they were properly brought in as parties.

The demurrer admitting every thing charged in the amended bill, the allegation of the possession of the property by the Glenns, the employment of a solicitor by them to interpose difficulties in the progress of this cause, in order to protect them in the enjoyment of the property, and their setting up a claim under some pretended conveyance from the complainants; all this is a sufficient wrong to justify the interposition of a court of equity, when no relief can be had at law, (the complainants having only an equity in the property sued for,) and clearly gave the complainants a right to call them in as parties to this proceeding. In Story's Eq. Pl., sec. 72, in considering who are proper and necessary parties to a bill, it is said: "It is the constant aim 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 may be perfectly safe to those who are compelled to obey it, and also that future litigation may be prevented. Hence it is a general rule in equity that [**9]  all persons materially interested, either legally or beneficially, in the subject matter of the suit, are to be made parties to it." Here the subject matter of the suit is the title to the property in which the Glenns are interested, as well as the other parties. If they were complainants, and deducing title through us, they must have made us parties. In secs. 136, 137, those persons are said to be necessary and indispensable parties, when no decree can be passed respecting the subject matter of litigation, until they are before the court. Here there could be no decree, unless the Glenns were brought before the court, the defendants having disclosed them as parties having an interest in the subject matter of the suit. In secs. 153, 154, it is held that the assignor of an equitable interest, where the assignment is disputed or denied, is a necessary party to establish the right of the assignee. It can make no difference whether the assignee or assignor sues; in the latter case the assignee must be made a party. The bill, it is true, must not be multifarious; but in sec. 534, it is said, that though the parties claim under different titles, still if the general objects of the bill will [**10]  be promoted by their being united in a single suit, the court will not hesitate to sustain the bill against them all; and in secs. 323, 324, it is held that even if a party has no interest, a demurrer will not lie if the bill states that he claims to have some interest. In secs. 271, 271 (a.,) 271 (b.,) it is said to be sufficient to avoid the objection of multifariousness, if each of the parties has an interest in some matters in the suit; that is, if he is in some way connected with the subject matter of the suit. Again, they were necessary parties on the ground of the discovery sought from them. 1 Hen. & Munf., 330, Key's Excrs. vs. Lambert. See, also, as to who are proper parties, 4 Cowen, 682, Fellows vs. Fellows. 1 Ves. Sen., 426, Plummer vs. May. 4 Younge & Coll., 345, Plumbe vs. Plumbe. 11 G. & J. 428, Oliver vs. Palmer & Hamilton. 2 Md. Ch. Dec., 298, Oliver vs. Caton. 6 H. & J. 21, Tongue vs. Morton. 1 Gill 235, Berry vs. Pierson. 1 Md. Ch. Dec., 156, Crain vs. Barnes & Fergusson, affirmed in 8 Gill 392. 1 Md. Ch. Dec., 95, Cullison vs. Bossoum. 3 H. & J. 278, Coale vs. Mildred's Admrs. 1 Story's Eq., sec. 28. There is no distinction between the case of [**11]  a specific performance of a contract and any other, in regard to parties; all parties in interest must be brought in. Story's Eq. Pl., secs. 255, 272, 476, 477, 572. The subject of this suit is the property itself, the object of the suit is the possession and enjoyment of the property, the relief sought is a conveyance of the title to the property, and in any aspect of the case, whether we regard the subject matter, the object, or the relief asked, these parties are interested, and therefore proper parties.

The objection of lapse of time and laches should have been made by the parties regularly and properly made defendants to the original bill. They, the Browns and Lancasters, make no such defence, but admit the contract, and say they are willing to execute it. The Glenns, in the position they now occupy, refusing to answer, and demurring to the bill, have no right to set up such a defence.

The Glenns not having the legal title, no relief could be prayed against them as to the conveyance of the property, and the Browns, not having the possession, no relief need be prayed against them as to the possession. The prayers for conveyance against the Browns and possession against [**12]  the Glenns, are the same they would have been, if the whole subject had been embraced in the original bill. The prayer for general relief in both the original and amended bill, is sufficient, if there were no other prayer; and it is sufficient if the Glenns were only formal parties, in order that they should be bound by the decree.

For these reasons it is insisted that none of the grounds of the demurrer are tenable, but if there be any thing technically defective in the bill, the court will remand the case for amendment, under the act of 1832, ch. 302, sec. 6.

F. K. Howard and S. T. Wallis for the appellees, argued that the demurrer was properly sustained:

1st. Because the amended and original bills, together, set up no case as against the representatives of Glenn, which, if true, entitles the complainants to relief at law or in equity. The original bill does not refer to the representatives of Glenn directly or indirectly. The amended bill contains the suggestion, in the answer of the Browns, that Glenn's representatives claim some interest in the property under a conveyance from the complainants, but the bill itself does not allege, in any way, that the matter so [**13]  alleged is true. It alleges nothing, except that the Glenns are in possession. It does not declare that possession to be either adverse or wrongful, or aver that the complainants are entitled to it. It does not deny the execution of a deed by the complainants to the Glenns, as suggested in the answer of the Browns, though that is a matter necessarily within the knowledge of the complainants, nor does it allege that the Glenns are in any way interfering with the rights of the complainants, obstructing their remedies or otherwise giving them cause of complaint. Upon such allegations, or rather such absence of allegation, no relief, by way of discovery or otherwise, can, it is submitted, be administered any where. Story's Eq. Pl., secs. 241, 255, 262, 565, 572. Story's Eq., secs. 74, 716. And it is further insisted, that no case can be found where a court of equity has enforced the specific performance of a contract, after such a lapse of time from its execution, and such laches as have intervened in this case. 1 H. & J. 223, Beall vs. Prather.

2nd. Because by said bills the complainants have joined as defendants parties whose interest and liabilities, in regard to the subject [**14]  matter of controversy, were totally distinct and separate, not based on or connected with any common right, title or possession in regard thereto, and, therefore, multifarious. It is not those who have an interest in the subject matter, but those who have an interest in the object of the suit, that are necessary parties. Story's Eq. Pl., secs. 72, 271, 272, 277. 4 Mylne & Craig, 460, Wood vs. White. 3 Do., 63, Tasker vs. Small. 1 Jac., 490, Moale vs. Smith. These authorities especially refer to bills for specific performance of contracts, and establish the general rule, that in such cases those persons only are to be made parties who were parties to the contract. The Glenns are not, and could not be, alleged to have been interested in, or parties to the contract of sale between the appellants and the original vendors of the property. See also, on this point of necessary parties and multifariousness, 5 Gill 359, White vs. White. 2 Md. 174, Williams vs. West. 8 Gill 1, Thomas vs. Doub. 4 Cowen, 682, Fellows vs. Fellows. 6 Johns. Ch. Rep., 139, Brinkerhoff vs. Brown. 10 Md. 364, Griffin & Lee vs. Merrill.

3rd. Because if any case is hinted against the Glenns, by the [**15]  complainants, it is one merely of wrongful possession, properly determinable at law, or if the same could be determinable in equity, it could only be by a distinct and separate bill, with sufficient averments. Story's Eq. Pl., secs. 476, 477. 19 How., 277, Hipp vs. Babin. This bill cannot be regarded as a bill of peace, because those only who have a clear, legal, and equitable title, have the right to file such a bill. 18 How., 265, Orton vs. Smith.

4th. Because there was no such wrong stated, nor any foundation laid in the amended bill, as entitled the complainants to the discovery prayed. The only allegation of wrong done by the Glenns, is that they claim under some pretended conveyance, which conveyance they allege was made by the complainants themselves. They are bound, in law, to know what this conveyance was. It is not our fault if the truth would estop them; their case estops and stultifies them, not we. There is no such wrong stated as entitles them to a discovery. Story's Eq. Pl., secs. 571 to 575. 2 Story's Eq., sec. 1490. 1 Johns. Ch. Rep., 543, Gelston vs. Hoyt. If the relief asked for by the bill fails, the discovery which is ancillary to it must fail also. 11  [**16]  G. & J. 445, Oliver vs. Palmer & Hamilton. 1 Md. Ch. Dec., 95, Cullison vs. Bossom.

5th. Because the discovery sought by the amended bill was not material to the relief therein prayed, or connected therewith. Story's Eq. Pl., secs. 565, 566. 2 Story's Eq., sec. 1497.

6th. As to remanding the case under the act of 1832, it is insisted that if a bill is demurrable for multifariousness, there is an end of the case, and it must be dismissed at once. 6 G. & J. 171, Evans vs. Iglehart. 2 Md. 37, McElderry vs. Shipley. 5 Gill 359, White vs. White. 10 Md. 364, Griffin & Lee vs. Merrill.  

JUDGES:
The cause was argued before ECCLESTON, TUCK and BARTOL, J.  

OPINIONBY:
TUCK 

OPINION:

 [*168]  TUCK, J., delivered the opinion of this court.
The original bill was filed by the appellants against the Browns and Lancasters, to enforce the performance of a contract for the sale of certain property in Baltimore, for which they allege the purchase money had been paid, and claiming a conveyance of the title from the defendants, as heirs of the vendors. The infant defendants answered in the usual form, by their guardian, and the others, by their answer, submit to such decree as may be passed;  [**17]  but in their answer they say: "They, however, deem it their duty to state that they have been informed that said Charles Crook, Jr., and wife, heretofore, by mortgage or otherwise, conveyed said property to the late Judge Glenn, and that the heirs or representatives of the said Judge Glenn claim some interest or estate therein, of the extent or nature of which your defendants are not informed." The complainants then filed an amended bill, in which, after reciting the original bill, they "show and charge, by way of amendment, that the defendants, in their answer, have suggested that by some sort of deed or instrument of writing, the said property was conveyed to the late Judge Glenn, by the complainants, and that the heirs and representatives of the said 

 [*169]  Glenn claim some interest or estate therein, under a conveyance from the complainants, of the extent or nature of which the said defendants are not informed;" and the complainants further show that the said heirs and representatives are in possession of the property; that a solicitor of the court has appeared ostensibly for the original defendants, but, in truth, as the solicitor of the heirs and representatives of Glenn,  [**18]  in order to protect them in the enjoyment of the property, under the said alleged conveyance, and which they are claiming under some such pretended conveyance; that if they can have advantage of the services of the solicitor, they should be bound by the proceedings in the cause, and be required to show what interest they have or claim in said premises, or right to oppose the decree in this cause. The bill prays an answer from Glenn's heirs and representatives to the matters set forth in both bills; that they may be decreed to deliver the possession of the property to the complainants, and for further relief. The Glenns appeared, in obedience to the subpoena, and demurred to the amended bill, assigning several causes, which demurrer the court below sustained. The complainants appealed before any further proceedings between the original parties, and the only question for inquiry here is, whether, upon the amended bill, the complainants could make the Glenns parties to the cause, for the purposes stated in their pleadings.
The case was argued on the part of the appellants, as if the Glenns could, under the answer of the Browns, and through them, as defendants to the original bill, have [**19]  defeated the complainants' right to the relief they sought against the defendants, representing the vendors of the property. But this could not have occurred. The Browns submitted to a decree, and, as the infant defendants were not concluded by the guardian's answer, proof as against them was all that the complainants required. The Browns made no defence upon any claim or pretensions of Glenn to the property; and if they had so dedesigned, we cannot regard that part of their answer as sufficient for the purpose. It appears to have been intended as something for the information of the court, which these defendants 

 [*170]  deemed it their duty to furnish, but to what end, is not stated. It contains no averment or allegation of fact to which the complainants could have replied, and issue been taken. The rules of pleading require something more than loose hearsay declarations of this kind, and especially when they are not relied on as matter of defence to the bill.  Chambers vs. Chalmers, 4 G. & J. 420. In Jones vs. Slubey, 5 H. & J. 372, it is said, a defendant will not be permitted to delay the bringing of a suit to issue, by merely alleging an interest [**20]  in third persons.
Besides, if this matter had been properly relied on as a defence, we do not perceive how it can avail as a ground for non-compliance with the original agreement. We do not say that a vendee may not so deal with the property as to deprive himself of all interest in the enforcement of the contract of purchase, but there is nothing to show that the complainants have done so in the present case. It might happen that a deed from persons in the attitude of the Lancasters and Browns would be necessary to enable the complainants to perform an agreement with a party in the supposed condition of Judge Glenn. If the latter purchased the property from the complainants, those claiming under him might proceed in equity against the complainants, as well as their vendors, to obtain the legal title; but it does not follow that when a purchaser files a bill against his vendor, the assignee or vendee of the complainants must necessarily be made a party, merely because he has an interest in the property. The purchaser and his vendee or assignee might join in a bill against the original vendor, for the purpose of obtaining a title directly to the second vendee, but there should be no [**21]  conflict between the complainants themselves.  Ellicott vs. Ellicott, 2 Md. Ch. Dec. 468. Their interests should be consistent. Adams' Equity, 312. Hence the complainants and the Glenns could not unite in a bill against the Browns and Lancasters, except upon the concession that the title of Crook had passed to Judge Glenn, and that his heirs or devisees were entitled to a conveyance.
Though it is the constant aim of courts of equity to do complete justice, by settling the rights of all persons interested in 

 [*171]  the subject matter of the suit, so that the performance of the decree may be perfectly safe to those who are compelled to obey it, and also that future litigation may be prevented, it is very difficult in many cases to determine who are the necessary parties. Story's Eq. Pl., sec. 72. The question must depend, in a great measure, upon the object, as well as the subject of the bill, the relief sought, the privity between the parties, and the manner in which their several interests may have arisen. It is impossible to state a general rule applicable to all cases. The most eminent chancellors have used different language in defining the doctrine [**22]  as to parties; and the elementary works on pleading, as well as decided cases, show a great variety of exceptions. See Mitford Pl., 164.  Poore vs. Clark, 2 Atk. 515. 1 Ves., Jr. 29.  Palk vs. Clinton, 12 Ves. 58. Cockburn vs. Thompson, 16 Ves. 325. Wilkins vs. Fry, 1 Mer. 262, in which the subject is discussed by Lord Redesdale, Sir Wm. Grant, and Ld. Chancellors Hardwicke, Thurlow, and Eldon. The numerous citations by the counsel also show in what uncertainty the point is involved. Calvert, in his Treatise on Parties in Equity, (17 Law Lib. 11,) suggests, as the result of the authorities, "that all persons having an interest in the object of the suit, ought to be made parties;" but Mr. Justice Story doubts whether such a rule would remove a single difficulty in examining the subject, (Eq. Pl., 72, note.) For the rule stated negatively, see Calvert, 75. Adams, however, refers the determination of the question as to parties to the character of the relief sought, and considers as necessary parties all persons interested in that relief. Adams' Eq., 312.
It appears to us, however,  [**23]  that the appellants, if supported by either of these definitions, cannot maintain their standing in court consistently with other recognized rules of pleading. The property being the same, all these parties may be said to be proper and necessary, as having an interest in the subject matter of controversy; but the equity against the Glenns and the other defendants is not the same, nor of the same character. The complainants seek, in the first place, to acquire a title from their vendors, or those representing them, and that 

 [*172]  being established, they propose, in the same case, to litigate another question of title with other parties in no sort of privity with the Browns and Lancasters, but who set up a claim under the complainants themselves. If the bill had been filed originally with this double aspect, the appellants might probably have been met by a demurrer for multifariousness; for these are perfectly distinct and unconnected titles to the same property, and the considerations on which such demurrers are allowed, are applicable here. Story's Eq. Pl., 271. Calvert, 82. In cases for specific performance, the general rule is said to be, "that it is only necessary [**24]  to make those persons parties who are parties to the contract." Calvert on Parties, 291, sec. 24. Wood vs. White, 4, Mylne & Craig, 483. Tasker vs. Small, 3 Do. 63.  2 Jac. & Walk. 538. Story's Eq. Pl., 226, C. And it has been decided to be multifariousness to include in such a bill a prayer for relief against third persons who claim an interest in the estate, but were unconnected with the sale. Mole vs. Smith, Jac. Rep., 490. Story's Eq. Pl., 272.
There is a rule, however, applicable here, about which there can be no dispute, and that is, that a person ought not to be made a defendant against whom no decree can be passed. Eq. Pl., sec. 231.  Hoye vs. Johnston, 2 Gill 291. The object of the amendment is to bring the Glenns into court, that they may be made to show their title, if any, to the premises, that that claim may be defeated, and the possession delivered to the complainants. We know of no head of equity jurisprudence under which this can be maintained. It would be, substantially, to give to a chancery suit the effect of an action of ejectment. This is the relief prayed for, and there is no case [**25]  made by the bill which authorizes any other under the general prayer. There are some circumstances under which courts of equity will amove a party in possession and put in another, but these cases are of peculiar character. The assertion of the power in the present case, has not been supported by a single authority.
The principles applicable to bills of discovery cannot aid the appellants. It does not appear to be a proceeding of that 

 [*173]  kind. Besides, if the complainants have assigned their interest to Judge Glenn, they know what the transaction was, and if they desire to invalidate it, the bill should state a case which his heirs can answer and defend. So, on the other hand, if the title of Glenn be a merely pretended claim, the real owners cannot be affected by it in any proceedings they may hereafter institute for the recovery of the property.
Nor can the amendment be sustained upon the doctrine of bills quia timet. The complainants have not the legal title, and are not in possession, which we take to be essential facts in such cases. 1 Madd. Chy. 225. 2 Story's Eq., 694, et seq. Orton vs. Smith, 18 How. Rep. 265. And, if the amended bill did not [**26]  present these defects, such an equity could not be blended with the case made and the relief sought against the original defendants.
Order affirmed, and cause remanded. 

6 of 187 DOCUMENTS 

FRANCIS H. INLOES, GARNISHEE OF TURNBULL & CO., vs. THE AMERICAN EXCHANGE BANK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 173; 1857 Md. LEXIS 32 

DECEMBER, 1857, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

Attachment on judgment sued out by the appellee to affect the property and credits of Turnbull & Co., and laid in the hands of the appellant, as garnishee, who appeared and pleaded nulla bona.

The defence relied on was a deed of trust for the benefit of creditors, executed by Turnbull & Co. to the appellant, as trustee, and dated the 22nd of September 1851. This deed purports, on its face, to be executed by the partnership firm of Turnbull & Co., and conveys "all the goods, wares, merchandise, chattels and effects (goods consigned for sale to said Turnbull & Co. excepted) now in, of and belonging to the store and warehouse held and conducted by the said Turnbull & Co., on Baltimore street in the city of Baltimore; and also all the notes, bonds, evidences of debt, securities, claims and demands of, or belonging to the said John and George, as partners aforesaid, or wherein they are in anywise interested." The provisions of this deed are fully stated in the report of this case on the former appeal in 7 Md. 380. The only provision which need be stated here is the following:

"Third. It is hereby declared, as part of the [**2]  trust of these presents, that said Inloes, his executors or administrators, shall, at his discretion, sell as aforesaid, all, or any part or parts, of said goods, wares, merchandise, chattels and effects, by public or private sale, and by wholesale or retail, or in parcels, as may by him, as to all or any portions of said property, be deemed eligible, and it being understood that said property may be gradually sold in the manner and on the terms in which, in course of their business, said Turnbull & Co. have sold and disposed of their merchandise."

The present trial was had under the procedendo awarded by this court upon the reversal of the judgment on the former appeal in this case, reported in 7 Md. 380.

Exception. At this trial both parties read in evidence all the testimony offered in the former trial, as set out in the procedendo record, which testimony, with the admissions in said record, it was agreed should be admitted as if offered and made anew. (It is only necessary to state that this record contained an admission of the execution of the deed of trust, together with oral proof, on the part of the plaintiff, that at the time of its execution Turnbull & Co. were [**3]  engaged in buying and selling carpets and oil cloths, selling both at wholesale and retail, but mostly by retail, on a credit of six months, according to the usage in Baltimore, and that of the proceeds of sale made by the trustee one-half were for sales on credit; and of oral proof on the part of the garnishee by J. S. Inloes, that the course pursued by the trustee in selling at private sale was by the advice of witness, who deemed it best for the interest of those concerned.) The garnishee then, at the present trial, offered evidence, subject to all objections as to its admissibleness and effect, by J. S. Inloes, John Turnbull, Jr., one of the grantors in the deed, and others, to the effect that the third clause in the deed was inserted upon the advice of the witness, Inloes, and was designed for the benefit of the creditors in order to obtain the best prices for the goods, and that it actually operated greatly to their advantage, the loss on the goods sold at private sale being about 25 per cent. less than on those sold at auction, and about three-fourths of the stock having been sold at private sale upon the same terms on which Turnbull & Co. had been accustomed to sell.

Upon [**4]  this evidence the plaintiff prayed the court to instruct the jury: "That the deed of trust offered in evidence in this case, and dated the 22nd day of September 1851, is void in law." This prayer the court (PRESSTMAN, J.,) granted, and the garnishee excepted and appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

An assignment for the benefit of creditors gave the trustee power, at his discretion, to sell the property conveyed by the deed, consisting of a stock of goods in trade, "gradually in the manner and on the terms in which, in course of their business" the grantors "have sold and disposed of their merchandise." HELD:

That this provision renders the deed void upon its face, and cannot be aided by parol proof that it was inserted for the benefit of creditors, and was designed to, and did, operate for their advantage.

It is well settled, that an instrument void in law for matter appearing in the deed itself cannot be made good by averment.

Assignments for the benefit of creditors need not provide that the sales must be always made immediately and for cash, whether the interest of creditors will be affected or not; the trustee may be left to the exercise of a sound discretion, but the assignment must not confine him by unreasonable provisions,

A party may always ask the direction of the court upon the effect of testimony in a cause, whether that testimony be offered subject to all objection as to its admissibility and effect or not.

The finding of facts must be left to the jury, even where the proof is all on one side, but this is not necessary where a case is tried upon admissions made at the bar, for the jury may discredit testimony but they cannot find contrary to the agreement of the parties.

The party appealing cannot, in this court, object to a prayer, that it assumes a fact which was admitted at the trial, and which admission was made for his benefit. 

COUNSEL:
Chas. F. Mayer and John Nelson for the appellants, argued:

1st. The deed appears now relieved from all unfavorable imputation attached to it by this court, when, on the former appeal, the clause was left unexplained which brought the deed into odium. The ample testimony elucidating the motive, and indeed the necessity, for the creditor interest of the clause, that necessity and the wisdom of the clause, verified by the result of the sales effected, give the deed a new character. It is such possible explanatory testimony, that this court must have had in view, when, with cautious reservation, they say, in 7 Md. 392, (after dwelling favorably on the case of Janes vs. Whitbread, 5 Eng. Law & Eq. Rep., 431, where even the carrying on of the debtor's trade by the trustee was sanctioned, because ancillary to the trust for the creditors,) that "such is not the fact," (proved in the case [**5]  then,) "and as this case at present stands we can regard it," (the assignment,) "in no other light than an attempt to place the assignee in the place of the debtor for the purpose of carrying on the latter's business as it had been previously conducted by him before the deed of trust, without any special benefit to be derived thereby by the creditors, and without limitation or restriction upon the trustee." The English case thus adverted to as an exemplar of the sound law for such a clause, and that case having more in the provision of "carrying on trade" to be overcome than this case exhibits, and the clause there being yet sustained only because it was shown to be introduced for the benefit of creditors, why is it that when we put ourselves in pari materia with that very case, by proof that our provision was not only meant, but was indispensably requisite for the creditor interest, we should not be admitted to the same favor before this court as met that case in England? The acceptance of the principle of that case, shows that this court deemed testimony explanatory of such a clause competent, and that however prima facie and without explanation the clause might vitiate the trust,  [**6]  it had but a presumptive force to that effect, and was not of that class of provisions which rendered the deed fatal in Green & Trammel vs. Trieber, 3 Md. 39. Resting, as the court does, on the case in 5 Eng. Law & Eq. Rep., 431, they admit that this is not a clause that by necessity is so dishonest of purpose as to repel all explanation. The stamp of dishonesty is not, by the law, so obdurately put upon the clause, that the truth of purpose and of moral necessity in the clause may not be testified. The cases in Virginia, 11 Grattan, 348, Cochran vs. Paris, and 778, Dance vs. Seaman, show the principles which we maintain as ruling here, that where it is possible that the provisions questioned be honest in intent and useful for the fair object of the deed, evidence dehors the deed may be given to rebut any presumptive fraud, and this seems the spirit of the view of this court in Cole vs. Albers & Runge, 1 Gill 423. Even in New York, whence this new rigor in construing provisions of assignments for creditors is derived, it is said, that the question upon the fraudulent nature of the particular provision is, whether, if the provision be carried out according to its reasonable [**7]  intent, it will prove practically fraudulent, and that a provision is not to be condemned as fraudulent if the fraud resides only in the abuse of the provision. 15 Barb., 618, Brigham vs. Tillinghast.

2nd. But all question as to the admissibleness of parol testimony here may be considered as at rest, since it has been given, in fact, without any objection. 5 Md. 121, Coates & Glenn vs. Sangston. 3 Md. 295, Trump vs. Baltzell. 4 Phillip's Ev., Notes, 576. Our case is by the testimony for the first time now before the court, within the principle and very terms of the case adopted by this court in 5 Eng. Law & Eq. Rep., 431, and comes within the principle of the cases where a deed has been upheld, notwithing the trustee's power, at discretion, to delay the trust administration by working up manufacturing materials and using trust funds for so doing. It may be here said that New York, even, has sanctioned provisions of the terms just adverted to. 11 Wend., 240, Cunningham vs. Freeborn. But the testimony to show the bona fides and high expediency of the clause was competent, even if it had not been given without objection. The presumption of fraud, deduced from the unexplained [**8]  words, is rebutted and the deed restored. It is not familiar law, that where a clause in a deed is susceptible of explanation to a fair intent and effect, although, until explained, the law presumes against it, parol testimony may be given thus to develop the actual bona fides and usefulness of the clause? 3 Croke, 501, Nevison vs. Whitely. 2 Vent., 83, Bush vs. Buckingham.

3rd. There is no provision in the deed, in any discretionary authority given to the trustee, which annuls the deed, even if the clause referred to be considered as allowing sales upon credit. The power allowing the trustee to sell in manner as the debtors sold is proved to be one essential for the best interest of creditors, as surely commanding the best results for them. If such a course involves a credit on sales, that power is not to be regarded as a discretion of a fraudulent dye, and is to be treated only as a credit is where usage of trade requires and so sanctions it. The power, from the tenor of the clause, is necessarily limited by the practice and periods of credit in the business of the debtors, and while the limits of the usual credit are observed no indiscretion is committed and no fraud can be [**9]  imputed. As was stated in 15 Barb., 618, no presumption of fraud in a trustee, by exceeding the reasonable bounds of a power, shall be indulged, and thus where a power to sell on terms, as the trustee may deem most eligible, does not, by New York decisions, authorize the inference, that sales on credit (repudiated by those decisions) will be made, although such sales be within the words used. Such is the liberality of even New York judicature, grudgingly censorious as it is, of assignments for paying creditors. 19 Barb., 176, Bellows vs. Patridge. 21 Barb., 65, Nichols vs. McEwen. Ibid., 128, Clark vs. Fuller. Indeed, let the bona fides of a deed be once shown, and then any discretional power of the trustee may well be deemed harmless for the integrity of the deed, since, as a trust, the operation of the trustee will be under the control of a court of equity to check excess and to dictate the path of his administration. 2 Mich. Rep., 309, Hollister vs. Loud. Such views seem to have once governed our Court of Appeals, and the principle of credit operations in trusts does not appear to have appalled the court as fraught with fraudulent delay and ruinous hindrance to creditors, for undeniably [**10]  in Beatty vs. Davis, 9 Gill 211, the there-sanctioned privilege of a trustee to mortgage the trust property conferred the largest credit authorization. The sanction was safely lent to the trust, for the bona fides of the conveyance was not disputed, and the court of equity became, as the judicial guardian of the trust rights created, a virtual party to the deed for all wholesome administration of the estate, and to interpose against all wild action within the scope of the granted powers. The cases presented at the former hearing of this cause sustain a discretional authorization for credit sales, and we now add 22 Ala., 238, Shackelford vs. Bank of Mobile. Indeed we would respectfully suggest, that if exotic judicature of this country is to be invoked for light or counsel, we cannot see preeminent impressiveness over our southern judicial developments, in the New York judicial novelties, either in the philosophy or erudition, or social policy of the juridical work. There remains to be considered but the clause which exonerates the trustee from liability where he has not been guilty of actual and wilful wrong and default. This clause has been decided to import no more than a court [**11]  of equity limits as to the amenableness of a trustee. Remissness in his duty is an actual wrong to those whose interests are committed to him, and indifference to obligations distinctly before him, and appealing to him for care and action, is wilful default as much as gross negligence is constructive fraud. 18 Barb., 549, Jacobs vs. Allen. Jac., 198, Macklin vs. Fuller. Hill on Trustees, 314, and cases cited at former argument.

4th. The prayer of the appellee was defective, because it takes from the jury the finding of the deed of trust. If the deed be considered in evidence under an admission coming from us, still the prayer is not relieved from irregularity for assuming as a fact what it only was for the jury to show to be a fact, viz., the executing of the deed, for no admission of a fact, (which is but a mode of proof,) nor the absence of all counter testimony to a testified fact, will dispense with leaving to the jury the finding of the fact from the testimony in the case. 2 Gill 410, Charleston Ins. Co. vs. Corner. 3 Gill 31, Bullitt vs. Musgrave. 6 Gill 87, Franklin Fire Ins. Co. vs. Hamill. 2 Md. 75, Brown vs. Ellicott. 10 Md. 118, Boyd vs. McCann.  [**12]  Ibid., 234, Mitchell vs. Mitchell. Ibid., 333, Giles vs. Ebsworth & Hays. These cases show the critical strictness which this court applies to see that a prayer shall, by no implication of a fact, or even of the necessary consequence of a fact, exclude from the jury the ascertainment of all facts, and even the operation and results of facts. We do not see how it matters whether the appellee claims under the deed or whether we do.

Wm. Schley for the appellee, argued:

1st. The proposition asserted in the appellant's first point is this, that a deed, void on its face, because it contains provisions forbidden by law, may, nevertheless, be supported by parol proof, and be made to operate according to its tenor, and in accordance with these forbidden provisions. Where a deed, void as it stands, is sought to be reformed on the ground that the prohibited provision was inserted by mistake, so that, when reformed according to the real intention of the parties, it may avail in its altered condition, we perceive, at once, the equity of such an application. But to ask that a deed, void on its face, shall, nevertheless, take effect as it stands, in spite of the law, upon the ground that,  [**13]  although it is precisely such as the parties designed it should be, they acted from good motives, is virtually asking that the will of the parties shall prevail over the law; for the whole effect of the parol evidence, if admissible, is to show that the witnesses advised the insertion of the provisions which have rendered the deed void. The plain answer is, that the parol proof cannot vary the deed; it cannot expunge the provisions which the law has denounced as fraudulent, which fraudulent provisions, as this court has already decided, have rendered the deed void. The efficacy or invalidity of the deed depends not on the fact who advised the insertion of the clause, nor on the opinion of the witnesses as to its expediency and utility, but being there, it renders the deed, as it stands, void in law.

2nd. The parol testimony was not admitted without exception, as stated in the appellant's second point. It was given and received subject to all objections to its admissibility and effect. If the question depended on the quo animo, and the clause would be legal or illegal, as the motives for introduction should be found to be good or bad, there would be not only propriety, but necessity,  [**14]  for the inquiry into motives. But the law has laid down the stern rule, binding alike on the good and the bad, that no debtor shall make conveyances "to hinder, delay or defraud his creditors;" and this court has already decided that such a clause as the one in question, does violate this rule.

3rd. The discussion, again, of the questions which were fully argued and decided on the former appeal, can hardly be expected of the appellant. If the deed is void in law, it is quite immaterial whether it is void merely on the ground actually decided on the former appeal, or whether it is void, also, on any of the other grounds then discussed and not decided.

4th. The prayer did not trench upon the right of the jury; for the plaintiffs did not ask any instruction which asserted a right based on the deed. The plaintiff did not claim under, but against, the deed. It was offered by the garnishee as a bar to the plaintiff's recovery; for the defendant relied entirely on this deed to sustain the plea of nulla bona. The garnishee had offered in evidence this deed, and its factum was admitted; if valid, it sustained the plea. Whether valid or not, was a question of law. The plaintiff supposed [**15]  it to be void on its face; and, if so, then it could not sustain the plea. Now, clearly, the plaintiff had a right to ask the opinion of the court on this point of law. 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 upon it. 1 Gill 128, Whiteford vs. Burckmeyer & Adams. Such a prayer is, in effect, like a demurrer to evidence. It concedes to the opposite party the benefit of the facts on which he relies, but denies the legal efficacy of those facts to produce the result for which they were invoked. It is the province of the court to determine the meaning and effect of written instruments. If the plaintiff had claimed under the deed, and the prayer had assumed its existence, as the basis of the instruction asked for, the cases cited by the appellant would have some application. But it was assuming nothing that belonged to the jury, to ask the court to say that the deed was void on its face.  

JUDGES:
The cause was argued before LE GRAND, C. J., TUCK and BARTOL, J.  

OPINIONBY:
TUCK 

OPINION:

 [*182]  TUCK, J., delivered the opinion of this court.
When this deed was before the court on the former appeal--  [**16]  7 Md. 380--it was declared void in law, for matter apparent on its face; and the cause was sent back under a procedendo. At the second trial, the defendant, now appellant, offered evidence that the clause, in reference to which this court had expressed its opinion, was inserted for the benefit of the creditors, in order to prevent loss, and that sales at auction would have produced less than was realized from the gradual sales in the usual way of carrying on the business of the grantors. The object being to remove the objection made by the court to that clause of the instrument. But, notwithstanding this proof, the court granted a prayer of the plaintiff, that "the deed is void in law," from which ruling the defendant appealed; and the question presented by this state of the case is, whether the parol proof warranted a different decision on that prayer?
We understand, from the argument, that this evidence was offered under the impression that the court, on the former appeal, declared the deed to be void because there was nothing to show that this provision was designed to operate, and did operate, for the advantage of the creditors, and it is now insisted that, such [**17]  evidence being in the record, the deed should be pronounced valid. That opinion, when considered with reference to the cases in this court upon the subject of these trust deeds, and referred to by the judge, does not admit of the interpretation now placed upon it. That the passage relied upon by the appellant's counsel, considered alone, may sustain his view, might be conceded without placing that adjudication in conflict with previous decisions. This may be the case with many opinions, if portions are separated from the context, and considered apart from the reasoning of the whole, and the principle of the cases referred to. In using the words, "as this case at present stands," the court must be understood as 

 [*183]  having reference to the validity of the transaction upon the deed alone, for we take it to be well settled that an instrument void in law, for matter appearing in the deed itself, cannot be made good by averment; and so we had decided in Green & Trammel vs. Trieber, 3 Md. 11. It was contended that the question of fraud should have been left to the jury, upon all the circumstances attending the transaction, but we answered, (page 40,) "There [**18]  is nothing for the jury to pass upon, when the court can see that the instrument is fraudulent on its face. We are to look to the character with which the law stamps the deed, without reference to extrinsic facts as to motive. If the law imputes to the grantor a design in making the deed, no evidence of intention can change the presumption. If the law declares such deeds to be void, it is no matter how the question of fraud, in fact, may stand." And in 3 Md. 40, Sangston vs. Gaither, where it did not appear by the deed that the grantor, though requiring releases from his creditors, had conveyed all his property, and it was urged that he might have had other property to pay creditors, not provided for by the trust, we said, "This view of the case cannot change the character which the law gives to this assignment." So, since this case was decided, we have held the doctrine in Malcolm vs. Hodges, 8 Md. 418, that the validity of such deeds must be determined without regard to the surrounding circumstances, which, in that instance, were, that a large majority of the creditors had examined the affairs of the debtor, and concluded, unanimously, that [**19]  it would be for the advantage of all the creditors that an assignment should be made, and the deed in question was executed accordingly; and, in reference to the argument of counsel, that the grantors had derived no benefit from the reservation by resulting trust, and that the creditors were not injured by that feature of the deed, as there was no surplus, it was said, "We cannot look outside the assignment to ascertain whether there will be a surplus or not. That would make the efficacy of the instrument depend on extrinsic circumstances, when the law requires that its intent shall be gathered from its face." Interpreting that part of the opinion, therefore, by the application of these 

 [*184]  principles, which are the settled law of this court, we think that the only legal deduction, from the words now relied upon by the appellant's counsel, is, that the circumstances there mentioned, which might sanction such a deed, where the grantors were manufacturers, and the power given was to work up unmanufactured materials, should appear on the face of the deed, in order that the court might determine, as a question of law looking to the deed alone, whether it was valid or void. It is [**20]  not said, nor did we mean to intimate, that the nature of the trade or business, and the effect of carrying it on, or of selling in one way or another, could be shown by parol, so as to give effect to an instrument which, in the conclusion of the opinion, we declared to be void upon its face, that the court ought so to have pronounced it, and that there was nothing left for the jury to find.
Besides, we were remarking upon the case in 5 Eng. Law & Eq. Rep. 431, and its appositeness was placed upon the hypothesis of the Messrs. Turnbull being manufacturers of oil cloths, carpets, and the like, which they have not shown themselves to be, even conceding that such evidence could aid the deed.
It does not follow, from the views we have expressed in reference to provisions of this kind, that sales must be always made immediately and for cash, whether the interests of creditors will be affected or not. The trustee may be left to the exercise of a sound discretion, but the assignment must not confine him by unreasonable provisions. Trustees are sometimes selected by a portion of the creditors; sometimes, if not generally, by the debtor and a few who are to be preferred; and, often, most [**21]  of the creditors are informed of the transfer when it is too late to protect themselves by any other means than attacking the deed. If these assignments are fairly and bona fide made, the creditors, if consulted by the trustee, will know best how the trust should be conducted, and if sales, in any particular manner, will yield larger results, they will have the best reason for assenting to that mode. Thus the creditors can prescribe a law for the guidance of the trustee, which will fully protect him, and may accomplish for them what, under 

 [*185]  the terms of the deed, he may not be able to effect. And, where the trustee is apprehensive of difficulty, or, for any reason, desires protection in the performance of his duties, he may invoke the jurisdiction of a court of equity, and proceed under its direction.
This evidence was offered "subject to all objections as to its admissibleness and effect." A party may always, even without this qualification, ask the direction of the court upon the effect of testimony in a cause. Here the right was expressly reserved.  Whiteford vs. Burckmyer, 1 Gill 127. The prayer conceded the truth of the defendant's evidence,  [**22]  and the court, by sustaining it, in effect declared that the provisions of the deed could not be made operative by the parol proof.
It is also contended, that the factum of the deed was assumed by the prayer. It is well settled, that even where the proof is all on one side, the finding of the facts must be left to the jury; but this is not necessary where the case is tried upon admissions at the bar. The jury may discredit the testimony, but they cannot find contrary to the agreement of the parties.  Armstrong vs. Risteau, 5 Md. 256. Here the admission was for the appellant's benefit. His defence was title under the assignment, of which there was no evidence. It was admitted at both trials, and, without reliance by defendant on this concession of the plaintiff, there was no impediment to his recovery.
This deed conveys partnership property only, and the evidence shows that it embraced all of that description. There is nothing to show there was any other. The case differs from Sangston vs. Gaither, and Malcolm vs. Hodges, in this, that here the deed does not stipulate for releases. As this feature of the case was not presented at either appeal, we decline [**23]  expressing any opinion on the points it may involve; and advert to it now that this decision may not be considered a precedent in support of a like deed, if this objection should be raised hereafter.
Judgment affirmed. 

7 of 187 DOCUMENTS 

GEORGE HOLLAND vs. THE MAYOR & CITY COUNCIL OF BALTIMORE, AND CHARLES HOWARD, Collector.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 186; 1857 Md. LEXIS 33 

DECEMBER, 1857, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Baltimore city.

This appeal was taken from an order of the court below (KREBS, J.,) dissolving an injunction upon bill, answer and exhibits.

The bill, filed by the appellant, alleges, in substance, that the complainant is the owner of a lot fronting on Hollins alley, which has been advertised for sale by Charles Howard, the city collector, to pay a paving tax alleged to be due thereon, for the paving of said alley between Lombard and Pratt streets; that this tax is not due and payable by law, and that the proceedings of the city commissioners, in regard to said paving, are irregular, illegal and void, the application therefor never having been made or assented to, in writing, by the proprietors of a majority of the feet fronting on the alley to be paved, because George H. Steuart, who signed the application as owner of 195 feet, was not the true owner of but a part thereof within the intent and meaning of the acts of Assembly relating to the paving of streets in the city of Baltimore, he having, prior to the application, leased the larger part thereof for ninety-nine years, and the proceedings relating to the paving, therefore, created no [**2]  liability in law upon the lot of the complainant; that said paving tax is not a lien upon the lot, and the city collector has no authority to sell the same; that the contractors who did the paving withdrew from the city collector their bills therefor against the complainant, which had, under the ordinances of the city of Baltimore, been placed in the hands of said collector for collection, and at the time of such withdrawal the said contractors paid or secured to the collector the commissions on such bills due under the city ordinances, and that the collector afterwards levied a distress upon the goods and chattels to satisfy this tax, claiming authority for the same under the ordinances of the city; and that said goods and chattels were replevied, which replevin is still pending in the Court of Common Pleas; that in the contract for this paving there is a clause inserted that the city should not be responsible for the payment of the paving done under it, and that in consequence of this clause, and the aforementioned withdrawal, said tax ceased to be collectable as a public due or tax. The bill then prays for an injunction to restrain the city authorities and the collector from proceeding [**3]  to sell the complainant's lot for this paving tax, and for general relief.

The injunction having been granted the defendants filed their answers. That of the Mayor & City Council insists, that the proceedings in relation to the paving of this alley were in compliance with the act of Assembly and city ordinances in such case made and provided, that the paving tax was legally assessed, and is a lien on the complainant's lot, and without admitting or denying the statements in the bill, further than to refer to the answer of Howard, the city collector, as containing the statement of facts which it is believed to be correct, submits to such decree as the court may think proper to pass.

The answer of Howard admits that the complainant is the owner of the lot referred to in his bill, and that the same was advertised for sale as alleged, but denies that the proceedings, in reference to the paving of this alley, are irregular, or that said tax was illegally assessed, but, on the contrary, insists, that the same is legal, and is a lien on the said lot, and that the decision of the city commissioner, as to the sufficiency of the application to pave, is final and conclusive, and that [**4]  a court of equity has no power to review his determination in a question of fact specially committed to him by the acts of Assembly and ordinances of the city. He also insists, that the complainant has been guilty of such laches as deprives him of a standing in this court, by waiting till the paving was done before he objected thereto, when he had notice of the application and determination to pave by the publication of the same in the newspapers; that the contractors made the contract and did the paving in good faith, and will suffer loss if this court shall now adjudge the proceedings illegal, because their contract releases the city from all responsibility for payment of said paving; that the facts alleged in the bill do not show such irreparable loss or damage as will give the court jurisdiction to interpose by way of injunction, and that the complainant has his remedy at law against the Mayor & City Council if the paving and assessments are illegal. He denies that the execution, by George H. Steuart, of the leases mentioned in the bill, deprived him of the ownership of the ground so leased, within the true meaning of the acts of Assembly in such case made and provided. He admits [**5]  the distraint and replevin alleged in the bill, and insists that the ordinances of the city give him the additional remedy by sale, to which he has in this case resorted; and further states, also, that he is informed and believes, that the bills for paving, mentioned in the bill of complaint, were returned to his predecessor in office, and denies that the withdrawal and return altered the character of the same, and insists that they are still a public tax and collectable as such.

The facts appearing from the exhibits filed with the bill and answers are sufficiently stated in the opinion of this court. A motion was then made to dissolve the injunction, which was heard upon bill, answer and exhibits, and from the order of dissolution the complainant appealed.  

DISPOSITION:
Order reversed, and injunction made perpetual.  

HEADNOTES:

The lessee for ninety-nine years, or for ninety-nine years, renewable forever, and not the owner of the fee, is the owner or "proprietor" to assent to the paving of unpaved streets in the city of Baltimore, under the acts of 1797, ch. 54, sec. 2, and 1817, ch. 148, sec. 18; in the construction of these acts that of 1833, ch. 40, sec. 3, being in pari materia, ought to be adverted to.

Unless the owners of a majority of the feet fronting on the street to be paved, assent in writing to the paving, the proceedings of the city authorities, directing the paving to be done, are null and void, and a court of equity has, upon application of the non-assenting owners, jurisdiction to prevent, by injunction, the sale of their property to pay for such paving.

Where ample and perfect justice can be done, equity will interfere to prevent multiplicity of suits, and equity will not allow a title, otherwise clear, to be clouded by a claim which cannot be enforced either at law or in equity.  

COUNSEL:
Bernard Carter and J. M. Campbell for the appellants, argued:

1st. That all the preliminary proceedings prescribed in the acts of Assembly and ordinances of the city, regulating the paving and repaving of streets, must appear to have been strictly complied with, otherwise, as to those proprietors who do not assent, the whole proceedings will be null and void, and impose [**6]  no liability upon them for any portion of the paving tax. The most important of all these preliminaries, is the assent, in writing, of the owners of a majority of the feet of ground fronting and binding on the street, lane or alley to be paved. This assent is made the foundation of all proceedings relating to paving, and without it, they are all, including the tax, null and void. Act of 1817, ch. 148, sec. 18. 8 Md. 352, Henderson vs. Mayor & C. C. of Balto. 4 Hill, 76, Sharp vs. Speir. 5 Gill 383, Alexander, et al., vs. Mayor & C. C. of Balto. Rev. Ord. 1850, No. 15, passed May 20th, 1850.

2nd. That the lessor of a term for ninety-nine years, or for ninety-nine years, renewable forever, is not the owner or proprietor, for the purpose of assenting to the paving of a street, but that the lessee is, for this purpose, the only true owner or proprietor. This results from the true construction of the several acts of Assembly on this subject, all of which should be taken and considered as parts of one homogenous system, as well as from a consideration of the respective rights and obligations of the lessor and lessee of such terms, as they exist at common law. The right to pave [**7]  is derived from the acts of 1797, ch. 54, sec. 2, and 1817, ch. 148, sec. 18, the latter of which requires the assent of the "proprietors" of a majority, &c. The act of 1833, ch. 40, relating to repaving, upon application made by the "owners" of two-thirds, &c., expressly provides, in its 3rd section, that the lessee of such a term "shall be deemed and taken as an owner, within the meaning of this act." Here is a legislative definition of the term owner, for such purposes, and these acts being in pari materia, they must be construed together, and the same definition applied to the equivalent term "proprietor," in the former act. See, also, Ord. May 20th, 1850, No. 11. Rev. Ord., 1850, sec. 21. 5 G. & J. 67, Hughes vs. Young. 2 Paige, 69, Astor vs. Miller. Ibid., 434, Gouveneur vs. Mayor & C. C. of New York. If all the burdens are on the lessee, the right of determining whether those burdens shall be increased, should be with him alone. Chancellor Kent says, a long lease is considered a muniment of title, and equivalent in some respects to an estate in fee. 4 Kent, 86. The termor has been universally considered the owner, for all such purposes; the reversioner has nothing but a [**8]  dry, naked, legal title. If, then, the lessee is the party to make the application, it is perfectly manifest, from the facts appearing on this record, that a majority of the proprietors never did assent to this paving; for, in order to make such majority, at least a portion of the feet leased by Geo. H. Stewart, must be included in the estimate.

3rd. That the collector having elected, out of the remedies given him by the ordinances for the collection of paving taxes, that by distress upon personal property, and a sufficient amount having been seized to satisfy this tax, he has no right to sell the lot for the same purpose, until he has first exhausted the personal property so seized. Ord. May 20th, 1850. Rev. Ord., No. 11, secs. 21, 22, 29. 2 Paige, 434. 1 H. & McH., 408, Waters vs. Caton. 4 Johns. Rep., 407, Olcott vs. Lilly. 6 J. J. Marshall, 487, Williams vs. Gill. 6 Md. 71, Eschbach vs. Pitts.

4th. That the bills having been withdrawn from the city collector, he had no power to sell; for he has only such power of sale "where it is his duty to collect." Ord. No. 11. Rev. Ord. 1850, sec. 31. The collector and his sureties cease to be liable for the collection of the [**9]  bills so withdrawn, and it cannot be that a public officer can have power to collect, where he is not responsible for the collection. Nor can the return of the bills alter the case; for if the right to collect is once gone, it cannot be assumed again by the collector, of his own accord.

5th. If, upon any of these grounds, the proceedings were irregular, null and void, then the question remains, had a court of equity jurisdiction to restrain, by injunction, the city authorities from selling the lot, or collecting the tax? The answer of the city does not take the objection to the jurisdiction, and, since the act of 1841, ch. 163, it cannot be raised in this court. But, even if the question is open, we still insist that the court had jurisdiction. The ground of this jurisdiction may be considered as this, that where public officers are vested with certain powers and authority to do certain things, and especially to take private property for public use, or to do any thing which could only lawfully be done by virtue of the authority given by the acts of the Legislature, and where the limits of their jurisdiction are marked out and defined by the act giving the authority, then a court [**10]  of equity will interfere, by injunction, to restrain those invested with this authority from exceeding its limits, or doing any thing that affects the rights of private individuals, under color of their authority, if what is proposed to be done is not authorized by the act appointing and giving the power. This seems to be the result of the authorities. 1 Bland, 584, Pascault vs. Commissioners of Balto. 4 Gill 402, Dolan & Foy vs. Mayor & C. C. of Balto. 1 Eng. Railway & Canal Cases, 101. 2 Amer. Railway Cases, 200, Jordan vs. Phil., Balto. & Wil. Rail Road Co. 4 Mylne & Craig, 17, 116, 120, 249, 255. 2 Paige, 434, Gouveneur vs. Mayor & C. C. of New York. 3 Do., 573, Champlin vs. Mayor & C. C. of New York. 6 Do., 83, Mowhawk & Hudson Rail Road Co., vs. Artcher. 13 Barb., 567, Christopher vs. Mayor & C. C. of New York. 16 Do., 392, De Baun vs. Mayor & C. C. of New York. 2 Dow., 521, Sthand vs. Henderson. 8 Gill 434, Richardson vs. Mayor & C. C. of Balto. 5 Gill 383, Alexander, et al., vs. Mayor & C. C. of Balto. Again, courts of equity will interfere to prevent multiplicity of suits, and by injunction, in such cases also, to prevent a cloud being thrown over one's title.  [**11]  2 Story's Eq., sec. 955. 3 How., 459, Carroll vs. Stafford. 5 Paige, 493, Pettit vs. Shepherd. 10 Md. 418, McCann vs. Taylor.

6th. The complainant has been guilty of no such laches as will prevent him from availing himself of the aid of a court of equity. The parties doing the paving are bound to see that the proceedings are regular, and must take the consequences if they are not. 8 Md. 352, Henderson vs. Mayor & C. C. of Balto. There was no notice to him, either actual or constructive; nothing to show that he knew the paving was going on. Nor has he any remedy at law. The remedy by certiorari would not meet this case; for that writ would have only brought up the proceedings of the city authorities, and these would have shown, on their face, that to be true which the complainant alleges to be false, and he would have been bound by the return, and could not, under that writ, have shown that a majority of the owners did not assent.

E. Wyatt Blanchard for the appellees, argued:

1st. The court of equity had no jurisdiction, because the bill does not allege, nor do the facts show, that any real damage will be sustained by the complainant, but the prayer for relief [**12]  is founded on the mere alleged irregularities of the city authorities, for the correction of which certiorari or mandamus is the appropriate remedy. 8 Gill 150, Swann, et al., vs. Mayor & C. C. of Cumberland. 6 Johns. Ch. Rep., 28, Mooers vs. Smedley. 4 Do., 352, Le Roy vs. Mayor & C. C. of New York. There is no allegation that the trespass works irreparable mischief, which is essential to all such bills, and is contained in all the cases cited. It can make no difference that the defendant is a corporation; it matters not by whom the wrong is done; the test in the one case is the charter of the corporation, in the other the common law rights of individuals; the wrong is the same whether done by a corporation or an individual; it is still a trespass which equity will not interfere to restrain, unless to prevent irreparable mischief likely to result from it, or unless there be some circumstances of fraud or inequitable advantage taken, none of which are alleged in the bill or established by the facts set forth in it. 8 Gill 433, Richardson vs. Mayor & C. C. of Balto. 9 G. & J. 468, Amelung vs. Seekamp. 10 Do., 358, Fowler vs. Lee. 6 Gill 401, Methodist Church vs. Mayor [**13]  & C. C. of Balto. 7 Johns. Ch. Rep., 315, Jerome vs. Ross. 1 Md. 535, White vs. Flannigain. 3 Md. 480, Ches. & Ohio Canal Co. vs. Young. If the assessment is no lien, as alleged in the bill, no title passes by the sale of the collector, and the complainant will sustain no injury, (8 Gill 260, Alexander vs. Walter,) and if he pays the tax to save his property from sale, he can recover from the city if illegally collected, or can have his action for damages against the city authorities. 6 G. & J. 298, Ranahan vs. O'Neale. 4 Barb., 198. But if the assessment be collected by sale or otherwise the complainant sustains no injury, for the amount of the assessment is the equivalent for the benefit done his property by the paving, which benefit he now enjoys. The question of jurisdiction is distinctly raised in the answer of Howard, which is referred to and adopted by that of the Mayor and City Council.

2nd. The conduct of the complainant is a bar to the relief prayed. Having notice of the application to pave an alley binding on his property, he made no objection to the sufficiency of the application, though the same objections existed then. The application being, on its [**14]  face, sufficient, and no one objecting to its sufficiency, the paviors contracted to do the work, and in their contract bound themselves not to hold the city responsible, but to look to the property holders for payment. The complainant looked on while his property was being improved at the expense of the paviors, and only applied for an injunction when required to pay his proportion of the cost of the improvement. 6 Gill 391, Methodist Church vs. Mayor & C. C. of Balto. 1 Md. 525, White vs. Flannigain. 9 G. & J. 468, Amelung vs. Seekamp. 3 Mylne & Craig, 784, Greenhalgh vs. Manchester & Birmingham Railway Co. 6 G. & J. 309, Gott & Wilson vs. Carr.

3rd. The application to pave was sufficient to give jurisdiction, and was in accordance with the requirements of the act of Assembly which requires ownership. It is not denied that General Steuart is an owner. The covenant of the lessee, which is relied on to show his exclusive right to sign, is a covenant to pay public dues and assessments. The paving tax is a matter of private interest--an assessment for a private benefit. The paving is done under authority derived from, and the tax is assessed upon property holders [**15]  of, the particular locality, not upon the public at large. The tax is collected by virtue of a special authority, although there already existed the power to collect public taxes. Ord. May 20th, 1850, sec. 37. Rev. Ord., 1850, page 34. 5 Gill 383, Alexander, et al. vs. Mayor & C. C. of Balto. 4 Hill, 76, Sharp vs. Speir. 13 Louisiana Rep., 320, Municipality No. Two, vs. Curell, et al. Besides, the record shows a contract between Steuart and his lessees cotemporaneous with the leases in which Steuart binds himself to pay for the paving to the amount of one dollar per front foot, and if it be true that the liability determines the right to sign the lessor was the only one entitled to sign the application, or the contract would be an ample authority from the lessees when coupled with the fact that they have never objected to his action.

4th. The collector has power to collect by distraint or sale without resort to the courts. His summary remedy against the personal property being rendered ineffectual by the act of the complainant, he has endeavored to collect the tax by the exercise of his power of sale of real property. The privilege of suing on a replevin bond is not a collection [**16]  of a tax. Act of 1840, ch. 63. Ord., May 20, 1850. (Rev. Ord., 1850, page 34,) secs. 7, 37.

5th. The paving tax is a lien from the moment of making the assessment. The withdrawal of the bills only relieves the collector and his sureties of their personal responsibility to the contractor, and cannot discharge the property from the liens. Ord., May 20th, 1850, sec. 37, No. 11. (Rev. Ord., page 25.) 6 Md. 71, Eschbach vs. Pitts.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and BARTOL, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*194]  LE GRAND, C. J., delivered the opinion of this court.
This is an appeal from an order of the circuit court for Baltimore city, dissolving an injunction. The case may be thus stated: the appellant, at the time of the institution of proceedings, was the owner of a lot of ground on the east side of Hollins street, in the city of Baltimore. That street was paved, and a portion of the expense incurred was assessed against the appellant, who, refusing to pay it, a distress was levied, in the name of the Mayor & City Council of Baltimore, on the property found 

 [*195]  on the premises. The appellant sued out a writ of replevin, and, subsequently, filed [**17]  the bill in this case, to restrain the further proceedings of the appellees to collect the amount alleged to be due by him for the paving in front of his lot. There is no question in regard to the fact of the paving having been done, nor is there any as to the ownership by the appellant of the lot, for the paving in front of which he has been sought to be charged. These facts are conceded. Without stating circumstances which were relied upon in the argument, but which, in our opinion, have nothing to do with the decision of this case, we will advert to the grounds on which rests the equity set up in the bill. They are these: Holland and Cassard, owners of lots binding on the street, did not sign a recommendation to the city commissioner of the city of Baltimore, asking that the street might be paved. Gen. George H. Steuart signed, with others, a recommendation that the street be paved, and signed as the owner of 195 feet fronting on the street, when it is conceded by the admissions of counsel, and established by the proof in the case, that, with the exception of 90 feet, he was not the absolute owner of any of the lots for the paving in front of which he signed; he having leased 105 [**18]  feet of them for terms of 99 years, renewable forever. If he had no right to represent the 105 feet which had been leased, then there was not a majority of the feet fronting on the street recommended to be paved by those who had the right or authority to do so, and, as matter of necessary consequence, the city authorities had no power to direct the paving of the street. It is a matter of mathematical ascertainment how many feet there are binding on a street within a given distance, and, in this case, it is not only shown by the enumeration of the feet of the several lots fronting on the street, but admitted, that if Gen. Steuart had not the right to represent the 105 feet leased for ninety-nine years, there were not a majority of the feet represented by those who alone had the right to do so.
By the act of 1833, chapter 40, section 1, the Mayor and City Council of Baltimore, on the recommendation of the owners of two-thirds of the feet fronting on any street, were empowered to order that it be repaved; and by the 3rd section 

 [*196]  of the same act it is provided, "that a tenant for ninety-nine years, or for ninety-nine years, renewable forever, and the executors or administrators [**19]  of such tenant, shall be deemed and taken as an owner, within the meaning of this act." By the act of 1840, ch. 63, it is enacted, that the Mayor and City Council should have full power and authority to provide, by ordinance or otherwise, for the prompt collection of taxes due the city, and, to that end, to sell real as well as personal property.
It will be perceived, that by the language of the act of 1833, the authority conferred, in words, is only to repave. But, by the ordinance of the Mayor and City Council of Baltimore, of May 20th, 1850, it is provided, that whenever the city commissioner shall receive an application, in writing, for paving to be done in any unpaved street, or any part of such street, from the proprietors of the majority of the feet of ground binding and fronting on such street, or the part thereof to be paved, it shall be the duty of such commissioner, &c., &c.
Although the authority of the corporation to pave an unpaved street, is not derived from the act of 1833, but conferred by those of 1797, ch. 54, and 1817, ch. 148, yet, in the construction of the two earlier acts, that of 1833 ought to be adverted to as being in pari materia; and [**20]  the definition of the word "owner," occurring therein, should be taken as the correct one, as applicable to it, or its synonyme, "proprietor," when either appears in the other acts, in relation to paving.
It was conceded, at the bar, that a majority of the feet must be represented, to give the authority. In this case, if Gen. Steuart had not the authority to speak for 195 feet, as he did, then there was no power in the corporation, or its commissioner, to direct the paving alluded to in the proceedings; and that he had no such authority, is manifest from the language of the act of 1833, which, in express terms, designates the lessee for ninety-nine years, or for ninety-nine years, renewable forever, as the "owner." Gen. Steuart could only act to the extent of the 90 feet, in which he retained an absolute fee-simple.
This being so, the only remaining inquiry is, will equity relieve 

 [*197]  in such a case against an attempt to enforce payment by a sale, where no debt is due? We entertain no doubt on the question. There are several principles recognized in courts of equity which cover the case, among which is, that (where ample and perfect justice can be done) equity will interfere [**21]  to prevent multiplicity of suits; and, again, that equity will not allow a title, otherwise clear, to be clouded by a claim which cannot be enforced either in law or equity. These are principles of universal application. The idea that a party ought to stand by and see his property illegally exposed to public sale, and then force the purchaser to bring his ejectment to gain possession, or to try his title, seems to be sustained by no good authority. Such a doctrine would not only encourage circuity of action and multiplicity of suits, but render the title of the real owner comparatively valueless, while the suits at law should be pending. We have shown that there is not the slightest claim, under the acts of Assembly and ordinances of the city of Baltimore, against the property of the appellant, for the paving done in front of his lot, and it would be strange, indeed, if a court of equity had no right to interpose, in his behalf, to save him from an annoying, protracted and expensive litigation in the courts of law. But such is not the law, and the following (without referring to others) are authorities abundantly clear on the point; McCann vs. Taylor, et al., 10 Md. 418. [**22]  2 Story's Eq., sec. 955. The case of Dolan & Foy, vs. Mayor & C. C. of Balto., 4 Gill 394, recognized, substantially, the jurisdiction of equity in a case similar to the present.
We shall reverse the order of the circuit court, dissolving the injunction, and pass one making it perpetual.
Order reversed, and injunction made perpetual.
In the case of George and Lewis Cassard, vs. The Mayor and City Council of Baltimore, and Charles Howard, Collector, the facts were the same as in the above case, except that there was no distress levied upon personal property, and having 

 [*198]  been argued at the same time, LE GRAND, C. J., delivered the opinion of this court.
For the reasons assigned in the opinion in the case of Holland vs. Mayor and City Council of Baltimore, we reverse the order in this case, and make the injunction perpetual. 

8 of 187 DOCUMENTS 

NATHANIEL WILLIAMS and others vs. DANIEL B. BANKS and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 198; 1857 Md. LEXIS 34 

DECEMBER, 1857, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Baltimore city.

The bill in this case was filed on the 1st of December 1853, by the appellants, in behalf of themselves and all other creditors of Hannah Kitty Chase, late of Baltimore city, deceased, who will come in and contribute to the expense of the suit, for the purpose of setting aside a deed of trust executed by the said Hannah to Nathaniel and Joseph B. Williams, on the 2nd of August 1844. The bill asks to have this deed declared fraudulent, null and void, as against her creditors, who were such at the time of its execution, as well as against all her subsequent creditors, because it was made by her with intent to hinder, delay and defraud her said creditors, and to shield her estate against liability for debts which she owed at the time of its execution, and others which she might thereafter contract.

The provisions and trusts of this deed, and the property conveyed by it, are fully stated in the opinion of Justice Eccleston, delivered in this case. Mrs. Chase, at the time of executing this deed, was over ninety years of age, but fully competent to execute it, and the debts which she then owed, and those which she afterwards contracted,  [**2]  were all, except a small amount, contracted by her on account of her grandson, William Chase Barney. The complainants, and the creditors who came in and were made parties to the proceedings, were all, with few exceptions and for small amounts, holders of her notes and obligations issued to her grandson, and used by him for the purpose of raising money.

The answers of the trustees and executors of Mrs. Chase, and the cestui que trusts under the deed, aver that the deed was executed by her under the suggestions and advice of judicious friends, for the honest purpose of securing, beyond the power of revocation, the disposition of her property already provided and settled by her will and codicils; that she was advanced in years, and exposed to the persuasions and influences of interested persons, and that her object was to protect herself and her property; that she retained a life estate in the property, and that the legal effect of the deed was to secure the title of the property, according to the uses of the deed, beyond her power to alter or recall it. They charge that the notes appearing to have been dated before the deed were ante-dated; that Mrs. Chase received no value for [**3]  any of them, and that this was known to the complainants when they received them; that all these notes were loaned to William Chase Barney without any valuable consideration, and were by him passed to the complainants when over-due, on usurious terms, and are null and void; that the notes were intended to secure usurious loans, and that all this was known to the complainants. They also plead and rely upon the statute of limitations of three years before the filing of the bill, as a bar to the claims set up in the bill.

The proof in the cause, on the part of the complainants, so far as the antecedent claims are concerned, is fully stated in the opinion of Justice Eccleston. The subsequent debts amounting to a very large sum, consisted mostly of promissory notes drawn by Mrs. Chase in favor of William Chase Barney, and endorsed. These notes bear date the 15th, 24th and 25th of January 1845, payable at various times from three months to four years, and were held by the complainant, Banks. The few other subsequent debts consist of several judgments against Mrs. Chase recovered subsequently to the date of the deed. The complainants proved the signature of Mrs. Chase to each of these [**4]  notes, and the endorsements of William C. Barney thereon, and also offered in evidence a paper written and signed by Mrs. Chase, on the 30th of December 1847, and attested by her daughter, Mrs. Barney, and her granddaughter, Mrs. Oldfield, in which she gives a list of some of the notes of the 24th and 25th of January 1845, with the dates at which they are payable, and says, that she gave these notes to her grandson, William Chase Barney, in January 1845, and that they are now held by Daniel B. Banks, "nearly matured, the last of them will fall due in next January. Mr. Banks is my largest and principal creditor, and as he has acted kind and generous towards me, I am anxious he should have as little trouble as possible in getting his claims." In the same paper she also expresses a wish that part of her property may be sold in order that her debts may be paid during her life, her estate settled and she be in possession of her income. They also offered in evidence the inventory of her personal estate and list of debts due her at her decease, in order to show that such personal estate, in the hands of her executors, was insufficient to pay her debts. Among the list of debts so offered in [**5]  evidence is the following:

"William Chase Barney appears, by his note, bearing date the 30th of July 1844, and payable in twelve months thereafter, for $ 4000, to be indebted to her, at that date, for that amount. How much he has become since indebted the undersigned (the executors) are not informed. Any claims on this party are deemed desperate. By a paper called a codicil, dated the 14th of August 1846, the deceased endeavors to release the said William from all claims she or her estate may have against him."

On the part of the defendants it was shown, that on the 28th of January 1845, Mrs. Chase conveyed all her estate, real, personal and mixed, to William A. Talbott, "in trust during the natural life of the said Hannah Kitty Chase, to collect and receive the rents, dividends, issues and profits, arising or accruing, or becoming due upon, from or by said estate; and the same rents, dividends, issues and profits when collected, to apply first to the payment of all debts now due and owing and becoming due by her, with a reasonable compensation to said William A. Talbott for the same, and after the payment of all said debts to apply said rents, dividends and profits to the [**6]  proper use of her, the said Hannah Kitty Chase, and as she may, in writing, direct, after such rents, issues, dividends and profits, so to be applied, shall have been collected and received by said trustee, and from and immediately after the death of the said Hannah Kitty Chase, then in trust, as to the whole of said estate and property above conveyed, for the uses, ends, intents and purposes set out and declared in the last will and testament of her, the said Hannah Kitty Chase, and the several codicils thereto, heretofore executed by her and specially referred to and mentioned in a deed of trust from said Hannah to Nathaniel and Joseph B. Williams, which deed bears date on the second day of August 1844, and is recorded," &c.; and that on the 14th of September 1844, Mrs. Chase conveyed certain ground-rents to John Morris to hold and receive the same until he should be paid a debt due by her to him of $ 2250, with interest from the 9th of August 1844.

Talbott, the trustee, proves this deed, that he accepted the trust, received a large sum under it, including the groundrents previously conveyed to Morris, after his debt had been paid, the most of which he had distributed to her [**7]  creditors under an equity proceeding in Baltimore county court. A list of creditors to whom he distributed is given, which, with the admissions and agreement of the parties in relation thereto, is sufficiently stated in the opinion of Justice Eccleston. The defendants then examined Mrs. Mary Barney, the daughter of Mrs. Chase and mother of William Chase Barney, Mrs. Catharine Chase Oldfield, the granddaughter of Mrs. Chase and sister of William Chase Barney, William A. Talbott and George W. Dobbin. The testimony of these witnesses may thus be stated:

1st. As to the execution of the deed of the 2nd of August 1844, the age and mental and physical condition of Mrs. Chase at that period, the motives for the deed and the extent of her property at that time:--Mrs. Barney says, that Mrs. Chase died on the 2nd of March 1848, and was about ninety-seven years old at the time of her death; that in August 1844, her mind was sound and she was very capable of transacting business, though her memory was weak; in July 1845 she had a severe illness and her health declined rapidly, and then she was not so firm as she had been, but became credulous, and you could persuade her to anything; that after [**8]  July 1845 her health was better at times and she occasionally went about and visited at the offices of her counsel; the year before her death she became unable to collect her rents personally and got witness to do it; that on the 2nd of August 1844 she owned ground-rents to at least $ 3000 or $ 4000 per annum, a life-estate in the house she lived in, "Newington," a tract of about eight acres, in fee; that she had owned a good deal of bank and other stocks, but had parted with them before that period, and had then very little personal property, only some little furniture which sold at her death for about $ 300. Mrs. Oldfield's testimony on this subject is substantially the same. Talbott proves that her mental and bodily health were, at that time, remarkably vigorous for one of her years; that he was absent when the deed was executed and has no personal knowledge thereof. Dobbin testified as to her competency and vigorous state of health, both of body and mind, at the time; that her motive in executing the deed was to keep her estate out of danger of being wasted by the influence exercised over her by her grandson, William Chase Barney; that it was prepared under his advice, he and Talbott [**9]  being her counsel; that the reservation of the life-estate proceeded from an indisposition on her part to dispossess herself of her entire estate and the control of the rents, issues and profits as long as she lived, but witness has no recollection of the particulars of the conference with her which led to the drawing and execution of the deed. Neither of these two last witnesses knows anything of the value of the life-estate reserved by the deed.

2nd. As to the influence possessed and exercised by William Chase Barney over his grandmother, Mrs. Chase, the extent and character of this influence, and the knowledge of it by Banks or other creditors:--Mrs. Barney says, that his grandmother educated the said William and took care of him; that he lived with her nearly a year until some time in 1844 or 1845, when he went to house-keeping; that in the opinion of his grandmother he was everything to her; he held the most unbounded influence over her, could persuade her at any time to part with her money, which no human being could do but himself, he resorted to every means to obtain her property, and could do anything with her; that his grandmother has often told witness that he did exert [**10]  an undue and improper influence over her, and said William has told witness he could do as he pleased with his grandmother; he has told witness he could give his grandmother a five-penny bit and get a hundred dollars from her; he has told witness he would show her he could get money from his grandmother, and he would then go into her room and come out with his hands full of money; that his grandmother was too weak to resist him, she would cry and tell witness she had parted with property to him and that she would not do it again; he was the only one who could get money from her, and when witness opposed it he would take her in a hack and carry her away to the bank and obtain it from her; he used his influence to get her money and then squandered what he got; he obtained from her nearly all her income and stocks, and when that was insufficient he got her to give notes to the amount of a thousand dollars perhaps; witness has seen and heard of notes to the amount of $ 10,000 which she had given him; witness here means the notes that were shown her in the court house, and of which she had no knowledge until they were thus shown her; that he did not own a dollar in the world, or any property,  [**11]  nor had he any occupation, except to raise the wind; he often boasted to witness that he spent $ 8000 a year; that when he would get from his grandmother a hundred or five hundred dollars he would slip into her hand five or ten dollars of her own money, and she would be delighted and say what a generous fellow he was, and consider it as if it were a gift to her; he never gave her anything of his own in consideration of what she gave him, and in fact he had nothing to give; that the means he used to obtain money from her were persuasion, the influence he had over her, the complete possession of her affections; that she used to cry bitterly after she had given him the money, and complain to witness.

Mrs. Oldfield says on this subject, that said William was an inmate of Mrs. Chase's family off and on just as he visited Baltimore; that Mrs. Chase was always very fond of him; she had educated him; he would coax her and she would do as he wished, and used to say that he employed animal magnetism with her; she was so angry sometimes that she would not speak to him, and he would go up and speak soothingly to her, and she would then show great kindness to him; he certainly used the influence [**12]  he had over her, and witness thinks it was an undue influence and she was too weak to resist him, if you call it an undue influence when persons say they won't do a thing and you coax them out of it; witness has seen him coax her out of her money in that manner, and has heard of notes being given which witness presumes were got in the same way; that Mrs. Chase had a piece of property called "Newington," which, in her will, she had given to her two grandsons, Samuel and the said William, and on the marriage of Samuel witness induced her grandmother to give him a deed of his half, and asked her at the same time to give one also to William for his half, but she resisted this until witness told her that William would give her some notes of hers that he held, amounting to two or three thousand dollars, when she consented, and the deeds were then drawn by William himself, and he read his own deed to his grandmother, witness holding that to Samuel, and both deeds read alike, except the names of the grantees, and each conveyed one-half of "Newington," and were executed in presence of witness, that to Samuel being executed first, and were acknowledged, but when William's deed went on record [**13]  it was for the whole tract of "Newington;" that he obtained many promissory notes from his grandmother, but witness cannot tell the amount; on one occasion he gave witness about $ 12,000 of such notes to take care of for him; witness has heard him say he had got $ 40,000 or $ 50,000 from her, besides spending her income; that he was, at one time, for a short period, an engineer, but even then he always got money from his grandmother, and while in Baltimore he had no money but what he got from her; witness does not recollect that he ever gave her any consideration for the money, notes or property he got from her, except that he once told witness he had given her his own notes for some money she had given him. On cross-examination this witness, in answer to the interrogatory: "Do you know of certain promissory notes issued by Mrs. Chase to the order of Wm. C. Barney, and which you and your mother, Mrs. Mary Barney, advised Daniel B. Banks to purchase, for the purpose of being the sole creditor of Mrs. Chase, and to keep the notes off the street?" said, that William C. Barney had some notes of Mrs. Chase for two or three thousand dollars; he put them in the market and could get very little [**14]  for them, as Mr. Talbott cried them down; he applied to Mr. Banks to take them, and Mr. Earhart called up to know if witness and her mother, (Mrs. Mary Barney,) approved of Mr. Banks taking them; a note was written by witness and signed by Mrs. Mary Barney and witness, saying that they would prefer Mr. Banks' taking them, as he, (Mr. Banks,) had other notes, and they would prefer there being but one creditor.

Talbott testified on this point, that William C. Barney had great control over his grandmother, who seemed to be very much afraid and at the same time very fond of him, but whether he exercised that influence to obtain notes from her, for his own purposes, witness does not know, it was never so exercised in the presence of witness; that he had acquired, and did exert, before the execution of this deed, and from thence to her death, an extraordinary influence over her understanding; it seemed partly fear and partly affection; witness would not say she was too weak to resist, because she resisted all other influences from others, but she did not resist his, and by means of it he certainly did obtain large amounts of money, property and promissory notes, the amounts of which [**15]  witness does not remember, but his recollection is that that it was very large; witness' knowledge is derived from Mrs. Chase and the said William, and partly from his own observation; witness frequently remonstrated with her, and invariably received an assurance, either that she had not done so in the particular instance, or that she would not do so again; that Banks, and witness presumes most, if not all, her creditors knew of this influence; it was matter of general notoriety and conversation among all parties who knew her; whether or not they, or any of them, knew of the want of considerations for the notes held by said William, witness cannot say; witness does not know of said William's getting possession of and selling her stock; he was then utterly insolvent, and had been so long before, and witness believes has been so ever since.

Dobbin testifies that said William had acquired, and did exert, about the time of the execution of this deed, before and afterwards, an undue influence over the will and understanding of Mrs. Chase, which she was too weak to resist, and did thereby obtain property, money and promissory notes from her, the exact amount of which witness does not [**16]  know, but thinks it exceeded $ 15,000, and went perhaps to $ 25,000; that witness has reason to believe, from the conversations he held with Mr. Banks in relation to the transactions between Barney and Mrs. Chase, that Banks did know the influence exercised by Barney over her in all the transactions to which they were parties; witness does not know whether Banks, or any of the other creditors, knew of the want of consideration, or of the nature of the consideration, of the particular notes enquired about, held by said Barney; witness knows that Barney got possession of and sold most of the stocks of Mrs. Chase, but what he did with the proceeds he does not know; witness believes that Barney was entirely insolvent ever since witness has known him, which was long before the date of the deed.

3rd. As to the mode of living, habits and expenses of Mrs. Chase:--Mrs. Barney says, she thinks her mother did not spend $ 200 a year, she kept but one servant and was remarkably parsimonious; Mrs. Oldfield, that the amount allowed by Mr. Talbott, and expended for the subsistence of Mrs. Chase, was $ 5 per week while witness lived there; she was of a very economical disposition and spent very [**17]  little, though witness thinks she had formerly spent more than that; Talbott, that at the time the deed was executed her habits and disposition were exceedingly saving and penurious; witness does not know the amount of the expenses of her household and personal subsistence, but from constantly seeing her at home and elsewhere, he judges they did not exceed $ 150 a year; that when witness acted as trustee, under the deed of the 28th of January 1845, there was no regular allowance to her, but the creditors gave witness permission to spend such sums as he thought necessary for her support; Dobbin, that her habits, as to her personal expenses, were of the most penurious character; witness does not know the amount expended by her, but should put it at the smallest sum capable of sustaining life.

4th. As to the knowledge of the several deeds referred to in the record, or either of them, by Banks or any of the creditors:--Mrs. Barney says, that Banks knew of the deed of the 2nd of August 1844, in August or September 1845; Mrs. Oldfield, that Banks knew of its existence but she cannot fix the date of his first knowledge; Dobbin, that he thinks Banks had knowledge of both deeds soon after [**18]  they were executed, but he does not think he had before; that Banks claimed as a creditor under the deed to Talbott, and received a dividend, but the amount witness does not know; he also say he does not think the defendants or any of them had any knowledge or notice of the August deed, at the time of its execution; Talbott, that he believes Banks had knowledge of both deeds soon after they were executed; that under the deed to witness Banks preferred a large majority in value of the whole claims preferred.

5th. Talbott further proved, that at the time the deed of trust was executed to witness, he could discover, after inquiry, but three notes of Mrs. Chase, amounting to about $ 1300 or $ 1500; some months afterwards other notes made their appearance, and from time to time they increased until the debts exhibited amounted to over $ 10,000, as appears from the auditor's statement in the equity case referred to, and as he expected to find but $ 1300 or $ 1500, the excess of course was beyond his calculation; witness suspected and said that these notes were ante-dated, but had of course no actual knowledge of the fact, he inferred it from the facts above mentioned; that whether these [**19]  notes so presented for distributive shares to witness were ante-dated or not, witness does not know of his own knowledge, and could only give his suspicions; witness cannot say for whom the debts so presented were contracted, but Mrs. Chase certainly had no use for such large sums of money, and it is just as certain she did not use them, and witness does not therefore believe they were contracted on her account; the notes, for the most part, were, as he now recollects, payable to the order of William C. Barney, and witness always thought they were obtained by him from Mrs. Chase without consideration; that he thinks Mrs. Chase denied at different times all the debts so exhibited to witness; that she alleged that her name had been signed to notes without her knowledge or consent, but to what extent or number he cannot now remember; that he frequently heard Mrs. Chase allege, that many notes had been forged, but as to these additional claims he has no specific recollection; witness would not have paid any of these notes without having the handwriting authenticated, because her signature was easily counterfeited, and she constantly alleged that it was so; had witness never heard any thing [**20]  he should have supposed the signatures genuine.

The other testimony in the case, in regard to the amount and value of Mr. Chase's property, is sufficiently stated in the opinion of Justice Eccleston.

Exceptions were then filed by the complainants, to various portions of the testimony on the part of the defendants, which need not be particularly stated as no decision was made upon them. The defendants also excepted to the testimony of Pitts, referred to in the opinion of this court, upon the ground of interest, and then filed various exceptions and objections to the various claims filed in the cause, the nature and purport of which latter exceptions, are sufficiently stated in the opinion of Justice Eccleston.

The court below, (KREBS, J.,) delivered an opinion, and passed a decree vacating and annulling the deed as fraudulent and void, as well against the subsequent as the antecedent creditors, and directing the property to be sold for the payment of their claims. From this decree the defendants appealed.  

DISPOSITION:
Cause remanded, under Act of 1832, chap. 302.  

HEADNOTES:

Where a voluntary deed or settlement, unaffected by fraud, in fact, at the time of its execution, is set aside at the suit of antecedent creditors, subsequent creditors cannot be let in to participate in the distribution of the fund; otherwise where there is fraud in fact.

The registration laws of this State were designed to give, and do give, notice which is binding upon all the world, and a person who, at the time of becoming a creditor, is aware of the existence of a deed, cannot, in any just sense, be considered as "disturbed, hindered, delayed or defrauded" by it.

Indebtment, at the time of a voluntary deed, is prima facie, not conclusive, evidence of fraud, even as regards a prior creditor, yet the onus is thereby cast on the grantee to show by evidence, which leaves no reasonable doubt on the subject, that the donor, at the time of the gift, was in prosperous circumstances, possessed of ample means to pay all his debts, and that the settlement was a reasonable provision according to the child's station and condition in life,

The endorser of a promissory note which had been protested, is not a competent witness to prove the note as a claim to be used for the purpose of setting aside a voluntary deed made by the maker, because his evidence would assist in creating a fund, or in rendering property liable for the payment of the note, which he, as endorser, would otherwise have to pay.

The purchase of an accommodation note, by a third party, from the payee, made nearly three years after the note fell due, and for more than $ 600 less than the face of it, is usury, and under the act of 1845, ch. 352, the purchaser can only recover against the maker the amount he actually paid for it.

A mutual exchange of notes will amount to a sufficient consideration for the notes so given, but to do so it must appear that it was the intention of the parties to make a mutual exchange of paper, and whether such was their design will depend upon the particular circumstances of each case.

The plea of limitations, set up in the answer to a general creditors' bill, has no effect upon claims coming in subsequently; to affect such claims exceptions, relying upon the statute, must be filed thereto.

In a suit by the endorser against the maker, upon an accommodation note endorsed by the payee when over-due, the maker cannot set-off a note given to him by the payee.

Accommodation notes dated prior to, but not negotiated till after, the execution of a voluntary deed by the maker, and after maturity, are still to be regarded as antecedent debts, when the question is, whether the deed is void as against creditors; limitations begin to run on such notes from their maturity, no matter when discounted.

An accommodation note, though it creates no liability from the maker to the payee, still imposes on the former a contingent liability to whoever may become endorsee thereof for value, which liability is rendered absolute by discounting the note, and as between the maker and endorsee is a valid claim from its date.

If a voluntary conveyance is made with a view or expectation of becoming subsequently indebted, and in accordance with such view or expectation debts are contracted, those who thus become creditors may avoid the deed, although their claims had not, at its date, even a contingent existence.

An indebtedness amounting to $ 4000 at the date of a voluntary deed is sufficient to avoid such a conveyance, the grantor having retained for the payment of her debts only a life-estate in property, the annual value of which but little exceeded the claims, and she being at the time over ninety years of age. 

COUNSEL:
Robert J. Brent and John Nelson, for the appellants:

By the decision in 6 Md. 235, the very deed now sought [**21]  to be vacated, was held to be a valid conveyance of her estate, made by Mrs. Chase, on the 2nd of August 1844, to the appellants, and it must remain as such unless it be now ascertained to have been a fraud upon creditors. The questions, therefore, now to be discussed are: 1st, was this deed a fraud upon creditors; 2nd, are these complainants creditors who can impeach it; and 3rd, if avoided as to antecedent creditors, is it void also as to subsequent creditors?

1st. A deed is fraudulent upon two grounds, 1st for the intention to defraud; 2nd, by being so in effect. Prior creditors can impeach a deed upon both these grounds. Subsequent creditors can impeach it only on the first ground. The history and motives of this deed, the parties to it, the provisions made by her will and codicils, (which are a part of the deed,) for the payment of her debts, her reservation of the life-estate so far beyond her wants, the dedication of this very life-estate afterwards to her creditors, her deed to pay Morris, her letter of the 30th of December 1847, to Banks, relied on by the other side: all these facts show conclusively that Mrs. Chase's principal intention all along, was to provide for [**22]  her creditors and pay her debts. Not a particle of evidence is to be found, showing any other than an anxious pervading desire to pay her debts, and the sad spectacle is seen of an aged female possessed of an ample fortune, reducing herself to downright misery and want, that she might pay debts not contracted by herself for her own use, and for which those who claimed them paid for the most part, a trifling consideration, and with knowledge of her feeble situation. It is in vain that this record is explored for evidence of a fraudulent intention. A fraudulent intention must be proved, it will not be presumed. 3 Md. Ch. Dec., 35, Grover vs. Grover. The evidence shows it was a settlement founded on the best motives, and made under the advice of counsel and friends. It was executed to carry into effect an intention which had existed for years; it was made to make irrevocable a will executed in 1836. If there was fraud upon whom was it to operate? Mrs. Chase never knew that Banks was in life at the date of this deed; Banks, however, had actual knowledge of the existence of this deed, shortly after it was executed, and if he became a purchaser afterwards, he bought with his eyes open to [**23]  the fact, that the title to this property had passed out of Mrs. Chase, and the deed was sufficient to put him upon inquiry as to the trusts contained in the will and codicils. There was then no fraud in fact, either appearing upon the face of the deed, nor any intention to defraud as exhibited by the motives and objects of the parties who executed it. Neither can this deed be impeached upon the other ground, as being fraudulent in effect. This inquiry limits the discussion to the rights of prior creditors and to a consideration of the evidence relating to the dates and amounts of the claims against Mrs. Chase, on the one hand, and on the other, of the situation and value of her reserved estate and means to pay her just debts. We think the principle governing this case is expounded in the case of Baxter vs. Sewell, 3 Md. 334, where it was said by this court, that "an indebtment at the time of executing a voluntary conveyance, is only prima facie and not conclusive evidence of fraud, even as to a prior creditor;" and in the case of Dietus vs. Fuss, 8 Md. 148, where it is said: "The question in such cases is, as to the grantor's ability to pay his debts, the amount of these and [**24]  his means;" and also in Worthington and Anderson vs. Shipley, 5 Gill 449, 458. Atkinson vs. Phillips, 1 Md. Ch. Dec., 507. Sewell vs. Baxter & wife, 2 Md. Ch. Dec., 447, 455; and Bullett vs. Worthington, 3 Md. Ch. Dec., 104. When a voluntary deed has been duly recorded, none but prior creditors can impeach it. 8 Wheat., 229, Sexton vs. Wheaton. 11 Wheat., 199, Hinde vs. Longworth. 12 Johns., 558, Verplank vs. Sterry. The recording of this deed was full notice of the conveyance of this property, 6 Md. 235, and note at 272. 4 Md. 137, Mason vs. Martin. 3 Md. Ch. Dec., 57, Johns vs. Reardon. Is then this deed fraudulent in effect, and this raises the second inquiry.

2nd. Are these complainants creditors who can impeach it? We do not deny that Mrs. Chase appears to have owed some debts at the time of executing the deed, and we admit that the onus of proof is on us to show, that she possessed the means of paying them after the deed was executed, and we expect to be able clearly to establish this fact. But we say that the claims asserted by these complainants when examined upon familiar legal principles, will be reduced to an amount far below the means reserved by Mrs. Chase [**25]  to pay her just debts. In fact these claims have been for the most part trumped up, ante-dated, and to be questioned (some of them) as forgeries. These claims are upon promissory notes purporting to be signed by Mrs. Chase; accommodation notes given to William C. Barney, and passed by him when overdue and payable without recourse, and dated and issued for many thousand dollars on the same day, one large batch appearing to have been issued just before the deed to the appellants, and another just before the deed to Talbott. The answers of the claimants to the interrogatories filed, show what inadequate considerations were paid by the holders, and the court will not fail to observe how evasive and unsatisfactory are some of these answers. Before we proceed to examine these claims in detail, to ascertain who are prior creditors, and the amount of their claims, we inform the court that we have excepted to some of them, and objected, that they are subject to be dismissed from the case or reduced in amount on the following grounds:

1st. That they are not properly in the case, or authenticated, or proved, and are ante-dated.

2nd. For being tainted with usury. Notes given to raise [**26]  money on, create no debt or liability until passed away to a third person, and under the facts proved, many, if not all these notes, were obtained upon usurious terms. 7 Pet., 106, Nichols vs. Fearson. 1 H. & G., 477, Saurwein vs. Brunner. Chitty on Bills, 82. Acts of 1824, ch. 200, and 1845, ch. 352.

3rd. Because they are barred by the statute of limitations pleaded in the answers, and relied on in the exceptions, and limitations applies to the time of filing the claims. 12 G. & J. 36, Hall vs. Creswell. 6 Md. 319, McDowell vs. Goldsmith. 2 Bland, 37, Welch vs. Stewart. Md. Ch. Pr., 142, 143. And this defence applies in equity if the cause of action was suable at law. 1 Gill 248, Berry vs. Pierson. 3 Gill 161, 162, Dugan vs. Gittings. 3 Gill 169, 170, Allender vs. Trinity Church.

4th. Because they were obtained by fraud, imposition and undue influence, practiced upon a very aged woman, and such contracts if not annulled will not be enforced by a court of chancery. 11 Wheat., 103, Harding vs. Handy. 6 H. & J. 442. Watkins vs. Stockett. 1 Wheat., 179, Hepburn vs. Dunlop. 11 Pet., 229, Jackson vs. Ashton. 8 Gill 357, Hays vs. Hollis. 4 Pet., 311,  [**27]  King vs. Hamilton. And this especially where inadequacy of price is added to imposition. 5 Pet., 264, Cathcart vs. Robinson.

5th. Because they claimed under the deed to Talbott, and received their dividends, and are estopped from impeaching the deed to the appellants, which is recited in Talbott's deed, which latter was operative solely upon the life estate reserved in the former. 7 Md. 272, Lanahan vs. Latrobe. 4 Md. 306, Jones, et al., vs. Horsey. 11 G. & J. 314, 327, Moale vs. Buchanan. 10 G. & J. 111, Gibson vs. McCormick. 5 Gill 505, Hall vs. United States Ins. Co. And such ex post facto affirmance will cure any original fraud. 12 Johns., 552, Verplank vs. Sterry.

Let us now, keeping in view these legal principles, proceed to examine on the one hand the claims presented against Mrs. Chase's estate, and on the other, the amount and value of her estate, reserved by the deed to the appellants to pay them. The total amount of debts appearing to be antecedent to the deed is about $ 7122.50. In the most unfavorable aspect, this is absolutely all Mrs. Chase owed at the date of this deed. Now, of this indebtment, is 1st, the note held by N. Williams for $  [**28]  250, and his account for $ 100. This amount is subject to our first objection: it is not properly in the case. Mr. Williams has not and does not file or assert it, and he claimed under Talbott's deed and accepted his dividend. 2nd. Mrs. Oldfield's debt to Sarah Polk, for $ 100, the note to Pitts for $ 250, and Elion's claim for $ 350. These are undisputed debts, but are all subject to our third objection on limitations, as they were none of them filed in this case, until returned, with the commission under which they were proved, on the 17th of February 1851. 3rd. Renwick's note of the 30th of July 1844, for $ 2000. This note was passed to him after due by Barney and after Mrs. Chase's death, in 1849, and was filed in the case before the commissioner on the 17th of February 1851, and as it fell due the 2nd of August 1846, it is liable to our third objection on limitations. His answer admits he got this note on the 16th of June 1849, and that he then paid for it in cash, and accounts only for $ 1306.12, to Barney. Now it is proved that Mrs. Chase gave Barney these notes to raise money on, that he had no means, and could not even pay his tailor's bill, that Mrs. Chase never used these [**29]  notes herself. So we say this was not an obligation or note until passed by Barney to Renwick, and the facts then show it was also liable to our second objection for usury, and he could only claim under the act of 1845, ch. 352, his real advance of $ 1306.12. Besides this, we deny that Renwick is properly a party in this case, and say his claim is subject to our first objection. He is clearly a subsequent creditor, because he became such in 1849, after he had constructive notice of our deed of trust. 7 Pet., 106, Nichols vs. Fearson. 1 H. & G., 477, Sauerwein vs. Brunner. 6 Md. 272, note. 4th. Complainant's exhibit No. 4, dated 30th of July 1844, for $ 2000, payable at one year. This claim is an interloper; no one asserts the ownership of it; it is not proved, and its execution only proved by Pitts to whom we have excepted as an incompetent witness. In fact this note without an owner has been put into the case to swell the amount of debts dated anterior to our deed of trust. It is subject to our first objection, as not properly in the case; it was not filed until the 17th of February 1851, and is also subject to our third objection on limitations. 5th. Is Bank's claim described [**30]  in his bill, and appearing to be dated the 30th of July 1844, for payment one year after date, of $ 2000. We find a mystery surrounding this note. The bill describes his claim, the only one described, as exhibit D. B., No. 1, but the note is marked exhibit No. 5. The answer of Banks, though evasive, admits he got it, after its maturity, from one Earhart. It is uncertain which exhibit is referred to in his answer; this however is the only claim filed as of that date. But however this may be, whether we go on his admission or the evidence, he got this note after he had notice, both constructive and actual, of the deed of trust to Williams. This note is also subject to our second objection, and under the testimony of both Dobbin and Talbott, is especially subject to our fourth objection for fraud and imposition. Dobbin states that Banks knew of the undue influence exercised by Banks over Mrs. Chase, Talbott confirms this, and the answers of Banks, his exhibits especially, leave us no room to doubt that he was and is the principal speculator upon the feebleness of the aged grandmother, and the viciousness of the grandson, with a view to overthrow, for his own gain, "the just and honest [**31]  expectations based upon a voluntary deed or settlement, unaffected by the slightest taint of fraud at the time of its execution." 6 Md. 266. But this claim is also subject to our fifth objection, as the evidence shows Banks claimed and received dividends under the deed to Talbott. Now these items embrace absolutely every claim appearing to be dated before our deed of trust.

But if none of our objections are well founded, and the full amount of these antecedent debts become established, we shall now proceed to show that Mrs. Chase reserved an estate and means sufficient to pay them all. Admitting, for the sake of the argument, that all these claims are just, say $ 7122.50, what was the value of her reserved estate? The evidence clearly shows that this reserved estate, after deducting her support, was of the annual value of $ 4137.17, and from the date of the deed to her death, in March 1848, was, therefore, worth at least $ 14,480.09, or more than sufficient to pay all claims asserted of date prior to the deed twice over. But by our exceptions above stated, we show that her income for one year was more than enough to pay every just debt; less than six months income would pay [**32]  them all.

Now can it be pretended for a moment, that under this state of facts our deed was fraudulent in effect? A reservation of so valuable an estate, and its subsequent dedication to pay her debts, must clearly save both the deed and the name of Mrs. Chase, from any reproach before a court of equity, and must save from the clutch of a shameful speculation the "just and beneficent trusts of her family settlement." Nor can the allegation of the bill, that "she intended to hinder and delay" her creditors, find any better support than the allegation, that she intended "to defraud" them. The providence of God has proved that her life estate was more than doubly equal to the payment of her debts, even as now asserted. That she was advanced in years when she made this deed, might make it uncertain if her life estate would pay her debts, though she was then in vigorous health. But when this bill was filed and our deed assailed, her life was closed, and that was rendered certain which was before, perhaps, in doubt. It must be here observed, that we are considering the fraudulent effect of the deed, not the intention. Have these creditors been delayed? If any of them stopped to gather [**33]  their fruits from Talbott's deed, did we delay them? If they held their claims in Mrs. Chase's life time, dated as they now appear, why did they not proceed to execution, if necessary, against her life-estate, or if they needed the help of equity, was it not as easy to subject her life-estate to pay their claims, as it was then, or is now, the fee simple? We have seen the life estate was more than sufficient: all the "hindrance and delay" have been of their own choice. Have they preferred to wait until death had shut out the light that this poor old lady's answer might turn upon their bill? or, more consistent with the rapacious course that some of them have pursued, continued to gather in the spoils from Barney's repository, that they might be able to sweep the whole estate? Such is at least the scope and object of this proceeding, and we see that the principal subsequent creditors, who wait behind the advancing prior ones, bear the same names, the same interests. It should be observed, that all these debts on account of Barney, are provided for in the 7th item of the 1st codicil to her will, and we say the true construction of this provision is, to cover all such liabilities at the [**34]  date of our deed of trust, when the ambulatory nature of the will became fixed, and its provisions incorporated as the trusts of the deed, according to the doctrine in Mayor & C. C. of Balto. vs. Williams, 6 Md. 235.

3rd. But we further insist, that if this deed should be set aside as fraudulent as against antecedent creditors, the subsequent creditors should not be let in to participate in the fund. When a voluntary conveyance is vacated for constructive fraud only, and not for actual fraud, can subsequent creditors come in? They have no power to file a bill to set the deed aside, because they had no rights to be affected by it at the time of its execution. In the case of actual fraud the deed is a nullity, but not so with a voluntary deed; it is good inter partes. There is no decision of the Court of Appeals of this State, which has ever decided this question; it was not decided in Waters vs. Dashiell, 1 Md. 455, nor in Worthington vs. Bullitt, 6 Md. 172. This court is, therefore, left free to decide the question, as it ought to be decided, upon principle. The subsequent creditors alone, without antecedent debts, could obtain no relief against such a deed, and Mr.  [**35]  Justice Story, in his Eq. Jur., sec. 361, says, there is "some difficulty in perceiving how the subsequent creditors can make out any right as against the voluntary grantees, through the equity of the antecedent creditors." Again, our registry laws, in accordance with which this deed was recorded, give notice which is binding upon all subsequent creditors and purchasers, (6 Md. 272, note,) and having therefore at the time of contracting their debts, notice of the existence of this deed, how can they be said to be "hindered, delayed or defrauded" by it? The statute of 13 Elizabeth, ch. 5, is aimed not against voluntary deeds as such, but only against those that are fraudulent as against creditors, and how can a deed be fraudulent as to a creditor, who contracts his debt with full knowledge of its existence and provisions?

James Malcolm, St. George W. Teackle and J. V. L. McMahon, for the appellees:

1st. As to the fraudulent character of the impeached deed of August 1844:--This deed conveys all the property of the grantor, without any exception whatever, upon the trusts declared by her previous will and codicils, and thereby (according to the construction of that deed by [**36]  this court in 6 Md. 235) passed the whole property immediately and irrevocably to the trustees, upon the trusts, as if recited in the deed. By this deed, therefore, it appears that Mrs. Chase placed all her property beyond the reach of her creditors, except the rents and profits of her reserved life-estate, she being then about or quite ninety years old, and one-half of such rents as might arise after her decease, from a ground rent of $ 43.50, and from the leasing thereafter by the trustees of an unimproved and unleased piece of ground called "Newington," containing about seven acres, which latter, by her will, is made applicable, and only after her decease, to any balance of money due and owing from her at her death, on account of her grandson William Chase Barney. This deed is in law fraudulent and void, as to the then creditors of Mrs. Chase, not only because it did not leave open to them an ample and unembarrassed sufficiency of property to pay their edbts in any mode, but also because it threw them for the payments of their debts, during her life, upon the mere rents and profits of her property, and that only to be reached against and not under the trusts, and after her death [**37]  left no property applicable to the payment of any of them, except only the half of the rent of $ 43.50, and of "Newington," when leased, and that only to pay such of them as fall within the special trusts above stated. And being thus fraudulent and void as to prior creditors, it was properly vacated and set aside for the benefit of all creditors, subsequent as well as prior. It was also void as to subsequent as well as prior creditors, because it was made in contemplation of future indebtedness by Mrs. Chase, and to protect her property against such future indebtedness, and that too by means of a deed, whose trusts, after her decease, being declared by her will, were necessarily kept secret from such creditors, and her purposes as to them and their debts kept concealed from them until her death. These positions are fully sustained by the authorities. 3 Md. 11, 37, 40, Green vs. Trieber. 1 Md. 470, Waters vs. Dashiell. 8 Md. 426, 427, Malcolm vs. Hodges. 3 Md. 52, Sangston vs. Gaither. 5 Gill 449, Worthington & Anderson vs. Shipley. 1 Md. Ch. Dec., 507, Atkinson vs. Phillips. 2 Md. Ch. Dec., 455, Sewell vs. Baxter & wife. 3 Md. Ch. Dec., 105, Bullett vs. Worthington.  [**38]  2 Younge & Coll., 172, 177, Ede vs. Knowles. 1 Conn., 525, Salmon vs. Bennett. 9 Smedes & Mar., 394, Arthur vs. Commercial & Rail Road Bank of Vicksburg. 13 How., 98, Parish vs. Murphree. 4 Cond. Eng. Ch. Rep., 265, Richardson vs. Smallwood. 2 Bland, 35, Kipp vs. Hanna. 10 Paige, 210, Brownell vs. Curtis, et al. 6 Barb., 91, Browning vs. Hart. 1 Amer. Lead. Cases, 55 to 73, (3rd Ed.) 1 Story's Eq., secs. 361 and notes, 354, 355. 1 McCord's Ch. Rep., 518, Iley vs. Niswanger.

2nd. As to the existence of the prior indebtedness. The record clearly shows the existence of such indebtedness, amounting in the aggregate to over $ 7000, and among these debts is the claim of Elion upon a note dated the 2nd of July 1844, upon which he obtained judgment against Mrs. Chase, herself, in 1846. In regard to the defences set up to defeat these as well as the other claims, it will suffice here to say, that the judgment of Elion is unobjectionable on all points: that Renwick's claim on this note for $ 2000, dated 30th of July 1844, is free from the objections of limitations, which is not pleaded or objected to it, and of acceptance of dividends under Talbott's deed; that Banks' (exhibit No. 1 or [**39]  No. 5) is free from limitations, his bill having been filed within three years after its maturity, and he received no dividends on it under Talbott's deed, nor is there any such objection to it, or indeed to any other claim of Banks, set up either by the answers to his bill, or by the only exception to this and his other claims; that Mills' is free from limitations, this claim being specifically excepted from that objection, by the only objection or exception to it, and also from the only other objection made to it, of the acceptance of dividends under Talbott's deed. It has been objected, that the notes dated the 30th of July 1844, though dated prior to the deed, are not antecedent debts, because they were accommodation notes, and were not passed to the present holders and claimants till they were over-due. This however cannot be law, for every note is presumed to be made when dated, and made upon consideration, unless the contrary is proved, and when endorsed, it is presumed to be endorsed about the time of its date, (6 Md. 338, McDowell vs. Goldsmith,) and as soon as an accommodation note is passed it becomes a debt ab origine, and limitations begin to run from its date. 1 Amer.  [**40]  Lead Cases, 71, 72, 73, (3rd Ed.) It may here also be remarked, that there are many of the claims against which no objections have been set up, either by way of answer, exception or objection, and of these a part consist of judgments against Mrs. Chase herself, in her lifetime.

3rd. As to the defence of limitations. The judgments above stated including that of Elion, are, of course, unaffected by this defence. As to Banks' claims, none of them were due more than three years before the filing of his bill, and are therefore unaffected by the defence of limitations; and even if they were, the acknowledgment of Mrs. Chase, and her express approbation of his taking certain of these claims, and that he should take them for the reasons there assigned, as proved by Mrs. Oldfield, and her written note of the 30th of December 1847, witnessed by the defendants, Mrs. Oldfield and Mrs. Barney, are of themselves amply sufficient, to take his claims out of the statute. 9 Md. 52, Peterson vs. Ellicott. The only other claims against which this defence is set up, are those of N. Williams, S. Polk and C. H. Pitts. In regard to these, and indeed, all the claims in the case, we insist that the [**41]  defence does not apply, because the trusts of the impeached deed excluding the grantor's creditors after her decease from payment out of any part of her property, except the rents of a small part above mentioned, were not notified to her creditors, but, as declared only by her will and codicils, were necessarily kept secret from them until her death, and the probate of her will in April 1848, at which time the fraud was discovered, and from that time only the statute began to run against the claims of the defrauded creditors; also that this defence does not apply to them, because, with one or two exceptions, these claims were not barred at the period of her death, and the trusts of her will for the payment of them out of part of the rents of "Newington," speaking as of the date of her death in March 1848, are sufficient to preclude the bar as to such debts then existing and not barred.

4th. As to the defences of usury, ante-dating, want of consideration and fraud:--The answers allege these defences against the claims of the original complainants, and the exceptions urge the same objections against the claim of Renwick. Now as to Renwick's claim, there is no proof of ante-dating [**42]  or of fraud, and the only objection which could be taken on the score of original want of consideration, and of being taken by him after it was due, is fully disposed of by this court in its decision on this very note, in his suit on it against the executors of Mrs. Chase, who are also the trustees under this deed, in 2 Md. 356. But the mere fact of want of consideration between the original parties to a note will not shift to the endorsee the onus of proving that he gave value for it. 6 Md. 515, Ellicott vs. Martin, Love & Co. 85 Eng. 238, C. L. Rep., Fitch vs. Jones. Again, there was consideration for this note as between the original parties to it. It is dated the 30th of July 1844, and the proof shows that on the same day Barney gave his note to Mrs. Chase for $ 4000. There were then, on the same day, cross-notes given by these parties,--a mutual exchange of paper, which constitutes a sufficient consideration for the notes. Byles on Bills, 191. The defence of usury, therefore, fails as to this claim, but if there be usury the claim is only void as to the excess, under the act of 1845, ch. 352. As to the claims of Banks, we insist that there is no tittle of proof in the [**43]  record to sustain any of the defences urged against them. So far from there being any evidence to sustain the allegation of any fraud or fraudulent contrivance on his part to obtain these claims, the evidence by Mrs. Chase's own written statement for him, of the 30th of December 1847, witnessed by the defendants, her daughter and granddaughter, Mrs. Barney and Mrs. Oldfield, and her previous approbation of his taking them, and her expressed desire, as proved by Mrs. Oldfield, coupled with her acknowledgment of him as her largest creditor, and of his kindness and generosity towards her, and her anxious desires, there expressed, that a part of her property should be sold to pay his claims, and that he should have as little trouble as possible in getting them, not only repel any such imputations, but on the contrary rather evince fraud on him in the effort to put the claims upon him if there was a purpose to impeach them on any such ground, or to exclude them from payment.

5th. As to the objection of acceptance of dividends under Talbott's deed:--The only claims which, by the record, are objected to on this ground are those of Williams, Polk, Pitts, Elion and Mills, and none of the [**44]  claims, prior in date to the deed, are open to this objection, if it had been made, except those of Williams, Polk and Pitts, and by the terms of Talbott's deed it excluded all debts contracted after its date, the 30th of January 1845. As to Banks, though there is no objection for this cause to any of his claims, there is evidence of his receiving dividends on some claims, but on what does not sufficiently appear, but it is expressly admitted that his claim on the note filed with his bill of the 30th of July 1844, did not receive any dividend.

By reference to this deed, it will be seen, that all the rights granted to creditors by it take effect entirely under it, and that instead of being made to carry into effect any rights secured to creditors by the previous and impeached deed of 1844, or even being in consonance with it, it merely appropriates, unconditionally for their benefit, the profits of her life-estate, which was secured to her under the deed of 1844, and then assuming the whole property to be under her control, re-grants it, after her decease, on the secret trusts of her will and codicils. The property, subject only to her life enjoyment of the profits, having been [**45]  irrevocably vested in the trustees, under the deed of 1844, her conveyance in 1845 was purely inoperative and void at her decease, because of the expiration of her title at that period, as shown by the deed itself. And as to the claims against which this objection has been urged and proved, (if any,) we insist, that the acceptance of dividends, under Talbott's deed, even if conceded, did not preclude the claimants from impeaching the prior deed of 1844, as fraudulent, or from claiming payment if that deed is set aside as fraudulent, at the instance of other creditors; that the acceptance of benefits derived to them entirely from the deed of 1845, was no assent to the prior deed, but rather the contrary, and was, at the most, but an assent to the reception of the rents and profits from her, or her trustees, unconditionally appropriated, without any express or implied agreement on their part, beyond the extent of her title, or for any surrender or compromise of their claims, or of their right to enforce them, at her death, against the prior title, and, at most, but a payment pro tanto on account of such claims; that such acceptance, even if it could possibly be deemed an assent to the [**46]  prior deed, if it is claimed to be an act of election on the part of the creditor to abandon his rights as against the first deed, for the benefits given to him by the second, (if conceded to be a case for election, as it is not,) could not bind him as such, if made in ignorance of his rights, nor unless made with a full knowledge of all the facts material to such an election, and especially of the extent to which that deed affected his rights and required his surrender of them; and if it is alleged to be an assent to, or an acquiescence in, a fraudulent deprivation of his rights, could not in law operate as a binding confirmation by the creditor of such act of fraud against himself, unless made with the full knowledge of the fraud practiced upon him, and the extent of it; and that, therefore, such an acceptance could not, in this case, operate as such an election or confirmation, be cause the trusts of both deeds, after her decease, being declared only by her will and codicils, were thus necessarily concealed from, and were in fact unknown to, the creditors, until her death, and did not even furnish any presumption of intent by them (until they were made known at her death) to preclude [**47]  the creditors from payment at her death, but the contrary. And as to the claims, (if any,) against which this objection may be urged, although not alleged against them by answer or exception, that they are not affected by it, not only upon the grounds above stated, but also because they were not thus objected to. For these positions see 2 Story's Eq., secs. 1075, 1089, 1092, 1097, 1098. 2 Sch. & Lef., 486, Mauray vs. Palmer. 2 Ball & Beatty, 317, Dunbar vs. Fredeunick. 5 Cond. Eng. Ch. Rep., 468, Cockerell vs. Cholmeley. 3 Cond. Eng. Ch. Rep., 298, Honner vs. Morton. 3 Cond. Eng. Ch. Rep., 411, Coleman vs. Jones. 2 Mylne & Keene, 225, Bennett vs. Colley. 1 Hoffman's Ch. Rep., 280, Fish vs. Miller. 9 Pet., 608, Owings vs. Hull. 3 Yerger, 369, Cherry vs. Newsom. 3 Call., 476, Broddus vs. McCall. 14 Pick., 221, Rice vs. Catlin. 1 Jarman on Wills, 389. 2 Sumner, 563, Flagg vs. Mann.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and TUCK, J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*224]  The opinion of the court was delivered as follows:
By Justice ECCLESTON:--
This bill was filed for the purpose of vacating the voluntary deed executed by Hannah K. Chase, on the 2nd of August 1844,  [**48]  upon the ground of its being void, because fraudulent as to creditors, under the Statute of 13th of Elizabeth, ch. 5. The suit was instituted for the benefit of the complainants and all other creditors of the grantor, who should come in and contribute 

 [*225]  to the expenses of the proceeding. Both antecedent and subsequent creditors are claimants.
The deed was executed for the purpose of conveying to Nathaniel Williams and Joseph B. Williams all the estate and property, real and personal, of the grantor, in trust "to suffer and permit the said Hannah K. Chase and her assigns, for and during the period of her natural life, to have, hold, use, occupy, possess and enjoy, all and singular, the estate, chattels, effects and property thereby conveyed and assigned, and the rents, issues, income and profits thereof, during that period, to receive and take, and the same to apply to such uses and purposes as she might think proper; and from and immediately after the decease of the said Hannah Kitty Chase, then in trust, and under and subject to the like powers, limitations, restrictions and conditions as are mentioned, expressed and declared, of and concerning the estate and property [**49]  generally mentioned in and devised by the last will and testament of the said Hannah Kitty Chase, to the trustees therein named, and in and by the three several codicils by her made to said will." The date of the will, and the dates of the three codicils referred to, are stated in the deed.
With the exception of a lot of ground called "Newington," and a ground-rent of $ 43.50 per annum, according to the provisions of the deed, (considering the will and three codicils as constituting parts of the same,) the trustees were to hold the whole estate of Mrs. Chase, after her decease, for the use of her daughter and grandchildren.
By the 10th clause of the will, "Newington" and the ground-rent of $ 43.50 were to be for the use of William C. and Samuel C. Barney equally. By the codicil dated the 9th of June 1841, this provision of the will is revoked, and one-half of "Newington" and of the said ground-rent are to be held in trust for the use of Samuel C. Barney; the other half being disposed of in the following language: "And whereas, I am now liable for the payment of large sums of money for and on account of my grandson, William Chase Barney, the payment of which I am gradually effecting [**50]  during my life, but which may not be wholly accomplished before my death, I 

 [*226]  direct my said trustees to hold the other undivided one-half part of the said property, in trust for the following uses, intents and purposes, that is to say, in trust to apply the rents, issues and profits of the said half part, in the first place, to the payment of any balance of money due and owing from me at the time of my death, for or on account of my said grandson, William C. Barney." And after such payment the said half is directed to be held in trust for his use for life, and then for his children.
Previous to any examination of the proof in regard to the condition of Mrs. Chase's affairs, at the date of this deed, we deem it proper to notice some decisions with reference to the construction of the Statute of 13th Eliz., ch. 5.
The cases on this subject are numerous, and distinguished jurists have entertained conflicting opinions in regard to the interpretation of the statute in some respects. To undertake an examination of the decisions, with a view of reconciling them, would require much labor without any hope of success.
In Reade vs. Livingston, 3 Johns. Ch. Rep. 481, [**51]  Chancellor Kent held, that indebtedness at the time of executing a voluntary conveyance, conclusively fastens upon the instrument a fraudulent character, as an inference of law, with reference to the claim of an existing creditor. But this doctrine has been repudiated in Worthington & Anderson vs. Shipley, 5 Gill 449. Instead of sustaining Chancellor Kent our Court of Appeals refer to the opinion of the Supreme Court of Connecticut in Salmon vs. Bennett, 1 Conn. 525, as enunciating what is to be considered the true interpretation of the Statute of Elizabeth. And there we find it said: "Mere indebtedness at the time will not, in all cases, render a voluntary conveyance void as to creditors, where it is for a child in consideration of love and affection." "Nor will all such conveyances be valid, for then it would be in the power of parents to provide for their children at the expense of their creditors. Nor is it necessary that an actual or express intent to defraud creditors should be proved, for this would be impracticable in many instances where the conveyance ought not to be established."

 [*227]  In the same opinion it is held, "that [**52]  a voluntary conveyance may be valid against existing creditors if there is no actual fraud intended, and the grantor is in prosperous circumstances, unembarrassed, and not considerably indebted, and the gift is a reasonable provision for the child, according to his state and condition in life, comprehending but a small portion of his estate, and leaving ample funds unencumbered for the payment of the grantor's debts. But though there be no fraudulent intent, yet, if the grantor were considerably indebted and embarrassed at the time, and on the eve of bankruptcy; or if the value of the gift be unreasonable, considering the condition in life of the grantor, disproportioned to his property, and leaving a scanty provision for the payment of his debts, then such conveyance will be void as to creditors."
The conclusion of the court's opinion in Worthington & Anderson, vs. Shipley, shows, that although an indebtment at the time of a voluntary deed, is only prima facie and not conclusive evidence of a fraudulent purpose, even as regards a prior creditor, yet the onus is thereby cast upon the grantee of showing "that the grantor, or donor, at the time of the gift was in prosperous [**53]  circumstances, possessed of ample means to discharge all his pecuniary obligations, and that the settlement upon the child was a reasonable provision, according to his or her station and condition in life." See, also, 11 Wheat. 211, Hinde's Lessee vs. Longworth; 13 How. S. C. Rep. 99, Parish, et al., vs. Murphree, et al.
With the cases of Salmon vs. Bennett, and Worthington & Anderson vs. Shipley, before him, in Bullett vs. Worthington, 3 Md. Ch. Dec. 99, Chancellor Johnson, we think, very correctly said: "The party who sets up a voluntary conveyance in opposition to the claims of pre-existing creditors, is required to show, by evidence which leaves no reasonable doubt upon the subject, that the means of the grantor, independent of the property conveyed, are abundantly ample to pay them all. If there be a reasonable doubt of the adequacy of his means, or if his property be so encumbered, that delays, difficulties and expense, must be encountered before it can be made available to his creditors, then, as I conceive, the 

 [*228]  voluntary conveyance must fall, because then it has the effect to delay and hinder his creditors.  [**54]  "
We will now endeavor to ascertain whether claims have been exhibited and proved, which, in point of character and amount, are sufficient to justify a decree for vacating the deed in controversy.
The claims relied upon by the complainants as antecedent debts, are the following:

________________________________________________________________________________

The note given to N. Williams, on the 9th of December,	
  1841, for	$ 250 00	
N. Williams' account for fees,	100 00	
Mrs. Oldfield's debt to Sarah Polk, 6th of May 1843,	100 00	
Note given to C. H. Pitts, 18th of June 1844,	250 00	
Note to H. C. Elion, 2nd of July 1844, payable six months	
  after date,	350 00	
Note to W. C. Barney, July 30th, 1844, payable two years	
  after date, and endorsed to W. P. Mills,	300 00	
A Note dated the 30th of July 1844, payable two years after	
  date, given to W. C. Barney, and endorsed by him	
  to R. Renwick, 16th of June 1849, marked Exhibit No. 3,	2000 00	
A note dated the 30th of July 1844, payable to W. C.	
  Barney one year after date, now claimed by D. B.	
  Banks, marked Exhibit No. 4,	2000 00	
A note dated the 30th of July 1844, payable to W. C. Barney	
  one year after date, which is described in the Bill	
  of Complaint as held and owned by D. B. Banks, marked	
  Exhibit D. B. B., No. 1, but appearing under the commission	
  to be No. 5,	2000 00	
   Total amount exclusive of interest,	$ 7350 00	
________________________________________________________________________________

 [**55]  
In the examination of the proof by which these claims are sought to be established, the evidence of Mr. Pitts must be held inadmissible. He has been objected to on the ground of interest, because the note given to him by Mrs. Chase was endorsed by him to W. H. Harrison & Co., and has been protested for non-payment. We think he is not competent to prove the existence of a claim, to be used for the purpose of authorising a decree to set aside the deed; as his evidence would be to assist in creating a fund, or in rendering property liable for the payment of the note, which he, as endorser, would otherwise have to pay; and without the least prospect of his ever being repaid, unless this deed is declared void; 

 [*229]  for if valid Mrs. Chase's estate is largely insolvent. See Owens vs. Collinson, 3 G. & J. 25, 33, 34; Clagett vs. Hall, 9 G. & J. 80, 97.
The testimony of this witness being the only proof to establish either the execution or the indorsement of the note of the 30th of July 1844, marked Exhibit No. 4, it must be regarded as having no proof to sustain it.
The signature of Mrs. Chase to each of the notes mentioned in the foregoing [**56]  list of claims has been proved by the witnesses, Alexus B. Wolfe and Joshua Cockey. Her signature to the claim of Sarah Polk has also been established by the same witnesses.
Upon the note to Elion he obtained judgment against Mrs. Chase, on the 28th of March 1846.
The complainants filed the following interrogatories, to be answered by W. P. Mills:
"First.--When did you receive the promissory note referred to in your petition, filed with the papers in the aforesaid case of Banks and Stewart against Williams and others? From whom did you receive it? and was it after it was overdue? File the original note, or a copy of it, with your answer.
"Second.--What consideration was paid for it, in money or otherwise, by the payee to the pretended maker of said note? Did the payee ever state to you the consideration he had paid for it, or that he had paid no consideration therefor?
"Third.--What consideration did you pay for said note; in money or otherwise? To whom did you pay any consideration?
"Fourth.--Has any other person than yourself, and if any, what person, any interest in said note?"
Interrogatories similar to these were propounded to R. Renwick, in reference [**57]  to his claim, exhibit No. 3.
D. B. Banks was also required to answer like interrogatories in regard to his claim, spoken of in the bill as exhibit D. B. B., No. 1, but which is exhibit No. 5, according to its description under the commission. The interrogatories to Banks are omitted in the record, but it is conceded they were like 

 [*230]  those propounded to Mills, and the answers to them show the propriety of the concession.
Under the act of 1785, ch. 72, sec. 21, the answers to such interrogatories are "evidence in the cause, in the same manner, and to the same effect, that the defendant's answer to the plaintiff's bill is evidence."
Mills answered as follows:
"1. I received the note in question from William Chase Barney before its maturity; the precise day I cannot state; the original is already filed.
"2. I do not know what consideration was paid for said note by the payee to the maker; the payee did not state to respondent any thing about the consideration he paid for said note; never stated that either he or the maker had had no consideration therefor.
"3. I paid the full value of the note in question to William Chase Barney, partly in money, partly in clothes.
"4.  [**58]  No one but myself is interested in said note."
R. Renwick's answer to the first interrogatory is, "that the note filed in this cause came into his possession on the 16th day of June 1849, after it became due, from William Chase Barney, the payee." To the second interrogatory he says, he "does not know what consideration was paid for said note by the payee, and he never informed him, and never told him that he had paid no consideration." To the third interrogatory he answers, "that he paid the sum of fifty-five dollars and fifty cents, in cash and furniture, on the 16th day of June 1849, and receipted a bill of furniture, due to this respondent from payee, amounting to one thousand sixty-seven dollars and twenty-nine cents, with interest thereon, making a sum total of $ 1306.12, paid for said note by this respondent to said payee, William Chase Barney." The fourth interrogatory is answered by saying, "that no other person than this respondent has any interest in said note."
D. B. Banks answers the interrogatories in the following manner:
To the first he says: "That he does not recollect the time when he received the promissory note mentioned in the said 

 [*231]  interrogatory, [**59]  as he received at different times several notes of similar date and amount with the one mentioned in said interrogatory, and drawn and endorsed by the same parties; that he thinks he received the note mentioned in said interrogatory from George W. Earhart, from whom this respondent purchased it. This respondent thinks he received the said note after its maturity."
To the second interrogatory he answers: "That he cannot recollect the sum paid by him for the note mentioned in said interrogatory, because there were several notes of same date and amount received by him at different times; nor does he know what consideration was paid to the maker of said note by William C. Barney or any other person, but that the amount of the different notes drawn by Hannah K. Chase, and held by this respondent, were acknowledged by her to be due to this respondent by her."
To the third interrogatory he says: "That he is under no engagement to pay Wm. Chase Barney the consideration, or further consideration, in the event of a recovery of said note in whole or in part; the said note was bought and paid for as the property of this respondent, and is absolutely his without any contingent consideration connected [**60]  in any possible way with it whatever."
These answers of Mills and Renwick show the sale and transfer, from Wm. C. Barney, of the notes claimed by them respectively. So likewise the answers of Banks are evidence of the sale and transfer, from Barney, of the note marked exhibit No. 5, but cannot be regarded, under the act of 1785, as proof in support of the note, marked exhibit No. 4. The interrogatories relate alone to No. 5, and what is said in the answers respecting any other note cannot be evidence, because not responsive to the interrogatories.
In their statement, or brief, the defendants say: "Before we proceed to examine these claims in detail, to ascertain who are prior creditors, and the amount of their claims, we inform the court that we have excepted to some of them, and objected that they are subject to be dismissed from the case or reduced in amount on the following grounds:

 [*232]  "1st. That they are not properly in the case, or authenticated, or proved, and are ante-dated.
"2nd. For being tainted with usury. Notes given to raise money on, create no debt or liability until passed away to a third person, and under the facts proved, many, if not all these notes [**61]  were obtained upon usurious terms.
"3rd. Because they are barred by statute of limitations, pleaded in answers, and relied on in exceptions, and limitations applies to the time of filing claims.
"4th. Because they were obtained by fraud, imposition and undue influence practiced upon a very aged woman, and such contracts, if not annulled, will not be enforced by a court of chancery.
"5th. Because they claimed under the deed to Talbott, and received their dividends, and are estopped from impeaching the deed to appellants, which is recited in Talbott's deed--which was operative solely upon the life-estate reserved in the deed to Williams."
Under the first objection it has been contended that some of the earliest claims are not properly in the case, because the claimants did not file them, and are not insisting upon their being paid. But surely the complainants have a right to show the existence of those claims at the date of the deed, when they are seeking to invalidate it upon the ground of the grantor's indebtedness at the time of its execution. And we suppose it cannot be seriously insisted, that the claims of those who came in as parties after the bill was filed are not properly [**62]  in the case, merely because they did so come in.
As regards the want of authentication or proof, the objection is a good one in reference to the claim, exhibit, No. 4. But that we entertain a different opinion as regards the other claims mentioned in the foregoing list will appear from what has already been said.
With reference to ante-dating, we see no proof sufficient to establish it in this case, in opposition to the legal prima facie presumption that each note was executed by the maker at the date upon its face.
The second ground of objection is usury. Without deciding 

 [*233]  whether this defence is properly presented by the answers and exceptions, in regard to all the antecedent claims, we will treat it as if it were so.
Usury has not been relied upon against the claims of N. Williams, S. Polk, C. H. Pitts or H. C. Elion. The last being a judgment against Mrs. Chase, on a note dated the 2nd of July 1844. The defendants, in their statement, say: "These are undisputed debts, but are all subject to our third objection on limitations as they were none of them filed in this case until returned with Mr. Pinkney's commission, under which they were proved on the [**63]  17th of February 1851."
Mills' claim cannot be defeated upon the ground of usury. His answers to the interrogatories, in the absence of contradictory proof, must exclude such a defense.
R. Renwick's claim, (exhibit No. 3,) came into the cause after the answers to the bill were filed. The 5th exception of the defendants, as set forth in the record, objects to this claim in the following language:
"And they further except to the note filed among the proceedings and proved by the affidavit of Robert Renwick, because the same was executed long subsequently to the deed of the 2nd of August 1844, and ante-dated so as to appear antecedent to said deed, and because, even if the same were not ante-dated, the said note remained in the hands of W. C. Barney, who held the same for his own accommodation until long after the date of said deed, and after the death of said H. K. Chase, when the same was paid to said Renwick, at the time and for the consideration stated by said Renwick; and the said note then, and not prior to the execution of said deed, became available as against the estate of said H. K. Chase, and because the said note was concocted and originated in usury to which said Renwick [**64]  was a party, and nothing is due thereon except the amount so stated by him to have been paid thereon." By this exception the defence of usury is presented, in regard to the claim.
As the debt existed prior to the adoption of our new constitution the provisions of that instrument, on the subject of usury, can have no effect upon it. And under the act of 1845, ch. 

 [*234]  352, a contract tainted with usury was not void in toto, but only void to the extent of the usury, and valid for the amount actually paid or lent.
The proof has fully convinced us, that no consideration for the note in question was given by the payee to the maker;--that it was purely for the accommodation of the former; and that Renwick took it from him nearly three years after it fell due, paying only $ 1306.12 for the same, it being a note for $ 2000.
The complainants contend, that conceding the note was purchased, as above stated, still it was not usurious, because there was a valid consideration passing between the maker and payee. In support of which they rely upon the fact, that at Mrs. Chase's death, there was, amongst her papers, a note to her from W. C. Barney, for $ 4000, dated the 30th of July [**65]  1844, payable one year after date. The existence of such note, it is said, shows a mutual exchange of notes, constituting a valid consideration for each; and consequently the purchase by Renwick, although at much less than the amount of the note he received, did not render the transaction usurious. Whether, under the circumstances of this case, such would be the effect of a mutual exchange of paper, we need not stop to inquire, because we do not think there was any such exchange as would make each note an available consideration for the other. That this sort of exchange, which the authorities sometimes call "cross-notes," will amount to a sufficient consideration has been frequently held. But to do so it must appear that it was the intention of the parties to make a mutual exchange of paper. And whether such was their design will depend upon the "particular circumstances of each case." Chitty on Bills, 565, (Ed. of 1821.) In the case before us Barney was known to Mrs. Chase to be an extravagant spendthrift of the means she was furnishing him with, in cash, by sales of her stocks and by loans or gifts of her notes, totally insolvent, and indeed without funds to procure food [**66]  and clothing for himself, without her assistance. And we have yet to see the proof that he ever paid her back one of the many notes he received from her. In view of such facts we cannot, for a moment, suppose that 

 [*235]  Mrs. Chase either gave her note in consideration of Barney's, or that she intended the transaction between them should be what the law will regard as a mutual exchange of notes.
In Munn vs. The Commission Company, 15 Johns. Rep. 55, Mr. Justice Spencer says, in delivering the opinion of the court: "If a bill or note be made for the purpose of raising money upon it, and it is discounted at a higher premium than the legal rate of interest, and where none of the parties whose names are on it, can, as between themselves, maintain a suit on the bill when it becomes mature, provided it had not been discounted, then such discounting of the bill would be usurious." See also Sauerwein vs. Brunner, 1 Har. & Gill 477, and Williams vs. Reynolds & Smith, 10 Md. 57, in regard to the subject of usury.
When the note now in question came to maturity it had not been disposed of by Barney, the payee, and a suit upon [**67]  it could not have been maintained by him against the maker, Mrs. Chase, as it was merely for his accommodation. Subsequently it was purchased from him by Renwick, at the large discount mentioned in his answers. Such a transaction is usurious; and, therefore, on this claim, he is only entitled to the sum of $ 1306.12, with interest thereon, under the act of 1845.
The complainants' counsel have contended that the decision in Renwick vs. N. & J. Williams, Ex'rs of H. K. Chase, 2 Md. 356, should exclude any defense upon usury against this claim in the present suit. But although, in that case, usury was pleaded, there was no proof to sustain the plea, and no question on that subject came before the court. Their attention appears to have been confined chiefly to the question, whether proving a note to be an accommodation note, and its not being endorsed until over-due, will constitute a sufficient defence to the suit upon the note by the endorsee?
The claim of Banks, filed with his bill, has also been resisted as usurious. The affirmative of this charge by the defendants, rests upon them, under the act of 1845. And they have not sustained it by evidence which can enable [**68]  the court to decide, that less than the nominal amount of the note was paid for it, and how much less, so that under the 3rd section 

 [*236]  of the act, the court may ascertain the amount really due and decree accordingly.
The defendants' third objection is, that the claims are barred by limitations.
We need not decide whether the claims of Williams, Polk and Pitts, should be excluded under this defense, because without them there are debts enough to invalidate the deed, and because they were not decided upon below, but were expressly "reserved for further consideration." For these reasons we may also refrain from expressing an opinion as to the effect of the fourth and fifth objections so far as those claims are concerned.
In the case of McDowell, et al., vs. Goldsmith, 6 Md. 319, this court say: "We can express no opinion as to the last of these claims. The chancellor has neither allowed nor rejected it, but on the contrary, has reserved it for further directions."
Limitations cannot bar Elion's claim, as he obtained a judgment upon it against Mrs. Chase, on the 28th of March 1846.
The note held by Mills is dated the 30th of July 1844, payable [**69]  two years after date. He filed the same on the 7th of July 1849, with his petition, asking to be admitted as a co-complainant; at which time the note had not been due three years. And in their second exception, whilst the defendants are insisting upon the statute of limitations as barring other claims, they except the claim of Mills from its operation, in express terms.
Renwick was not an original complainant, but came in as a party by filing his petition and claim on the 20th of March 1850, which was subsequent to the filing of the answers to the bill. These answers, relying upon limitations, can have no effect upon this claim subsequently coming in. Speaking in regard to persons who were made parties complainants after the filing of the original bill in the case of McDowell vs. Goldsmith, 2 Md. Ch. Decisions 390, it is true the chancellor says: "Notwithstanding, however, the claims of these parties have been proved, the plea of limitations, relied upon in the answer, must bar the remedy upon them, unless the fraudulent character 

 [*237]  of the transaction saves them from the operation of the statute." But the statement of the case shows, that the parties, who came in [**70]  after the filing of the original bill, and the answer to the same, filed an amended bill. Then followed an agreement that the amended bill should be treated as an amendment "filed by the whole of the parties, originally complainants, and subsequently made so, or applying to be made so, and that the answer of the defendant already filed, should be taken as an answer to said amended bill." Under this agreement the chancellor might well consider the plea of limitations, contained in the answer, as applicable to the claims of those who became parties after the original bill had been filed.
As against Renwick's claim, the statute of limitations has not been relied upon in either of the exceptions filed by the defendants, as contained in the record. We say as contained in the record, for the purpose of distinguishing these exceptions from objections spoken of as contained in the statement or brief of the defendants.
As this claim cannot be affected by the plea of limitations in the answers of the defendants, and as it has not been resisted by such a plea in the exceptions, it is not subject to such a defense.
When Banks' claim, "D. B. B., No. 1" or "No. 5," was [**71]  filed with the bill, which was on the 29th of July 1848, it had not been barred by limitations, three years not having expired since it fell due.
The fourth objection, stated in the brief, alleges "fraud, imposition and undue influence practiced upon a very aged woman." During the argument, we understood this objection as designed to apply exclusively to the notes given to Barney and endorsed by him. The proof, in our opinion, fails to establish a participation, on the part of the endorsees, or any of them, either separately, or in connection with Barney, in the use of means for the purpose of defrauding, imposing upon, or exerting an undue influence over Mrs. Chase. The evidence shows they purchased the notes from the payee, but how, or in what manner they were instrumental in enabling 

 [*238]  him to obtain them from the maker, or that prior to, or at the time of executing the notes, the endorsees had any communication or intercourse with her, verbally or in writing, either directly or indirectly, there is not the slightest proof. And indeed it would seem to be strangely inconsistent with the usual course of human transactions, to suppose that the allegation contained in this [**72]  objection is true, with reference to participation on the part of Renwick as to his note, or of Banks as to his, No. 5, when it is certain that the former did not obtain his until several years after it fell due, and after the death of the maker; and that Banks became possessed of his when over-due.
That Barney had great influence over his grandmother there can be no doubt. Her extravagant liberality to him is conclusive evidence of this. And it would seem to be equally certain, that his influence was the consequence of her unbounded affection for him. Whether it be true, as alleged, that for the purpose of procuring any of the notes mentioned in the preceding list of claims, Barney resorted to other means than his influence, arising from her affection for him, the evidence furnishes no satisfactory proof.
Mrs. Chase, it must be recollected, although ninety years of age, still had a sound mind, and was very capable of transacting business. It would be a dangerous principle in a commercial community, to hold, in the absence of proof of fraud and imposition, that if a person in her condition sees fit to execute notes for a considerable amount, for the accommodation of her grandson,  [**73]  which are negotiated, even when over-due, such notes may be invalidated, because it is proved the payee had great influence over the maker in consequence of her strong affection for him.
The proof does not convince us that the fourth objection ought to be sustained.
The fifth objection insists upon an estoppel against the claimants, because they claimed under the deed to Talbott, and received their dividends. The 2nd exception of the defendants, in the record, is that on which this objection is based, and is as follows:

 [*239]  "To the claims filed in this cause, as follows, viz: The note and account of Nathaniel Williams, the claim of Sarah Polk, the claim of Charles H. Pitts, the claim of H. Cohen Elion, respectively marked: 'Complainant's Exhibit, No. 1,' 'Sarah Polk, Complainant's Exhibit, No. 2,' 'Charles H. Pitts, Complainant's Exhibit, No. 3,' 'H. Cohen Elion, Complainant's Exhibit B, No. 3;' and also to the note of $ 300 held by Mills; and in making this exception, the defendants insist, that each and all of said claims, except that of said Mills, on which judgment was recovered, are barred by the statute of limitations, more than three years having elapsed from the [**74]  maturity thereof, respectively, before the filing of them in this cause; and they further except to the same, because dividends were paid on all said claims under the trust to W. A. Talbott, and the holders thereof are thereby estopped from impeaching the deed of the 2nd of August 1844."
W. A. Talbott filed a statement showing what persons filed claims and received dividends under the deed of trust from Mrs. Chase to him, dated the 28th of January 1845.
The parties agreed to receive as evidence this statement, to the same extent as if the matters therein certified had been proved under the commission. They, at the same time, "admitted that the notes dated the 30th of July 1844, filed in this case before the same was set down for hearing, were not filed for dividends under Talbott's deed of trust, and received no dividends under said deed."
Under this agreement it will be seen, that the claims of Mills, Renwick and Banks, upon their respective notes, dated the 30th of July 1844, were neither presented for dividends, nor received any, under the deed to Mr. Talbott. This 5th objection, therefore, cannot operate upon them. Nor can Elion's claim be affected by it, as the statement of [**75]  Mr. Talbott does not show any dividend was paid or demanded upon that debt.
The defendants claim the right to use the note for $ 4000, from Barney to his grandmother, as a set-off against the notes given by the latter to the former, inasmuch as those were accommodation notes, and endorsed when over-due.
In some of the States of the Union, the doctrine thus insisted 

 [*240]  upon has been maintained, but in others it has not. In Chandler vs. Drew, 6 N.H. 469, the question was presented, and after full consideration the court decided against the right of setting-off a claim between the payee and maker, in a suit by the endorsee against the maker, upon an accommodation note endorsed when over-due. A similar decision was made in Burroughs vs. Moss, 10 Barn. & Cres. 558. And those two cases would seem to be sustained by the doctrine announced in Renwick vs. Williams, 2 Md. 356 & 364.
It has been said, that as the notes dated the 30th of July 1844, were all accommodation notes, and were negotiated after the execution of the deed of August 1844, they did not create any debts or liabilities until negotiated, and consequently [**76]  they were not antecedent, but subsequent claims. This position is based upon the principle which has been established in reference to the nature of an accommodation note before it is discounted, when considered with regard to a charge of usury, alleged to have arisen at the transfer of the note by the payee to the first endorsee. Whilst it remains in the hands of the payee the authorities speak of it as not being available, because he cannot maintain a suit upon it, and when passed to the endorsee he is said to be the first holder.
Indeed, in Munn vs. The Commission Company, the court go so far in speaking of the character of such a note before it is discounted, as to say, it is nothing more than blank paper. But we do not concur in the correctness of such language to its full extent. That there is no absolute legal liability whatever upon the maker, which can be enforced against him by any person, until the note is negotiated, there can be no doubt. But it would seem to be equally clear of doubt, that executing the note and delivering it to the payee, with authority to get it discounted, must create a contingent liability on the maker, which will become absolute so soon as it [**77]  passes into the hands of the party to whom it is regularly endorsed for value. Supposing, however, there is not even such contingent liability prior to the first endorsement, still some rights of the parties, after the note is discounted, are to be controlled by its date, 

 [*241]  and not exclusively by the time of the endorsement. For instance, if the note be payable ten days after date, and should be discounted three years and twenty days afterwards, when would limitations begin to run? Would it be from the time it fell due by the terms of the note, or from the endorsement, because it only then ceased to be blank paper, and became an effective note or cause of action? We imagine the statute would bar a recovery upon any suit commenced more than three years after the time prescribed in the note for its payment, no matter when discounted. And still it is a general rule, that limitation does not commence until there is a cause of action. If we are right in reference to the subject of limitations, the note, prior to endorsement, is not blank paper in every respect. And if the date may be regarded as regulating the subject just referred to, why may it not likewise be considered as [**78]  having an effect, if not otherwise, by relation from the endorsement, when the question is, as to whether a voluntary conveyance is void against creditors?
Again, if such a note as we are considering is executed and not discounted until after the maker's decease, can it be doubted that it is his note, and a valid claim against his estate? Will it be seriously contended, that because it had no legal efficacy until after the maker died, the negotiation after the death could not then give the note vitality, so as to create a claim against a dead man, when that claim was nothing more than blank paper during his life? We suppose the appropriate response to such questions would be, that the note created no liability from the maker to the payee, but its execution imposed upon the former a contingent liability to whoever might become an indorsee thereof for value. And when the note is discounted, the contingent responsibility is rendered absolute, and, as between the maker and endorsee, it will be regarded as a valid claim from its date against the former.
Formerly the claim of an accommodation indorser or other surety, was not one which he could prove under a proceeding in bankruptcy or [**79]  insolvency against the principal; and for that reason the former could sue the latter after paying the original claim subsequently to the discharge of the latter. At least 

 [*242]  such was the law in England and in Maryland, until changed by recent legislation. The doctrine on which the former decisions were based, is, that the surety had only a contingent or possible claim, which was not a debt until it became one by his paying the original claim for the principal.
Notwithstanding this, still we find the authorities holding, that when the question is, whether a voluntary conveyance is void as to creditors, the contingent claim of a surety against his principal, the grantor, will be considered as having the effect of an antecedent debt.
In 1 American Leading Cases, 57, (Ed. of 1847,) it is said, "The statute, 13 Elizabeth, ch. 5, protects creditors and others; and a liberal construction in allowing to persons who are or might be injured by a fraudulent conveyance, the character of creditors under this statute, has always prevailed. As to rights from contracts, any one liable upon a contract, express or implied, though only contingently, is a debtor from the [**80]  time that the liability is entered into; accordingly, a surety is a creditor of the co-obligor or co-sureties, from the time that the obligation is entered into; and those interested in an official bond, are creditors of the surety from the time that the bond is executed by him; the guarantee of an assigned judgment is a creditor of the guarantor from the time that the guaranty is given." Several cases are referred to in their notes, in support of what the authors have thus said.
In Pennsylvania, it has been held that a grantor's liability as accommodation indorser, may be used to show indebtedness at the time of a conveyance alleged to be fraudulent, though the note was not then dishonored. 4 Barr. 178, Hamet vs. Dundass.
The defendants have contended, that although the notes of the 30th of July 1844, are dated prior to the deed, still, being accommodation notes, they, or at least such of them as were discounted when over-due, and with notice of the deed to the indorsees, cannot be used to impeach that instrument. It is, however, well settled, as may be seen in Renwick vs. Williams, that accommodation notes may be negotiated when over-due. It is true, they are to be [**81]  taken subject to certain equities of the 

 [*243]  maker, but their being accommodation notes is not, of itself, a defence against them in the hands of the indorsees. And, in regard to notice of the deed, it may be said, if the indorsees had knowledge of its existence, they likewise knew it was executed after the date of the notes.
Considering the language and design of the statute of Elizabeth, and the authorities in regard to the present question, we think the claimants upon the notes dated anterior to the deed, although discounted subsequently, whether before or after maturity, should be regarded in the light of antecedent creditors. But in reference to the effect of those claims upon the deed, it is a matter of little importance whether they are held to be antecedent or subsequent.
If a voluntary conveyance is made with a view or expectation of becoming subsequently indebted, and, in accordance with such view or expectation, debts are contracted, those who thus become creditors may avoid the deed, although their claims had not, at its date, even a contingent existence. 1 Amer. Lead. Cases 55; Parish, et al., vs. Murphree, et al. 13 How. S. C. Rep. 99.
On account [**82]  of the following claims, exclusive of any others, we think the deed of 1844 may be held void:

________________________________________________________________________________

H. C. Elion's note of the 2nd of July 1844, and	
   the judgment upon it,	$ 350 00	
Mills' note, dated the 30th of July 1844,	300 00	
Renwick's note, same date, for $ 2,000, reduced by	
   usury to	1,306 12	
Banks' note, dated the 30th of July 1844, Exhibit	
   D.B.B., No. 1, or No. 5,	2,000 00	
	$ 3,956 12	
________________________________________________________________________________

Elion's was certainly an antecedent debt. And the three notes, dated the 30th of July 1844, although accommodation notes, and negotiated subsequent to the deed, still they may be used to avoid it. For only three days before its execution, these notes were given by Mrs. Chase to her grandson. Knowing, as well as she did, from sad experience, his pecuniary condition and his general habits, it is not possible she 

 [*244]  could have entertained the least hope that he would not transfer the notes, or that he would ever take them up, after they had been transferred. She, therefore, must have executed the conveyance with the confident expectation of being required to pay these notes.
The annual value of Mrs. Chase's whole estate, at the date of the deed, [**83]  according to the estimate of the defendant's own counsel, as set forth in their statement, amounted to $ 4137.17, after deducting but $ 200 for her support. If the deed should be held valid, then her life-interest in the property thus estimated, and but one-half of the rent of the lot called "Newington," and one-half of the ground-rent of $ 43.50, after her decease, constituted all the means retained by her, after executing the deed, with which the above stated claims were to be paid.
When the means of paying such an amount of claims were to depend, in a very great degree, upon the life interest of Mrs. Chase, then over ninety years of age, in property, the estimated annual value of which exceeds the claims but a mere trifle, we cannot consider her as being, at the date of the conveyance, in such prosperous circumstances that her settlement should be regarded as a reasonable provision for her family, in her then condition, leaving no reasonable doubt of her still possessing ample means to pay all claims, for the payment of which she was bound to make abundant provision.
The Bible informs us that "The days of our years are three score years and ten; and if by reason of strength they [**84]  be four score years, yet is their strength labor and sorrow; for it is soon cut off, and we fly away." The great uncertainty of life, is necessarily much increased at ninety; and if this deed should be sustained, it would be virtually allowing Mrs. Chase, at that advanced age, to make her creditors insurers of her life, without their consent.
Although she lived some four years after making the deed, and, during that period, her life-estate may have yielded sufficient funds to have paid all her debts, and the liabilities for which she was bound to make ample provision at the date of the deed, still that instrument cannot be relieved from the effect 

 [*245]  of the imputation of fraud at its date, in regard to those debts and liabilities, if they have not been actually paid; and it is not alleged they have.
All the judges sitting in this case concur in what has been said thus far. What follows, in relation to the rights of subsequent creditors, only expresses the views of the judge by whom this opinion is written.
The deed being declared void, on account of the claims which have been specified, it becomes necessary to ascertain whether the creditors whose claims originated after [**85]  the date of the deed, can come in.
Upon careful examination of the authorities, and due consideration of the statute, I think that whenever a voluntary deed is held to be void, because fraudulent as to creditors, either for actual fraud or on account of the legal inference of fraud in the absence of proof showing a fraudulent intention, subsequent creditors will be let in, although there may not have been fraud in fact as to them.
In Richardson vs. Smallwood, 4 Cond. Eng. Ch. Rep. 265, (Jacob, 552,) it is said by Sir Thomas Plumer, as Master of the Rolls, "If it be once shown that it is a deed which, as against any of the creditors, cannot stand, then the property becomes assets, and is applicable to the payment of debts generally; and all the creditors come in at whatever times their debts may have arisen. That is decided."
In Reade vs. Livingston, whilst giving his views in reference to the rights of subsequent creditors, Chancellor Kent thinks they are let in only in particular cases, but in enumerating such particular cases, he states one to be, "where it is requisite to interfere, and set aside the settlement, in favor of the prior creditor." He refers to the [**86]  note in 12 Ves. 156, as showing that in Montague vs. Lord Sandwich, Lord Rosslyn held, that if a settlement be affected as fraudulent against creditors who were such at its date, the subject is thrown into assets, and all subsequent creditors are let in.
This portion of the Chancellor's opinion was not under consideration in our Court of Appeals when they refused to adopt his doctrine, that the inference of fraud arising from the mere 

 [*246]  fact of indebtment, is sufficient to invalidate a voluntary deed at the instance of a subsisting creditor, without regard to the grantor's means of paying.
In Iley vs. Niswanger, 1 McCord's Ch. Rep. 518, the second question considered by the court is, whether a voluntary transfer, if not void as to subsequent creditors, yet if set aside in favor of subsisting creditors, shall be held void in toto, so that subsequent creditors may be let in? In reference to this question the court say: "But the decree may be supported on the second ground. Chancellor Kent, in the case above alluded to, lays it down as a settled rule, that when a deed is set aside by prior creditors, subsequent creditors are entitled to come [**87]  in." The court then refer to what has already been stated as having been held by Lord Rosslyn in Montague vs. Lord Sandwich.
On page 523, of 1 McCord, it is decided, and I think correctly, that notice of the conveyance to a subsequent creditor, will not prevent him from coming in, because when once the deed has been set aside as fraudulent, so far as creditors are concerned, it is as though it never existed, consequently notice to the creditor can make no difference.
It is true that the correctness of the note in 12th Ves., 156, as to the opinion of Lord Rosslyn in regard to subsequent creditors being let in, is questioned by Judge Story, in his 1st Vol. of Equity Jurisprudence, note 2 to sec. 361. The reporter, however, not only states what was the opinion but adds, "This was clearly held by Lord Rosslyn in Montague vs. Lord Sandwich." This statement of the reporter is treated as correct by Chancellor Kent in Reade vs. Livingston, 498, as also by the court of South Carolina in Iley vs. Niswanger, 522.--And although Mr. Atherly (Marr. Sett., marg. page 213, note 1, in 27 Law Lib.,) disputes the soundness of the decision, he [**88]  does not even intimate a doubt, as to its being correctly reported in the note. The case it seems is nowhere reported at large, but was decided in July 1797.
The doctrine contained in this note is adopted by the Chancellor in 2 Bland's Rep., 35, Kipp vs. Hanna. He refers to the note, with other cases, as sustaining him in saying, "But it has also been long well established, that where a voluntary 

 [*247]  conveyance has been vacated for the benefit of those who were creditors at the time, all subsequent creditors may be let in to participate of the funds." In that case the Chancellor let in the subsequent creditors, although he held that they, alone, could not have originated and sustained a bill for vacating the deed. If, on this point, he is to be understood as holding that, under no circumstances, subsequent creditors can originate and sustain a bill for vacating a voluntary deed, I do not concur with him.
In Ingram vs. Phillips, 5 Strobhart's Rep., 206, the court say, "The law certainly is, that one who is not indebted may give away his property, and that the gift shall be valid against the donor and all persons. But if the donor be indebted beyond his means [**89]  of payment, the gift is a fraud against his creditors, and void as to them. In such case, even if no dishonest intention can be imputed to the donor, the gift will be set aside in favor of creditors. If it be void against prior creditors, it is void as to all creditors; for by the fraud against some, the gift is void as to all. When a person is indebted, having made a voluntary deed, the property shall still be considered a part of his estate. If a deed is fraudulent as to subsisting creditors, the subject is thrown into assets, and all subsequent creditors are allowed to participate in the distribution."
In Thompson vs. Dougherty, 12 Serg. & Rawle 458, it is said: "The law making the settlement void as to antecedent debts, lets in the subsequent creditors on the estate conveyed. If the settlement is void as to one set of creditors, it is void as to all." See, also, Walker vs. Burrows, 1 Atk. 94. Ede vs. Knowles, 2 Younge & Collyer N. R., 172, 178.
It has been supposed that our registration laws should produce some change in the principles regulating the rights of subsequent creditors, as those principles were first established in England when [**90]  no general registration laws there prevailed. But such laws exist in most, if not in all, of our sister States, and yet no decision in any one of them has been cited, tending to show that such laws, upon the ground of notice, or on any other grounds, should be considered as rendering it proper to change, or in anywise to modify or alter the principles relating 

 [*248]  to the rights of subsequent creditors, which are recognized in the English and American authorities, which have been referred to on this subject.
These authorities are very decidedly in favor of the right of subsequent creditors to be let in, whenever a voluntary conveyance is set aside at the instance of creditors who are entitled to a decree for that purpose. And this, upon principle, would seem to be the proper construction of the statute. It has long since been correctly held that the Statute of 13th Elizabeth does not extend to voluntary conveyances, merely as such, but only makes them void as to creditors, when fraudulent. Any instrument, therefore, which, under the provisions of the statute, is void as to creditors, must be fraudulent. The courts have drawn a distinction between fraud in law and [**91]  fraud in fact. Either, however, under some circumstances, will avoid a voluntary deed; but still, in every case when held to be void, it is so because fraudulent, within the meaning of the statute; the design of which is to prevent any such instrument from operating injuriously upon the creditors of the grantor. In providing for their protection, the language is general. It certainly is not restricted or limited by any particular or special allusion to those who may be such at the time of the transaction. When, therefore, at the instance of creditors, a deed is held to be void, in regard to them, because fraudulent in law, although it may not be so in fact, still it is rendered void because the statute denounces such conveyance as fraudulent against creditors. And if void because fraudulent as to some, the general language of the statute would seem to make it so in regard to all. This interpretation is advocated by Mr. Atherly, marg. pages 215 to 218. But by referring to him as authority for such a construction, I do not adopt his views, in holding that mere indebtedness at the time of the conveyance, without regard to the amount of the property conveyed, and the ability of [**92]  the grantor to pay his debts, will render a voluntary deed void, as fraudulent against prior and subsequent creditors also. Such doctrine is at variance with the decision in Worthington & Anderson vs. Shipley. When, however, according to the principles of that case, the debts 

 [*249]  and the condition of the grantor are such as to render his deed void, it is held void because it does, or may, hinder and delay creditors. Should these debts remain unpaid until the decease of the grantor, and in the meantime other debts are contracted, and the estate, exclusive of the property conveyed, is insufficient to pay all, (as is the fact in the present case,) surely the subsequent creditors are creditors hindered and delayed by virtue of the deed, contrary to the spirit and design of the statute. Why then should they not be let in under a proceeding at the instance of creditors for setting aside a conveyance, declared by the statute void against creditors, without specifying any particular class of them, other than such as "might be in anywise disturbed, hindered, delayed or defrauded?"
A majority of the court, however, think the subsequent creditors, in this case, are not entitled [**93]  to come in, although the deed is declared void; it is, therefore, unnecessary for me to examine the various reasons which have been urged by the appellants, why the subsequent claims before us should be excluded, even were this a case in which subsequent creditors, having valid claims, might be let in.
I think with my brethren, that, without reversing or affirming the decision below, the case should be sent back for further proceedings, under the act of 1832, ch. 302.  

DISSENTBY:
LE GRAND; TUCK 

DISSENT:

By Chief Justice LE GRAND and Justice TUCK:
We assent, for the most part, to the opinion of our learned brother. He has very fully and accurately defined the law applicable to the very many questions involved in the case, in all of which, with but a single exception, we fully concur. We dissent, however, from that portion of the opinion which recognizes the right of the creditors, who became so subsequently to the execution of the deed to the Messrs. Williams, to come in for a distributive share of the assets of the estate conveyed by that instrument.
We do not deem it necessary to review the cases which sanction the doctrine announced by our brother: it is sufficient we should [**94]  acknowledge that they sustain it fully. But, in our opinion, those cases are not binding on us, and are in 

 [*250]  direct conflict with the policy and operation of our registration acts. The whole seems to be deduced from a dictum of Lord Hardwicke, in Walker and others vs.  Burrows, 1 Atkins 93, and another case in England, at a time when there was no registration system in existence in that country. We have no doubt that subsequent creditors, where there is fraud in fact, have a right to come in; but we cannot comprehend how a person who, at the time of becoming a creditor, is aware of the existence of a deed, can, in any just sense, be considered as "disturbed, hindered, delayed or defrauded," by it. It seems to us to be a contradiction in terms to say, that a person is defrauded by an instrument when he deals with a perfect knowledge of its existence and of its effect. If our registration laws have any operation, they certainly do, as they were designed, give notice to all the world, so that there may be no deceit practiced upon any one. If registration laws do not give notice to the community which will bind it, then they are of no use whatever,  [**95]  for without registration deeds would be binding inter partes. In the case of the Mayor & City Council of Balto. vs. Williams, reported in 6 Md. 235, Baltimore county court sustained this very deed, in opposition to the English construction placed upon the Statute of 27th Elizabeth, on the ground that the registry acts of this State imputed to the second grantee notice of the first deed, and that he could not be said to have been defrauded. We do not perceive why the same doctrine should not apply to the Statute of 13th Elizabeth. Although this court did not deem it necessary, in words, expressly to affirm or reject this part of the opinion of the county court, we entertain no doubt that if the decision of the case had required it, the doctrine would have been fully sustained.
The English doctrine, if applied here, would (as was said in that case of purchasers) permit a subsequent creditor to be knowingly instrumental in disappointing just and honest expectations, based upon a voluntary deed or settlement, unaffected by the slightest fraud, in fact, at the time of its execution.
The view which we have taken, we believe, is supported by [**96]  the language of the statute, and in conformity with the 

 [*251]  principles of justice, and inasmuch as we are not trammelled by any decision of the Court of Appeals of this State, we feel at full liberty to pronounce it as the law, as it should be in fact, with us. In confirmation of the right reasoning on which it rests, we refer to Section 361 of the 1st Volume of Story's Equity Jurisprudence.
In these observations we wish to be understood, not as denying the right of subsequent creditors to invalidate a fraudulent deed when made with the intention and design to defraud those who should thereafter become creditors. Such creditors would be in the same condition as those whom we have referred to as having the benefit of the principles governing cases in which there is actual fraud. In this case, however, we do not believe there was any intention on the part of Mrs. Chase to commit any fraud whatever, on existing or subsequent creditors. We concur with our brother in returning the case to the circuit court, under the act of 1832, so that the rights of parties may be definitively settled, according to this and his opinion.
Cause remanded, under Act of 1832, chap.  [**97]   302.  

9 of 187 DOCUMENTS 

JOHN EAGER HOWARD AND ELIZABETH JERNYNGHAM vs. WILLIAM H. CARPENTER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 259; 1857 Md. LEXIS 36 

DECEMBER, 1857, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Baltimore city.

The bill in this case, filed on the 7th of September 1852, by the appellee, against the appellants, alleges that in 1846, Carpenter entered into a written contract of lease with Mrs. Caton, under her signature, to lease of her a tract of land, near Catonsville, containing about ninety acres, particularly described in said contract, now in possession of Charles Z. Lucas, the agent and solicitor of the defendants, and that under this contract he entered into and remains in peaceable possession of the premises; that a few months subsequent to the making of this contract, Mrs. Caton died, leaving a will, under which the premises in question became the property of her daughter, Elizabeth Jernyngham, known as Lady Stafford, and that the legal title thereto is, by virtue of certain chancery proceedings, vested in the defendant, Howard, as her trustee; that said contract for lease stipulates for payment of annual rent, and for the erection, prior to executing a lease thereof, of a building on the premises, sufficient to secure the rent, but that Mrs. Caton died before any rent accrued, and Carpenter was unable to ascertain to whom it was [**2]  payable, no rent having been demanded of him by any one having or pretending authority from the owners to receive the same; that he believes Josias Pennington was the agent of Lady Stafford and other heirs of Mrs. Caton, representing them under a deed of trust, and assented to the non-payment of the rent until the title to the property should be made to Carpenter, or the affairs of Mrs. Caton arranged, and some assurance given that her said contract would be carried out and fulfilled, according to its purport and intent. He further alleges, as a reason for the non-payment of the rent, and not erecting the building aforesaid, that the contract, under which he took the premises, became lost or mislaid by Mrs. Caton, or her agents, and could not be found for a long period after her death, and that this contract was the only evidence and proof he had of the fact of such agreement of lease having been made, and the terms thereof, and he was fearful, and had reason to suspect, that her representatives would not comply with its terms. He then avers that, in violation of this contract, without making any demand on him for the rent, Lady Stafford has fraudulently, and against equity, procured [**3]  her trustee, Howard, to institute an action of ejectment, which is now pending against him, and seeks to turn him out of possession of the premises, and make the contract of no effect; that for a long period he has been seeking to get a lease of the premises, or some assurance that a lease would be made to him on payment of such rent as might be found due, and the erection of a building as aforesaid; that he is informed, and believes, that by law he cannot be made, and ought not, to pay rent for a period when, by reason of the cloud upon his title, and the great uncertainty of his getting a title thereto, the land was wholly useless and unprofitable to him; that he is willing to bring into court such amount of rent as it may decide to be due, or pay the same to Howard or Lady Stafford, as the court may direct, and that he would at any time have paid the rent, if he had, or could have, obtained any assurance that his contract would be respected, and the lease made to him accordingly. He avers his readiness and willingness to erect the building contemplated by the contract, whenever it shall be ascertained that a lease will be made to him, but that Lady Stafford and her trustee have [**4]  refused to acknowledge the contract, and have declared to him that under no circumstances will they make the lease, as provided for in said contract, and under these circumstances, and particularly when it is considered that the contract of Mrs. Caton was not in his possession, but beyond his reach and control, he alleges, as matter of law, that he was not bound to seek out the party entitled to the rent, and make a tender thereof, when it was very uncertain to whom the rent was payable, until a division of the property should take place; and to sustain his assertion of the difficulty of his position, he avers that the trustee in whom the property was intended to be vested, refused to accept the trust, and no trustee was in existence, competent in law to act in the premises, until within a short period, when the appointment of Howard was made by the court of chancery, as above stated. The bill then prays for an injunction to restrain Howard from further prosecuting the ejectment suit, that the defendants may be required to file the contract with their answer, if in their possession, or under their control, and be commanded to make the lease aforesaid to the complainant, on such terms [**5]  as the court may deem just and proper, and for general relief.

The injunction was issued, an interlocutory decree taken against the defendants, who appeared, but failed to answer, and an ex parte commission issued, under which certain exhibits were filed and proved, including a memorandum of the material parts of the contract referred to in the bill, taken by Benj. C. Barroll, Esq., who was also examined as a witness and testified that he knew the property in question, and had knowledge of the contract referred to in the bill, having read the same furnished to him by Charles Z. Lucas, solicitor for the defendants, and loaned to witness as the contract between the parties, and the memorandum above mentioned, is a copy made by witness from the original, of its material contents, omitting the description of the land, and that he returned the original to Lucas; that Carpenter took possession of the property under the contract, and still continues in possession; that witness was Carpenter's counsel after Mrs. Caton's death, and had several interviews with Pennington, who was then acting as agent and attorney for her heirs, in relation to this lease, in which Pennington told him he [**6]  was aware of the existence of Carpenter's contract, had seen it, and that it should be respected, he, however, said he could not then find it, that it came into his possession from James H. Stimpson, the agent of Mrs. Caton up to the period of her death; witness told Pennington that if he would receive the rent, Carpenter would pay it to him, but Pennington declined, saying he had prepared a deed creating himself trustee, which he was about to send over to England, to be executed by Lady Stafford and her sisters, and when that was done, it would be time enough to pay the rent and get the lease; that Pennington subsequently told witness that they refused to execute the deed to him, and his agency and attorneyship ceased; witness further stated to Pennington that Carpenter could not put up the house, or carry out his part of the agreement, in the then unsettled state of the title to the property, the contract being lost, and Carpenter having no copy of it, and it being uncertain whether the parties to whom the land might be distributed, would carry out Mrs. Caton's agreement; that after the refusal of the parties to execute the deed of trust to Pennington, Mr. Lucas became the solicitor [**7]  of Lady Stafford, and witness applied to him, and to Howard also, when the latter was made trustee, on Carpenter's behalf, to have the contract carried out, but both positively refused to do so, and brought the ejectment in the name of Howard. In demanding from Howard and Lucas the execution of the contract, witness expressly inquired of them both whether the lease would be executed if Carpenter would put up the house and pay the arrears of rent, with interest, and they explicitly responded in the negative. Witness never saw the original contract until shown him by Lucas, in whose custody it was, and to whom he returned it. Mrs. Caton died within about six months after the date and execution of the contract. If witness could have obtained from Pennington, or Lucas, or Howard, or any one representing Lady Stafford, any assurance that she would respect her mother's contract, or, indeed, if witness could have obtained the original contract, Carpenter could have disposed of his interest for a very considerable profit; several parties were anxious to buy his interest, and were willing to pay him a considerable advance, but the negotiations were frustrated by the circumstances to which witness [**8]  has referred, and, in consequence of this difficulty about the title, the property has remained idle for four or five years. Lady Stafford is a resident of England, acting in this country only through her agents.

Afterwards, upon affidavit of their solicitor, that their neglect to answer was caused by a misunderstanding between the solicitors on both sides, the answers of the defendants were permitted to be filed. The answer of Howard, which that of Lady Stafford refers to and adopts, denies that Carpenter entered into a written contract of lease with Mrs. Caton, as alleged in the bill, but admits that she had been in treaty with him for the leasing of the land, and did sign a paper which was intended to have been signed also by Carpenter, if the agreement had been consummated, but that it never was executed by Carpenter, and never was delivered to him, but was retained by her till her death; after her death, Carpenter having claimed the execution of this alleged agreement for a lease, his counsel, Mr. Barroll, applied to respondent's counsel, Mr. Lucas, to be allowed to see the paper, when it seems he took the very imperfect memorandum of it filed in the cause, but respondent [**9]  denies it was ever admitted to be, or shown to Mr. Barroll as, a completed and valid agreement between Mrs. Caton and Carpenter, and he herewith files the paper marked "Exhibit A." He admits the land is the property of Lady Stafford, and that the legal title is in respondent, as her trustee, but denies expressly that Mrs. Caton had, during her life, any right or authority to bind Lady Stafford, by any such contract as this paper is alleged to be, to execute a lease for the property, Mrs. Caton being but a cestui que trust for life of the same, with power to direct conveyances or leases only according to the terms prescribed in the will and codicils of her father, Charles Carroll of Carrollton. He admits that Carpenter has taken possession of the land, but insists that he is there without good title or lawful authority, and respondent has accordingly brought an ejectment to dispossess him. He further says, that if this paper was valid to bind Mrs. Caton, it is not valid to bind Carpenter, never having been executed by, or delivered to, him, and thus wants the mutuality of obligation which ought to constitute the consideration of it; that Carpenter has never acted under it, by the performance [**10]  of such acts as are therein stated, to be conditions precedent to his right to ask for a lease, and the time has long since elapsed within which such conditions were to be performed, and he denies that Pennington was at any time Lady Stafford's agent, with authority, by his acts or declarations, to bind her in relation to this property, or that he ever did or designed to do so.

It was admitted that, with other, the property in dispute was conveyed by Charles Carroll of Carrollton to Richard Caton, in fee, and by him afterwards mortgaged to Robert Oliver, and afterwards, by deed dated the 12th of January 1838, (reciting the death of Oliver, and appointment of his executors, and also the appointment of McTavish and Stewart, by the will of Charles Carroll, as trustee of Mrs. Caton, and also the power of Mrs. Caton to direct the sale of her property and the purchase of other,) the executors of Oliver, Richard Caton and Mrs. Caton, conveyed this property to said McTavish and Stewart, in trust, "to and for the uses and trusts specified and declared of and concerning the property bequeathed to them in trust as aforesaid, for the use and benefit of said Mrs. Mary Caton, in and by the [**11]  said last will and testament of Charles Carroll of Carrollton, and the codicils thereto," the consideration of this deed being, that Mrs. Caton had sold other property and paid off the said mortgage; that McTavish and Stewart, in December 1844, conveyed it to Pennington and Hoffman, who had been appointed, by a decree in chancery, trustees in their place, upon the same trusts as they had held it. It was further admitted, that by the will of her said father, Mrs. Caton had power to direct, from time to time, during her life, any sales, conveyances, leases, transfers and assignments of the property, or any part thereof, bequeathed to trustees for her benefit. It was also admitted, that James H. Stimpson was authorized by Mrs. Caton, in her life time, by her power of attorney, duly executed and delivered, to make and enter into agreements for leases of the property of Mrs. Caton, subject to her ratification, and that the order herewith filed, marked A, directing the surrender of the property in question to Carpenter, was signed by Stimpson and delivered to Carpenter at the date thereof, who received immediate possession in pursuance of it. It was also admitted, that Mrs. Caton died in [**12]  or about October 1846.

The will of Charles Carroll contains three clauses devising property in trust for his daughter, Mrs. Caton, which are particularly referred to in this case, for the purpose of ascertaining the nature and extent of her authority or right to dispose of the property in dispute, and are as follows:

The first directs the property to be held during the lives of Mrs. Caton and her husband, and the life of the survivor of them, "upon the following trusts, that is to say, in trust for my daughter, Mary Caton, during her natural life, for her sole and separate use, free from the control or power of her present or any future husband, and to permit her, or any person she may authorize, to receive and take, during her life, the rents, profits and issues thereof, for her sole and separate use, and to make and execute, during her life, all such sales, conveyances, leases, transfers and assignments thereof, or any part thereof, as she, by writing under her hand, shall from time to time direct; and the proceeds of all such sales, conveyances, leases, transfers and assignments, from time to time to invest in such purchases of stock, funds, rents, or property of any kind,  [**13]  as she, by writing under her hand, may from time to time direct, to be held by them in their names, in trust for her sole and separate use, as aforesaid, during her life." And in case her husband, Richard Caton, should survive her, then the property, including re-investments, are directed to be held in trust for the use and benefit of the said Richard Caton, during his life, with powers like those previously given to Mrs. Caton. Then the will thus proceeds: "And from and after the death of the said Richard Caton and Mary Caton, I give, devise and bequeath all the said lots, houses, rents, slaves, plate and furniture, and also all property of every kind accruing from the sale, transfer, conveyance, lease, assignment and re-investments aforesaid, unto my grand-daughters, Mary Ann Patterson, Elizabeth Caton, Louisa Catharine Harvey, and Emily MacTavish, their heirs, executors and administrators, as tenants in common, equally to be divided between them."

The provisions contained in the second clause are: "In trust for my daughter, Mary Caton, her heirs and assigns, for her sole and separate use, free from the control and power of her present or any future husband, with power to my [**14]  said daughter, Mary Caton, to sell, give, convey, or otherwise dispose of the said lands, lots and houses, or any of them, or any part thereof, by deed or last will and testament, or in any other mode in which she may think proper, in the same manner as if she were a feme sole."

The third clause gives one-third of the residuum of the testator's estate in trust for Mrs. Caton, during her life, for her sole and separate use, free from the control or power of her husband, and to permit her, or any person she might authorize, to receive and take, during her life, the rents, profits, interest, income and dividends thereof, for her sole and separate use, with power for her to make sales, conveyances, leases, transfers and assignments, and the proceeds of the same to invest in like manner as provided for in the first clause. And upon the death of Mrs. Caton, the will gives "the said one-third of the general residuum aforesaid" unto the testator's four grand-daughters, named in the first clause, forever, as tenants in common.

The other admissions and facts in the case, including the defendant's Exhibit A, and the Order A, referred to in these admissions, are fully stated in the opinion [**15]  of this court.

Exceptions were filed by the defendants to so much of the testimony of Barroll as professes to state the conversations held by him with Pennington, Lucas, and Howard, and also to the "Order A," as evidence of any other contract or lease than that set out in the bill, or as evidence pertinent to the allegations in the bill and the contract there alleged and relied upon.

The court (KREBS, J.,) passed a decree making the injunction perpetual, and directing the defendant, Howard, to execute a lease to Carpenter, according to the terms of the contract. From this decree the defendants appealed.  

DISPOSITION:
Decree reversed, injunction dissolved, and bill dismissed.  

HEADNOTES:

An agreement between A and B, in which the former agrees to give the latter a lease, for ninety-nine years, of certain land for a stipulated rent, as soon as he shall comply with certain conditions manifestly prepared and intended to be executed by both, but signed by A alone, with the day of the month left blank, and never signed or attempted to be signed by B, and never delivered to him during A's life, is an inchoate instrument, passing to B no interest, either legal or equitable.

An order directing possession of land to be delivered to a party "to whom it has been leased for ninety-nine years," is not itself a lease, nor an agreement for a lease, for that term which equity can enforce, being defective, if for no other reason, in not showing what rent is to be paid

Possession of land taken in May, in pursuance of such an order, cannot be regarded as showing that the party's subsequent holding was under a contract made in the following July.

The fact that in a partition case, certain land held by the defendant and others as tenants in common, under a title not derived through that case, was allotted to the defendant and described as "in the tenancy of C, for the term of ninety-nine years," does not estop the defendant from relying upon defects in C's title, he not being a party to the case, and claiming under an instrument defective on its face as a lease for that term.

Such a description, though an admission that the property was in the tenancy of C, is not such an acquiescence in a contract for leasing it to him made by the ancestor from the land descended, as would amount to a ratification or confirmation by the parties to the partition case, of such contract.

To give to an admission the effect of ratifying or confirming a contract, it is necessary for the party relying upon such admission to show that the party making it, did so with full knowledge of all the facts affecting his rights.

An attorney, either at law or in fact, has no authority to make a lease or confirm an imperfect one, or to perfect an inchoate agreement for a lease of property of his principal or client, unless authority for such purpose is expressly given.

Though a court of equity will, in many instances, aid a defective execution of a power, it will never interpose in the case of a non-execution of a power.

Courts of equity will grant relief as against remainder-men, to lessees claiming under a defective execution of a power to lease, made by life-tenants, in cases depending upon equitable circumstances.  

COUNSEL:
George W. Dobbin and Thomas S. Alexander, for the appellants, argued:

1st. That no contract for a lease or of a lease, is proved in the cause. The paper relied on by the appellee cannot operate as a present demise, because, being for estate over seven years, it was not executed and recorded according to the provisions of the acts of 1715, ch. 47, sec. 8, and 1766, ch. 14, sec. 2. Neither can it operate as an executory agreement. There was no delivery of this paper: it was never, and is not alleged ever [**16]  to have been, in Carpenter's possession. It was never executed by Carpenter; its date was left blank: it was kept in Mrs. Caton's possession till her death, and she never intended to be bound by it, till it was executed by Carpenter. Such an inchoate, incomplete, unexecuted contract, can have no validity whatever. Powell on Contracts, 287. 2 Peere Wms., 65, Ayliffe vs. Tracy. There were no acts of part performance of it. Carpenter went into possession of the property in pursuance of the order from Stimpson, two months anterior to the date of this alleged contract, and the possession was under this order, and not under this contract. There is no proof that Mrs. Caton knew that he had taken possession, nor of the particulars of the agreement between him and Stimpson. This order of Stimpson cannot be construed into a direction to the trustee to make the lease, nor as a lease, nor an agreement for a lease.

2nd. That conceding a contract for a lease to have been made, it was not perfected during the life of Mrs. Caton, and by the terms of the will of her father it would not be perfected after her death. The first and third clauses of this will give her but a life estate, with a power [**17]  to direct leases and sales, and the recitals of the deed creating her title to this particular property, show that it has reference to these clauses of the will. The second clause gives her a fee-simple, but there is nothing to connect this clause with the property in dispute. That such an agreement as this, attempted to be made by the life-tenant, cannot be enforced against the remainder-man, is clear from the authorities. 3 Merivale, 235, Blore vs. Sutton. 6 Madd., 207, Symons vs. Symons. 1 Sugden on Powers, 174. But again, by these clauses of the will, the power to direct leases does not attach to property purchased from the proceeds of sale of other property, but only to the original estate, and such a power cannot be raised by implication, (1 Platt on Leases, 394, 398,) and, by the admissions in this case, it may fairly be inferred, that the property in question was so purchased: if this is so there is an end of the case, for in that case the trustees must hold it for her own separate use, and she had no power whatever to lease it.

3rd. That the consideration binding Mrs. Caton to give a lease being the covenants on Carpenter's part, as they were never entered into by Carpenter,  [**18]  the contract never was complete. The contract to be enforced must be mutually binding, and both parties have the right to ask for its specific execution. 2 Jac. & Walk., 428, Martin vs. Mitchell. 1 Sch. & Lef., 20, Lawrenson vs. Butler. 14 Johns., 489, Clason vs. Bailey. 21 Penn. State Rep., 50, Bodine vs. Gladding. The evidence shows no excuse, whatever, for Carpenter's failure to perform his part of the alleged agreement. There is no evidence that the appellants prevented the erection of the house, or that Carpenter ever contemplated its erection. A cloud upon the title is no reason why he should not do it.

4th. That if the paper relied upon had been perfected by Carpenter's signature, and had been delivered to him, and if free from the objection, that Mrs. Caton had no power to make it in the form in which it is, still, as it contains no words of present demise, and is but "articles of agreement" by which she is to give a lease when the house is built, it would only be a contract for a lease and not a lease itself, and therefore vested no estate in Carpenter; and though equity will in some cases relieve against a forfeiture of a vested estate, it will never relieve against [**19]  a forfeiture, in order to vest an estate, and as Carpenter could by the terms of the paper claim no estate till he had performed the condition precedent, equity will not aid him. Act of 1766, ch. 14. Arch. Law of Land. & Tenant, 57, in 53 Law Lib., 76. 3 Taunt., 65, Morgan vs. Bissell. 3 G. & J. 281, City Bank vs. Smith. 3 Gill 269, Cross vs. Cohen. 5 Md. 531, Collins vs. Carman. 1 Vernon, 83, Popham vs. Bampfield. 2 Vernon, 339, Carey vs. Bertie. 1 Fonb. Eq., B. 1, ch. 6, sec. 5. Platt on Cov., 302, 303. 16 Ves., 402, Hill vs. Barclay, and same case in 18 Ves., 56. 10 Ves., 66, Wadman vs. Calcraft. 2 Merivale, 459, White vs. Warner. 10 Eng. Law & Eq. Rep., 134, Gregory vs. Wilson. 2 Price, 200, Bracebridge vs. Buckley. Ibid., 206, Rolfe vs. Harris. 2 Story's Eq., sec. 776. 12 Ves., 282, Sanders vs. Rope, (and note a.) 1 Sug. on Vend., 359, 360. 1 Ball & Beatt., 285, M'Alpine vs. Swift. 7 Md. 323, Mills vs. Matthews.

5th. That if, at any time, Carpenter could have invoked the aid of equity, to enforce the specific performance of his supposed agreement with Mrs. Caton, he has lost the right to do so, not only by his failure to make the erection provided for therein,  [**20]  but also by his delay in instituting proceedings to enforce it, the paper, which is supposed to evidence the agreement, being dated in July 1846, and the bill being filed in September 1852, and even then not as an original proceeding to compel performance of the agreement, but to obtain an injunction to restrain Lady Stafford, from recovering possession of the property by an ejectment. Thus leaving an interval of nearly six years, during which he has neither paid nor tendered his rent to any one authorised to receive it, nor erected, nor prepared to erect, the proposed building, nor bound himself, nor offered to bind himself in any manner to the observance of the supposed agreement. 2 Story's Eq., sec. 771, and cases there cited. 3 Johns., Cases, 60, Ballard vs. Walker. 1 Russell & Mylne, 506, Davis vs. Thomas.

F. K. Howard and S. T. Wallis, for the appellee, argued:

1st. That the contract between Carpenter and Mrs. Caton was not a mere executory agreement for a future lease, but created a subsisting term, and was in fact a lease in presenti. It was clearly defined in its terms, and partly executed by both parties; and the lease therein contemplated to be given at a future [**21]  day, was only a more perfect and formal assurance for Carpenter's benefit. It is recognised as a subsisting lease, in the proceedings under which Lady Stafford took her title to these premises. 4 Greenlf's Cruise, 58. Chitty on Cont., 313, 314, 315. 4 Kent, 105. Taylor's Land. & Ten., sec. 43. 12 East., 168, Poole vs. Bentley. 21 Eng. C. L. Rep., 318, Hancock vs. Caffryn. 33 Do., 317, Chapman vs. Bluck. 46 Do., 171, Curling vs. Mills. 10 Johns., 336, Jackson vs. Kisselbrack. 1 Md. 236, George's Creek Co., vs. Detmold.

2nd. That Mrs. Caton had full power to execute the instrument under which Carpenter claims title, whether it be regarded as a lease or only an agreement for a lease. By the deed of trust under which her title arose, she had all the powers in reference to this property, which she enjoyed in regard to any of the property given to her by her father's will, and as to the property thereby specifically devised to trustees for her benefit, she had the right of absolute disposition. Powers will be construed liberally to advance rights. 5 Md. 91, Pearce vs. Van Lear. It is contended, on the other side, that the power to Mrs. Caton to make leases, is limited to the [**22]  original property which she took in trust under the will of her father, and does not extend to such as was acquired by the proceeds of the original property that might be sold. But, in the first place, there is no evidence to show that this property was purchased by the proceeds of the original property; and, in the second place, the will makes no distinction between the property which he gave originally to the trustees to hold for Mrs. Caton, and that which might be purchased from the proceeds of the sale of such estate; the latter is to be held under the same trusts as the original property.

3rd. That supposing Mrs. Caton to have been merely a tenant for life, with power to lease the property in question, the instrument referred to was binding on the parties in remainder, even although it would be construed to be simply an agreement for a lease. This position is clearly sustained by the case of Shannon vs. Bradstreet, 1 Sch. & Lef., 52. See also 2 Ball & Beatt., 529, Lowe vs. Swift. 1 H. & McH., 163, Carroll vs Llewellin. 1 Sug. on Vend., 174. 1 Platt on Leases, 394.

4th. That the operative force of the instrument in question can be affected in only two ways, by the fact [**23]  that it was not signed by Carpenter, viz., 1st. As evidence that it was an inchoate, and intentionally incomplete contract. 2nd. As depriving it of the necessary mutuality supposing it to be a complete one. That it was not inchoate and incomplete, is proven by the fact that Carpenter was placed in possession with a view to it and under it, and that in the very proceedings which gave to Lady Stafford her title to this tract in severalty, it is specially described as subject to this identical lease to Carpenter. The absence of Carpenter's signature, is of no avail here on the subject of mutuality, the statute of frauds only requiring the signature of the party who is to be bound, and Carpenter having besides been placed in possession, and having rendered himself liable not only to proceedings to compel specific performance, but also to a suit at law upon the covenants and provisions of the instrument. 1 Platt on Leases, 570. 2 Do., 5, 6, 15. 42 Eng. C. L. Rep., 817, Cooch vs. Goodman. 12 Do., 327, Barnett vs. Lynch. Taylor's Land. & Ten., 665. Co. Litt., 231 a., 231 b. 3 Md. 68, Stewart vs. Redditt.

5th. That the engagement on the part of Carpenter, to build a house, was not [**24]  a condition precedent the performance of which was necessary to entitle him to a lease; nor was it in any point of view, such a condition as caused a forfeiture of his lease for its non-performance, such stipulation being merely a covenant. 8 Barn. & Cres., 308, Henniker vs. Watt. Longfield & Townshend, 232, Sharpe vs. Bergin. 5 G. & J. 253 to 256, Watchman & Bratt vs. Crook. Taylor's Land. & Ten., 643, 665.

6th. That even if the stipulation to build could be construed to be a condition precedent, the breach of which forfeited the lease, equity would relieve against such forfeiture; even if Carpenter had no other grounds on which to ask relief, than that the breach was not wilful and compensation in damages could be made, and that the condition was solely to secure a collateral engagement. But where the performance of the condition, as in this case, was prevented solely by the wrongful act, or neglect or default of the appellants, or without fault of the appellee, the right to relief is clear. And this doctrine is equally true, whether the instrument under which Carpenter claims be regarded as a lease or an agreement for a lease. 2 Story's Eq., secs. 771, 775, 776, 1315, 1316 [**25]  note 1323. Arch. Land. & Ten., 332. 2 Platt on Leases, 490. Willard's Eq., 534. 1 Smith's Lead. Cases, 95. 2 Greenleaf's Cruise, ch. 2, sec. 29. 2 Sch. & Lef., 682, Lemmon vs. Napper. 3 Ves., 690, Eaton vs. Lyon. 1 Ball. & Beatt., 286, M'Alpine vs. Swift. Beatty, 352, Firman vs. Lord Ormonde. 2 Price, 200, Bracebridge vs. Buckley. 3 G. & J. 265, 281, City Bank vs. Smith. 2 Johns., Ch. Rep., 535, Skinner vs. Dayton.

7th. That Carpenter was in no default whatever. Mrs. Caton died almost immediately after the execution of the lease. It remained in her possession, and Carpenter could not get possession of it, or obtain a copy of it. Pennington was not then one of the trustees in whom the legal title was vested. Carpenter's counsel called in his name on Pennington, offering to do all that his lease required. He could call on no one else. The property was undivided:--Lady Stafford in England. Pennington would not receive the rent, or give any guarantee on which Carpenter could proceed to perform his part of the agreement. He called on Howard when he became trustee and on Lucas, Howard's counsel. Both of them rejected his pretensions, and denied the validity of his lease. It is insisted,  [**26]  that the declarations of all these parties are competent evidence, not merely as declarations but as facts, and that Carpenter was justified by them in his course in the matter. It is further contended, that Lady Stafford is estopped from complaining of a course which was produced by the acts and declarations of parties who had a right to represent her, and that she is especially estopped from denying that Carpenter is a lessee under the agreement in question, he being described as such in the very proceedings under which she claims, and she having taken the property subject, in terms, to his lease, and valued accordingly.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON, TUCK and BARTOL, J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*273]  ECCLESTON, J., delivered the opinion of this court.
The will of Charles Carroll of Carrollton, contains three clauses, devising property in trust for his daughter Mrs. Caton; to which clauses particular reference has been made, in argument, for the purpose of ascertaining the nature and extent of her authority or right to dispose of, or to lease the property in dispute. The deed creating her title, conveyed the property to the trustees therein named,  [**27]  "in trust for the uses and trusts specified and declared of and concerning the property bequeathed to them in trust for the use and benefit of Mrs. Caton," by her father's will.
The appellants contend, that in view of the recitals in the deed, in connection with the provisions contained in the first and third clauses of the will referred to, the deed must be regarded 

 [*274]  as having reference to them; and therefore Mrs. Caton had only a life estate, with a power to lease or sell.
The appellee insists, that the deed should be construed as being governed by the second clause of the will, which, instead of simply giving her a power to dispose of the property devised, conferred upon her the unlimited and absolute right of disposition.
Our view of the case renders it unnecessary to decide which is the proper construction of the deed.
The defendants' exhibit A, is the instrument on which the complainant chiefly relies in support of his bill, and is as follows:
"Maryland, St:--Articles of agreement, entered into this     day of July 1846, between Mary Caton of the city of Baltimore, on the one part, and W. H. Carpenter of Baltimore county, on the [**28]  other part; witnesseth, that for and in consideration of the covenants herein stipulated, on the part of W. H. Carpenter, the said Mary Caton doth engage to grant a lease to the said W. H. Carpenter, for a period hereafter stated, for all that part or parcel of land," &c. And after describing the premises, the instrument thus proceeds: "and the said Mary Caton, engages to give a lease for the foregoing premises, as soon as a house shall be built, of the value of the annual rent and all other conditions be complied with, for the term of ninety-nine years. And the said W. H. Carpenter, engages to pay to the said Mary Caton for the first year, one dollar and five cents per acre, annually, from the first day of January 1847, in half yearly payments, as a rent for the said premises, clear of all deductions for taxes, levies, contributions or otherwise, for the next nineteen years, from the 1st January 1848, two dollars and ten cents per acre, per year, in semi-annual payments as aforesaid, clear of all deductions as aforesaid, and thereafter two dollars and fifty cents, per acre, per year, with the privilege of buying out at $ 41.66, forty-one dollars and sixty-six cents per acre. That [**29]  he will within three years build a house on the premises of stone, or brick, or wood, worth an annual rent equal to the rent of the premises. For the full performance of each and every article of the above 

 [*275]  contract, the said Mary Caton and the said W. H. Carpenter, bind themselves, their heirs, executors, administrators and assigns, by these presents. In witness whereof, the parties have hereunto set their hands and seals respectively, this     day of July 1846.
MARY X CATON, her mark.   (Seal.)
(Seal.)

Signed, sealed and delivered in the presence of, the same having been first read to Mrs.
Caton.--M. C. Jackson."
We need not inquire whether this instrument, according to the English decisions, should be construed to be a lease, or an agreement for a lease; for if, irrespective of our registration laws, its language would make it a lease, then being for more than seven years, and not having been acknowledged and recorded, as required by those laws, it could pass no title at law. And if, under its very defective execution, it could have any effect in a proceeding in equity like the present, it could only be the effect which should be given to an agreement [**30]  for a lease.
In Anderson vs. Critcher, 11 G. & J. 450, the appellee sued the appellant in an action of covenant to recover rent, under a contract signed and sealed by both parties, dated the 24th of April 1833, in which it is said, Critcher "binds himself, his heirs, &c., to give a lease for ten years," &c. The contract provides, "that the house which the said Donohoo and Anderson may put up for their own convenience, they can take down and carry off at any time, but they must give said Critcher or his assigns, notice of the intention to give up the property on or before the month of June, (otherwise it will be theirs for another year.) The said Donohoo and Anderson, bind themselves, their heirs, &c., to pay to the said Critcher, one hundred and fifty dollars, for the rent of one thousand eight hundred and thirty-four, and two hundred dollars per year after, the rent to be paid (or carry interest) after the expiration of the fishing season." The court did not deem it necessary to determine, whether the agreement was a lease or a mere agreement for a lease. They however concurred 

 [*276]  with the appellant, in construing the instrument of writing on which the [**31]  action was founded, to be for the term of ten years, determinable within the term, at the will of the appellant, upon his giving notice to the appellee, on or before the month of June, otherwise the term would continue for another year, And considering the property to lie in Maryland, the court say: "the agreement not being acknowledged and recorded, agreeably to the registration laws of the State, it passed at law no title whatever in the demised premises to the appellant, and consequently the covenant for the payment of rent which is dependent on the appellant's title, or interest in the demised premises created by the agreement, is wholly inoperative and void; and no such action of covenant can be maintained thereon, whether regarded as a lease or a covenant for a lease. If the appellant has, under color of this agreement, occupied the property intended to be demised, the appellee's remedy for the rent is not in covenant; but if the occupation be without his assent, it is trespass quare clausum fregit; if with consent, an action for use and occupation, or an assumpsit upon an agreement, from year to year of similar import with that ineffectually executed, and which the [**32]  law implies as existing between the parties." See also Peter vs. Schley, 3 H. & J. 211. Mayhew vs. Hardesty, 8 Md. 479.
Whether the deed to the trustees, for the use and benefit of Mrs. Caton, is to be regarded as having reference to the second clause of her father's will, or to the first and third clauses; and consequently, whether she had a life estate with a power to lease, or had the "right of absolute disposition" of the property, in our opinion the appellee is not entitled to the relief he seeks.
We think the alleged contract was an inchoate instrument, which never passed any interest or title, legal or equitable to Carpenter. It was manifestly prepared for the purpose of being executed by both parties. Mrs. Caton, alone, signed it, leaving the day of the month blank; the presumption from which may justly arise, that the blank was to be filled up when the paper should be executed by Carpenter. There is no proof, whatever, that he ever called for the purpose of signing 

 [*277]  the paper, or that he made the slightest effort to sign it. There is an entire absence of any evidence, that the instrument was, during Mrs. Caton's life, ever [**33]  delivered to Carpenter or to any one for him; or that she did any act justifying even an inference, that she intended it should be delivered, or considered as a binding contract, (unless her simple signature can be construed as evidence of such an intention,) whilst the paper was still remaining in her own possession. And we do not suppose that such an effect can be ascribed to the mere signature. The proof does not show, satisfactorily, that the instrument ever left the possession of Mrs. Caton during her life. Admitting it was received by Mr. Pennington from J. H. Stimpson, it does not appear when it was so received, or when Stimpson became possessed of it. The parties admit, that Stimpson was authorised by Mrs. Caton, by her power of attorney, to make and enter into agreements for leases of her property, subject to her ratification. If, therefore, it should be supposed, that after Mrs. Caton had signed the contract it went into the hands of Stimpson during her life, the reasonable presumption is, he had it as her agent, for the purpose of its being signed by Carpenter, and not for the purpose of making it a valid contract without his signature.
The appellee relies upon his possession [**34]  of the property as a circumstance in support of his alleged contract with Mrs. Caton. On this point his witness, Mr. Barroll, says, "Mr. Carpenter, the complainant, took possession under the contract, and still continues in possession." This, no doubt, was according to Mr. Barroll's understanding of the matter. But it will be seen from the admission of the parties, and the papers filed in the cause, that the appellee took possession on the 21st of May 1846, in pursuance of an order from J. H. Stimpson; whilst the contract signed by Mrs. Caton, is dated     July 1846. The admission alluded to is:
"It is further admitted, that the order herewith filed (marked 'A.,') directing the surrender of the property in question to William H. Carpenter, was signed by said Stimpson, and delivered to said William H. Carpenter at the date thereof, who received immediate possession in pursuance of it."

 [*278]  The following is the order "A.," referred to: "Messrs. Herbert and Smith, will please surrender the part of lot No. 116, containing 90 3/4 acres, to Mr. W. H. Carpenter, to whom it has been leased for 99 years, and oblige yours,
MARY CATON.
May 21st 1846.
Per, James H. Stimpson.  [**35]  "
This order itself, is not a lease for ninety-nine years, nor is it an agreement for a lease for that term, such as a court of equity would enforce against the appellants by a decree for specific performance. If for no other reason, it is defective in not showing what rent was to be paid. Nevertheless the admission is, that in pursuance of it, Carpenter took possession immediately after its date. And surely the possession so taken in May, cannot, with propriety, be regarded as showing that his subsequent holding was under the contract of July, with the authority of Mrs. Caton, or as evidence that she intended that contract should be binding between the parties, without Carpenter's signature, when the form of the instrument showed it was prepared for both to sign, and in the absence of proof of its delivery, or of any intention to deliver it, in its inchoate state; and when by its terms the rent was not to commence until the 1st of January following; before which time she died. It is also proper here to remark, the language of the instrument cannot be considered as indicating a design that the tenancy, supposed to be created by it, should begin at an earlier date than [**36]  when the rent was to commence.
The record contains an admission, "that some time after the death of Mrs. Mary Caton, certain of the property which descended to her daughters as tenants in common, was assessed and described and divided, in and upon certain schedules and plats filed in the court of chancery, in a cause wherein the Marchioness of Wellesly and others, were complainants, and Emily McTavish and others, were defendants, and that certain portions of said property, were by a decree of said court passed at June term 1851, in said cause, vested in John E. Howard, as trustee of said Lady Stafford, one of the daughters of said Mary Caton, and that among the property so described, the property now in question is described in schedule 

 [*279]  B. B., as 'in the tenancy of said William H. Carpenter, for the term of ninety-nine years, at an average rent of two hundred and nineteen dollars and eighty-three cents, yearly, and payable in the months of January and July.' And it is also admitted, that said property so described, is a portion of that which was allotted to John E. Howard, as trustee aforesaid, by the aforesaid decree, and that said Lady Stafford was a party to said proceedings.  [**37]  "
In view of these admissions, it is contended, that Lady Stafford, is estopped from denying that Carpenter is lessee under the agreement in question, he being described as such in the proceedings under which she claims. But those proceedings only assigned to her, in severalty, by partition, property previously held by her in common with others, under a title not derived through the partition case. And such a description of the property in such a case, the appellee not being a party to the same, we do not think can estop Lady Stafford from relying upon defects in the title of the appellee, as a tenant for ninety-nine years, when it is perfectly manifest from his bill and evidence, that the foundation of the title claimed by him, is based upon an instrument, which appears upon its face to be defective as a lease for the term he claims. In regard to the principles regulating estoppels, see Alexander vs. Walter, et al., Lessee, 8 Gill 239. Isaac vs. Williams, 3 Gill 278.
Although the description of the property in the partition case, was an admission by the parties that it was in the tenancy of Carpenter, still that admission was not such an [**38]  acquiescence in the contract of July 1846, as would amount to a ratification or confirmation of it. To give it such an effect, it was necessary that those making the admission should have had full knowledge of all the facts affecting their rights.
In Gray vs. Murray, 3 Johns. Ch. Rep. 188, Chancellor Kent says, "it is a well established, as well as a most reasonable principle, that to constitute a confirmation, the party confirming must be fully apprized of his rights."
In Flagg vs. Mann, et al., 2 Sumner 486, Judge Story says: "The doctrine stated at the bar is well founded, that, in 

 [*280]  order to make such an acquiescence binding on Flagg, it should be proved, that he had full knowledge of all the facts affecting his legal and equitable rights; and that, with such knowledge, he did some open unequivocal act, confirmatory of or recognizing the validity of Fuller's title; or that by his silence the latter was purposely and injuriously misled into the belief, that his title was valid, and that Flagg did not mean to controvert it." See also Owings vs. Hull, 9 Peters' S. C. Rep., 629.
In Bennett vs. Colley, 2 Mylne & Keene [**39]  225, (7 Eng. Ch. R. 347,) the Lord Chancellor says, "it can never be maintained, that the acquiescence of a party, under ignorance of his rights, operates as a waiver of any claim, or as a confirmation of any thing done against him. Neither can it be seriously contended, that the proof of ignorance, or want of notice, lies on the party against whom such acquiescence is alleged."
In Shannon vs. Bradstreet, 1 Schoales & Lefroy 52, 73, the Lord Chancellor mentions the fact, that the remainder-man had knowledge of the agreement under which the tenant held the premises; and that he also knew the money had been laid out in improvements.
According to Bennett vs. Colley, proof of ignorance, or want of full knowledge of the facts connected with the contract of July 1846, does not lie upon Lady Stafford. And it may very correctly be said, the circumstances disclosed do not warrant the conclusion, that she had such full knowledge of the nature of the paper dated     July 1846, and of the matters relating thereto, as will render the admission in the particular case, in regard to the tenancy of Carpenter, a confirmation of his title under the contract relied upon by him.  [**40]  The instrument was never put upon record. Lady Stafford lived in England, and so did two of her sisters. The bill states that the contract had been lost or mislaid by Mrs. Caton or her agents, and could not be found for a long period after her death.
According to the bill, it appears that "the trustees in whom the property was intended to be vested, refused to accept said 

 [*281]  trust, and that no trustee was in existence competent in law to act in the premises, until within a short period, when the appointment of the said John Eager Howard was made by the High Court of Chancery, as aforesaid." We understand Mr. Howard's appointment was by the decree of June term 1851, in the partition case.
The declarations and conduct of Mr. Pennington, in regard to the trusteeship, when considered in connection with what is said in the bill, in reference to the refusal of the trustees to accept, show that he did not consider himself as a trustee having authority to act in the premises. When requested to receive the rent, he declined, saying "that he had prepared a deed creating himself a trustee, which he was about to send over to England to be executed by Lady Stafford and her sisters, Mrs.  [**41]  Caton's daughters; that when that deed was executed, it would be time enough to pay the rent and get the lease." Subsequently he said: "They refused to execute the deed to him, and his agency and attorneyship ceased." Under those circumstances he should not be considered an existing and acting trustee in regard to the premises in question, so that his declarations should be binding upon Lady Stafford and her sisters. And conceding that for them Mr. Pennington was attorney, when, according to the evidence, he is said to have stated, "He was aware of the existence of Mr. Carpenter's contract, had seen it, and that it would be respected." And admitting that Mr. Lucas was solicitor for the defendants when he is said to have lent to Mr. Barroll the paper in dispute, "as the contract between the parties," still the proof in the cause, in reference to what Mr. Pennington said, and what was said or done by Mr. Lucas, cannot render, or assist in rendering valid and binding upon their clients, the paper of July 1846. An attorney, either at law or in fact, has no authority either to make a lease, or to ratify or confirm an imperfect one, or to perfect an inchoate agreement for a lease of property [**42]  of his principal or client, unless authority for such purpose is expressly given. In relation to the powers of an attorney, see Doub vs. Barnes, 1 Md. Ch. 127, and same case in 4 Gill 1, 20. White vs. Davidson, 8 Md. 169.

 [*282]  The appellee has contended that, conceding Mrs. Caton had but a life-estate with a power, and that there has not been a complete execution of the power, still he insists he has a right to claim that the contract shall be carried into effect, notwithstanding it may be a defective execution of the power. If, however, Mrs. Caton's title to the property in question, under the deed, should be considered as a life-estate, with a power of leasing, we do not regard the circumstances as presenting a question either in relation to a complete or to a defective execution of a power; but in our view of the matter, the case should more appropriately be considered as one in which there has been a non-execution of a power.
In 4 Greenleaf's Cruise on Real Property, marginal page 229, title deed, ch. 18, sec. 25, it is said: "Although a court of equity will, in many instances, aid a  [**43]  defective execution of a power, yet it will never interpose in the case of a non-execution of a power; which always leaves it to the free will and election of the party to whom the power is given, either to execute it or not. For which reason equity will not say he shall execute it, or do that for him which he does not think fit to do for himself. And the intervention of death between a man's resolving to execute a power, and his actually executing it, is not of itself, even in cases where the act is of such a nature as a man is under an obligation to perform, a ground for the interposition of a court of equity in favor of the person intended to have been benefited by the doing thereof, although some steps be taken towards completing such intention."
Formerly, in England, an opinion prevailed, that unless the title of a lessee under a power was effectually made, by a complete and perfect execution of the power, the right of a remainder-man to possess the estate free from the lease, would take place of the right of the lessee, as superior to it. And that, in such a case, the lessee had no claim to any equitable interposition in his favor, but his title could only rest on the [**44]  legal execution of the power. 2 Sugd. on Pow., marg. page 144. 16 Law Lib. 80. But this doctrine has been modified, and courts of equity have granted relief to lessees against remainder-men, in cases depending upon equitable circumstances.

 [*283]  Shannon vs. Bradstreet has been much relied upon for sustaining the title of the appellee to relief in equity. That case, however, is essentially different from the present. There, Sir Samuel Bradstreet had a life-estate, with a power to lease. In 1790, he entered into a treaty with Shannon, the plaintiff, to demise to him the lands in question, and an agreement was made for a lease to the plaintiff for the term of thirty-one years, from the first of November 1790, at the yearly rent of £  7 per acre, for such number of acres as the lands should be found to contain, upon a survey thereof; the lease to contain the usual covenants between landlord and tenant, and also a covenant that the plaintiff should, within three years, lay out £  200 in buildings and permanent improvements. A draft of a lease, pursuant to this agreement, was prepared by the plaintiff and submitted to Sir Samuel, who made some few alterations therein,  [**45]  and returned it, with the following endorsement, in his own handwriting:
"I approve of this draft, until a survey can be had, so as to ascertain the rent. Mr. Shannon may execute a short memorandum to me, according to the terms of this draft, and may have immediate possession.
29th October 1790.
S. B."
A memorandum was accordingly prepared, (but whether by Sir Samuel, or by the plaintiff, did not appear,) it was signed by the plaintiff and delivered to Sir Samuel, who delivered a copy or abstract of it, in his own handwriting, to the plaintiff, the original remaining in the custody of Sir Samuel. The memorandum was consistent with the agreement already stated.
Immediately after the execution of the memorandum, the plaintiff entered into possession, and subsequently laid out more than £  200 in improvements. No leases were ever executed.
In May 1792, Sir Samuel died, leaving the defendant, Sir Simon Bradstreet, his eldest son, and entitled to an estate-tail in the lands in question. The defendant came of age in November 1792, up to which time the rent was paid to his mother and guardian, by the plaintiff, and afterwards it continued to 

 [*284]  be paid by the plaintiff [**46]  to the agents of the defendant, until November 1801, when a notice to quit was given, and in 1802 an ejectment was brought; after which Shannon filed his bill, and obtained an injunction.
For nine years after the remainder-man arrived at age, the rents were received by his agents, without his making any objection, during that time, to the tenant's right to the premises, although before and after his arrival at age, he had a knowledge of the agreement under which the tenant held the premises. And speaking (on page 73) of the money expended in improvements, the Lord Chancellor says, it would be absurd to suppose it was not laid out on the faith of the agreement. There seemed to be some doubt, or controversy, whether this money had been laid out till 1794; the Lord Chancellor, however, rather thought it was expended before. Entertaining this belief, he says: "But if not laid out till then, it was laid out in confidence of the defendant's acquiescence in the agreement, and, I think, rather strengthens the case of the plaintiff. It appears that the defendant knew the money was laid out; if he meant to avoid the agreement, he ought to have given the tenant immediate notice, and it strikes [**47]  me that his not doing so, might form a distinct ground of equity against Sir Simon Bradstreet."
In the present case, not one dollar of rent was paid to Mrs. Caton, nor has any rent been received by either of her daughters, or by any one for them, or for either of them. And it is certain that neither before nor since the decease of Mrs. Caton, has the appellee expended upon the premises in question any money, either in buildings or other improvements. We need look no further than the bill itself, for the correctness of this remark. The appellee there alleges his belief "that by law he cannot be made to pay, and ought not to pay, rent for the said land for a period when, by reason of the cloud upon his title, and the great uncertainty of his getting a title thereto, the land was idle, and wholly useless and unprofitable to him." And this uncertainty in regard to getting a title, is relied upon as an excuse for his not having erected the building on the premises, according to the terms of the contract.

 [*285]  In our opinion, the complainant is not entitled to the relief he asks; therefore the decree below will be reversed, the injunction dissolved, and the bill dismissed, with [**48]  costs to the appellants in both courts.
Decree reversed, injunction dissolved, and bill dismissed. 

10 of 187 DOCUMENTS 

ALEXANDER CARR and wife, and others, vs. ALEXANDER H. HOBBS, Adm'r of ISAIAH BELL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 285; 1857 Md. LEXIS 37 

DECEMBER, 1857, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Baltimore city.

The bill in this case, filed by Isaiah Bell, against the administratrix and heirs at law of Jessee Bell, deceased, alleges, that on the 20th of September 1843, the complainant sold and deeded to his son Jesse Bell, a farm containing about twenty-three acres for $ 1800, as it was estimated, that is to say, Jesse was to give him $ 1000 in money, to be paid in instalments, with interest, of $ 100 a year, till all was paid, and was in addition to support, board and clothe complainant as long as he lived, for the balance of the value and consideration for the farm; that he has no doubt his son would have complied with this bargain had he lived, but several years ago he died suddenly, not having paid any part of the purchase money, and never having given, as provided, any part of the board and clothing, but owing complainant all of it, which is still due with interest; that he left a widow, Eliza, (who administered upon his estate, and since married the defendant Carr,) and three infant children his heirs at law; that his personal estate is insufficient to pay his debts and complainant's claim, which is a specific lien on the property.  [**2]  The bill then prays, that the farm may be sold to pay the complainant's said debt, and for general relief.

The deed filed with the bill, upon its face purports to be executed in consideration of $ 1000, acknowledged to have been received by the grantor from the grantee, and there is endorsed upon it a receipt by the grantee to the same effect.

The infants answered by guardian ad litem, disclaiming all knowledge of the matters alleged in the bill, and Carr and wife answer to the same effect, and require full proof. Pending the suit the complainant died, and the appellee, Hobbs, became his administrator.

The proof taken on the part of the complainant, shows that Jesse Bell the grantee, made declarations to several witnesses, that the consideration for the sale of the farm to him was $ 600 in money, and the finding the grantor, his father, in victuals and clothes for life, and also that he had not paid the purchase money. The purport of this testimony, as well as that on the part of the defendants, is sufficiently stated in the opinion of this court.

The defendants excepted to so much of the testimony as refers to the declarations of Jesse Bell, deceased, in regard [**3]  to the consideration of the deed from Isaiah Bell to him, and the non-performance thereof, because such declarations show a different and distinct consideration from that stated in the deed, and repel and rebut the lien set up by the complainant; and they further excepted to the testimony in the case, tending to show the consideration of the deed, because said testimony, if it shows any thing, shows a different consideration from that set forth in the bill of complaint.

The court below, (KREBS, J.,) was of opinion the complainant was entitled to relief, and referred the case to the auditor, to ascertain the balance of the purchase money due and unpaid, according to the proof in the case, and the value of the board and clothing, which the vendee failed to furnish the vendor.

The auditor in his report and account, charges the defendants with $ 600, as the purchase money proved to have been admitted by Jesse Bell, with interest, and the value of the board and clothing of the grantor, and credits them with the estimated rents and profits of the land while in the possession of the grantor, making a balance due the complainant of $ 2214.16. He also reported that the defendants,  [**4]  Carr and wife, as administrators of Jesse Bell, had passed their final account, and distributed the net personal estate amounting to $ 440.09, to his widow and children, but that this distribution was made with full knowledge of the claim in this case, and after suit brought.

The court then passed a decree for the sale of the land, to pay the balance so found by the auditor's account to be due, and from this decree the defendants appealed.  

DISPOSITION:
Cause remanded.  

HEADNOTES:

The acknowledgment and receipt in a deed for the purchase money, is only prima facie evidence of payment, and may be rebutted by parol proof, showing the inability of the grantee to pay it, and his admissions that he had not paid it.

Bills to enforce a vendor's lien, are in the nature of those for the specific performance of contracts; there must be certainty in the agreement, and it should be proved as alleged in pleading.

Where a bill by a grantor to enforce a vendor's lien, relies upon one consideration, and the proof by the grantee's admissions shows another, while the deed states one different from both, the consideration expressed in the deed must be adopted, there being no allegation of fraud or mistake, and no exception to the deed as evidence.

The vendor's claim for unpaid purchase money is a lien, as against the vendee and those claiming under him; the vendee holds the land as trustee for the vendor, and, on the other hand, if the purchaser pays before the estate is conveyed to him, the money will be considered a lien on the estate, in the hands of the vendor for the vendee, or, in case of his death, for his personal representatives.

Generally the vendor's lien cannot be enforced until the remedy against the personalty has been exhausted, but in a case where the personal estate of a deceased vendee has been settled up, and the interests of the defendants, his widow and heirs at law, will be consulted by looking at once to the realty, the claim may be paid out of the proceeds of the land, without remarshalling the assets.  

COUNSEL:
Charles E. Phelps for the appellants, argued:

1st. That the testimony excepted to is inadmissible under the statute of frauds. It goes to set up a secret trust, to wit, that the grantee should support the grantor for life, and is therefore within the 7th section of the statute. It is palpably an attempt to set up a conventional trust, on the foundation of a special parol agreement, which cannot be done. 2 Md. 25, McElderry vs. Shipley. 9 G. & J. 80, Clagett vs. Hall. 4 Russell, 423, Leman vs. Whitley. 27 Penn. State Rep., 144, Stafford vs. Stafford. And as to part performance, the record furnishes no evidence of any acts done by the complainant, which bear the slightest reference to such a contract as he alleges.  [**5]  

2nd. That the testimony is inadmissible, under the common law rule of evidence: that parol testimony is inadmissible to vary, add to or contradict, the express terms of a written instrument. A stronger case for the application of the rule could not be well presented, as the parol proof in this instance contrives both to vary, add to and contradict, the deed at one and the same stroke. The apparent exceptions to this general rule, are 1st, the cases where the receipt of the consideration, may be disproved or explained by parol, and these go upon the principle, that the acknowledgment of the receipt is no necessary or integral part of the deed, but is mere matter of recital, and not a contract or the evidence of a contract. 1 Gill 84, Wolfe vs. Hauver. 3 Md. Ch. Dec., 411, Spalding vs. Brent. 1 J. J. Marshall, 390, Gully vs. Grubbs. But these cases so far from being authorities for admitting evidence to vary the amount of the consideration, distinctly say, that receipts are inserted in deeds mainly to show the actual amount of consideration, with which it is consistent to prove that the specified amount had been assumed by note or otherwise: 2nd. Where the object and only effect [**6]  of the parol proof is simply to rebut a presumption of fraud, it has, in some few cases of peculiar nature, been admitted to explain qualify or enlarge the consideration clause. 9 G. & J. 80, Clagett vs. Hall. 1 Gill 412, Cole vs. Albers & Runge. 3 Md. Ch. Dec., 170, Anderson vs. Tydings. But even this liberty is allowed under stringent qualifications, as appears from the large number of instances where parol proof for that purpose has been rejected. 1 H. & G., 175, Betts vs. Union Bank. 2 Md. Ch. Dec., 447, Sewell vs. Baxter & wife, affirmed in 3 Md. 334. 3 Md. Ch. Dec., 349, Glenn vs. McNeal, affirmed in 4 Md. 87. 3 Md. Ch. Dec., 468, Notley Young's Estate. 3 Md. Ch. Dec., 99, Bullett vs. Worthington, affirmed in 6 Md. 172. 3rd. So also a grantee has been allowed to prove a different consideration actually paid in bar of the vendor's lien, simply to raise an equitable estoppel upon the grantor, and to preclude him from disproving the receipt of the purchase money. 1 Md. Ch. Dec., 392, Elysville Manufacturing Co., vs. Okisko Co., affirmed in 5 Md. 158. 4th. When the controversy is between strangers to the deed and the consideration clause, is in question simply [**7]  as a recital or evidence of an independent fact, it is to some extent open to explanation or even contradiction. 3 Term Rep., 474, Rex vs. Inhabitants of Scammonden.

Subject to these exceptions, (which prove and illustrate the rule,) the consideration clause of a deed is as fully under the protection of the rule as any part of any other written instrument. Especially in a case like the present, where the parol evidence is designed to have an executory operation, in other words, where the object is to reform the contract, contained in and evidenced by the consideration clause, for the purpose of claiming its execution as reformed, or its equivalent in damages, it has been in Maryland invariably rejected, except upon averment and proof of fraud, accident, surprise or mistake. In addition to the cases already cited, see 6 H. & J. 24, Wesley vs. Thomas. Ibid., 435, Watkins vs. Stockett. 2 Gill 409, Henderson vs. Mayhew. 5 Gill 313, Young vs. Frost. 6 Md. 57, Alderson vs. Ames. Ibid., 479, Showman vs. Miller. 9 Md. 185, Beall vs. Greenwade. Ibid., 356, Wilson vs. Watts. To admit such proof would be to reverse one of the wisest and best settled principles of elementary [**8]  law, to throw open the door to frauds and perjuries, and to place the most solemn and deliberate contracts at the mercy of flagrant interpolations. 1 Story's Eq., secs. 153, 154. 2 Do., sec. 1531. 2 Starkie on Ev., 758. 2 Wm. Bl. Rep., 1249, Preston vs. Merceau. 1 Ves. Sen., 128, Peacock vs. Monk. 2 Peere Wms., 203, Clarkson vs. Hanway. 1 Johns., 139, Schermerhorn vs. Vanderheyden. 7 Johns., 341, Maigley vs. Hauer. 5 Greenlf., 232, Emery vs. Chase. 6 Ohio, 246, Stone vs. Vance. 5 Geo. Rep., 373, Wynn vs. Cox. 13 Geo. Rep., 192, Logan vs. Bond.

3rd. That the evidence excepted to was inadmissible, as tending to repel and rebut the lien set up by the complainant. A consideration, in the form of an agreement, to find board and clothing, is inconsistent with an application to enforce a vendor's lien, because such lien is only raised on a definite and liquidated money consideration. The authorities uniformly speak of purchase money, as the only consideration which can support the lien. 4 Kent, 152. 2 Story's Eq., sec. 1217. 2 Wat. Eden. on Injunctions, 208, 209, note. 1 Hilliard on Mortgages, 463, 464. 1 Hilliard on Real Property, 378, 474. This then is an attempt to expand and stretch [**9]  the doctrine of the vendor's lien beyond all precedents, whereas, it should not be extended further than its present limits, because being a secret and invisible trust, it contravenes the policy and spirit of our registry laws. 7 Wheat., 46, Bayley vs. Greenleaf. 7 Sergt. & Rawle, 64, Kauffelt vs. Bower. 3 Ired. Eq., 182, Womble vs. Battle. 3 Leigh., 597, Moore vs. Holcombe. To enforce the vendor's lien, in favor of a collateral agreement or covenant, unliquidated and sounding in damages, would be to set a novel and dangerous precedent. If the special agreement is available at all it sounds in damages, and should be sued on at law. 3 Md. 67, 80, Stewart vs. Redditt. More especially should it not be extended in favor of such a consideration as is here alleged, viz., the support of the grantor for life. The policy of our law is to discourage all impediments or restraints upon the free alienation of real property. Now it is obvious, that land incumbered with a charge or trust like this, is to that extent fettered and made virtually inalienable so long, at least, as the life or lives charged upon it continue in being. If land could be thus charged with the life support of the grantor,  [**10]  it could on the same principle be encumbered with the lives of his whole family, including infants even in ventre. If parties wish to make such an arrangement, let them reduce the terms of it to writing, instead of trusting to hearsay and loose declarations, and then let them place it upon public record in the authentic form of a mortgage. To sustain our views in this particular we rely upon 8 Leigh., 522, Brawley vs. Catron. 13 Grattan, 615, McCandlish vs. Keen. 6 Conn., 458, Meigs vs. Dimock. 8 Barb., 552, McKillip vs. McKillip. 29 Miss. Rep., 67, Patterson vs. Edwards. 3 Simons, 499, Clarke vs. Royle. 3 Mylne & Keene, 655, Parrott vs. Sweetland. 13 Simons, 406, Buckland vs. Pocknell. 21 Beav., 118, Dixon vs. Gayfere.

4th. That the evidence excepted to, tended to prove a different consideration from that set forth in the bill of complaint, and was therefore inadmissible. 4 Md. 459, Mundorff vs. Kilbourn. This case is altogether different from Drury vs. Conner, 6 H. & J. 288. The question here is not simply as to the extent of the relief. It might be very material to consider, whether the consideration to be proved by parol, was of the same nature and simply additional [**11]  to that in the deed, or whether it is not in fact offered as a substitute for, and therefore in contradiction of, the moneyed consideration expressed in the deed, (the case made out by the proof.) 1 H. & G., 186, Betts vs. The Union Bank.

5th. But whether this testimony was admissible or not, the whole fabric of the complainant's case is demolished by the positive testimony of Isaac Bell, who proves that the consideration stated in the deed, was, in point of fact, fully paid and satisfied.

Alexander H. Hobbs for the appellee, argued the following points:

1st. That the consideration clause in a deed may be contradicted and varied by parol evidence. 1 Gill 91, Wolfe vs. Hauver.

2nd. Parol evidence of a greater consideration than that expressed in a deed, is admissible, provided it is of the same kind, and does not change the legal character of the deed. 2 Phillip's Evidence, 353. 1 Greenleaf on Evidence, secs. 304, 200. 1 Parsons on Contracts, 353, note (q,) 355, 356, note (t.) 2 Parsons on Cont., 61, 67, notes (l) and (p.) 2 Amer. Law Reg., (1854,) 265. 4 Mass., 680, 682, Quarles vs. Quarles. 17 Mass., 256, Wilkinson vs. Scott. 1 McCord, 514, Garrett vs. Stuart.  [**12]  1 J. J. Marshall, 390, Gully vs. Grubbs. 7 Pick., 533, 537, Bullard vs. Briggs. 4 New Hamp., 229, Morse vs. Shattuck. 7 Maine, 175, Tyler vs. Carlton. 8 Conn., 304, Belden vs. Seymour. 3 Watts, 156, Jack vs. Dougherty. 16 Wend., 460, McCrea vs. Purmort. 13 Maine, 235, Emmons vs. Littlefield. 7 Watts & Sergt., 399, Strawbridge vs. Cartledge. 5 Barb., 455, Frink vs. Green. 4 Hen. & Munf., 113, Duval vs. Bibb. 10 Sergt. & Rawle, 333, Hayden & Wife vs. Mentzer. 6 Barb., 465, Egleston vs. Knickerbacker. 5 Porter, (Ala. Rep.,) 498, Mead vs. Steger. 3 Sandf. Ch. Rep., 171, 172, Shaw vs. Leavitt. 9 Juris., 633, Clifford vs. Turaill. 1 Md. Ch. Dec., 392, Elysville Manf. Co. vs. Okisko Co. 3 Md. 80. Stewart vs. Redditt. 9 G. & J. 90, Clagett vs. Hall. 1 Gill 423, Cole vs. Albers & Runge. 9 Gill 32, Shepherd vs. Bevin.

3rd. The appellee is entitled to the benefit of the vendor's lien for the whole consideration proved. 3 Md. Ch. Dec., 488, Ringgold vs. Bryan. Beatty's Rep., 461, Richardson vs. McCausland. 2 Story's Eq., secs. 1218, 1219, 1223, 1224. 3 Sugden's Vend., 202. 3 Md. Ch. Dec., 357, Hutchins vs. Hutchins. 10 G. & J. 159, Tolson vs. Tolson.

4th. If, however,  [**13]  it should be determined that the appellee is not entitled to the vendor's lien for the whole consideration, he is, nevertheless, entitled thereto to the extent of the money consideration, and to share in the balance as a general creditor. 3 Md. Ch. Dec., 411, Spalding vs. Brent. 10 G. & J. 100, Gibson vs. McCormick.

5th. Having shown an insufficiency of personal assets, and exhausted the legal remedy, the appellee was entitled to proceed against the realty. 12 G. & J. 482, Richardson vs. Stillinger. 6 G. & J. 498, Pratt vs. Vanwyck. 2 Md. 137, Eyler & Matthews vs. Crabbs.  

JUDGES:
The cause was argued before LE GRAND, C. J., TUCK and BARTOL, J.  

OPINIONBY:
TUCK 

OPINION:

 [*293]  TUCK, J., delivered the opinion of this court.
This bill was filed by the appellee's intestate, Isaiah Bell, in his life time, against the administrator and heirs of Jesse Bell, to enforce payment of the purchase money of a parcel of land which the former had sold to the latter, and conveyed by deed dated the 20th of September 1843. The consideration of one thousand dollars is acknowledged, in the deed, to have been paid; and there is endorsed thereon a receipt to the same effect.
It is alleged, in [**14]  the bill, that the real consideration was eighteen hundred dollars, as it was estimated, that is to say, one thousand thereof to be paid in money, and the balance by boarding and maintaining the grantor; but there is no reason shown why this part of the consideration was not mentioned in the deed. This statement in the bill is not sustained by evidence; but the complainant's witnesses prove that Jesse Bell admitted to them that the true consideration was six hundred dollars in money, and that he was to support his father during the residue of his life. Evidence was also offered that the consideration, with exception of the maintenance, had been paid. The court below adopted the admissions of Jesse Bell, as to the consideration, and decreed payment accordingly, after allowing the defendants credit for the use and occupation of the land, which was in possession of the grantor from a short time after the deed until his death.
The acknowledgment and receipt for the purchase money being only prima facie evidence of payment, ( Higdon vs. Thomas, 1 H. & G. 139,) the appellee seeks to rebut the presumption, by showing the pecuniary condition of Jesse Bell, his inability [**15]  to have paid so large a sum of money, and admissions made by him, that he had not paid for the land. We consider the evidence sufficient, laying out of view the testimony of Isaac Bell, on which very little, if any, reliance can be placed. We do not intimate that this witness stands impeached, but we think he must have been in error as to the matters of which he speaks, touching this alleged payment. There is confusion in his testimony which cannot be reconciled with the idea that Jesse Bell ever paid this money, and 

 [*294]  he admitted, to the other witnesses, that he had not paid it. This view of the case is supported by other circumstances proved in the record. If he had paid for the land, we do not suppose he would have left it, and remained away until the time of his death, allowing the grantor to remain in possession, while he was toiling elsewhere for the support of his family. On the contrary, he said he had left the place, that he and his father could not live together, and that he wished him to pay the expense of the deeds, and take the land back.
The purchase money being due, we are to consider what it was, and how its payment can be enforced. Bills of this kind are [**16]  of the nature of those for specific performance of contracts.  Elysville Co. vs. Okisko Co., 5 Md. 152. There ought to be certainty in the agreement, and it should be proved as alleged in pleading.  3 Md. 480, Canal Co., vs. Young. 4 Md. 459, Mundorff vs. Kilbourn. 5 Md. 18, Stoddert vs. Bowie's Exc'r. Here the bill relies upon one consideration, the proof shows another, while the deed states one different from both these. We have only the declarations of the grantor, as made in the bill, and those of the grantee, as proved by witnesses. If the statement in the bill were thus established, we should merely have to decide whether admissions by the parties of the same consideration, should prevail over the deed; but here they do not agree. Solemn instruments are not to be lightly dealt with. They are supposed to furnish the best evidence of the mind of the parties, though, in some cases, they will be allowed to have effect against their literal meaning; or rather, a different agreement will be enforced, as where fraud or mistake is alleged and proved, which is not the predicament of these parties. The deed, [**17]  for aught that appears, was drawn as it was designed to be, but the allegation is, that something beyond the sum stated was intended as an additional consideration. If the bill states the transaction correctly, then the parties did not assent to the same thing. Probably board and maintenance of the grantor was part of the agreement; but the question is, whether it was additional to, or part of, the money consideration? This latter idea, perhaps, Jesse Bell meant to convey when he conversed with his brothers. 

 [*295]  But, independently of the want of certainty as to the consideration, if we look to the grantor's statement in the bill, contradicted as it is by Jesse Bell's, relief could not be decreed on the proof of the grantee's admissions, because the bill is not framed upon that state of case, and the admissibility of these admissions has been excepted to, whilst there is no exception to the deed as evidence. Now, differing as the parties to the deed appear to have done, as to the parol consideration, and there being no evidence of either statement, even if such were admissible to control the deed, on which point we express no opinion, we think the written expression of the parties,  [**18]  about which there can be no mistake, should be accepted as the safest guide. By this standard of proof we shall avoid the risk of violating the policy of the law as to written and parol evidence, and, probably, reach the justice of the case as nearly as if either the view of the grantor or grantee were adopted as to the consideration. It thus becomes unnecessary to determine whether the board and maintenance claimed, can be recovered as additional to the consideration contained in the deed.
Next, as to the claim itself, that is, whether it be a lien or not. The record shows that Jesse Bell's personal estate has been administered, and that the balance in the hands of the administratrix, after paying the others, was not sufficient to pay this claim. As that balance was distributed to the widow and children, we may suppose there are no other creditors except this complainant. We are, therefore, relieved from considering the preference of such a claim, for unpaid purchase money, over creditors becoming such after the deed is placed upon record. That it is a lien as against the vendee and those claiming under her, has been affirmed in England, and recognized by the Court of Appeals, in [**19]  Schnebly vs. Ragan, 7 G. & J. 120, where it is said: "A vendor parting with the legal title, still retains his lien as a security for the payment of the purchase money, and the vendee holds the land as trustee for the vendor. Prima facie the equitable lien exists, and it lies upon the vendee to show a waiver of it.  1 Johns. Ch. Rep. 308. So, on the other hand, if the purchaser of an estate 

 [*296]  prematurely pays the purchase money, before the estate is conveyed to him, the money will be considered as a lien on the estate in the hands of the vendor, for the vendee, or, in case of his death, for his personal representatives. 2 Madd. Ch., 104, 105."
We dissent from the decree, in so far as it affirms the correctness of the auditor's account, as to the amount allowed the complainants, which, as we have said, should have been charged against the defendants at one thousand dollars, with interest, crediting them with the annual valuation of the premises while in possession of the grantor, upon which, as allowed by the auditor, no point was made at the hearing, and we take it to be according to the proof.
As the personal estate appears [**20]  to have been settled, this claim may be paid out of the proceeds of the land, without remarshalling the assets, thereby saving expense without affecting the ultimate result. Generally, the lien could not be enforced until the remedy against the personalty had been exhausted, but here the interests of the defendants will be consulted by looking at once to the realty.
Without reversing the decree, the cause will be remanded, in order that another account may be taken as to the amount due, and for further proceedings under the decree. Act of 1832, ch. 302, sec. 6. Each party to pay his own costs on the appeal.
Cause remanded. 

11 of 187 DOCUMENTS 

WILLIAM TUCKER, and others, vs. THE STATE, use of THOMAS H. KNEIGHTON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 322; 1857 Md. LEXIS 40 

DECEMBER, 1857, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Anne Arundel county.

This was an action of debt, brought by the State on the 22nd of March 1854, upon an appeal bond, dated the 24th of May 1853, in which the appellants, the defendants below, were sureties for Thomas R. Tongue, the principal obligor. This bond was executed to the State, in the penalty of $ 2000, and they condition is as follows:

"Whereas the above bound Thomas R. Tongue, thinks himself aggrieved by a judgment rendered against him this day, by Stephen L. Lee, esquire, one of the justices of the peace for the said county, at the suit of the said State of Maryland, for the sum of two thousand dollars debt, and eight dollars and seventy-five cents costs, from which judgment the said Thomas R. Tongue is about to appeal to the next county court for Anne Arundel county, before the judges thereof: Now the condition of the above obligation is such, that if the said Thomas R. Tongue shall not prosecute his appeal at the county court for Anne Arundel county, next succeeding the date of this appeal bond, with effect, according to the directions of the act, entitled, An act for the speedy recovery of small debts out of court, and to repeal [**2]  the acts of Assembly therein mentioned, and also pay and satisfy the said State of Maryland, her executors, administrators or assigns, in case the said judgment shall be affirmed, as well as the debt, damage and costs, adjudged by the said Stephen L. Lee, as also all costs and damages that shall be awarded by Anne Arundel county court, when the said appeal shall be heard, tried and determined, then the above bond to be and remain in full force and virtue, otherwise to be of none effect."

The declaration was in the common form, making profert of the bond but not setting out the breaches. The defendants craved oyer of the bond and condition, which was granted them, and they then pleaded general performance, to which the State replied, that Tongue did not prosecute his appeal with effect. To this replication the defendants rejoined:

1st. That the bond was not stamped as required by law.

2nd. That no such judgment as that described in the bond was ever rendered.

3rd. That after the making of the bond, the State, by its release in writing, released to Tongue the forfeiture in the case of the State against Thomas R. Tongue, charged with a violation of the act of 1836,  [**3]  ch. 150, and its supplements, and tried on said appeal from the judgment of Stephen L. Lee, the justice of the peace, at October term 1853, of the Circuit court for Anne Arundel county, which case was the judgment which should have been referred to in the said bond.

4th. That at the time of the execution of the bond, there was not, nor has there been since, any such county court for Anne Arundel county, before the judges of which Tongue could have prosecuted his appeal.

5th. That the judgment specified in the bond, was not affirmed by the judges of the county court for Anne Arundel county.

6th. That the judgment referred to was a judgment of condemnation, that the vessel of Tongue should be forfeited to the State, which judgment was affirmed by the proper court on appeal, and that Tongue has ever been, and is now, ready and willing to surrender said vessel so condemned to the proper officer of the State, but that the State refuses to receive it, and has released the claim against the same, as appears by the release.

7th. That Tongue did prosecute his appeal with effect, and that the judgment was not affirmed according to the condition of the bond.

The State [**4]  then filed a general demurrer to the 1st, 2nd, 3rd, 4th and 6th counts in the rejoinder, which demurrer the court, (BREWER, J.,) sustained, and the case was then tried before a jury, upon issues joined upon the 5th and 7th counts of the rejoinder.

Exception. The defendants to maintain the issues upon their part joined, offered in evidence the original proceedings, upon an appeal taken by Thomas R. Tongue, from a judgment of Stephen L. Lee, a justice of the peace for Anne Arundel county, condemning a vessel of said Tongue, for a violation of the act of 1836, ch. 150, relating to the navigation of vessels by negroes, rendered on the 24th of May 1853. These proceedings consist of the warrant to seize the vessel, purporting to have been issued upon the information and oath of Thomas H. Kneighton, the return thereto of the seizure by said Kneighton, constable, the summons to Tongue the owner, the judgment of condemnation, the appeal bond sued on in this case, and the record of the affirmance of the judgment of condemnation by the circuit court for Anne Arundel county. They then called up Stephen L. Lee, and offered to prove by him that these are the proceedings referred to in the appeal [**5]  bond, and are the only proceedings ever had before him as a justice of the peace, between said parties and the State, and that the appeal bond sued on in this case, was executed and filed by Tongue to stay execution of this judgment. They also offered to prove by the clerk of the circuit court for Anne Arundel county, that these proceedings and bond are the only proceedings and bond in his office, between the parties to this suit. The plaintiff objected to the admissibility of these proceedings, and the testimony of Lee and the clerk so offered to be given, which objection the court sustained. To this ruling the defendants excepted, and the verdict and judgment being against them, appealed.

The transcript of the record, sent up to this court, is endorsed William Tucker, and others, vs. The State, for the use of Thomas H. Kneighton, for the use of James S. Franklin, but, in the record itself, the suit appears to have been brought and conducted to final judgment, in the name of the State alone.  

DISPOSITION:
Judgment reversed.  

HEADNOTES:

Where demurrers are ruled against the party appealing, and the verdict and judgment on the issues are against the same party, the appeal from the final judgment brings up for review, in this court, the rulings upon the demurrers.

Upon an appeal bond, conditioned to prosecute an appeal from a judgment of a justice of the peace to the "county court for Anne Arundel county," no recovery can be had, there being, at the time the bond was executed, no such court in existence.

Parties are not estopped by the recital in a bond, from denying that there was no such court as that recited in existence: whether a court exists or not depends on the constitution or laws, and when this court can see that the supposed tribunal is not known to these, it must so decide, no matter what the parties may have admitted by estoppel or agreement.

By profert of a bond, and the grant of oyer of the bond and condition, they are made part of the declaration.

The appellate court must take judicial notice of the tribunals created by the constitution.

An appeal bond, on which no recovery can be had by the obligee, cannot operate to stay execution of the judgment appealed from.  

COUNSEL:
Alex. B. Hagner and Alex. Randall for the appellants, argued:

1st. The third and sixth counts of the rejoinder raise the question as to the effect of the release [**6]  of the forfeiture by the State? The demurrer admits there lease by the State, and we insist that a release by the plaintiff in an action, is a bar to the recovery. The State is the actual plaintiff in this suit; all the pleadings are in her name alone, and are signed by the State's Attorney; there is no entry in the case of a use; the bond and its recitals all mention the State as alone interested, and the proceedings under the act of 1836, ch. 150, are clearly in the nature of criminal process at the instance of the State. The second section of this act provides, that the vessel "shall be forfeited, or the value thereof, one half to the State and the other half to the informer, to be recovered as hereinafter provided;" and the sixth section gives the right of appeal from the judgment of condemnation by the magistrate, upon the party's "entering into bond to the State of Maryland, with a penalty of twice the value of said vessel." The act does not authorize the informer, or any other person, to institute a suit, in the name of the State, upon this appeal bond, and, in the absence of such authority, no such person can put it in suit. 10 Wheat., 406, Corporation of Washington vs. Young.  [**7]  It is only by special provisions of law that suits can be brought by individuals upon bonds given to the State, and in most of our statutes authorizing such bonds to be given, it is expressly provided that suits may be so brought by individuals. The only exception to this rule is where a consistent and uniform practice to the contrary, for twenty years or more, can be shown to exist. But no such practice can be shown in this case, for the law was only passed in 1836, and this complaint was made in 1853, and is, perhaps, the first attempt to execute it. But, again, the State had the right to release the interest of the informer as well as its own, and its release of the forfeiture extends to the share of the informer. 10 Wheat., 246, United States vs. Morris. 6 Pet., 404, McLane vs. The United States.

2nd. The appeal bond was executed in May 1853, at which time there was no "county court for Anne Arundel county," before the "judges of which" the appeal could have been prosecuted by Tongue. The doctrine of estoppel cannot apply to such errors as these, for they are not stated by way of recital. 1 Greenlf. on Ev., sec. 26. 8 G. & J. 319, Steam Nav. Co., vs. Dandridge. The failure [**8]  to prosecute in the county court, was a condition precedent to the bond being of any effect, and this condition being impossible, the bond was void, and no recovery can be had upon it. 1 Md. 135, Manly vs. The State. 10 Md. 168, Coleman vs. The State. 5 Md. 503, Collins vs. Carman. 1 Bac. Abr. Title Condition, (M.) 2 Thos. Coke, 26. 1 Pothier on Obligations, 101. 1 Salk., 172, Pullerton vs. Agnew. 2 H. & G., 82, Birckhead vs. Saunders. 5 H. & J. 61, Morgan vs. Blackiston. 4 G. & J. 395, Morgan vs. Morgan. 1 H. & J. 499, Johnson vs. Goldsborough. 12 How., 176, Bein vs. Heath. 1 Scammon, 568, Brooks vs. Town of Jacksonville. 5 Gilman, 88, Sharp vs. Bedell. 5 Cowen, 286, Ex-parte Weed. 6 Cowen, 585, Ex-parte Alord. 2 Yerger, 522, Eason vs. Clark. 3 Wend. 426, People vs. Monroe Court. 1 Brevard, 3, Harville vs. Meyers. 2 Const. Rep., 740, Darby vs. Hunt.

3rd. The appeal from the judgment brings the demurrers before this court as well as the ruling upon the exceptions. 1 Md. 77, Lawson vs. Snyder. 4 Gill 163, Thompson vs. The State.

4th. That the court erred in excluding the testimony set out in the exception. Under the issues the jury were to find,  [**9]  "that the judgment rendered by Stephen L. Lee, as specified in the bond," was affirmed "by the judges of the county court for Anne Arundel county." The testimony offered, showed that the only judgment ever rendered by Lee, between the parties, was averred to be that "specified in the bond," and that the "judges of the county court for Anne Arundel county" never could have affirmed it. It was, therefore, relevant to the issue, and should have been submitted to the jury for their consideration. Even if the purpose for which it was offered had not been stated, it would have been error to reject it, if admissible for any purpose. 9 Gill 209, Taney vs. Bachtell.

5th. If the court reverse upon either ground, they will not award a procedendo. 4 Gill 406, Stockton vs. Frey. 4 G. & J. 395, Morgan vs. Morgan.

Jas. S. Franklin for the appellee, argued:

1st. That there was no error in the ruling of the court, as set out in the exception:--1st. Because all evidence unnecessary and not relevant to the issues, should, on application, be excluded by the court. The evidence offered was not necessary to the elucidation of the issues on the 5th and 7th counts of the rejoinder,  [**10]  because the recited record of proceedings exhibited the affirmance of the judgment of the justice of the peace, and instead of tending to show a prosecution of the appeal to a successful termination, showed an entire failure so to do. 2nd. It was further unnecessary, because the plaintiff had not offered any evidence or assumed any position tending to show that there had been other proceedings in either court. And 3rd. Even if this ruling were erroneous, this court will not reverse, no injury having been sustained by the appellants, it not appearing for what object the testimony was offered, or could serve, and no announcement made of an intention to follow it up with other proof. 9 G. & J. 439, Union Bank vs. Planters Bank. 4 Md. 429, Cross vs. Hall.

2nd. As to the demurrers it is insisted, that after judgment on the same, in favor of the appellee, from which no appeal was taken in the court below, these demurrers are not open for review in this court, the only appeal taken being from the general judgment rendered by the court upon the verdict. 1 Md. 10, Milburn vs. The State. 9 Gill 101, State vs. Milburn.

3rd. But if the judgment on the demurrers is open [**11]  to review, it is insisted there was no error in the ruling of the court upon all or either of them:--1st. Because the defendant was estopped from denying the judgment recited in the bond. 4 Gill 191, Lloyd vs. Burgess. 2nd. Because the State had no right to release more than her own share, and it was competent for the informer, who, under the act of 1836, ch. 150, was entitled to one-half, to use the name of the State in prosecution of his interest on the bond. It is not essential that the State should have an interest, in order to sustain an action for the use of a party interested, as in the instance of administration, testamentary and trustees' bonds. 3rd. Because the party is estopped to deny the recitals in the bond, but if not estopped, the condition only is void, and the penal points of the bond remain obligatory. Hurlstone on Bonds, in 9 Law Lib., 11, 12. And 4th. Because if not so estopped, the bond substantively describes the court; the circuit court for Anne Arundel county is still the court for the county, or the county court, and this court will so construe the condition as to carry out the intention of the parties. Hurlstone on Bonds, 18. 8 Barn. & Cress., 299.  

JUDGES:
The [**12]  cause was argued before LE GRAND, C. J., ECCLESTON, TUCK and BARTOL, J.  

OPINIONBY:
TUCK 

OPINION:

 [*329]  TUCK, J., delivered the opinion of this court.
The appeal from the final judgment, authorises this court to review the rulings of the court below on the demurrers. Lawson vs. Snyder, 1 Md. 71, is a case directly in point.
In deciding the issues of law, we are not confined to an examination of the rejoinders to which the plaintiff demurred, but must consider the previous pleadings.
By profert of the bond and the grant of oyer of the bond and condition, they are made parts of the declaration, ( Birckhead vs. Saunders, 2 H. & G. 82,) looking to which, we see that the same question arises that is presented by the fourth rejoinder.
This court must take judicial notice of the tribunals created by the constitution, and as there was no Anne Arundel county court, and as the parties are not responsible beyond the condition which they have undertaken to perform, it follows, that there was no court before which the appeal could have been prosecuted. If the State, instead of assigning the breach in the short form, as in Karthaus vs. Owings, 2 Gill & Johns. 430, [**13]  had replied, that the judgment appealed from had been affirmed in the Circuit court for Anne Arundel county, the court must have held that such a breach was not within the contract declared on by the plaintiff.  Morgan vs. Morgan, 4 G. & J. 395. And if the replication had shown the affirmance of a judgment of condemnation, under the act of 1836, ch. 150, even in Anne Arundel county court, it would have appeared to be a different judgment from the one recited in the appeal bond, which is a money judgment for two thousand dollars. In either aspect of the obligation, under that form of assigning the breaches, the action must have failed.  2 H. & G. 82. Morgan vs. Blackiston, 5 H. & J. 61. If the 

 [*330]  same objection appears on the record in another form of pleading, can the result be different? Surely not.
The principle which we think must govern this case, was established in the cases of State vs. Manly, 1 Md. 135, and Coleman vs. State, 10 Md. 168. In the first of these, an order was passed removing a prosecution from Baltimore city court to Howard county court, and the traverser was recognised [**14]  to appear before that court. The record was transmitted to the court of Howard district of Anne Arundel county, to which, doubtless, Baltimore city court designed to have removed the prosecution, but the judge of that court, denying its jurisdiction, refused to forfeit the recognizance, and remitted the record and prisoner to Baltimore city court, which ruling was affirmed; on the ground that, "there being no such court in existence, the order of removal and the recognizance were null and void. And consequently the case was not removed from Baltimore city court, but remained in that court as if there had been no order of removal." In the other case, Coleman recognized before a justice of the peace, to appear at Allegany county court, since the adoption of the present constitution, by which circuit courts were substituted for the county courts. It was held, on appeal, that the recognizance to appear before a court not in existence, was void by reason of the impossibility of complying with its condition. The same doctrine must apply to cases of this kind, the principal obligor having undertaken to perform a condition, which, under the law, he could not perform.
It was said in argument,  [**15]  that the defendants are estopped, by the recital in the bond, from denying that there was an Anne Arundel county court. This point might, if tenable, have availed the State in the cases last referred to, but it was not relied upon; nor do we perceive how the doctrine of estoppels can apply. Whether a court exists or not, is something more than a mere question of fact, as to which parties may agree or be concluded by admissions. It must depend on the constitution or laws, and when the court can see that the supposed tribunal is not known to these, it must so decide, no matter what the parties may have admitted by estoppel or 

 [*331]  agreement. Besides, the bond does not recite that the party had appealed, but that he was about to appeal to Anne Arundel county court. Now, if he did not enter the appeal, and the declaration, with which alone we are now dealing, discloses nothing on that point, there was no obstacle to have hindered the State from prosecuting the judgment to execution; and, if he did enter the appeal, the right of the State was equally unaffected, because an appeal bond, on which no recovery can be had by the obligee, cannot operate to stay execution. The State might [**16]  have demanded execution of the judgment, non obstante this bond.  Johnson vs. Goldsborough, 1 H. & J. 492.
The case was provided for by the constitution, but the justice, it seems, made a mistake. The 8th section of article 4, gives to the circuit courts the power, authority and jurisdiction, formerly held and exercised by the county courts. The justice should have taken bond to prosecute the appeal to the circuit court. It may be a hardship on the State or the informer, that such a mistake occurred, but we cannot supply a remedy. As we have said, the State was not bound by the appeal bond as a stay of execution, but might have proceeded on the judgment. These appellants were differently situated, being sureties in an appeal bond, under which their principal was entitled to no benefit whatever, and from which it was impossible to have discharged them by compliance with its condition. The State was not concluded by the bond, and to hold them liable would be to enforce a contract where there was no mutuality. The hardship on them would be apparent, even if the State has allowed herself to be delayed by the appeal.
With these views of the cause of action, as shown by the [**17]  declaration, we need go no further into the record, as the judgment must be reversed without a procedendo. 4 G. & J. 395.
Judgment reversed. 

12 of 187 DOCUMENTS 

RICHARD H. ATWELL and WM. S. APPLETON, vs. J. MADISON MILLER, by procein ami.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 348; 1857 Md. LEXIS 43 

DECEMBER, 1857, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

Assumpsit brought by the appellee against the appellants, to recover the sum of $ 527.29, with interest, for money paid, in advance, by the plaintiff to the defendants, for freight on goods, contracted to be carried by the defendants from Baltimore to Monrovia, in Liberia. Plea, non-assumpsit. The facts of the case are fully stated in the opinion of this court. By an agreement of counsel, it was admitted, that an insurance was effected by the plaintiff on the cargo shipped by him in the defendants' vessel, at a valuation of $ 7500, the value of the goods, as per manifest, being $ 6195.09.

1st Exception. It was proved by the witness, Miller, that Asbury Johns, the consignee named in the bill of lading, was a colored man; that plaintiff, some three or four years ago, sent goods to Liberia by Johns, and they were jointly interested in the profits and losses; that these transaction continued, and they made some $ 3000, which was a part of their capital in the adventure in question; that Johns was here when these goods were bought, and aided in making the selection of them, and went out in the "Harp" with them; that Johns had nothing [**2]  to do with the goods on this side; the goods were bought with the plaintiff's money; the business was done in the plaintiff's name here, and in Johns' name at Monrovia. Witness has known Johns for some six or eleven years; he was a porter in witness' store until he went to Liberia, in the latter part of 1851; he has been in Baltimore since; he received his own wages, and acted as a free man; but witness does not know whether he was born free or not, or whether he had been manumitted. The defendants then proved by their witness, Smith, that he frequently saw Johns about defendants' counting room, whilst these goods were going on board the Harp, and that he was attending to their shipment. The defendants' counsel then asked said witness this question: "Did you hear any conversation at or about the time of the shipment, between said Johns and the defendants, or either of them, in relation to the terms on which these goods were to be shipped? and if so, state such conversation fully, and what was said by said Johns." To the asking and answering of this question, the plaintiff objected, which objection the court (PRESSTMAN, J.) sustained, and refused to allow the question to be asked, and [**3]  to this ruling the defendants excepted.

2nd Exception. The plaintiff then proved, by certain insurance officers, that it is sometimes customary, in Baltimore, for insurers to add 10, and sometimes 50, per cent. to the cost of goods, and that such addition is made to cover the expense of putting the goods on board of the vessel. On cross-examination, these witnesses stated, that if freight was paid in advance, and the shipper took the risk of the voyage, the 10 per cent. would cover such freight. The plaintiff then asked the following instructions to the jury:

1st. If the jury find, from the evidence, that the plaintiff shipped the goods, mentioned in the bill of lading, on the brig Harp, from Baltimore to Monrovia, in Liberia, and paid the defendants the freight therefor, in advance, and that the brig sailed on her voyage with the goods on board, and that the defendants did not deliver them at the port of Monrovia, according to the tenor of the bill of lading, and that this failure so to deliver them, arose from no event imputable to the plaintiff, then they may find for the plaintiff, unless they further find that there was a special agreement, at the time of such shipment,  [**4]  between the plaintiff and defendants, that the freight so paid in advance should, in any event, be retained by the defendants.

2nd. That even if they shall find, from the evidence, that the plaintiff insured said freight, such fact is not evidence from which they may infer that the plaintiff paid the freight at his own risk, or the existence of an agreement between plaintiff and defendants, that the freight was, in any event, to be retained by the latter.

3rd. If the jury find, from the evidence, that plaintiff shipped, on board the Harp, the goods mentioned in the bill of lading, and that by said bill of lading it was agreed, that defendants should transport these goods on said brig from Baltimore to Monrovia, and deliver them to the consignee thereof, in consideration of plaintiff's paying freight therefor, and that there was no stipulation in said bill of lading, that the freight should be at the risk of the plaintiff, or be, in any event, retained by the defendants, and that the freight so agreed to be paid in the bill of lading, was paid by the plaintiff in advance, and that the goods were taken on board said brig for transportation, according to the tenor of said bill [**5]  of lading, and were never delivered by defendants at Monrovia, according to said bill of lading, and that said failure arose from no default of the plaintiff, then they may find for the plaintiff, notwithstanding they may find that defendants refused to take the risk of said freight, or to carry said goods, unless the plaintiff would take said risk, provided they find that said refusal was made by defendants after the making of said bill of lading, and after the goods had been received on board said brig by defendants, for transportation, according to said bill of lading.

The defendants then asked instructions, as follows:

1st. If the jury find, from the evidence, that up to the time of the payment of the money sued for by the plaintiff, the defendants refused to take any risk connected with the freight, and take the goods offered by the plaintiff as cargo, unless the plaintiff would pay in advance for the carriage of such cargo, and take the risk of the voyage being accomplished, and that the plaintiff paid the money so sued for with a knowledge of such refusal, then the plaintiff is not entitled to recover.

2nd. That if the jury find that, in fact, the plaintiff insured [**6]  the freight paid by him to the defendants, such insurance is evidence from which, taken in connection with the testimony of the witness, Smith, if such testimony is believed by them, the jury are at liberty to infer that there was an agreement between the plaintiff and defendants, that the freight so paid by the former should be at his risk, and should not, in the event of the loss of the brig, by perils of the sea, without delivering her cargo, in pursuance of the bill of lading, be recovered back from the defendants.

The court granted the plaintiff's prayers, and rejected those of the defendants. To this ruling the defendants excepted, and, the verdict and judgment being against them, appealed.  

DISPOSITION:
Judgment reversed, and procedendo awarded.  

HEADNOTES:

In order to make the declarations of a third person evidence against a plaintiff, on the ground that he was a partner with, or the agent of, the plaintiff, sufficient proof must first be offered to satisfy the court of the existence of the partnership or agency.

Freight is the compensation for the carriage of goods, and if paid in advance, and the goods be not carried, by reason of any event not imputable to the shipper, it is to be repaid, unless there be a special agreement to the contrary.

The legal operation of the contract contained in a bill of lading, may be modified by adding thereto a parol suppletory agreement that the freight was to be at the risk of the shipper, and such special agreement may be established by parol proof.

A party having no interest in freight, cannot insure it, and the fact that the shipper effected an insurance on freight, is some evidence that the contract in the bill of lading had been modified by a special agreement that the freight should be at the shipper's risk. 

COUNSEL:
Frederick W. Brune and Geo. W. Dobbin for the appellants, argued:

1st. There is evidence that, from the commencement of the shipment, the contract between the defendants and the plaintiff was, that the freight was to be paid in advance, and that the latter was to be at the risk of the voyage. Such a contract is consistent with the bill of lading as well as the other evidence in the cause. 2 Bos. & Pul., 322, Blakey vs. Dixon. 5 Taunt.  [**7]  , 435, Andrew vs. Moorhouse. 4 Maule. & Selw., 38, De Silvale vs. Kendall. 3 Barn. & Adol., 445, Saunders vs. Drew. The fact that he insured the freight is evidence of such a contract, for a party who has no interest in the freight cannot insure it; he has no insurable interest. Parson's Mercantile Law, 419. 4 Barn. & Ald., 582, Manfield vs. Maitland. And, as evidence of such a contract, the defendants were entitled to present to the jury the statements of Johns. They were admissible as part of the res gestae, (6 Md. 338, McDowell vs. Goldsmith; 5 Md. 219, Miller & Mayhew, vs. Williamson; 4 Md. 305, Greenway vs. Turner,) made by a person who was a partner with the plaintiff in this very transaction, and his constituted agent in regard to the shipment of these goods. It would be strange if, in such a case as this, these declarations and statements are to be excluded merely because they were made by a colored person. It does not seem to be a case which comes within the policy of the act of 1717, ch. 13.

2nd. If such a contract was not originally made, it was competent for the parties to substitute it in place of the original contract. There is evidence that the rate of [**8]  freight stipulated in the bill of lading, was, by a valid aregement, reduced, and that it was part of this agreement, that the freight to be paid should be at the risk of the shipper, and should be insured by him. This modification of the original contract, is recognized in the written receipt given when the money was paid, as well as supported by other evidence, and if under this substituted agreement, the vessel proceeded with the goods to the coast of Africa, and there delivered a portion of them to the consignee of the shipper, the plaintiff was not entitled to recover. 5 Md. 121, Coates & Glenn, vs. Sangston. 2 Parson's on Contract, 67.

3rd. If the defendants constantly refused to carry the plaintiff's goods, unless he paid the freight in advance and took the risk of the voyage being accomplished, and if the plaintiff paid the freight with knowledge of such refusal, he was not entitled to recover. 4 Gill 425, Mayor & C. C. of Balto., vs. Lefferman. 5 Gill 248, Morris vs. Mayor & C. C. of Balto.

4th. Even if the goods were put on board and the bill of lading signed, under a misunderstanding between the parties in regard to some of the terms of the contract [**9]  of affreightment, yet, if before the freight money was paid or the vessel sailed, the plaintiff ascertained this mistake, and the defendants refused to take the goods forward without payment of freight in advance, which was in no event to be returned, and the plaintiff after notice of this refusal and understanding on the part of the defendants, obtained a reduction of the freight and then paid the money, and suffered the vessel to go upon the voyage, such payment cannot be recovered back in this action.

Charles Marshall and H. C. Dallam for the appellee.

1st. The conversations of Johns with the defendants were clearly inadmissible:--1st. They could not be admitted, on the ground that Johns and the plaintiff were partners, for the evidence so far from proving that this was a partnership contract, proves exactly the reverse, and is wholly insufficient to establish the relation of partnership, so as to make Johns' declarations admissible. 1 Parsons on Contracts, 146. 2nd. There was no sufficient proof that Johns was free, and capable of forming the contract of partnership in Maryland, and the onus of proving him free was on the defendants, the presumption in this State being [**10]  the other way. 6 G. & J. 141, Burke vs. Negro Joe. 9 Gill 135, Anderson vs. Garrett. 4 H. & J. 243, Walls vs. Helmsley. 3rd. He is proved to be a negro, and his declarations were inadmissible in a suit between white persons. Act of 1717, ch. 13. 3 H. & J. 97, Rusk vs. Sowerwine. The policy of this law extends to the declarations or conversations of negroes as well as to their testimony. The protection of this law should be extended fully to the citizen, because the policy of our laws keeps the black race in such a condition as to make them unfit, in a great measure, to be entrusted with any power over the rights of the superior race. 4th. This testimony was inadmissible, because the defendants could not prove or rely upon a contract different from the one they, by the statement of facts, agreed to by them, had admitted to exist, viz., a contract with the plaintiff alone. 5th. Whatever Johns, or even the plaintiff, may have said concerning the "terms of shipment," at or about the time of shipment, was merged in the written contract set out in the bill of lading, fully and explicitly stating the terms of shipment, and to which alone we can look for those terms which could [**11]  not be proved by parol, while there was a written contract. If the testimony was inadmissible on this ground, it was properly rejected though unobjectionable in other respects. 3 G. & J. 435, Sothoron vs. Weems.

2nd. The plaintiff's first prayer is based upon the principle of law, that "freight is the compensation for the carriage of goods, and if it be paid in advance, and the goods be not carried by reason of any event not imputable to the shipper, it is to be repaid, unless there be a special agreement to the contrary," which is clearly sustained by the authorities. 3 Pick., 20, Griggs vs. Austin. 3 Johns., 335, Watson vs. Duykinck. 1 Pet. Admiralty Rep., 126, Howland vs. Brig Lavinia. 3 Sumner, 66, Pitman vs. Hooper. 1 Camp., 84, Massiter vs. Buller. Smith's Mercantile Law, 299. 5 Sanford, 578, Phelps vs. Williamson. Chitty on Contracts, 661, 662, 663, note 3. Abbott on Shipping, 496, 497, 501. 3 Kent, 286, 287. 6 H. & J. 401, Ferguson vs. Cappeau. If there was any special agreement, that the freight was in any event to be retained by the defendants, it must be found in the bill of lading, and cannot be supplied by parol evidence. A bill of lading, so far as it is [**12]  not a mere receipt but a contract, cannot be modified by parol evidence; the liability of the owner is fixed by it, subject to such exceptions as it contains. Flanders on Shipping, sec. 479. 6 H. & J. 401, Ferguson vs. Cappeau. 4 Ohio, 334, May vs. Babcock. 14 Wend., 26, Creery vs. Holly. 4 Denio., 330, Covill vs. Hill. 1 H. Bl. 359, Mason vs. Lickbarrow. 3 Sandford, 7, Wolfe vs. Myers. 8 Barb., 205, Niles vs. Culver. 17 Mass., 570, Brigham vs. Rogers. 4 Maule. & Selw., 41, De Silvale vs. Kendall. Even a receipt, when it amounts to a contract, is subject strictly to the rule, excluding parol testimony to change or vary it. 12 Pick., 562, Wakefield vs. Stedman. 15 Pick., 437, Curtis vs. Wakefield. 1 Blackf., 191, Adam vs. Beard. Ibid., 353, Tisloe vs. Graeter. 6 Ohio, 246, Stone vs. Vance. 7 G. & J. 415, Franklin, et al., vs. Long. 4 Hill., 104, Goodyear vs. Ogden, et al, 2 Parsons on Contracts, 67. 6 Barb., 458, Egleston vs. Knickerbacker. 9 Barb., 477, Graves vs. Harwood. 34 Maine, 559, O'Brien vs. Gilchrist. It is submitted therefore, that the bill of lading and receipt, according to the tenor and effect of which the money sued for in this case is admitted by the agreement [**13]  of counsel to have been paid, constitute the final written contract between the parties, and that no parol evidence could be used to modify or vary it.

3rd. The defendants rely upon the evidence of Smith of conversations between the agent of the plaintiff and Atwell, as to who should take the risk of the freight, and especially upon the refusal of the defendants (which is supposed to be proved) to take the goods unless the plaintiff would consent to pay the freight at his own risk, as proving the existence of an agreement on the part of the plaintiff, to assume risks which he had not assumed by the terms of his written contract. It is to be noted in the first place, that all the testimony of Smith, as to what was said about the plaintiff's having to take the risk of the freight, and to insure the freight, is perfectly consistent with the terms of the bill of lading, for by these terms, the plaintiff did assume the risk of the goods after they left the vessel's side, and were delivered to the kroomen to be carried to the shore. But these declarations, as well as the refusal of the defendants to take the goods unless the plaintiff would assume the risk of the freight, if made before [**14]  the execution of the bill of lading were certainly merged in it, and if after, they could not vary the contract and add a general exception of all risks to it, especially when there is no proof that the plaintiff assented to vary the written contract in this particular, that was the subject of these declarations. 3 Md. 78, Stewart vs. Redditt. Ibid., 212, Glenn vs. Grover, et al. Moreover the money was actually paid and the receipt given for it on the 12th of June, and still there is no trace of such a modification in the terms in the bill of lading as is contended for by the appellants.

4th. Neither could the jury infer from the fact of insurance of freight by the plaintiff, that he had assumed any risk not mentioned in the bill of lading, because he had no insurable interest against any peril that remained at the risk of the owner by the bill of lading. 1 Hall, 452, Mellen, et al., vs. National Ins. Co. 1 Phillips on Ins., ch. 3, secs. 337, 340. 5 Scott, 640, Yates vs. White. 16 Pick., 289, Clark vs. Ocean Ins. Co. He had an insurable interest in the freight, by reason of the provision, that the defendants were to deliver the goods to the consignee, to be carried on shore,  [**15]  and if the goods had been lost in transitu from the ship to the shore, the defendants would certainly have earned freight; this was a sufficient risk to justify the plaintiff in insuring his interest in the whole freight, Phillips on Ins., 140. But there is no evidence that he insured freight at all; the policies are on cargo only, and did not cover freight, or such an interest in the freight as the plaintiff would have had if he had taken the risk of the freight. It must have been insured eo nomine, or as freight advanced. 1 Phillips on Ins., ch. 5, secs. 415, 482. Smith's Mercantile Law, 331.

If these positions are correct, there was no error in the several rulings of the court below, and the judgment must be affirmed.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON, and BARTOL, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*357]  LE GRAND, C. J., delivered the opinion of this court.
This action was brought by the appellee to recover of the appellants the sum of $ 527.29, with interest, for money paid, in advance, by the appellee to the appellants, for freight on goods contracted to be carried by the appellants from Baltimore to Monrovia, Liberia. By the agreement of counsel filed [**16]  in the cause, it appears that the goods upon which the freight was paid in advance, were shipped on board the appellants' vessel (the brig "Harp,") according to the tenor and effect of the bill of lading, dated 9th of June 1854, and that the vessel having the goods on board sailed on the 13th of June of the same year; that it was shipwrecked in the Messurado Roads, occasioning thereby, a loss of a part of the goods and damage to the remainder.
The question presented to the court below may be thus stated: first, whether the declarations of a person, he being a negro, can be given in evidence where a white person is interested? second, whether under the circumstances detailed in proof, the plaintiff below was entitled to recover the money which had been paid in advance?
The proof shows, that in the month of May 1854, the appellants, who were the owners of the brig Harp, were loading her for the coast of Africa, and were applied to by the appellee, in regard to the rate of freight by said vessel. To this application reply was made, "that the current rates to Monrovia were $ 2 per barrel, measuring five feet, or in other words 40 cts. per foot cubic." Sometime after this, the appellee [**17]  put on board the Harp a quantity of cargo, measuring in all 13.529 cubic feet, according to the receipt for the same, The bill of lading stated, that this cargo was shipped by the appellee and was to be delivered at Monrovia, (the dangers of the sea excepted,) to one Asbury F. Johns, or assigns, "the shipper paying freight for the said goods at the rate of 40 cts. per cubic foot, with five per cent. primage, and average accustomed;" 

 [*358]  and it was further stipulated that the goods should "be delivered at ship's tackle, vessel paying kroomen's labor taking them to shore, but goods at risk of owners thereof after leaving vessel, boats for landing furnished and controlled by owners of goods." The bill of lading was signed by the captain, on or about the 9th of June 1854. A bill of freight, dated the 8th of June 1854, was presented to the appellee. The amount of this bill was $ 570.95, and was for 13.529 cubic feet of cargo, at 40 cts. per foot, $ 541.10, wharfage hire, $ 5.40, primage $ 27.32, less 30 days' interest $ 2.87. This bill was not paid until the 12th of June, nor until after a deduction of $ 43.66, which is stated in the receipt to be as "per agreement," leaving [**18]  a balance of $ 527.29, the sum sued for and recovered below. At the trial the appellants by their clerk, the witness Smith, proved that, on the 10th of June, the appellee came with his father, (who was acting for him in reference to the shipment,) to the counting-house of appellants, both of whom were present, and that then the appellee objected to the measurement and to the charge for primage, and said, "he ought to be allowed a deduction (in the freight bill) because he had to take the risk of the freight money himself;" that Atwell then said "he would take no risk, it was at the parties own risk; that he would not insure the freight, and that if they, (the appellee and his father,) were not satisfied with the terms he would rather set the goods on the wharf." The same witness further testified, that during the same interview and in the same presence, and before the freight was paid, that "Miller did not ask security for return of freight money in the case the vessel was (were) lost," and that Atwell stated, that "he would not return the freight if the vessel was (were) lost." The witness also testified, that Miller, the father of the appellee, said, that as he had  [**19]  insurance money to pay, he thought the bill unfair. It was in addition stated by the witness, that on the ascertainment of the loss, application was made for the return of the freight money, whereupon Atwell asked Miller, if he did not understand that he, (the appellee,) took the risk, and if he had not insured? to which the appellee, without denying that he had taken the risk, admitted "that he had insured 

 [*359]  and had added 10 per cent., as was customary." It was proven by Daniel Miller, that the deduction of $ 43.66, per agreement from the bill of appellants, was made by the appellant, Appleton, with the witness.
It was then shown that a colored man, of the name of Johns, had been associated in trade with the appellee, he transacting the business in Africa, the shipments being to him; that he selected a portion of the goods which made up this cargo, and was frequently attending to the shipment. The appellants then proposed the following question to the witness, which the court refused to allow to be put:--"Whether he heard any conversation, at or about the time of the shipment, between the said Johns and the appellants, or either of them, in relation to the terms on which [**20]  these goods were to be shipped?" To the refusal of the court to allow the question to be answered, the appellants objected, and this objection constitutes their first exception.
We presume this question was asked on the ground of one or the other of two theories; that is to say, that Johns was a partner of the plaintiff in the particular shipment, the subject of investigation in this case, or that he was the authorised agent of the plaintiff in the transaction, and as such, capable of binding him, in and about the business, by his declarations. There is not sufficient evidence of the existence of a partnership in regard to this affreightment, to justify his declarations being given in evidence to defeat the action, because of nonjoinder of the proper parties, nor is there evidence sufficient to show an agency. Until one of these propositions was first settled to the satisfaction of the court, the testimony was inadmissible. This view relieves us from all necessity of inquiring, whether the color of the party, whose declarations were proposed to be given in evidence, could have a legal bearing on the question in any event? The court properly disallowed the question.
On the conclusion [**21]  of the testimony the appellee asked three, and the appellants two, instructions from the court to the jury. Those asked for by the appellee were granted, and the others refused.

 [*360]  We will state the principles which, in our opinion, govern this case, and then apply them to the prayers severally.
There is some difference between the law as laid down by the English, and as recognised by the courts of this country. We adopt the decisions of our own courts, as more conformable to the principles of common law and of justice. In the case of Griggs, et al., vs. Austin, 3 Pickering, Judge Parker, in delivering the opinion of the court, after referring to the complete review of Chief Justice Kent, in the case of Watson vs. Duykinck, 3 Johns. Rep. 355, proceeds as follows: "It would be but an affectation of learning, to go over the ground which has been so ably pre-occupied in the opinion given in that case, especially as the same ground has been traversed by Mr. Justice Story, in a note in his edition of Abbott on Merchant Ships, &c., which note was avowedly supplied from the opinion of Chief Justice Kent, above cited. I wish for one, since books are [**22]  so prodigiously multiplied, to spare the profession and the public the expense of reiterated citations on points indubitably settled, when both text and comment may be found in almost every book in a lawyer's library. It is sufficient then to say, that by reference to the above cited opinion and the note of Mr. Justice Story, it will be found to be the established law of the maritime countries on the continent of Europe, that freight is the compensation for the carriage of goods, and if it be paid in advance, and the goods be not carried by reason of any event not imputable to the shipper, it is to be repaid, unless there be a special agreement to the contrary."
This, then, being the law applicable to cases of freight, where there has been a failure to earn it, by the delivery of the thing shipped, the question arises in this case, was there a special agreement between the parties, modifying the legal operation of the contract contained in the bill of lading? We are of opinion there was testimony in the cause which, if believed by the jury, was sufficient to justify them in finding such an agreement. We refer to the deduction made in the bill for freight, the conversations which [**23]  then took place, and that had between one of the appellants, Atwell, and Miller, 

 [*361]  when he applied for a return of the money, he not only not denying it when told the freight was at his own risk, but, admitting that he had insured it. This evidence tended to establish a contract, suppletory to that set out in the bill of lading. If the jury found the existence of such supplemental contract, the appellants were discharged from the liability sought to be cast upon them in this suit.
That it is competent to the parties to a parol contract, to modify it by adding thereto, is established by the case of Coates & Glenn, vs. Sangston, Garn. of Cunningham, 5 Md. 121, and the authorities there collected. It is also a well settled principle, that one who has no interest in the freight cannot insure it; he has no insurable interest. We did not understand the learned counsel for the appellee, to deny this doctrine; on the contrary, the authorities which he cited fully sustained it. We understood him to contend, that the appellee had no insurable interest, because, under the bill of lading, the freight was at the risk of the owner of the vessel. If it were at the [**24]  risk of the owner of the vessel, then he was clearly right in the view which he urged? but this depends upon a fact, to wit, whether the contract contained in the bill of lading had been modified or not. Whether it was so or not, was to be determined by the proof in the cause, among which was to be considered the policy of insurance, as giving color to the other evidence, going to show that it was agreed and understood between the parties, that the freight was to be at the risk of the shipper.
The second and third prayers on the part of the appellee are clearly erroneous; the second, because it prohibits the jury from finding from the fact of the insurance of the freight, a special agreement outside of the bill of lading. The fact, standing by itself, possibly might not be conclusive of the matter, but, it is certainly a strong circumstance when coupled with the others testified to, going to show an additional agreement. The prayer, by completely ignoring all the other facts in the case, to say the least of it, was well calculated to mislead the jury. It is equivalent to saying, that the insurance 

 [*362]  by the appellee was no evidence whatever. In this view we do not concur.  [**25]  
From what we have said it will appear, that we are of opinion the instructions asked by the appellants should have been granted, and that the first prayer of the appellee should have been refused. It is defective in this: it denies the right of the parties to make another agreement after the making of the bill of lading. We know of no principle of law which warrants such a conclusion.
Judgment reversed, and procedendo awarded. 

13 of 187 DOCUMENTS 

HERTZ BLONDHEIM, SIMON GOODMAN, et al., vs. ROBERT MOORE and CHARLES MOORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 365; 1857 Md. LEXIS 45 

DECEMBER, 1857, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Baltimore city.

The original bill in this case, filed on the 19th of June 1857, by the appellees, alleges that Hertz Blondheim, from the 17th of November 1856, had been purchasing goods, on a credit of six months, from the complainants, to the amount of $ 1183.88, of which he has paid no part, though the sum of $ 319.77 thereof is now due; that Blondheim owes large amounts over and above his indebtedness to the complainants, and now represents his liabilities at between $ 12,000 and $ 14,000; that having contracted these debts, and being hopelessly insolvent, he, on the 7th of May 1857, executed to Simon Goodman a deed of certain furniture, together with the whole stock of goods on hand in the store and dwelling No. 57, Eutaw street, for the consideration, as is pretended by the deed, of $ 3000; that afterwards, on the 16th of June 1857, being then hopelessly insolvent, he executed a deed of all his stock in trade, and all debts and claims due him, and all book-accounts, bonds, bills, evidences and vouchers concerning the same, to Abraham Rosenberg, in trust, to pay the first claims of all such creditors as should, within ninety days, assent to [**2]  the deed and execute releases, which deed contained a provision that the trustee should not be answerable for any deterioration or loss to the property, "unless the same be consequent upon his own wilful commission or neglect."

The bill then states, that complainants are informed and believe that said Goodman came from Germany here about twelve months ago; that since he came to this country he has been an employee; that he is the brother of the wife of Blondheim; that when he came to this country, he was without any considerable means with which to purchase the amount of goods which, by the deed to him, he is said to have purchased for cash. That complainants are informed and believe, and therefore charge, that said Goodman is an unmarried man; that the property mentioned in the deed to him is now, and has been since the making thereof, in the possession of Blondheim, who is selling and disposing of the same in the course of his business, and has been replacing the goods so sold with others purchased, on credit, of complainants and other creditors, and that Goodman has not pretended to use any control over the merchandize or furniture.

The bill further states, that complainants [**3]  are further informed and believe, and therefore charge, that Blondheim is now engaged, under cover of these two deeds, in endeavoring to obtain from his creditors a release on paying fifty per cent. of their claims; that they are informed and believe, and therefore charge, that Goodman paid no money, or other valuable consideration, for the deed to him, or, if so, no considerable portion of the amount mentioned therein, and that said deed was not made bona fide, but to deceive the creditors of Blondheim, and, in connection with that to Rosenberg, to obtain from his creditors a release of their claims for less than he is able and should pay them; that they are informed and believe, and therefore charge, that if Goodman or Blondheim, or either of them, had notice that complainants were about to apply to this court, to obtain possession of the property mentioned in said deed to Goodman, they would remove the same out of the jurisdiction of the court, and secrete it, for the purpose of hindering, delaying and defrauding the creditors of Blondheim; that complainants therefore charge, that this deed was contrived and devised of malice, fraud, covin and collusion, and to the end, purpose [**4]  and intent to hinder, delay and defraud the creditors of Blondheim in the collection of their debts, and in secret trust for his benefit, and they are advised the same is void, and bears on its face the evidence of fraud.

The bill then propounds special interrogatories to Blondheim and Goodman, and prays that the deed to the latter may be declared void, that a receiver may be appointed to take possession of the property mentioned in it, in order that the same may be sold and applied to pay the debts of Blondheim, and that both Blondheim and Goodman may be restrained, by an injunction, from selling or disposing of, or retaining from the receiver, any of the property mentioned in said deed, and for general relief.

On this bill (which was sworn to) the court (KREBS, J.) granted the injunction, and, without notice to the defendants, or a rule to show cause, appointed a receiver, upon the execution and approval of the necessary bonds.

On the 26th of June 1857, Blondheim and Goodman, the only parties who were made defendants thereto, filed their answers to this bill, and entered a motion to dissolve the injunction and discharge the receiver, which motion was set down for hearing.  [**5]  Afterwards, on the 7th of July following, the complainants filed an amended bill, (the allegations of which need not not be stated in this case,) making Rosenberg a party, and calling upon him to answer both bills, and upon Blondheim and Goodman to answer the amendment, and praying that Rosenberg may be restrained, by injunction, from disposing of, or retaining from the receiver, any of the property mentioned in the deed to Goodman, and that the receiver may be authorized to take possession of all said property.

The court granted the injunction as prayed by this amended bill, and before answer to the same, all of the defendants appealed "from the orders appointing receiver and granting injunctions in this case," and after the appeal bond had been filed and approved, the court, upon application of the appellants, passed an order directing the receiver to deliver to Rosenberg, trustee of Blondheim, all the property and effects which he had received as receiver, under his appointment in this case, and to report and account to the court therefor.  

DISPOSITION:
Order reversed and cause remanded.  

HEADNOTES:

An appeal will not lie from an order granting an injunction and appointing a receiver, until after answer filed; the act of 1853, ch. 374, does not change that of 1835, ch. 380, in this respect, but only provides the effect and consequences of an appeal when taken.

Under the act of 1853, ch. 374, when an appeal is taken from an order granting an injunction, and an appeal bond given, as therein provided; the operation and effect of the injunction wholly and entirely ceases.

If, on such an appeal, the order is affirmed, and the thing on which the injunction was intended to operate, exists in specie in the possession of the defendant, the injunction is restored to its original vigor, and if the thing has been consumed or disposed of, the complainant's remedy is on the appeal bond.

To justify the appointment of a receiver, it must appear that the claimant has title to the property, and the court must be satisfied, by affidavit, that a receiver is necessary to preserve it; the court will never appoint a receiver merely because the measure can do no harm.

Fraud or imminent danger, if a receiver should not be appointed, must be clearly proved, and unless the necessity be of the most stringent character, the court will not appoint until the defendant is first heard in response to the application.

The allegations of a bill, for an injunction and receiver, that the complainants are informed of certain matters, without stating when or whence the information was obtained, do not make such a case of fraud and imminent danger as to justify the granting of the injunction, or the appointment of a receiver, without notice to the defendants.  

COUNSEL:
W. C. N. Carr and William Pinkney Whyte for the appellants:

1st. There was nothing in the [**6]  original bill to justify the court in passing the order appointing a receiver, and granting an injunction against Goodman and Blondheim. The bill of sale to Goodman, if made in good faith, conveyed the legal title to him, even though Blondheim was in embarrassed circumstances at the time. 3 Md. 212, Glenn vs. Grover, et al. The simple allegation of indebtedness, and that the bill of sale was not bona fide, will not justify the interference of a court of equity, by the appointment of a receiver. The court will not exercise this high power, without notice to the defendants, or a rule to show cause, nor before answer filed, unless in a case of pressing necessity, and on clear proof that the property is in imminent peril, and that it is absolutely necessary that a receiver should be appointed to meet the exigency of a special case. 1 Md. Ch. Dec., 489, Thompson vs. Diffenderfer. Ibid., 70, Clark vs. Ridgely. 3 Md. 99, Furlong, et al., vs. Edwards. 4 Md. Ch. Dec., 39, Walker vs. House. 10 Md. 503, Uhl vs. Dillon. Edwards on Receivers, 19. 1 Bland, 213, H. K. Chase's Case. Ibid., 422, Williamson vs. Wilson. 13 Ves., 266, Middleton vs. Dodswell. 16 Ves., 59, Lloyd vs. Passingham,  [**7]  and same case in 3 Merivale, 697. 2 Brown's Ch. Rep., 157, Vann vs. Barnett. 2 Paige, 450, Verplanck vs. Mercantile Ins. Co. 7 Paige, 56, Austin vs. Figuera. 8 Paige, 373, Sandford vs. Sinclair. Not only is there no proof in this case, of imminent danger to the property, but if we are confined to the allegations of the bill, we find there no averment, whatever, of any fact, which can show to the court any such danger or fraud in the case; with the exception of the fact of indebtedness, every other allegation in the bill is based upon information and belief. Such allegations do not come up to the clear proof required by the authorities, to justify the appointment of a receiver.

2nd. It has been suggested by the appellees, that the appeal from the order granting an injunction against Rosenberg, upon the amended bill, should be dismissed, because no answer was filed to this bill before the appeal was taken. But it is submitted, that under the act of 1853, ch. 374, there is no necessity for the filing of an answer before an appeal is taken, and that this act supersedes those of 1835, chaps. 346 and 380, in relation to appeals from orders appointing receivers and granting injunctions,  [**8]  and now gives the right of appeal from any order of the court in such cases. It is further submitted, that upon giving bond as provided for by this act, the appeal stays the operation of the order in the same manner as an appeal from a final decree. If this appeal, then, properly brings up for review the order passed upon the amended bill, it is insisted, that the case made by that bill does not warrant the passage of such order.

P. McLaughlin and J. M. Campbell for the appellees:

1st. As regards the order granting the injunction upon the amended bill, the appeal must be dismissed, no answers having been filed at the time the appeal was taken. The filing of an answer is expressly made a condition precedent to an appeal from such an order, by the acts of 1835, chaps. 346 and 380, and the provisions of these acts are in nowise changed, in this particular, by that of 1853, ch. 374.

2nd. In considering the appeal from the order passed upon the original bill, this court is confined to the case made by the bill; the answers cannot be looked to. 10 Md. 418, McCann vs. Taylor. Looking then to the allegations of the bill, it is insisted, that the case thereby made is one [**9]  of actual fraud and imminent danger, justifying the action of the court in appointing a receiver. 2 Jacob's, 280. 6 Madd., 38, Stellwell vs. Williams. 2 Brown's Ch. Rep., 132, Vann vs. Barnett. 31 Eng. Law & Eq. Rep., 436. Edwards on Receivers, 98. 2 Story's Eq., secs. 826, 827, 834. 1 Paige, 299, Haggerty vs. Pittman. 4 Paige, 575, Bloodgood vs. Clark. 3 Johns. Ch. Rep., 48, Boyd, et al., vs. Murray. 9 Gill 472, Speights vs. Peters. 1 Bland, 213, H. K. Chase's Case. 1 Md. Ch. Dec., 87, Brown vs. Stewart. 2 Md. Ch. Dec., 157, Drury vs. Roberts. 10 Md. 466, Rose & Gauss vs. Bevan.  

JUDGES:
The cause was argued before LE GRAND, C. J., TUCK and BARTOL, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*370]  LE GRAND, C. J., delivered the opinion of this court.
The original and amended bills show these facts: that Blondheim, being heavily indebted and insolvent, on the 7th day of May 1857, executed a bill of sale of certain property therein specified, for the consideration of $ 3000, to Simon Goodman, and that on the 16th of June 1857, he executed a deed of trust to Rosenberg, of all his stock in trade, for the benefit of such of his creditors as should release him in ninety days, providing by the same,  [**10]  that the trustees should not be liable for any loss or deterioration, but what might be occasioned by his own wilful commission or neglect.
There were two bills filed, an original and an amended bill; the objects of both being the same, namely, to have declared fraudulent and void the conveyances made by Blondheim as made with the design to hinder, delay and defraud creditors, and also to procure an injunction and the appointment of a receiver. Injunction was granted and receiver appointed upon the original bill, and an injunction granted upon the amended bill.
Rosenberg failed to answer either bill, and Blondheim and Goodman failed to answer the amended bill. An appeal has been taken from the order passed on each bill. It is contended, 

 [*371]  on the part of the appellees, that an appeal will not lie until after answer filed. This is undoubtedly the case under the decisions construing the act of 1835, ch. 380, and we think the law is not changed in this respect by the act of 1853, ch. 374. This latter act only provides the effect and consequence of an appeal, when taken from the orders specified in it, and a bond shall be given. It does not contemplate a change in the circumstances [**11]  necessary preliminarily to an appeal under the act of 1835. If this be so, then the appeal of Blondheim, Goodman and Rosenberg, from the action of the court on the amended bill must be dismissed. This confines us to the case made by the original bill. But before we proceed to examine its averments, we shall state what we consider to be the operation of an appeal, under the act of 1853, ch. 374. We do this, because it is but proper the profession should understand the views of the appellate court, in regard to a statute which is daily acted upon, affecting, as it does, most materially, the business of a commercial and manufacturing community. That act is as follows:--"That in all cases where an appeal is taken from an order of a court having equity jurisdiction, either granting an injunction or appointing a receiver, or from an order refusing to dissolve an injunction, the operation of such an order shall not be stayed in any case, unless the party praying the appeal give bond, with security, to indemnify the other party from all loss and injury which such party may sustain by reason of such appeal, and the staying of the operation of such order; such bond to be approved by the [**12]  judge granting the injunction, or the clerk of the court where the proceedings are pending; and upon the giving of such bond, the appeal shall stay the operation of all such orders, in the same manner as appeals do from final decrees."
It is not to be presumed that the legislature meant nothing by this act. To our minds, if the English language means anything, this act distinctly provides, that an appeal in the cases authorized by it, (where a bond is given,) "shall stay the operation of all such orders in the same manner as appeals do from final decrees." What is this manner? It is nothing 

 [*372]  more than this, everything is stayed, suspended, until judgment shall be pronounced by the appellate tribunal; that is to say, the "operation" and "effect" of the injunction wholly and entirely ceases. Such was the effect and operation of an appeal, under the act of 1835, ch. 380, except in the case of an injunction to stay waste. The act of 1853 does away with the exception. If on appeal from an order granting an injunction, this court should affirm the order, and the thing on which the injunction was intended to operate should exist in specie, in the possession [**13]  of the defendant, then the injunction is restored to its original vigor; or if the thing has been consumed or disposed of, then the complainant must proceed on the bond, which is given for the express purpose of indemnifying him "from all loss and injury" which he may sustain because of the appeal. We are unable to give any other meaning to the act. The objection that before the bond can be made available, practically, to the indemnification of the aggrieved party, the obligors may become insolvent, however true, can nevertheless have no weight in the construction of the act. It is an objection which would apply with equal force to any other bond. The act provides, that the bond shall be approved by the judge granting the order, and we are bound to assume this power will be exercised with every caution, and not until the court is fully certified of its sufficiency. If this does not guarantee indemnification to the party, then the failure is owing to the inadequacy of our legislation and the mutability of human affairs. The foresight of man is not competent to guard against all future contingencies. We may add, that when all things are calmly considered, perhaps it will be found [**14]  that under our acts of Assembly, and the decisions thereon, the creditor has a very decided advantage over his debtor. He is permitted to state his own case in his own way, restrained only by his conscience, and upon such statement, if full enough, to break up the business of his debtor. If the latter appeal from the order, although his conscience has been probed, yet, he has no benefit from his own testimony; his case is tried and determined solely on that of his adversary. This, to say the least of it, does not look much 

 [*373]  like equality. To deny an appeal to the defendant, until he shall have answered the bill, and then to say, the answer shall not at all be looked to, is not without the appearance of trifling; it is to command an act, which, when performed, is to be taken as wholly void of value. The only reason we can imagine for such a procedure is, that it enables the complainant to "fish out" a case from the answer of the defendant, so as to furnish him with the aids necessary to alter his case if need be. It is a species of jugglery not altogether worthy of commendation. It is, however, the law, and we are bound by it.
The injunction was granted and the receiver [**15]  appointed, on the application of the complainants, without notice to defendants, or a rule for them to show cause.
The material averments of the original bill, (the only one properly before us,) may be thus stated. It is alleged, that Blondheim, had purchased of the complainants, goods to the value of $ 1183.83, no part of which amount he has paid, although, at the time of the filing of the bill, there was due of it $ 319.97; that he owes to other creditors large sums, amounting in the aggregate to twelve or fourteen thousand dollars; that Blondheim being so indebted, and hopelessly insolvent, he, on the 7th of May 1857, executed and delivered to Goodman a deed of certain furniture, together with the whole stock of ready made clothing, in store and dwelling No. 57, Eutaw street, for the consideration, "as is pretended by the deed aforesaid, of three thousand dollars." It further alleges and charges as follows, that the complainants "are informed and believe, that the said Simon Goodman came from Germany here, about twelve months ago, that since he came to this country he has been an employee; that he is the brother of the wife of said Hertz Blondheim; that when he came to this country [**16]  he was without any considerable means with which to purchase the amount of goods, which, by the deed, he is said to have purchased for cash." The bill continues, that the complainants are informed and believe that Goodman is an unmarried man; that the property is now, and has been since the making of the deed, in the possession of Blondheim, 

 [*374]  and that he is selling and disposing of the same in the course of his business, and has been replacing the goods so sold therefrom, with others purchased on credit.
It is only necessary to refer to a few authorities, to exhibit the law applicable to a case like this. The Chancellor in the case of Clark, et al., vs. Ridgely, et al., 1 Md. Ch. Dec. 70; in the case of Thompson vs. Diffenderfer, Ibid., 489; and in the case of Walker's Adm'r, vs. House, 4 Md. Ch. Dec. 39, has brought together the leading decisions, wherein the doctrine applicable to the appointment of a receiver is clearly laid down. Without quoting, at large, from the cases referred to and approved by him, it is sufficient to say, they will be found to establish the following propositions:--1st. That the power of appointment [**17]  is a delicate one, and to be exercised with great circumspection. 2nd. That it must appear the claimant has a title to the property, and the court must be satisfied by affidavit, that a receiver is necessary to preserve the property. 3rd. That there is no case in which the court appoints a receiver merely because the measure can do no harm. 4th. That "fraud or imminent danger, if the intermediate possession should not be taken by the court, must be clearly proved;" and 5thly. That unless the necessity be of the most stringent character, the court will not appoint until the defendant is first heard in response to the application.
This is really the meaning of the cases. Different judges employ different language to express their ideas, but they all mean the same thing; there must be fraud and imminent danger proved, in a case like the present.
Keeping these limitations in view, let us enquire what are the evidences of fraud and imminent danger alleged in the bill? With the exception of the indebtedness to complainants, they profess a total ignorance of all the other facts. They say they are "informed" that Goodman has been in this country but about a year; that they are "informed"  [**18]  he has been, during that time, an employee; that they are "informed" he is an unmarried man, and that since the making of the deed, Blondheim has been disposing of the goods in the store and replacing them with others. We are nowhere told from whence 

 [*375]  this information was obtained, nor when. The whole is left in doubt; the only fact which the bill alleges, (other than the amount of indebtedness,) of which proof is offered to test its accuracy, is, that the deed is fraudulent on its face; and this, by the deed itself, is shown not to be so. It is on its face a valid instrument for a valid money consideration. On the whole we do not think this such a case of fraud, and imminent danger, as justified the court in granting the injunction, nor do we recognize it as one, (without notice to the defendants first having been given,) in which a receiver should have been appointed. We shall, therefore, in this case, reverse the order of the court below granting an injunction and appointing a receiver upon the original bill, and dismiss the appeal from the order granting the injunction upon the amended bill, because taken before answer filed to such bill. The cause will also be remanded [**19]  for further proceedings.
Order reversed and cause remanded. 

DISSENTBY:
TUCK 

DISSENT:

TUCK, J.--I dissent from so much of the court's opinion as places a construction on the act of 1853, ch. 374.
I think the appeal does not remove the injunction out of the defendants' way, so as to place him in the same condition, in reference to the property, as if the writ had not issued, but that it merely stays further proceedings, pending the appeal, and leaves the property just where it was at the time of the appeal.
This I consider the effect of the last clause of the act, which limits the effect of such appeals, to that produced by an appeal from a final decree, which, as I understand the law, arrests the execution of the decree, and does nothing more.
As to the other views expressed by the court, I concur in the opinion, and, in the order of reversal.  

14 of 187 DOCUMENTS 

ABRAHAM ROSENBERG and HERTZ BLONDHEIM, vs. ROBERT MOORE and CHARLES MOORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 376; 1857 Md. LEXIS 46 

DECEMBER, 1857, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Baltimore city.

The original bill in this case, filed on the 20th of June 1857, by the appellees against the appellants, besides containing the allegations in the original bill, in the preceding case, (ante 365,) makes Rosenberg a party defendant, and alleges that the deed of trust to him, of the 16th of June 1857, together with the previous deed to Goodman, were parts of a scheme devised by Blondheim, to enable him to hinder, delay and defraud his creditors; that though it contains a stipulation exacting releases from creditors, it does not subject to their claims all the property of the grantor, and does not, by its terms, convey all his property, and is, therefore, void upon its face. It further charges, that this deed of trust was contrived and devised by malice, fraud, covin and collusion, and was made, executed, delivered and accepted to the end, purpose and intent to hinder, delay and defraud the creditors of Blondheim in the collection of their debts; and then prays that the same may be declared void, and the property sold to pay the debts of Blondheim, and for general relief.

This deed of trust, filed as an exhibit with the bill,  [**2]  conveys to Rosenberg "all and singular the stock in trade" of Blondheim, now in his possession, consisting of dry goods, and all debts, &c., due him, and all books, accounts, bonds, bills, evidences and vouchers concerning the same, and all his right, &c., in the goods, &c., hereby conveyed; to have and to hold the same unto the said Rosenberg, his executors, &c., "with the exception of the stock and furniture in a house and store on Eutaw street, in said city, which is mentioned and particularly described in a bill of sale from said Blondheim to a certain Simon Goodman, dated the 7th of May 1857, and recorded, &c., which bill of sale was executed for the purpose of securing to said Goodman the sum of money therein mentioned as its consideration, and which is declared to be the meaning and intention of the parties hereto, but if said stock and furniture is more than sufficient to pay said sum, then the balance thereof, together with the above mentioned stock and chattels, in trust," &c. Then follow the stipulations in regard to releases from creditors, and the responsibility of the trustee, stated in the bill in the preceding case, (ante 366.)

Afterwards, on the 8th of July 1857,  [**3]  the complainants, under leave, filed an amended and supplemental bill, in which, after repeating the allegations of the original bill, they allege, by way of supplement and amendment, that on the 19th of June 1857, they filed in this court their bill against Blondheim and Goodman, praying, among other things, that the deed to the latter, of the 7th of May 1857, may be vacated, and for an injunction and receiver, as stated in the preceding case, (ante 365;) and that, by an order of this court, a receiver was appointed, who demanded the property he was thereby authorized to take into his possession, of Bondheim and Goodman, who declined to deliver the same, and told him they had delivered possession thereof to Rosenberg; that the receiver then, as complainants are informed and believe, and therefore charge, demanded possession of this property from Rosenberg, who also refused to deliver the same. The bill further charges, that after the execution of this deed of trust, Rosenberg, as complainants are informed and believe, and therefore charge, was repeatedly requested, by creditors of Blondheim, to take an inventory of the goods therein mentioned, but declined, and insisted he had been [**4]  advised not to do so, as he would not be liable for the loss of any of the property except that which would actually come into his possession, and instead of examining the trust property, and, at an early day, taking an inventory thereof, has not yet done so, but has placed the same in the possession and under the control of a man without credit, and whose character for honesty is notoriously bad, and, in his care and management of the trust property, disregards the wishes and interests of complainants, and all his other creditors who are not on terms of friendship with Blondheim. It further charges, that the complainants, at the instance of other creditors, and moved by their own feelings, fearful that this deed of trust was made to enable Blondheim, under cover thereof, to remove and secrete from his creditors a portion of the property therein mentioned, directed the receiver to employ watchmen to watch the property he was authorized to take into his possession, and also that mentioned in the deed of trust, to prevent it from being stolen or secretly removed by Blondheim, or any other person, until Rosenberg would cause an inventory thereof to be taken; that they are informed and [**5]  believe, and therefore charge, that the receiver recently entered the store, No. 59, Eutaw street, in which it was supposed there was, at the time, a stock of goods worth from $ 3000 to $ 5000, and in which a stock of that amount was usually kept by Blondheim, and found goods not worth more than from $ 500 to $ 1000, which has confirmed them and other creditors, as they are informed and believe, and therefore charge, in their fears that this deed of trust was made for the purpose of enabling Blondheim, under cover thereof, to remove and secrete a portion of the property thereby conveyed, (as he denies,) in fraud of his creditors; that being so situated, and no inventory of the property having been taken, complainants will not, they fear, be able, in a suit against Rosenberg, to show the extent of what they have or may lose, by secret removals as aforesaid. The complainants therefore charge, that this deed of trust was devised in collusion, confederacy and guile, between Rosenberg and Blondheim, and other persons to them unknown, for the purpose of hindering, delaying and defrauding them, and other creditors of Blondheim, in the manner aforesaid, and by other ways and means, in the [**6]  collection of their debts; and to allow Rosenberg longer to remain in possession of the trust property, would be, as complainants fear, believe and charge, to give to Rosenberg and his confederates a greater opportunity of removing and secreting from creditors, and in fraud of them, the trust and other property aforesaid. The bill then prays for a receiver to be appointed, to take possession of the property mentioned in the deed of trust, and for an injunction to restrain Rosenberg and Blondheim from disposing of or retaining the same from the receiver.

Upon this bill the court (KREBS, J.) granted an injunction, and, without notice to, or a rule upon the defendants to show cause, appointed a receiver as prayed. From this order the defendants, after filing their answers, appealed, and having filed an approved appeal bond, the court, on their application, ordered the receiver to deliver up to Rosenberg the property which he had received under his appointment as receiver, and to report and account for the same to the court.  

DISPOSITION:
Order affirmed, and cause remanded.  

HEADNOTES:

An assignment for the benefit of creditors, and stipulating for releases, must, on its face and by its terms, convey all the property of the grantor, and unless it does so, it is void, no matter whether it does, in fact, convey all his property or not.

A bill charging that the trustee under such a deed has placed the property under the care of a person of notoriously bad character, and that by his and the grantor's refusing to allow an inventory of the property to be made, if loss should occur, the creditors will be deprived of the necessary proof to show the extent of such loss, makes a case of imminent danger, justifying the granting of an injunction and the appointment of a receiver, without notice to the defendants.  

COUNSEL:
W. C. N. Carr and Wm. Pinkney Whyte for the appellants, argued, that the deed of trust from Blondheim to Rosenberg [**7]  was a valid and legal instrument, and conveyed the legal title to him, and for this they cited Burrill on Assignments, 208; 6 Watts & Sergt., 300, Hennessy vs. Western Bank; 6 G. & J. 218, State vs. Bank of Maryland; 4 Gill 128, McCall vs. Hinkley; 8 Gill 472, Kettlewell vs. Stewart; 3 Md. 11, Green & Trammell vs. Trieber. They further argued, that a receiver should not have been appointed, especially in this case, to take the possession out of the hands of a trustee who held the legal title. It should have been proved that the property was in imminent peril. There is no such direct charge, but merely that the complainants were fearful that the deed was made for the purpose of enabling Blondheim to remove or secrete the property from his creditors. There is no charge of malfeasance on the part of Rosenberg, nor of his insolvency. The fund was in no danger, for the trustee was bound to give bond, under the act of 1845, ch. 166, and the complainants do not deny his respectability, but merely allege they fear they may not be able, in a suit against him, to show the extent of their loss. They relied upon the same authorities on this point as in the preceding case, and also [**8]  cited 3 Md. 99, Furlong & Miller vs. Edwards; 7 G. & J. 467, Bank of Maryland vs. Ruff; Edwards on Receivers, 22; 1 Ambler, 311, Mordaunt vs. Hooper; 2 Molloy, 81, Lloyd vs. Trimleston; 2 Younge & Coll., 353, Smith vs. Smith.

P. McLaughlin and J. M. Campbell for the appellees, insisted, that the deed was void, because it requires, in effect, that the creditors shall sanction a security granted by Blondheim to Goodman, without examination, and where it is plain that perjury has been committed, and also because it seeks to exonerate the trustee from the effects of negligence, and because it does not purport to convey the entire property of Blondheim. 3 Sandford, 545, Litchfield vs. White, and same case in 3 Selden, 438. Burrill on Assignments, 209, 280. 3 Md. 11, Green & Trammell vs. Trieber. 8 Md. 418, Malcolm vs. Hodges. They also argued, that, looking to the bill alone, as this court is bound to do on this appeal, it makes a strong and irresistible case for an injunction and a receiver. Besides legal, there is actual, fraud charged (and, for the purpose of this argument, admitted) against both Blondheim and the trustee, Rosenberg, and mal-administration by the [**9]  latter. See authorities cited in the preceding case.  

JUDGES:
The cause was argued before LE GRAND, C. J., TUCK and BARTOL, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*380]  LE GRAND, C. J., delivered the opinion of this court.
We are of opinion that the case made by the original and amended bill, justified the action of the circuit court. The deed assailed does not, in words, convey all the property of Blondheim; that which it did convey, for the benefit of his creditors, may, indeed, have been all, but its terms are not inconsistent with the fact that he may have retained a considerable amount of property, real and personal. Whilst the law authorizes a debtor to make a deed, such as the one in this case, it yet demands it should be a conveyance of all his property, without any reservation, whatsoever, to himself.  Green 

 [*381]  & Trammell vs. Trieber, 3 Md. 11; and Sangston vs. Gaither, 3 Md. 40. This is not plainly manifest on the face of the deed. It should have affirmatively so appeared. As was said in the case of Malcolm vs. Hodges, 8 Md. 418, the validity of a deed of trust, for the benefit of creditors, must be determined [**10]  by the deed itself, without reference to extrinsic facts; such an assignment, to be valid, must convey all the property of the debtor, and, in terms, dedicate the whole for the benefit of his creditors. Besides, the bill shows the property to be in imminent danger. It avers, that it has been placed under the care of a person of notoriously bad character, and that, by the refusal of the defendants, and the custodian of the goods, to allow an inventory to be made, that if loss should occur, complainants and the other creditors will be deprived of the necessary proof to show the extent of such loss. These circumstances, we think, bring this case within the rules laid down in the case of Blondheim, et al., vs. Moore, et al., decided at this term, (ante 365.)
Order affirmed, and cause remanded. 

15 of 187 DOCUMENTS 

HARLOW W. HEATH and PERLEY R. LOVEJOY, vs. EDWARD IRELAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 388; 1857 Md. LEXIS 48 

DECEMBER, 1857, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Baltimore city.

A bill was filed by the appellee against the appellants, to vacate for fraud as against creditors, a bill of sale of certain personal property made by Heath to Lovejoy. Answers were filed by the defendants, denying the fraud charged, a replication filed, and a commission to take testimony ordered to be issued. The complainant then applied for an order allowing him to examine the defendants as witnesses. This application was resisted by the defendants, but the court (KREBS, J.) passed the order as prayed, from which this appeal was taken by the defendants.  

DISPOSITION:
Appeal dismissed.  

HEADNOTES:

No appeal lies from an order allowing the complainant to examine the defendant as a witness; such an order is merely interlocutory in its nature, not final, and determines no question of right between the parties.  

COUNSEL:
H. Stockbridge for the appellants.

Benj. C. Barroll for the appellee.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON, TUCK and BARTOL, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*389]  BARTOL, J., delivered the opinion of this court.
The order of the circuit court, from which this appeal was taken, is merely interlocutory in its nature, not final. It determined no question of right between the parties; and from such an order, it has been settled by repeated adjudications in this court, no appeal will lie.
The propriety of the passage of the order [**2]  is, therefore, not a question now properly before us, and the appeal must be dismissed.
Appeal dismissed. 

16 of 187 DOCUMENTS 

CHARLES L. PETTIGREW vs. ZENOS BARNUM and ANDREW MCLAUGHLIN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 434; 1857 Md. LEXIS 54 

DECEMBER, 1857, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

Trespass on the case brought by the appellant against the appellees, on the 15th of February 1854, to recover damages for certain articles alleged to have been stolen from the plaintiff's trunk, while in the room occupied by him as a guest in a hotel kept by the defendants in the city of Baltimore. Plea non cul.

1st Exception. The plaintiff read in evidence the deposition of Miss Mary Pettigrew, taken under a commission, to the effect that she was the sister of the plaintiff, and had travelled with him and his wife in Europe, during the summer of 1853 and on their return, while on their way from New York to Carolina, the party reached Baltimore on the 4th of November, and took rooms as guests at Barnum's hotel, to which their trunks were taken; that the trunks of the plaintiff and his wife contained jewelry and other articles, silver and wrought gold, and money; they were wedding presents of great value, and of costly workmanship; she remembers among them the following: A dozen large silver forks; a dozen large silver spoons; a dozen small silver spoons; a half-dozen silver knives; a dozen tea spoons; she thinks that was all [**2]  the silver, cannot say what was their value; there was a small gold watch chain, and chatelaine worth $ 72; a small Venitian gold chain, the value of which she does not know; a small Venitian pin, to which was attached a gondola and gondolier, wrought in gold, which she thinks was valued at $ 2; a very handsome stone cameo brooch surrounded with pearls, which had a bracelet attached, and cost $ 150; a diamond ring that cost $ 150; a gold bracelet ornamented with a gold sprigg, that cost $ 30; a very curious purse of gold, wrought, that cost $ 40; these are all she can now recollect. She further deposes, that the trunks were not robbed before they reached Barnum's hotel; that she left Baltimore at half past two or a quarter of three, on the afternoon of the 5th of November, for Washington, and the plaintiff and his wife remained at the hotel; witness went out of the rooms, (her own adjoining that of her brother and his wife,) at half-past twelve of that day, and returned at two o'clock, and at a quarter-past two was in her brother's room, and saw no one there, nor did she witness any thing unusual in the appearance of things; an Irish girl named Alice, waited on the rooms; that she [**3]  has since visited her brother and wife, and none of the articles above enumerated are in their possession.

The plaintiff then proved by the girl Alice, above named, that she was at the time and had been for several years a servant at Barnum's hotel, which is a common inn, kept by the defendants; that the plaintiff and his wife and Miss Pettigrew, occupied two adjoining rooms with a door between them; that on the morning of the occurrences which gave rise to this suit, witness told plaintiff's wife she had better lock her room door, to which Miss Pettigrew replied, she was not going out that morning, and that witness then said to her, she ought to close and lock the door between her room and her sister's; that Miss Pettigrew took an early dinner that day, and some short time afterwards Miss Pettigrew called witness to her room and showed her her trunk considerably tumbled, some of her clothes on the floor and some of her silver lying on her clothes, and asked her who had been in her trunk? to which witness replied, that was best known to herself, (Mrs. Pettigrew,) that her sister had shortly before been in her room; witness told Miss Pettigrew that she, witness, had not taken them;  [**4]  Miss Pettigrew said she did not accuse her of having stolen them, but asked who had done so? that witness found the hall door of Mr. and Mrs. Pettigrew's room locked, but the door leading to Miss Pettigrew's room from the other, was open and so was the hall door of Miss Pettigrew's room; that Mr. Pettigrew shortly afterwards came in and said he had the key of his door in his pocket, and witness replied you have locked one door and left two open; he then said he would call Mr. Barnum; this was between two and three o'clock.

The plaintiff then offered in evidence a bill of discovery, which he had filed in the case, and the answer of Barnum, one of the defendants thereto, to the effect that the plaintiff and his wife and sister, stopped as guests at his hotel, on the 4th of November, and that Nos. 181 and 182 were the rooms assigned them, which were near the ladies' drawing-room on the second floor, and fronting the inner court; that the rooms adjoined each other and communicated by a door between them; that Miss Pettigrew left on the afternoon of the 5th, and the plaintiff and his wife, on the afternoon of the 7th; that during their stay, the plaintiff invited respondent to his [**5]  room, and showed him his trunk; the trunk had not the appearance of having been broken open, nor was it broken open, but had the appearance of being opened by a false key, as represented to respondent by the plaintiff; the articles in the trunk had the appearance of having been disturbed or rumpled; upon inquiring of the plaintiff, whether or not his door was locked? he said the door from the hall into his room was locked, but that between his room and that of his sister had been left open; that respondent sent for a police officer to look at the trunk, stating to him that the plaintiff said his trunk had been robbed, and respondent requested the officer to investigate the case; this was sometime during the afternoon of Saturday, but the exact time he does not now remember; no search was made among the servants or inmates of the hotel, as respondent believed his servants to be honest, and would keep none about him but such as he was assured were entirely honest.

The plaintiff's counsel then offered to read in evidence the plaintiff's own deposition, taken under a commission, in which, in answer to the first interrogatory, he states his arrival with his wife and sister at the hotel,  [**6]  how long they stayed, describes the situation of the rooms to which their trunks were taken, and says they contained articles of jewelry and ornaments belonging to dress, and other articles of silver. The second interrogatory is: "State whether any of the trunks belonging to you were robbed during your stay at Barnum's hotel as a guest? If so, state what articles were taken from it or them, and their values so far as you can give them; also state at what time you discovered that the robbery had been committed, and what steps you then took? Also state whether any of the articles stolen have been recovered by you?" In answer to this he says: "My wife's trunk was robbed during my stay at Barnum's hotel, the following articles were stolen from the trunk, viz: one dozen large silver forks, marked in German text C. L. P., valued at $ 130; one dozen large silver spoons, marked as above; one dozen silver dessert spoons marked as above, valued at $ 45; one dozen silver tea spoons marked as above, valued at $ 25; a half dozen silver knives marked as above, valued at $ 16.25; one small gold watch, double case, short chain, hook key, oblong seal, valued at $ 72; one Venitian gold chain, valued [**7]  at $ 7; one Venitian gold pin, valued at $ 2; one cameo brooch, (to be worn as a pin or bracelet,) and surrounded by large pearls, valued at $ 150; one diamond, being a large one set round with seven or nine smaller ones, valued at $ 150; one gold bracelet valued at $ 30; one gold purse of Italian workmanship, valued at $ 40; the said purse contained in specie $ 6.50; one old fashioned gentleman's watch guard, chain and knob, valued at $ 35; one pair gold earrings, value unknown. I discovered the robbery had been committed about two o'clock, P. M. I went immediately to Mr. Zenos Barnum, who was in the gentlemen's ordinary, and informed him of what occurred. I have recovered none of the above mentioned articles stolen from me."

This whole deposition was objected to by the defendants, and ruled out by the court. The plaintiff's counsel then offered in evidence the second interrogatory and the answer thereto as above set forth, to which evidence the defendant objected, and the court (FRICK J.) refused to permit the same to be given in evidence, and to this refusal to admit in evidence this second interrogatory and the answer thereto, the plaintiff excepted.

2nd Exception. It [**8]  was then agreed that Graham, a police officer of long standing, was sent for by defendants, immediately on the occurrence of the alleged robbery, and directed to take all necessary steps for the detection of the thief, and that upon examining the trunk and looking into the circumstances attending the alleged robbery, he was of opinion (supposing a robbery to have taken place) it was the work of an experienced professional thief, and not of any servant of the hotel. The defendants then proved by one of their clerks in the office of their hotel, that there was in a conspicuous part of the office a secure iron safe for the safe keeping of money and valuables belonging to guests. They also offered in evidence a notice printed in large letters, to this effect.

"Gentlemen are requested to deposite their money and valuables in the iron safe at the office, and to bolt their doors on retiring to bed; coats, umbrellas and light articles, should be left at the ticket office where checks will be given for their safety. When leaving their rooms gentlemen are requested to lock their doors and leave the key at the office. It is hoped this arrangement will be strictly complied with, as the proprietors [**9]  will not hold themselves responsible for any losses that may occur, and it saves trouble when friends call if the key is in the office, that they may be reported as not being in their rooms."

It was proved, that a similar notice was placed on the inner side of the doors of the rooms in question, and of all the bed rooms in the house. Their clerk also proved, that it was his habit generally to give notice to guests, and universally, where he knew they had valuables in their trunks, to deposit them in the safe, but he does not recollect giving such notice to the plaintiff. Evidence was also given of the general good character and honesty of the servants of the hotel, and particularly of the servant Alice, the witness in this case; that watchmen were employed to keep guard at night, and that there were hall watches during the day; evidence was also given of the general excellence of the management and watching of the hotel, for the security of the property of guests in their rooms. It was also in evidence, that the servant, Alice, had a master-key by which she could enter the rooms in question, and that when on the morning of the alleged robbery, she told the plaintiff's wife she [**10]  ought to lock the door between her room and that of her sister, she at the same time called her attention to the printed notice on the door. The plaintiff then prayed the following instructions to the jury:

1st. That by the law as it stood on and before the 1st of January 1854, an innkeeper was responsible for all losses happening to the goods of his guests, while they remained within the inn, unless such losses were caused by some agency, over which human power had no control, or by the act of the public enemies, or by the conduct of the guest himself or his servant, or a companion whom he chose to take with him, and that the innkeeper could not throw off or limit this responsibility, which the law imposed upon him, by such a notice as that offered in evidence in this case. Therefore, if the jury believe that the defendants kept a common inn in the city of Baltimore, and that the plaintiff with his wife and sister, were received by them into said inn as guests, and that a trunk belonging to the plaintiff, which contained jewelry, ornaments of dress and other articles of value, the property of the plaintiff, was, at the same time received by the defendants into said inn, and that [**11]  during the plaintiff's continuance there as a guest, and while the said trunk remained there, it was wrongfully opened, and things of value, the property of the plaintiff taken from it, and that all these occurrences took place before the first day of January 1854, then they are instructed, that they ought to find a verdict for the plaintiff, for the amount which they shall believe to be the value of the articles so stolen, unless they shall further find affirmatively, that the loss aforesaid was the direct consequence of the fault or negligence of the plaintiff, or of some companion or companions of his.

2nd. The jury are further instructed, that if they shall believe the facts set forth in the foregoing instruction, with the exception of fault and negligence on the part of the plaintiff, or his companion or companions, unless they are satisfied the plaintiff read the notice given in evidence in this case or knew its contents, or that one of his companions read it or knew of its contents, the defendants cannot derive any benefit from said notice.

The defendants then asked the following instructions: 1st. If the jury find from the evidence, that the plaintiff, his wife and [**12]  sister, arrived together at the hotel of the defendants and occupied rooms Nos. 181 and 182, as stated in the evidence, and that the keys of said rooms were delivered to them, and their trunks placed therein at their request or with their consent, and also find that the articles, or some of them, to recover the value of which this suit is brought, were stolen from the trunk of the plaintiff while it was in said room so occupied by him, still the plaintiff is not entitled to recover, if the jury shall also find that the loss of said articles was the result of the negligence and want of care of the plaintiff, or his wife or sister.

2nd. If the jury shall find all the facts stated in the defendants' first prayer, except the negligence and want of care on the part of the plaintiff or his wife or sister, still the plaintiff is not entitled to recover, if the loss of the articles of value mentioned in the first prayer, was the result of no default, negligence or want of care, on the part of the defendants or their agents or servants.

The court granted the plaintiff's first and rejected his second prayer, and also granted the defendant's first and rejected their second prayer. To [**13]  the refusal of the court to grant his second prayer the plaintiff excepted, and the verdict and judgment being against him appealed.  

DISPOSITION:
Judgment reversed, and procedendo ordered.  

HEADNOTES:

In an action against an inn-keeper, to recover the value of articles stolen from the plaintiff's trunk whilst he was a guest at the inn, the contents of the trunk, if he has no other evidence thereof, may, upon the ground of necessity, be proved by the plaintiff's own oath.

The inn-keeper is liable without regard to actual fault or neglect on his part, but such liability is limited to what is considered baggage, and does not extend to every article the guest may choose to carry with him; the term baggage, does not embrace merchandize or other valuables, not designed for use or personal convenience, on the journey.

An innkeeper is not liable for silver knives, forks and spoons, carried by the guest in his trunk, but is liable for personal ornaments or jewelry, appropriate for a traveller's wardrobe.

Where an offer is made of testimony, taken under a commission, part of which is admissible and part not, the party objecting should, if it can be done, confine his objection to that which is inadmissible.

But if the matters are so blended as to be inseparable, for the purpose of distinct objections, the objector may accomplish his object, by asking an instruction as to the applicability of the evidence, and its effect on the case or any branch of it.

It is no cause for the reversal of a judgment, that the court below rejected a prayer, even though correct in itself, if by a previous instruction which was granted, the court had given the law of the case to the jury, as favorably as the appellant could have desired.

A prayer, the subject of which is covered by previous instructions, ought not to be granted, because such repetitions are calculated to embarrass the jury, and may mislead them.  

COUNSEL:
Wm. S. Bryan and Henry Winter Davis for the appellant, argued:

1st. That it was competent for him to prove by his own oath the extent of his loss. The testimony of Miss Pettigrew, showed that the trunks when brought to the hotel contained valuable articles, most of them being such as were suitable to a lady's dress, and that at the time she left the hotel the trunk had not been robbed. The testimony of the servant Alice showed, that shortly afterwards it was discovered that Mrs. Pettigrew's trunk had been wrongfully opened and some of its contents taken out. The answer of Barnum, to the bill of discovery, showed also the violation of the trunk, and that the appearances indicated that a false key had been used. Miss Pettigrew's testimony further shows, that the articles enumerated in her deposition, were not in the possession of the plaintiff subsequently. These facts put the case clearly within the exception to the general rule, respecting the competency of the evidence of parties to a suit. 1 Gilbert's [**14]  Ev., 245. 2 Rolle's Abr., 686. 2 Evan's Pothier, 308. 12 Viner's Abr., 24, sec. 34 and 26, sec. 5. 1 Greenleaf's Ev., sec. 348. 23 Eng. C. L. Rep., 335, Lancum vs. Lovell. 1 Greenleaf's Rep., 27, Herman vs. Drinkwater. 1 Yeates, 34, Sneider vs. Geiss. 3 Barr., 451, McGill vs. Rowland. 8 Watts & Sergt., 369, Whitesell vs. Crane. 11 Missouri, 230, Sparr vs. Wellman. 9 Humph., 385, Openheimer vs. Edney. 11 Humph., 419, Johnson vs. Stone. 16 Pet., 203, United States vs. Murphy.

2nd. The appellant's second prayer correctly announced the law. The responsibility of an inn-keeper, for the loss of goods belonging to his guests, is settled by the law, and does not depend in any degree upon the assent of the inn-keeper himself. A notice that he will not be responsible for losses, is merely a denial of his fixed legal liabilities, which can have no effect. Still less could such a notice avail in the case, where neither the guest nor any companion had read the notice or knew of its contents, and when the loss occurred without any default or negligence on their part. The notice could not avail the inn-keepers, on the idea of a contract between them and their guest, because there can be no contract,  [**15]  unless the terms are, at least, known to both parties. Moreover, this action is not founded on a contract express or implied, but it is ex delicto for a breach of a legal duty. 8 Coke, 32, Calye's Case. 1 Smith's Lead. Cases, 47. 37 Eng. Law & Eq. Rep., 176, Cashill vs. Wright. 22 Eng. C. L. Rep., 186, Kent vs. Shuckard. Notes to Coggs vs. Barnard, in Hare & Wallace's Ed. of Smith's Lead. Cases, 266, 274 to 280. 6 H. & J. 47, Towson vs. Havre-de-Grace Bank. 4 H. & J. 391, White vs. Wagner. 6 How., 344, 382, New Jersey Steam Nav. Co., vs. Merchants Bank.

I. Nevitt Steele for the appellees, argued:

1st. That the court did not err in refusing to permit the evidence offered in the first exception, to go to the jury. 1st. Because the plaintiff was not a competent witness in the cause. The appellees were not in fault, and by the English authorities, the rule which excludes a party from testifying in his own case, is relaxed only in odium spoliatoris. But he was at most, only competent to prove the contents of his trunk, while this second interrogatory and his answer thereto, are intended to, and do directly and positively prove the fact of the robbery and the circumstances [**16]  attending it. 2nd. Because the necessity for the introduction of the plaintiff's own testimony, upon which alone, according to the American authorities, its admissibility could be founded, did not exist in this case. Miss Pettigrew's evidence establishes the fact, that the contents of the trunk, with but one or two exceptions, were known to her, and can it be contended, that because of the failure of the memory of a competent witness, as to some of the articles, this makes a case of necessity, so as to allow the plaintiff to prove his own case? 3rd. Because if the plaintiff's own deposition was admissible at all under the circumstances, (which is denied,) it was only admissible after the fact of the robbery had been satisfactorily established by evidence aliunde, and the evidence of that fact, offered in this case, was not sufficient to justify the admission of the interrogatory and answer, which the plaintiff proposed to read to the jury. For these positions see 1 Greenleaf's Ev., sec. 348. 12 Metcalf, 44, Snow vs. The Eastern Rail Road Co. 11 Humph., 421, Johnson vs. Stone. 1 Greenleaf's Rep., 27, Herman vs. Drinkwater. 11 Missouri, 235, Sparr vs. Wellman. 12 Georgia Rep., 221, Dibble [**17]  vs. Brown, et al. 2 Car. & Payne, 610, Butler vs. Basing. 9 Eng. Law & Eq. Rep., 480, Great Northern Railway Co., vs. Shepherd.

2nd. That the court properly rejected the second prayer of the appellant. 1st. Because his first prayer gave him all the law he was entitled to, and in fact goes further than the second, and the granting, therefore, of this second prayer, would have been a matter of supererogation, and its refusal did the appellant no injury. 2nd. Because the notice referred to in this prayer, particularly after the attention of Miss Pettigrew had been called to it by the witness Alice, was evidence proper to go to the jury, upon the question expressly submitted to them by the first prayer of the appellant, and also by the first prayer of the appellees, as to whether the loss was the direct consequence of the fault and negligence of the plaintiff, or of some companion or companions of his. 3rd. Because the prayer says, the defendant can derive no benefit from the notice, which is equivalent to asking the court to reject the evidence, and the evidence being once in without objection, it was too late to make the objection afterwards. 8 Gill 120, Sparks vs. Dent. 5  [**18]  Gill 120, Dent vs. Hancock.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON, TUCK and BARTOL, J.  

OPINIONBY:
TUCK 

OPINION:

 [*443]  TUCK, J., delivered the opinion of this court.
The appellant sued the appellees to recover damages for the 

 [*444]  robbery of his wife's trunk, while a guest at their hotel. After having offered evidence tending to prove the robbery, the plaintiff proposed to show by his own testimony, taken under a commission, that the articles alleged to have been stolen were in the trunk, and the value of them. The entire deposition having been objected to, and rejected, he offered the second interrogatory propounded to himself, and the answer thereto, which were also objected to, and excluded, and to this last ruling the first exception was taken.
The question therefore is, how far, if at all, inn-keepers may be charged with such losses, upon the evidence of their guests? and when we consider the amount of travel in this country, the subject is of great interest to the community as well as proprietors of hotels. As the loss happened before the passage of the act of 1854, ch. 323, the case must be disposed of according to the law as it stood at that time.  [**19]  
The exception to the general law of evidence on which the appellant relies, was applied many years ago, in England, to the liability of carriers, and also in other actions, where the nature of the transaction did not admit of better evidence. It is said, however, that the rule which excludes a party from testifying in his own case, was relaxed in these instances, in odium spoliatoris, and that, as these appellees did not commit the wrong complained of, the case is not an exception to the rule. We are not satisfied that this is the only ground on which the admissibility of such proof depends. One of the earliest decisions was against a carrier, where it did not appear that he had converted the box to his own use; and in another, under the Statute of Winton, the inhabitants of the hundred were as guiltless of the robbery, with the consequences of which they were charged, as are the appellees here. As against a defendant who had himself committed the act, and possessed the means of showing the damage, by producing the articles, the strongest presumptions would arise, and in such a case the plaintiff's oath would be received with greater propriety, in odium spoliatoris. And [**20]  the same reason would apply in criminal prosecutions.  6 Md. 88. Broon's Maxims, 425.  116 Peters 203. But even then the admissibility of 

 [*445]  the proof in civil actions would depend on the nature of the case; for there are many torts which go unredressed, by defect of competent evidence, though the acts complained of are of the most grievous and oppressive character; for the reason, that as a general rule, actions ex delicto as well as those ex contractu, must be supported by the oaths of disinterested witnesses. Where these are not to be had justice often fails, and the wrong-doer succeeds, unless the case be excluded from the operation of general principles.
But the cases which appear to be the foundation of this doctrine, do not place it on the ground suggested in argument. Ch. Baron Gilbert, (Ev., 128, 129,) speaking of actions under the Statute of Winton, says: that the exception was introduced, because the remedy would be totally denied to the party, if he were not accepted as a witness, inasmuch as, "no person can be supposed present in such transactions to give their evidence." As showing early authority for this [**21]  exception, now for the first time applied in this court, and to place its introduction on what we consider the proper basis, we give at length two cases which we find referred to, and recognized in almost all the elementary works, and in most of the reported decisions, on this branch of the law.
In 12 Viner 24, pl., 34, it is said: "On a trial at Bodmyn, Coram Montague B., against a common carrier, a question arose about the things in a box; and he declared that this was one of those cases where the party himself might be a witness, propter necessitatem rei. For every one did not know what he put into his box." The case of Bennet vs. Hundred of Hertford, 2 Rolle 685, is thus rendered, in Norris' Peake, 223, note: "In an action against a hundred, brought by the master, being a carrier, for a robbery committed on his servant in the absence of the master, quere, whether the master, being the plaintiff in the action brought, may be a witness to prove that he delivered the moneys, of which his servant swears he was robbed, before his servant set out on his journey in which he was robbed? for this might be proved by any other, and no person is to be a witness [**22]  in his own cause, but for necessity; as if he himself had been robbed, although that 

 [*446]  he was plaintiff, yet he might be a good witness to prove himself to have been robbed, and of what sum or things, and also to prove that he gave notice to the next ville and levied hue and cry, for this is of necessity for default of other proof. But as to proving the delivery of the money to his servant before the robbery, and before he set out on his journey, this might be proved by any other as well as by him, although it was objected, that it is not safe nor usual for men to call witnesses, when they deliver money to carry on a journey, on account of the danger of discovery, and for this reason per curiam, against my opinion, it was ruled that he should be received as a witness." And in the same note, it is said, that a similar case occurred before Mr. Justice Chambre, (in 1802, M. S.,) where a mob having robbed the plaintiff's barge of corn, which was carried in it, that part of the case was proved by the servant, but he not knowing the quantity on board, and this case (in Rolle,) being cited, his lordship, on the authority of it, allowed the plaintiff to be examined to prove [**23]  that fact. Bullers N. P., at page 289, states as an exception to the general rule, that "a party interested will be admitted, where no other evidence is reasonably to be expected," and in Lancum vs. Lovell, 9 Bingh. 465, (23 Eng. C. L. Rep. 335,) it was held, by the fourteen judges, that the case before them, an action for toll claimed on a road, came expressly within this exception of Mr. Justice Buller, because the nature of the case was such, that no other proof could reasonably be expected than that offered. See also 1 Phillip's Ev., 59.
These cases show, that the admissibility of such proof is recognized in England as established law, and that this exception is founded upon necessity, and was allowed for the attainment of justice, in certain cases, in which it would fail if the ordinary rules were applied.
The same point has been frequently ruled in this country, where the question appears to have arisen oftener than in England, and with a single exception, as far as we are informed, the decisions have followed the English doctrine. The only case the other way is that of Snow vs. The Eastern Rail Road Co., 12 Metcalf 44. The cases referred [**24]  to by the appellant's 

 [*447]  counsel, indicate that inn-keepers, carriers, railroad and steam boat companies, and stage owners, have been deemed as coming within the exception, and that necessity has been considered as fully justifying a departure from the general rule. Greenleaf, (Vol. 1, sec. 348,) says: "Such evidence is admitted, not solely on the ground of the just odium entertained, both in equity and at law, against spoliation, but also because, from the necessity of the case and the nature of the subject, no proof can otherwise be expected; it not being usual even for the most prudent persons, in such cases, to exhibit the contents of their trunk to strangers, or to provide other evidence of their value." Ibid., sec. 349.  Clark vs. Spence, 10 Watts 335. United States vs. Murphy, 16 Peters 203.
This application of the law of evidence to inn-keepers, is quite compatible with, nay, in most cases necessary, to insure the performance of the duties assumed by the landlord. In considering the rights and obligations arising out of particular relations, it is competent for courts of justice to regard considerations of policy [**25]  and general convenience, and to draw from them such rules as will, in their practical application, best promote the safety and security of all concerned. Hence, common carriers and inn-keepers, are made liable without regard to actual fault or neglect, because they can best guard against danger, and because, in case of loss, it would be difficult for the owner to adduce proof of embezzlement or other actual fault or neglect on the part of the defendant. Landlords can secure the attendance of faithful servants and guard their houses against thieves. "The rule is founded on the expediency of throwing the risk upon those who can best guard against it." Farwell vs. Boston & Worcester R. R. Co., 4 Metcalf 49. When a person opens an inn, he assumes a relation to the public which renders this mode of proof necessary to the protection of his guests. Whilst at large they may take measures to secure their baggage, but arrived at the hotel, the traveller has little agency in the means employed to that end. These depend on the regulations of the house, with which he has nothing to do. The baggage comes under the care of the establishment, and this custody is assumed as part 

 [*448]   [**26]  of the service to be rendered for the price to be paid. The proprietor stipulates for the honesty of his servants, and for the safety of baggage, except as against losses by means not necessary to mention in this case. And, because it is not tolerated that trunks shall be subjected to inspection, nor indeed supposed that landlords desire such exposure of private baggage; and because travellers are not expected in anticipation of probable loss, to have persons attending their movements, and noticing what they put in, and what they remove from their trunks, from time to time, the law, upon grounds of necessity and general convenience, allows a party to be his own witness. If this were not so, it would be a complete immunity to the inn-keepers; contrary to one of the conditions on which he and his guest are presumed to come together, viz., that his baggage shall be safe. For, we may as well declare, at once, that the guest shall be his own insurer, while at the inn, as to deny to him the only evidence which he can reasonably be expected to furnish in case of loss.
It may happen, as suggested in the argument, that mischief will result, by enabling dishonest persons to perpetrate frauds.  [**27]  This, however, may occur in any case where controversies are to be determined by oral testimony; for all suitors subject themselves to the risk and consequences of false swearing by the witnesses of their adversaries. It is true, that the interest which a party feels in the result, is a greater temptation to perjury than is presented to witnesses in general, but this consideration must yield to the necessity of the case, and the peculiar relations of persons in the predicament of these parties. The defendant, however, is allowed the benefit of the new character which the plaintiff assumes on taking the witness' stand. He may be cross-examined, impeached or rebutted, nd dealt with, in all respects, like other witnesses; and, in many cases, a searching examination of the party himself, as to his position, means and habits, will furnish the most certain test as to the probability, that the trunk contained the articles in respect to which the action may be brought.
The introduction of a party's oath, as we have seen, depends on the nature of the subject, and the necessity of the 

 [*449]  case. If he has disinterested witnesses to prove what the law would otherwise allow him to show [**28]  by his own oath, they should be produced. Hence, in this case, the position of the appellees' counsel, that Miss Pettigrew's deposition proved all that the plaintiff proposed to establish by his own, would be an answer to the offer of the plaintiff's oath, if they had proved the same facts. But, on examining her evidence, we find that she knows nothing of the circumstances, (having previously left the hotel.) All that she says, bearing on this point, is, "I do know that the trunks referred to, contained articles of value." Again, she says, "the trunks of plaintiff and his wife, contained jewelry and other articles." She nowhere states that the wife's trunk contained all these articles, or any specified portion of them. She knew nothing of the alleged robbery, and not knowing which of the trunks had been opened, she could not say that the one said to have been robbed contained the articles mentioned by her. The amount of her proof is, that her brother and his wife had these things in their trunks; and was of little effect in the cause, except to show that they had owned such articles, and the value of some of them. It is a case, then, where it does not appear, that the plaintiff [**29]  had other proof to which he might have resorted, as to the contents of this particular trunk.
A question sometimes arises, as to the extent to which a party will be allowed to testify; that is to say, what articles he may prove to have been in his trunk. As a general rule, a landlord is liable only for what is considered baggage, and not for every article that the guest may choose to carry with him. But what is the baggage of a traveller, depends so much on circumstances, such as his position, habits, taste and mode of living and travelling, that it is easier to say, in a given instance, whether an article is embraced, than to lay down a general rule that will apply to all cases. We do not think the term embraces merchandize or other valuables not designed for use, or personal convenience, on the journey. It is not within the implied contract of the landlord, that he will be responsible for all goods which may be brought to his house, merely because they happen to be in a trunk. If so, it is not easy to 

 [*450]  define to what extent the power of the guest may be abused, and advantage taken by him, as against the landlord. 10 Watts 335. 25 Wend., 459. [**30]  Story on Bailments, 499.  11 Humph., 419. 12 Ga. 224. 9 Wend., 115. 6 Hill, 589.
In the present case, we find that the trunk contained silver knives, forks and spoons. For them the appellees were not responsible. If a party may recover for these, why may he not for many dozens of the same articles, or for any description and amount of plate? This we take to be in accordance with the reason of the case, and is supported by authority. But, for personal ornaments, appropriate for a traveller's wardrobe, a landlord may be liable. And, inasmuch as the answer to the second interrogatory, contained evidence admissible under the pleadings, namely, proof of the jewelry, as part of the contents of the trunk, it should not have been altogether excluded.
It was contended, on the part of the appellees, that this answer also contained evidence of the robbery, and that the plaintiff being incompetent for that purpose, it should have been rejected for that reason. We are not prepared to say, that a guest cannot, in any case, prove the loss of his baggage, by his own oath. The general rule is, that he cannot; but instances may [**31]  occur, where the reception of such testimony would be necessary to the ends of justice, and also within the reason of the rule which governs this class of cases. For example, it is in proof in this record, that the chamber-maid had a master-key to the rooms under her care; and that there were notices in the rooms for lodgers to leave their keys at the office. What security would locking the door by the guest afford against the improper use of the master-key, or of the one left at the office? If the room be entered and robbed, in his absence, and no signs of violence appear, ought the guest to be required to produce other proof of a fact that it is quite manifest he cannot so establish? And yet it is plain, that under this hypothesis he might be injured by the very agents of the landlord, who, of course would not testify against themselves. The case supposed, would be within the reason assigned by Ch. Baron Gilbert, "that no person can be supposed present in such transactions to give their evidence." These remarks 

 [*451]  are made, not as applying to this action, but to avoid a conclusion hereafter. As we have said, the plaintiff had offered other evidence of the robbery, and his [**32]  own oath, if admissible under a different state of case, was not necessary for that purpose. And so also we may add, in reference to this deposition, as containing evidence of the value of the jewelry, if relied upon for that purpose, that the party's oath of the value, if received at all, can only be where the nature of the subject and the necessity of the case are within the reason of the exception. There appears to be some diversity among the cases, and as this record does not need any expression of opinion by us, there being other proof of the fact by the plaintiff's sister, we confine ourselves to admitting the answer to the second interrogatory, as evidence of the contents of the trunk.
There is, to be sure, difficulty, sometimes, in separating what is admissible from what the law rejects, so as to enable the party objecting to bring the precise point before the court, and this is more likely to occur in offering interrogatories and answers under a commission. Where, however, it can be done it should be, as in Calvert vs. Coxe, 1 Gill 95. If the matters are so blended as to be inseparable for the purpose of distinct objections, the party may accomplish his [**33]  object by asking an instruction as to the applicability of the evidence, and its effect on the case or any branch of it.  Pegg vs. Warford, 7 Md. 582. Carroll vs. Granite Manf. Company, 11 Md. 399.
Without expressing any opinion upon the law of the plaintiff's second prayer, we may remark, that if correct, its refusal furnishes no sufficient ground for reversing the judgment. His first prayer, granted by the court, had given the law to the jury, as favorably as he could have desired, deciding, among other points, that the landlord's liability was not limited by the notice; whether it was read or not, therefore, could make no difference. It has been frequently ruled, that a prayer, the subject of which is covered by previous instructions, ought not to be granted, because such repetitions are calculated to embarrass the jury and may mislead them.  Mutual Ins. Co., vs Cohen, 3 Gill 459. Stokes vs. Saltonstall, 13 Peters 181.
Judgment reversed, and procedendo ordered. 

17 of 187 DOCUMENTS 

HENRY TRIEBERT vs. JOHN BURGESS and others, and JOHN BURGESS and others vs. HENRY TRIEBERT.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 452; 1857 Md. LEXIS 55 

DECEMBER, 1857, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Baltimore city.

In this case, Triebert, the defendant below, appealed from an order granting an injunction and appointing a receiver, upon a bill filed against him by Burgess and others, and the latter, the complainants below, appealed from an order directing the receiver to deliver to the defendant all the property taken from him by virtue of the receiver's appointment, passed on motion of the defendant, after he had filed an appeal bond upon his appeal from the previous order.

The bill filed by Burgess and others, partners, under the firm of Burgess, Dale & Goddard, on the 10th of November 1857, alleges, that upon the application of Triebert, who is, and for some time has been, engaged in the business of buying and selling china, glass and queensware in Baltimore, the complainants, who are importers of such goods in New York, sold and delivered to him, from time to time, large quantities of goods, of which an account is filed as an exhibit with the bill; that on the 29th of September 1857, a considerable amount, though not the whole, being then due for the goods, and the complainants pressing for payment, and Triebert, not having or possessing [**2]  the necessary means then in his hands, proposed to complainants to give them a bill of sale of all his stock in trade in Baltimore, to secure them, by way of mortgage, as well his matured as his maturing indebtedness, and also the further sum of $ 900, to be lent and advanced him by them, provided they would lend and advance him $ 900 in cash, which proposition complainants agreed to and accepted, and on that day paid to Triebert the stipulated sum of $ 900, in consideration of which he had promised to give them his bill of sale, by way of mortgage, of his stock in trade, and was bound by it; that the greater part of the indebtedness of Triebert to them, for his purchases as well as this $ 900, is due, with the exception of $ 200 paid them; that they have applied to him to execute the mortgage he had stipulated to make, but he has neglected and refused to do so.

The bill further charges, that the stock in trade of Triebert, consisting of china, glass and queensware, in the store occupied by him, on Baltimore street, is the same (except where he may have sold part) which was held by him at the time of his aforesaid promise, and which he then undertook to convey to complainants [**3]  as security; that he not only refuses to perform his undertaking, but is selling the stock and receiving the proceeds, which he is applying to his own use, and fails to pay over to complainants, and is thereby daily diminishing their security; that he is greatly embarrassed in his circumstances, at this time, and has created one or more liens, in favor of one or more of his creditors, on other property belonging to him, being thereto pressed and unable otherwise to satisfy the demand made on him, and they apprehend and charge there is great danger that Triebert will dispose of the whole of his said stock in trade, or give liens thereon, to persons unaware of their claims and equitable lien in the premises, and so put said stock in trade, and the proceeds thereof, beyond their reach. And they further charge, that if liens are so created in favor of other persons on said stock, or the same shall be sold by Triebert, and the proceeds pass into his hands, there is great danger that they will not only lose their promised security, which is now ample for their debt, but also their debt itself, it being the belief of the complainants, which they hereby charge, that Triebert is largely indebted [**4]  beyond his means of payment; that they are advised they have, under the circumstances above stated, an equitable lien on said stock in trade, and as the whole indebtedness which it was meant to secure, has now matured, they are entitled to a sale of the same, under a decree, for the satisfaction of their debt, and, in the mean time, to the protection of the court, through the medium of a receiver, against what they charge to be, on the part of Triebert, not only a fraudulent denial of the security promised them, but also a fraudulent misappropriation, to their irreparable injury, of the property agreed to be mortgaged to them.

The bill then prays for a decree that the complainants may have and hold the said stock in trade as security for the indebtedness of Triebert, in manner and form as promised, and for a sale thereof, and also for an injunction restraining Triebert from selling or disposing of the same, and for a receiver to take charge of said stock in trade, and hold the same subject to the order of the court, and for general relief.

The affidavit to this bill is stated in the opinion of this court. On the same day on which it was filed, the court (KREBS, J.) passed [**5]  the order from which the defendant appealed, and, on the next day, that from which the complainants appealed. Both these orders are fully stated in the opinion of this court.  

DISPOSITION:
Order reversed in part, and affirmed in part, and cause remanded for further proceedings.  

HEADNOTES:

An affidavit to a bill for an injunction, "that the facts stated in the bill are true to the best of his (complainant's) knowledge and belief," is sufficient.

Unless the necessity be of the most stringent character, the court will not appoint a receiver until the defendant is first heard in response to the application.

An order directing to be delivered to the receiver "the goods, wares, and merchandise, and effects" of the defendant, when his agreement, as stated in the bill, was, that he would give a mortgage "of all his stock in trade in the city of Baltimore," is erroneous, because too comprehensive.

The provisions of the insolvent act of 1854, ch. 193, which make void judgments, decrees, conveyances and assignments, for fraud, or for gaining undue preferences, relate only to cases of insolvency in which there have been petitions for the benefit of that act.

When no particular time for payment is limited in a mortgage, it is to be paid in a reasonable time, and if the payment is not so made, the mortgagee is entitled to a foreclosure.

A parol contract for a mortgage of personal property, based upon a valuable consideration, may be enforced in a court of equity, if the contract is not such as the statute of frauds requires to be in writing.

In such a case a creditor, to secure whose claim the contract was made, has an equitable lien upon the property agreed to be mortgaged, and there being no reasonable ground to believe he could secure payment of his claim except by enforcing this lien, he is entitled to an injunction to restrain the debtor from disposing of the property.  

COUNSEL:
George William Brown for the defendant below, argued:

1st. That even if the allegations of the bill were clearly proved, an injunction should not have been granted, because the bill substantially alleges that the defendant was insolvent, and if so, he had no reasonable expectation of being exempted from liability or execution on account of his debts, without petitioning for the benefit of the insolvent laws. The complainants had full knowledge of his insolvency, and the contract sought to be enforced by them, was an attempt to obtain an undue and improper preference, and, to enforce it, would be in violation of the policy of our insolvent system, (Act of 1854, ch. 193, secs. 6, 7, 8, 10,) and if the insolvent laws do not apply to the case, still the court would not enforce such a contract in such a case, because it would be contrary to the doctrine of equity that equality is the highest equity.

2nd. The contract [**6]  is too indefinite to be specifically enforced. It is of the essence of a contract of mortgage that time should be agreed upon. What was the time to be given for the repayment of the $ 900 advanced? None was agreed upon, and the court cannot undertake to fix it. Nor does it appear whether there was any contract as to the custody of the property until the mortgage debt matured. At the time the bill was filed, a large portion of this debt was not due. The contract was uncertain in this particular, and yet the court, by seizing the entire property of the defendant arbitrarily and without any proof, undertake to fix it. This it certainly could not do.

3rd. A mere parol agreement for a mortgage of personal property, gives no title in equity, and where a party is simply a general creditor, and has not prosecuted his claim to judgment and execution, nor acquired a lien on the debtor's property, he is not entitled to an injunction. The decision in Uhl vs. Dillon, 10 Md. 503, governs this case, for the complainants have acquired no lien, and only set up an equitable claim to a lien, which is not proved nor admitted.

4th. The affidavit made to the bill, by Burgess, one of the complainants,  [**7]  is, that the facts "stated in the bill are true to the best of his knowledge and belief." But he does not profess to have any personal knowledge of the facts, nor does he show how his knowledge and belief are derived. His knowledge and belief may have been derived from the report of others, for the bill does not charge that the alleged contract was made with him, or that any of the business was transacted by him. If so derived, he might not be liable to an indictment for perjury, even if the allegations were all false. Such an affidavit is unsufficient evidence to sustain an order for an injunction. 4 Price, 346, Scott vs. Becher. 1 Bland, 422, Williamson vs. Wilson. 6 Ves., 786, Davis vs. Leo. 1 Barb. Ch. Pr., 44. 2 Barb. Ch. Pr., 361.

5th. The order appointing a receiver, was clearly wrong. He was appointed before answer, without motion, and before notice to the defendant. This is in violation of the general rule, and can only be done in a case of pressing necessity, and on clear proof to meet the exigency of a special case, and no such necessity existed here. Again, a receiver will not be appointed where a defendant, as in this case, is in possession under a legal title. This [**8]  rule is only departed from in cases of fraud clearly proved, and of imminent danger to the property, and strong ground of title in the claimant. (Note.--This case was argued before the case of Blondheim, et al., vs. Moore, ante 365, was decided, and the authorities cited upon this point, being the same as those in that case, need not be here repeated.) But there are other objections to this order. The bill asks only for the appointment of a receiver of the stock in trade of the defendant, in pursuance of an alleged contract, but the order went far beyond this, and directed the receiver to take possession of all the goods, wares, merchandise, and effects of, or belonging to, the defendant. This is clearly wrong. It dispossessed the defendant of every species of property, even more completely than if he had applied for the benefit of the insolvent laws. Act of 1854, ch. 193, sec. 1. Again, the receiver appointed was a solicitor of the complainants, and for this reason the order was improper. Edwards on Receivers, 54, 66. 11 Paige, 200, Warren vs. Sprague. 1 Hogan, 322, Wilson vs. Poe. 2 Ves., Jr., 137, Garland vs. Garland. 2 Merivale, 452, Ex-parte Pincke. (Note.--As to this last objection,  [**9]  the court stopped the counsel on the other side, saying the appointment of the solicitor as receiver was no cause for reversal of the order.)

As to the appeal by the complainants, it is insisted, 1st, that the order of the court on the receiver, to deliver over the property after the appeal bond was filed by Triebert, is not one from which an appeal can be taken; and 2nd, that the filing of the appeal bond rendered such an order necessary.

Jas. Malcolm and J. Mason Campbell for the complainants below, argued:

1st. The case, on this appeal, coming before the court upon the bill alone, (10 Md. 429, McCann vs. Taylor,) it is insisted that equity has jurisdiction, and will enforce a parol contract to give a security upon personal property. This is conclusively settled, so far as the law of this State is concerned, by the case of Alexander vs. Ghiselin, 5 Gill 138. See, also, 4 Kent., 140. Miller on Equitable Mortgages, 16, 28. 2 Sch. & Lef., 382, Card vs. Jaffray. 1 Cox, 211, Beckett vs. Cordloy. 2 Atk., 347, Matthews vs. Cartwright. 9 How., 390, Tayloe vs. Merchants Fire Ins. Co. 19 Eng. Law & Eq. Rep., 57, Bell vs. Carter. 2 Amer. Law Reg., 20, Wright vs. Shumway.  [**10]  

2nd. There is no validity in the several special objections urged against this bill, and the contract set out in it. 1st. To enforce this contract would be no violation of the policy of our insolvent system. The contracts and conveyances which the act of 1854, ch. 193, annuls, are those which are made in cases of technical insolvency, where the parties petition for the benefit of the insolvent laws, and no such insolvency is shown in this case. 4 Gill 38, Wheeler vs. Stone. 9 Gill 231, Powles vs. Dilley. And, besides, the case of Alexander vs. Ghiselin shows that a parol agreement to execute a mortgage will be enforced in equity, notwithstanding even a technical insolvency. 2nd. That no time was fixed for the payment of the mortgage debt, and of redemption is immaterial. The loan of the $ 900 was payable on demand, and the mortgage accommodates itself to the debt; no time need be mentioned. Again, when the decree is passed under the act of 1785, ch. 72, the time for payment can be regulated at the discretion of the court. See, also, Miller on Equitable Mortgages, 16, 27. 3rd. Nor is there any force in the objection to the sufficiency of the affidavit to the bill. The form [**11]  is that in which such affidavits have always been made in this State. When a party swears that the facts stated in his bill are true to the best of his knowledge and belief, he swears that to his best knowledge they are true, and if any of the facts are within his personal knowledge, this affidavit subjects him to perjury if they are found to be false; and if a man swears he believes that to be true which he knows to be false, it is perjury.

3rd. That such a contract having been made in this case, upon a valuable consideration paid therefor by the complainants, the defendant was, as to the complainants, a trustee of the property embraced by such a contract, (Hunt vs. Rousmaniere, 1 Pet., 17,) and that his fraud, coupled with imminent danger of irreparable loss, rendered an injunction and receiver the only available means to save the property pending the litigation. 1 Ves. & Bea., 183, Metcalfe vs. Pulvertoft. 13 Ves., 105, Hugonin vs. Basely. 16 Ves., 70, Lloyd vs. Passingham. 1 Md. Ch. Dec., 70, Clark vs. Ridgely. Ibid, 489, Thompson vs. Diffenderfer. 2 Md. Ch. Dec. 157, Dorsey vs. Roberts. 12 Ves., 5, Anonymous. 31 Eng. Law & Eq. Rep., 436. 3 Younge & Coll., 379. The order sufficiently [**12]  follows the bill; the word "effects" adds nothing to the meaning of the previous words, and, besides, the defendant was not bound to deliver any thing which the receiver had no authority to receive.

As to the appeal of the complainants, it is insisted that the order appealed from is erroneous. The act of 1853, ch. 374, only stayed the operation of the order from the time of bond given, and gives no retrospective effect to the bond or appeal. The court might have directed the receiver to proceed no further, but it could not undo what had been done; it might stay the further operation of the order, but could not treat it as rescinded by the appeal. 2 H. & J. 7, Beatty vs. Chapline.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON, TUCK and BARTOL, J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*459]  ECCLESTON, J., delivered the opinion of this court.
The bill and exhibits being filed, the court passed an order appointing a receiver, with authority, on his giving bond, to take charge and possession of the goods, wares, merchandise and effects of the defendant, and directing him to surrender the same to the receiver. The order also granted an injunction according to the prayer of the [**13]  bill, upon a bond being filed by the complainants, but reserving liberty to the defendant to move for the rescinding of the order, and for a dissolution of the injunction, at any time after filing his answer, on giving the complainants five days' previous notice of such motion.
This order is dated the 10th of November 1857, on which day the injunction issued, after the bond of the complainants and that of the receiver were filed.
On the following day the defendant filed his answer, entered an appeal from the order granting an injunction and appointing a receiver, and filed his appeal bond.
Afterwards, but on the same day, upon motion by the defendant, the court passed an order directing the receiver to deliver to the defendant all the property taken from him by virtue of the receiver's appointment. From which order the complainants appealed.
On the first appeal the solicitors of Triebert contend, that, admitting the allegations of the bill may be sufficient to entitle the complainants to the relief they ask, if the bill had been properly proved, or sworn to, still the order appealed from should not have been passed, because the affidavit of the complainant is defective, in not [**14]  stating positively his knowledge of the truth of the matters alleged, the oath being, "that the facts stated in the bill are true, to the best of his knowledge and belief."
In Coale vs. Chase, 1 Bland 136, the form of an affidavit to the answer was objected to, as being too vague, indefinite and general. The affidavit was, "that the several matters and facts set forth in the within and aforegoing answer are just and true as they are therein stated, according to the best of her knowledge, belief, and recollection." The chancellor admitted 

 [*460]  that, regularly, the affidavit in such cases should assert, "that the facts within the defendant's own knowledge are true, and that those facts not within his own knowledge he believes to be true." But because, in Maryland, there had been, as far back as his observation extended, a very great neglect of all regularity in the forms of such affidavits, the chancellor did not feel authorized to depart from even so improper a practice as to require more than a substantial sufficiency in such affidavits. He thought them sufficiently absolute and positive, if, when taken in connection with the body of the answer, the [**15]  party would be subject to a prosecution for perjury, in case the matters stated in the answer should be false. He held it to be well settled, that if a man swears he believes that to be true which he knows to be false, he swears as absolutely and is as criminal as if he had made a positive assertion; and may be prosecuted and punished for perjury. And although the chancellor did not think the affidavit so correctly expressed as it ought to have been, still, when taken in connection with the whole answer, he deemed it substantially sufficient; because if any of the allegations of the answer were false, the defendant would be as clearly liable to a prosecution for perjury as if the affidavit had been couched in the most positive terms. Upon which answer, thus sworn to, the injunction previously granted was dissolved.
At one time it was held, in England, that a man who swore to his belief could not be prosecuted for perjury; but this has been overruled by more recent authorities, which sustain the doctrine stated by Chancellor Bland.
In 3 Waterman's Archb. Crim. Prac. & Plead., 596, it appears, that in the Common Pleas, in 1780, Lord Loughborough and other judges "were unanimous [**16]  that belief was to be considered as an absolute term, and that an indictment might be supported upon it." See, also, Commonwealth vs. Warden, 11 Metcalf 406.
The matters set forth in the present bill, which could be supposed to be within the knowledge of the complainants, are not stated as believed by them upon information received from other sources than their own knowledge; but the allegations 

 [*461]  in the bill are stated in the usual manner of averring facts as based upon the knowledge of the complainants. And, in view of the long established practice in this State, we cannot sustain the defendant's objection to the form of the affidavit. When the facts, as here stated, are sworn to by a party to be true, "according to the best of his knowledge and belief," he must be considered as making a sufficiently positive assertion that they are true.
Triebert, as appellant, objects to the order of the 10th of November, both as regards the granting of the injunction and the appointment of a receiver. The portion relative to the receiver will be first disposed of.
This will not require a very extended examination, because in the case of Blondheim, et al., vs. Moore,  [**17]   decided during the present term, (ante 365,) this court has very clearly enunciated such rules in relation to the appointment of receivers as must settle the case before us on this subject.
One of the rules alluded to is: "That unless the necessity be of the most stringent character, the court will not appoint until the defendant is first heard in response to the application." In that case the appointment of a receiver, without notice to the defendants having been given, was held to be erroneous.
According to the principles there established, there is no such imperious necessity as should justify the appointment of a receiver without notice, in the case before us; especially as the defendants were merchants, residing in the city of Baltimore, but a short distance from the court in which the order was passed. And this order was erroneous, because too comprehensive. It directed to be delivered to the receiver "the goods, wares, and merchandise, and effects," of the defendant, whereas his agreement, as stated in the bill, was, that he would give a mortgage "of all his stock in trade in the city of Baltimore."
In reference to the injunction, the defendant insists, that the bill [**18]  does not present a case which entitles the complainants to a specific execution of the alleged agreement for a mortgage, and, therefore, the injunction should not have been granted. 

 [*462]  Different grounds are urged against the complainants' right to have a mortgage. One is, that the complainants had knowledge of the defendant's insolvency, and the arrangement alleged by them, by which, on the advance of $ 900, they were to have a mortgage on the defendant's entire stock in trade, to secure the advance and the entire debt due, and to become due from him to them, was an attempt to obtain an undue and improper preference. And to grant the relief asked, would be in opposition to the policy of our insolvent law of 1854, ch. 193, secs. 6, 7, 8 and 10. In support of this view, it is said, that the bill alleges the defendant to be greatly embarrassed in his circumstances, that he had created one or more liens in favor of one or more of his creditors on other property belonging to him, being thereto pressed, and unable otherwise to satisfy the demand made on him; that the complainants apprehend and charge there is great danger that the defendant will dispose of his whole stock in trade, [**19]  or give liens thereon, to persons unaware of the complainants' claims and equitable lien in the premises, and so put the said stock in trade, and the proceeds thereof, beyond the reach of the complainants; and they further allege, that if liens are so created in favor of other persons, on said stock, or the same shall be sold by the defendant, and the proceeds pass into his possession, there is great danger that they will not only lose their promised security, which is ample for their debt, but also their debt itself, it being the belief of the complainants that said defendant is largely indebted beyond his means of payment. It does not, however, appear that the defendant has ever become a petitioner for the benefit of the insolvent law; and we understand that he never was an insolvent petitioner.
It is manifest that the sections in the act of 1854, which have been referred to, relate only to cases of insolvency, in which there have been petitions for the benefit of that act. And in such cases, alone, does that law make void judgments, decrees, conveyances and assignments, for fraud or for giving undue preferences.
The 6th section declares, "That no person shall be released or discharged [**20]  under this act, who has conveyed, concealed or disposed of his property to defraud," &c.

 [*463]  The 7th section is, "That any confession of judgment, and any conveyance or assignment, made by any insolvent under this act, for the purpose of defrauding his creditors, or giving an undue preference, shall be void, and the property or thing conveyed or assigned, shall vest in the trustee, and that all acts done by a petitioner before his application, when he shall have had no reasonable expectation of being exempted from liability or execution, on account of his debts or responsibilities, without petitioning for the benefit of the insolvent laws, shall be deemed to be within the meaning and purview of this section."
The 8th section provides, "That any judgment or decree confessed to give an undue preference to any creditor, or for the purpose of defrauding any creditor, shall be void, and excluded in the distribution under this act."
The 10th section enacts, "That the estates of insolvents shall be distributed under the orders of the court, according to the principles of equity, and no creditor shall acquire a lien by fieri facias or attachment, unless [**21]  the same be levied before the filing of the petition." (The italics are ours.)
There having been no such insolvency shown as the act of 1854 contemplates, we are not prepared to say that its provisions can defeat the complainants' claim under the alleged contract for a mortgage. See, in Kettlewell vs. Stewart, 8 Gill 472, a note of the opinion delivered by Chief Justice Taney, in the case of White, Warner & Co., vs. Winn & Ross.
The present is a case in which the debtor himself is resisting the complainants' right to relief, but which is not opposed by creditors of the defendant, or by a trustee for them.
Another objection to this contract is, that it cannot be specifically enforced, because it is too indefinite, inasmuch as no time is limited for payment of the mortgage; and as the parties have agreed upon none, the court cannot undertake to fix it. Such an objection is not a valid one. Very recently, in Farrell vs. Bean, 10 Md. 217, this court has said: "When no particular time of payment is limited in a mortgage, 

 [*464]  it is to be paid in a reasonable time. And if the payment is not so made, the mortgagee is entitled [**22]  to a foreclosure." Moreover, a mortgagor cannot seriously apprehend being oppressed by want of proper time to pay, under a final decree, as this matter is at the discretion of the judge, who will, of course, regulate the time for payment under the decree, according to the equitable circumstances brought before him.
That, in Maryland, a parol contract for a mortgage of personal property, based upon a valuable consideration, may be enforced in a court of equity, if the contract is not such as the statute of frauds requires to be in writing, has been fully established in Alexander, et al., vs. Ghiselin, et al., 5 Gill 138, and Sullivan vs. Tuck, 1 Md. Ch. Dec. 59. According to the views of the chancellor, in the latter case, courts of equity do not specifically enforce contracts in respect to personal property, with the same facility and universality as contracts relating to real estate; the cause of which is, that in contracts of the first class, courts of law are generally competent to afford full redress. 2 Story's Eq., sec. 717. But when, at law, a party cannot have a complete and satisfactory remedy, although the contract relates to [**23]  personal estate, a court of equity will grant relief. Ibid., sec. 718.
Under the circumstances set forth in this bill, there was, in our opinion, an equitable lien upon the defendant's stock in trade, which authorized the court to grant the injunction. According to the facts stated, there was no reasonable ground to believe that the complainants could secure payment of their claim, except by enforcing their equitable lien.
On this appeal the answer is not before us, and we can only look to the bill and exhibits.
That portion of the order of the 10th of November 1857, which appointed the receiver, will be reversed, but the portion of it which relates to the injunction, will be affirmed.
Inasmuch as the receiver was improperly appointed, the appeal of the complainants from the order of the 11th of November, cannot be sustained, for, in any view of the case, that order did them no injury.

 [*465]  The order appealed from by Triebert, is reversed in part, and affirmed in part; and the parties are to pay their own costs in this court.
Order reversed in part, and affirmed in part, and cause remanded for further proceedings.
Upon the appeal of Burgess and others, the [**24]  same Judge delivered the opinion of this court:
From what has been said in the opinion delivered in the appeal of Triebert vs. Burgess and others, it will be seen that we think the order appealed from in this case ought to be affirmed. A decree accordingly will be signed, allowing costs in this court in favor of Triebert.
Order affirmed. 

18 of 187 DOCUMENTS 

EUPHRASIA COOKE, by prochein ami, vs. JOSEPH E. HUSBANDS, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 492; 1857 Md. LEXIS 59 

DECEMBER, 1857, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Baltimore city.

By his will, executed in 1833, William Mann devised to certain trustees all his real estate, in trust, for the following purposes, viz: "In trust that they, the said" trustees, "their heirs and assigns, do and shall pay one-half of the rents, issues and profits arising therefrom, unto such person or persons only, and for such intents and purposes only, as my said niece, Eurydice, by any writing or writings, under her hand and seal, from time to time, shall direct or appoint, notwithstanding any coverture she may be under, and in default of such direction or appointment, and in the mean time, until she shall make any such direction or appointment, do and shall pay the same, or so much whereof she shall from time to time happen to make no such appointment, into the proper hands of my said niece, exclusively of any husband she may happen to marry, who is not to intermeddle therewith, nor is the same, or any part thereof, to be subject or liable to such husband's control, debts or engagements; and I will and declare that the receipt of my said niece, or such person or persons as she shall or may, from time to time, direct or appoint [**2]  to receive such rents, issues, or profits, shall, notwithstanding any such coverture, be good and effectual releases and discharges for the same, or so much thereof as shall be expressed to be received; and from and immediately after the death of my said niece, Eurydice, the said trustees to hold her share of the said rents, issues and profits to the use of all and every the child and children of the said deceased, equally to be divided between or among them, if more than one, share and share alike, and if but one child, then to the use of the said child, and his or her heirs, executors, administrators and assigns, forever; provided, also, if there be a child or children, and such of them as shall be a son or sons, shall happen to die before he or they shall attain the age of twenty-one years, and such of them as shall be a daughter or daughters, shall happen to die before she or they shall attain her or their ages of twenty-one years, or be married, then, and in such case, it is my will that my said niece, Eurydice, shall be taken to have died without issue, and her share of the rents, issues and profits shall be held by the said trustees for the benefit of the surviving niece, or [**3]  her issue, as is hereinafter provided. And as to the remaining half of the said rents, issues and profits, I give the same to the said trustees, in trust, that they shall pay and apply it to the use of my niece, Euphrasia, and her issue, in the same manner and to the same purposes as is hereinbefore provided and limited for the use of my niece, Eurydice, and her issue; and in case of the death of either of my said nieces, without issue, during the life of the other, then the part, share and portion of such niece so dying, to be held for the use of the survivor of said nieces, and her issue, under the same provisions and limitations to which the original share was liable; and in the event of the death of both of my said nieces, without issue, then I give and devise the whole of the said real estate above devised, together with the rents, issues and profits therefrom arising" to certain other trustees, for the uses and purposes of an infirmary for children, &c.

The two nieces subsequently married, and on the 3rd of September 1841, they, with James Edwards, who had been appointed, by a decree of Baltimore county court, their trustee, in place of the trustees named in the will, executed [**4]  a deed to Joseph E. Husbands, of property held by the trustee under the will. This deed, between Edwards of the first part, Euphrasia Cooke and Eurydice Pennington of the second part, and Husbands of the third part, recites the provisions of the will, and also that "for the consideration hereinafter expressed, the parties of the second part have sold to the party of the third part hereto, all their estate and interest, right, title, use, trust, property, claim and demand whatsoever, of, in, unto and out of the several parcels of ground and premises hereinafter described, and the several rents issuing and payable thereout." It then proceeds: "Now this indenture witnesseth, that for and in consideration of" one dollar, to the party of the first part paid, by the party of the third part, "and of the sum of one thousand seven hundred dollars, lawful money, to the parties hereto of the second part also paid by the party of the third part," the receipt of which is acknowledged, "the said James Edwards, trustee as aforesaid, hath, by the direction and appointment of the parties of the second part hereto, testified by their being parties to, and signing, sealing and delivering these presents,  [**5]  granted, bargained and sold, aliened and conveyed, and by these presents doth, by the direction and appointment aforesaid, testified as aforesaid, grant, bargain and sell, alien and convey, and the said Euphrasia Cooke and Eurydice Pennington have, and each of them hath, granted, bargained and sold, aliened, enfeoffed and conveyed, and by these presents do, and each of them doth, grant, bargain and sell, alien, enfeoff and convey unto the said Joseph E. Husbands, his heirs and assigns, all the estate and interest, right and title of the said Euphrasia and Eurydice, of, in, unto and out of" five several pieces of ground and premises, which are particularly described in the deed, and are also recited as yielding annual rents under perpetual leases; "together with the improvements and appurtenances, and the reversion and reversions, rents, issues and profits thereof, and especially the aforesaid annual rents so as aforesaid reserved thereon, and issuing and payable thereout, and all the estate and interest, right and title of the parties hereto, of the second part, and each of them, in, unto and out of the same. To have and to hold the five several pieces or parcels of ground and premises [**6]  above described, and hereby granted and conveyed, or mentioned or meant and intended so to be, with the appurtenances, unto the said Joseph E. Husbands, his heirs and assigns, for and during the term of the natural lives of the said Euphrasia Cooke and Eurydice Pennington, to the end and intent that the said Joseph E. Husbands may, during the above period, be permitted to collect and receive the five several clear, annual rents aforesaid, for his own proper use, benefit and behoof, with full right and power to said Husbands to enforce, if need be, by all lawful ways and means; the payment of said rents."

The acknowledgment to this deed is made in the usual form by all the grantors, as if sui juris, there being no separate examination of the married women. Mrs. Pennington died without issue in April 1848, and on the 19th of December 1848, the bill in this case was filed in the High Court of Chancery, by Mrs. Cooke, against Husbands, the grantee in the above deed, Eber F. Cooke, her husband, and the trustee who had been appointed in place of Edwards.

The bill alleges that all that was contracted to be sold by the above deed, was Mrs. Pennington's interest, for life, in one-half [**7]  of these rents, and complainant's own interest, for life, in the other half, and not any interest or estate to devolve under the will on the one or the other, by the death of either, and that she executed and acknowledged said deed under the impression that it was conveying only the life interests of the two, and that it would not carry, or in any wise affect, the half that would devolve on her by the death of Mrs. Pennington; that Husbands now inequitably and fraudulently pretends that the phraseology of the deed accords this latter half to him, but insisting that no reasonable interpretation of the deed can assure to him such an interest, and relying on its terms as limiting his present rights to her own half, complainant insists that however the deed may be construed, the contract of sale should govern his claim, and that the deed, if necessary, should be reformed and modified to conform to said contract, and that so far as it apparently varies therefrom, it was executed in mistake. The bill further charges, that the deed is invalid, because, by the terms of the will, complainants was debarred from making any conveyance, in anticipation of accruing rents, of her interest in said [**8]  rents, and even if such a conveyance were admissible under the will, it cannot operate without the union therein of her husband, and her separate examination, as in ordinary assurances of a feme covert's estate.

The bill also charges, that the deed is inoperative as to the consideration which was paid in Tide Water Canal bonds; that the rents conveyed, amount to $ 275 per annum, and the consideration therefor, stated in the deed, is $ 1700, while the amount in fact paid, by disposition of the canal bonds, was but $ 850, they having sold at 50 cents in the dollar, instead of yielding 73 cents, agreeably to Husbands' assurances of their value, under which they were taken. It also insists that the deed was inoperative, because it was obtained by fraud and imposition, from complainant and Mrs. Pennington, for the benefit of their husbands, and to pay their husband's debts, without any part of the money coming to the complainant, and, in this aspect of the case, the bill claims that the deed shall be vacated and the property re-conveyed, at least, on Husbands being refunded, from the rents, his actual outlay therefor, as determined by the realized value of the canal bonds. It also [**9]  claims an account of rents received, and payment to the complainant, or for her benefit, of any balance found due upon the accounting.

The bill then prays for relief according to the several views in which the case is presented, and for an injunction restraining Husbands from collecting, and the tenants of the property from paying to him, any part of these rents, until the further order of the court, and that a receiver be appointed to collect and receive the same, and to hold, preserve and dispose of them as the court shall direct, and for general relief.

The deed and will were filed with the bill as exhibits. The chancellor (JOHNSON) granted the injunction as prayed, but ordered "the application for a receiver to stand over for the coming in of the answers."

The answer of Husbands denies that, by the death of Mrs. Pennington, any part of these rents became the property of the complainant, and charges that she parted with her whole interest therein by the deed. He avers, that on the day the deed was executed, he, with the two justices before whom it was acknowledged, and his counsel, went to the house of the complainant, and where her sister, Mrs. Pennington, was also [**10]  living, and that the deed was read to both of them, and one-half of the purchase money, in canal bonds, was then paid to Mrs. Pennington, and the other half was counted into the hands of the complainant; that when called on, by their husbands, to purchase the interests of these ladies in these ground rents, he told them he would purchase, provided the canal bonds would be received by the owners of the property, and he denies that he ever made any representations to any of the parties, as to the value of these bonds, but, on the contrary, repeatedly told both their husbands, during the negotiations, which lasted nearly six weeks, to go into the market and ascertain their value. He also denies that any false representation was made to the complainant, or her sister, in regard to the extent of the estate conveyed by the deed, but that when the deed was read to them they were informed, that, if they signed it, they would thereby part with all their interest in the ground rents thereby conveyed. He denies that he had any knowledge of the pecuniary condition of the husbands, or that they, or either of them, designed to, or did, apply the money paid to their respective wives, to their own [**11]  use. And this respondent further says, that the contract made on his part is clearly expressed in the deed which the complainant has filed in this court, and that said contract requires no reforming or changing, to carry out the true intent of the parties. He further denies that the deed is in any manner defective, or that it was at all necessary for her husband to have united in executing it, or that she was in any way debarred from directing her trustee to dispose of the property, and further denies all manner of unlawful combination, fraud and confederacy wherewith he is charged by the bill.

Cooke, in his answer, says, that all is true that is stated in the bill, concerning the negotiation for, and transfer of, the interest of his wife in these rents, and states that the interest agreed by respondent (his wife not having been a party to the agreement) to be conveyed, was only the interest then actually in his wife for life, and none that might, by the death of her sister, accrue to her, and that neither his wife nor himself believed that any further interest was conveyed, and that the representations and understanding expressed when the deed was executed, were all to that purport,  [**12]  positively and strictly. He also admits that the other allegations of the bill are true. The trustee, in his answer, says, he is a stranger to the matters complained of in the bill, and submits to such decree as the court may deem proper to pass.

A commission was then issued, and testimony taken, the purport of which is sufficiently stated in the opinion of this court. The cause was then removed to the circuit court for Baltimore city, where it was argued, and the court (KREBS, J.) decided that the will gave to the nieces the power of disposition of these rents, and prescribed the particular mode in which they were to do it, and that, by the terms of this power so given, they were authorized to make an absolute or sweeping disposition thereof. He also decided that the deed was a valid exercise of the power in the mode directed by the will, and that it conveyed the contingent interest which vested in the complainant upon the death of her sister, as well as the complainants own life-estate, and that there was no sufficient proof of fraud or mistake so as to authorize the court either to vacate or reform it. He therefore passed a decree, dissolving the injunction and dismissing the [**13]  bill, and from this the complainant appealed.  

DISPOSITION:
Reversed and remanded with costs.  

HEADNOTES:

In equity, a married woman is to be treated as a feme sole, in respect to her separate estate, and where the instrument creating the estate contains no limitation on the power of disposition, she may dispose of it as a feme sole, upon the principle that the jus disponendi accompanies the property.

But where a mode of alienation, or of appointment, is provided in the instrument creating the estate, that mode must be pursued, for it operates as a negation of any other, and is a paramount law, governing and controlling every contract in relation to the property.

A testator devised all his real estate to trustees, in trust, to pay the rents and profits thereof to such persons and purposes as his two nieces shall, by any writing or writings, under their hands and seals, "from time to time" direct and appoint, notwithstanding their covertures, and in default of such appointment, to pay the same to his said nieces, free from the control, debts or engagements of their husbands, and "from and immediately after the death" of each of his said nieces, to hold her one-half of the said rents and profits to the use of her child or children, and in case of the death of either niece, without issue, during the life of the other, her share of the rents and profits to be held by the trustees, for the benefit of the survivor, and in the event of the death of both, without issue, he disposes of the whole estate upon other trusts. HELD:

1st. That the testator designed to limit the power of disposal to the rents and profits, and the nieces had but life estates, and, therefore, no power to unite with the trustees in a conveyance of the fee.

2nd. That they had power to appoint the rents and profits arising out of the contingent remainders to each, depending on the previous death of the other, such interests being assignable in equity.

3rd. That the words "from time to time," imposed no restriction upon alienation or appointment, so as to prevent anticipation, and the nieces had power to make a sweeping appointment of all their interests in these rents and profits.

A devise of the interest of a fund, or the profits of an estate, as a general rule, passes the fund or estate absolutely, but this construction does not obtain where the will shows a different intent, for the testator's intention, to be gathered from the whole will, must have effect.

A deed of a married woman, conveying her separate estate, over which she had the power of appointment, even if not good at law, may, in equity, be treated and enforced as an agreement to assign or appoint.

Where the draughtsman was instructed to prepare a deed conveying a certain interest in property, and, by mistake, made it to embrace a greater interest than the parties intended, a court of equity will, upon parol proof of such mistake, reform the deed. 

COUNSEL:
Chas. F. Mayer for the appellant:

1st. The deed, by its actual, legal import, is to be construed as conveying only the immediate life estates of Euphrasia and Eurydice. And no deed could, at law, convey more; the interest in the cross-remainder being contingent, the assignment of which will not, in equity, be deemed effective, unless in point of consideration, and of all circumstances connected with the rights of the wives, an equitable case, fit for specific performance of a contract, be clearly made out. No such case is here presented in favor of Husbands. Comyn's Digest Titles "Assign" C. (3.) "Grant" D. Fearne on Remainders, 289, 444. 1 Preston on Estates, 68, 70. Coke Litt., 46, b. 1 Ves., Sen., 391, Whitfield vs. Fausset. Ibid., 411, Wright vs. Wright. 10 Coke, 51, Lampet's Case. 2 Spence's Eq., 855. 14 Johns., 193, M'Crackin vs. Wright. 17 Johns., 167, Jackson vs. Vanderheyden. Neither estoppel nor warranty can bind a feme covert, and, moreover, this deed contains no warranty, and neither does a deed of a contingent interest operate by way of estoppel. Nor is a deed of bargain and sale [**14]  equivalent, in this State, for all purposes, to a fine and recovery.

2nd. But if the deed does pass this contingent interest, then it was executed under a mistake, and should be reformed. The testimony clearly shows that only the present life estates of the wives were contracted to be conveyed. The draughtsman of the deed says that his instructions were to convey only such life estates, and that he drew the instrument for that purpose, and thought, at the time, it only conveyed such interests, and would think so now, but for the doubts of counsel. There cannot be stronger evidence of the mistake than this. (2 Md. Ch. Dec., 388, 389, McDowell vs. Goldsmith.) Again, the defendant himself never supposed the deed conveyed the cross-remainders, and in his answer to the explicit charges in the bill, as to what the contract was, he says the deed speaks for itself. Such an answer is not a denial, upon oath, of the charge in the bill; it is evasive, and not frank.

3rd. The will does not authorize any conveyance or disposition of the rents or property devised to these ladies; at least none is authorized for the cross-remainders. Where a settlement contains a limitation on the power [**15]  of disposition, or prescribes the mode of disposition, the wife is bound by it, and where the settlement contains no power of disposition, she has no power to alien or dispose of the property. 1 Ves. & Bea., 118, Lee vs. Muggeridge. 3 Johns. Ch. Rep., 78, Methodist Church vs. Jaques. 4 Md. Ch. Dec., 68, Tarr, et al., vs. Williams & Wife. Ibid., 414, Williams vs. Donaldson. 2 Wharton, 11, Thomas vs. Folwell. White's Eq. Cases in 65 Law Lib., 370 to 378, and the cases there cited in the comments upon the case of Hulme vs. Tenant. 8 Gill 134, Smith vs. Morgan. 5 Md. 234, Miller & Mayhew vs. Williamson.

4th. If any disposition be authorized, an assignment of the rents by anticipation, or, in other words, a sweeping appointment of the whole prospective interest in the rents, is not authorized. 65 Law Lib., 369, 370, and cases there cited. 3 Johns. Ch. Rep., 114. No particular form of words is necessary to restrain such alienation; this must depend upon the intent of the testator, to be gathered from the whole will. This intent is sufficiently manifest upon the face of this will, for the testator directs the trustees to pay the rents to such person or persons only, and for such [**16]  intents and purposes only, as his nieces, by any writing or writings, under their hands and seals, from time to time shall direct and appoint, and until she shall make any such appointment, to pay the same, or so much whereof they shall from time to time happen to make no such appointment; and he further provides that the property shall be free from the intermeddling of their husbands, and not liable to their control, debts or engagements.

5th. It is further insisted, that the consideration actually received, was imposed upon the parties by misrepresentation and fraud, and that the deed was procured, as the testimony shows, through the control and intermeddling, and for the benefit of the husbands, and is, for these reasons, void.

John Nelson for the appellees:

The questions presented in this case are these. 1st. Had these parties power under the will to convey at all? 2nd. Had they the power to convey the cross-remainders? 3rd. What in point of fact have they conveyed by this deed? 4th. Was there any fraud for which the court will vacate the deed? and 5th. Was there any mistake which will authorise the court to reform it?

1st. The will confers a sweeping power [**17]  of appointment by any writing or writings under their hands and seals. There is no restriction or limitation in the words "from time to time," which are supposed to limit the appointment to such rents and profits as may become due from time to time. The dictum of Chancellor Kent on this point, in the case of The Methodist Church vs. Jaques, was overruled, on appeal to the Court of Errors, (17 Johns., 548,) where it was also held contrary to the opinion of the Chancellor, that a feme covert, with respect to her separate estate, is to be regarded in a court of equity as a feme sole, and may dispose of her property without the consent or concurrence of her trustee, unless she is specially restrained by the instrument under which she acquires her separate estate. That a limitation against the power of anticipation, is not made by the words "from time to time," has been clearly settled by numerous cases in England. See 65 Law Lib., 369.

2nd. As to the power to convey the cross-remainders. There is no distinction in the will between the rents and the rest of the estate; the whole goes to the survivor, upon the death of either without issue during the life of the other. At common law,  [**18]  you could not by a deed of bargain and sale convey such an interest, because you could not give livery of seizin, but you could do it by a fine and recovery, which would operate by way of estoppel during the life estate, and the moment the life estate fell in would become operative as a conveyance making the estate absolute. Fearne on Remainders, 365, 550, 551. 8 Barn. & Cress., 497, Brune vs. Martyn. That such an interest is assignable, is conclusively settled by the case of Miller & Mayhew vs. Williamson 5 Md. 237.

3rd. The deed actually conveys "all the estate, interest, right and title, reversion and reversions," with habendum to the said Husbands, his heirs and assigns, "for and during the natural lives of the said" Euphrasia and Eurydice; that is during the life of both, not during their joint lives. It clearly passes the cross-remainders.

4th. As to fraud. The deed was executed on the 3rd of September 1841. The consideration was to be paid in the notes of the Tide Water Canal Company. The parties were told to inquire into the value of these notes for themselves, and they took them without question. They made no claim until seven years after the date of the deed.  [**19]  Such laches will prevent the claim from being set up now. There was no fraud in paying the purchase money into the hands of the husbands, if the wives consented to make them agents to receive it, and that they did so appoint them as agents, is conclusively shown by the evidence. See 9 Gill 156, Clements vs. Smith. 2 Gill 163, Bell vs. Webb & Mong. 2 Md. Ch. Dec., 474, Latrobe vs. Tiernan. 3 Gill 366, Glenn vs. McKim. 3 Bland., 142, Salmon vs. Clagett.

5th. As to mistake. The answer denies the mistake, and says that the deed contains the contract. Now when a deed is sought to be reformed on the ground of mistake, the authorities all show that the proof of the mistake must be clear, satisfactory, and of such a character as to leave no reasonable doubt on the mind. (6 Ves., 328, Marquis of Townshend vs. Stangroon. 1 Brown's Ch. Rep., 94, Irnham vs. Child. 6 H. & J. 445, Watkins vs. Stockett. 2 Gill 163, Bell vs. Webb. 9 Gill 430, Beard vs. Hubble. 1 Md. Ch. Dec., 239, Goldsborough vs. Ringgold.) And there is no evidence in this case which comes within this rule.  

JUDGES:
The cause was argued before ECCLESTON, TUCK and BARTOL, J.  

OPINIONBY:
TUCK 

OPINION:

 [*503]  TUCK,  [**20]  J., delivered the opinion of this court.
As we understand the English cases, the doctrine was established before the American Revolution, that in equity a married woman is to be treated as a feme sole, in respect to her separate property; and that she may dispose of it, unless restrained by the instrument creating the estate. There is to be found some diversity among the cases since that time, and, especially, as to what amounts to restraint upon alienation. In this country the decisions have not been uniform, some following the English doctrine, and others denying to the wife any power over the subject not authorised by the deed.
For examination of these questions and the authorities, see 2 Roper on Husband & Wife, ch. 19, 20. 1 Sugden on Powers, ch. 4, sec. 1. Hill on Trustees, 633, (Ed. of 1857.) McQueen on Husband & Wife, 294. Clancy on Husband & Wife, chaps. 5, 6, 7, 8. White & Tudor's Cases in Equity, 324, (Hulme vs. Tenant.) 3 Johns. Ch. Rep. 77; and same case on appeal in 17 Johns. Rep. 548. Story's Eq., sec. 1390. Adam's Equity, 44, 45.
In Maryland the law is settled, that where a mode of [**21]  alienation or of appointment is provided, it operates as a negation of any other mode, and is a paramount law governing and controlling every contract in relation to it.  Lowry vs. Tiernan, 2 H. & G. 34. Tiernan vs. Poor, 1 G. & J. 216. Brundige vs. Poor, 2 G. & J. 1. Miller vs. Williamson, 5 Md. 219. But it has never been decided as far as we can discover, whether a feme covert may or may not dispose of her separate estate, where the deed is silent on the subject. We may consider it as unsettled as late as 1849, when the Court of Appeals declined examining the question of a feme covert's jus disponendi of her estate, "where the instrument under 

 [*504]  which she held conferred no such power in terms." Smith vs. Morgan, 8 Gill 133. The point was not determined in Miller vs. Williamson, 5 Md. 219, and that case is not to be considered as authority on this precise question, the observations of the court having been made, with reference to the will then under consideration. See also 5 Md. 134. The late Chancellor, in the cases of Tarr vs. Williams and Williams vs. Donaldson, 4 Md. Ch. Dec. 68 and 414, [**22]  expressed his concurrence with Chancellor Kent's views, as set forth in the case of The Methodist Church vs. Jaques, 3 Johns. Ch. Rep. 77, and also with those of Chief Justice Gibson, in Thomas vs. Folwell, 2 Whart. 11. It must be observed, that in these cases, the question we are now considering was not necessary to the decision, for in each of the deeds there was a mode of appointment prescribed, and it was sought to appoint or alienate in a different manner. Chief Justice Spencer, in reviewing Chancellor Kent's opinion, (17 Johns. 578,) declared, that "from the year 1740 to 1793, (with the single exception of the opinion of Lord Bathurst, in Hulme vs. Tenant, which occurred in 1778, and in which a rehearing was granted by Lord Thurlow, and the opinion reversed,) there was an unbroken current of decisions, that a feme covert, with respect to her separate estate, is to be regarded in equity as a feme sole, and may dispose of her property without the consent or concurrence of her trustee, unless especially restrained by the instrument under which she acquires her separate estate." And Chancellor Kent himself, admits [**23]  the weight of authority to be against him. Indeed, he concedes that an intent may be deduced, where the deed does not speak, for in his opinion he says: "Perhaps, we may say, that if the instrument be silent as to the mode of exercising the power of appointment or disposition, it intended to leave it at large, to the discretion and necessities of the wife, and this is the most that can be inferred." And he very clearly places his decree on the circumstance, that there was a mode of appointment prescribed in the instrument, and that no other could be resorted to. But if we are to take these eminent jurists, as having declared that power does not exist unless it be conferred by 

 [*505]  the deed, it may be said, that while there is much force in the reasoning employed by them, on the general subject, when considered with reference to the objects of such deeds, and the circumstances under which, generally, they are executed, as stated by them, very distinguished judges have held the contrary doctrine, and supported their judgments with as much ability, if it be conceded that they have based their conclusions on a correct understanding of the policy and purposes of such settlements. [**24]  
We think that there is a principle underlying this branch of jurisprudence which should not be disregarded, and that is, that the right to dispose accompanies the ownership of property, which cannot be fettered by intendment, however this may be done by express words; and as these settlements are creatures of equity, designed to confer rights on married women not enjoyed at law, and may be made to express what the parties intend, the feme covert should be considered as having the power of disposal, unless a different intent be manifested by the instrument. It cannot be maintained as a general proposition, universally true, "that these settlements are intended to protect the wife's weakness against her husband's power, and her maintenance against his dissipation," as assumed in 3 Johns. Ch. Rep. 113, for many of them are made where the utmost confidence is reposed in the husband; the sole object being to protect the wife and family against the consequence of his misfortune or losses in business, by exempting the property from liability for his present as well as future debts. We are not to assume, that husbands will be constantly endeavoring to wrest their wives'  [**25]  property from them, and devote it to their own uses. It is more reasonable to suppose, that they will guard and protect her rights, and act in reference to her separate estate, for the interest of all concerned in the trust. That cases of hardship and wrong have occurred there can be no doubt, but, in a large majority, we think the purposes of the settlements have been faithfully fulfilled, by leaving to the wife the control of the property, under the advice of the trustee and her friends; nay, indeed, of the husband himself. It is not a conclusion of law, that when property 

 [*506]  is settled on a married woman or on a feme sole in contemplation of marriage, the settler designs she shall never dispose of it. It may happen, that her interest will be promoted by a change of investment, and this is often provided for. We incline to the opinion, that in most of the instances in which the English doctrine has been departed from, the judgments were pronounced under circumstances of extreme hardship, bending the law to meet emergencies and prevent consequences not apprehended, and therefore not provided against at the creation of the trusts. In answer to many of the considerations [**26]  urged against this view of the law, it may be said, that if the parties making the settlement intend to tie up the property in the wife's hands, they may use apt and proper limitations, and that where they have not done so, it must be supposed they intended to leave it at large, to the discretion and necessities of the wife, as a feme sole, acting under the advice of those on whom she may rely. Therefore, following the decisions, which, under our institutions it is the duty of this court to respect as authority, we are of opinion, that a feme covert may act in reference to her separate estate as a feme sole, where the settlement contains no limitations on the subject, on the principle that the jus disponendi accompanies the property, unless restrained in terms, or by the manifest intention of the instrument.
Upon considering the will before us, and collating its several parts, we are of opinion that the testator designed to limit the power of disposal to the rents and profits arising from the property devised to the trustees, and that his two nieces had no authority to unite in a conveyance of the fee by the trustee, even conceding that, as to them, the forms prescribed [**27]  by the act of 1830, ch. 164, were not necessary; upon which we express no opinion. It has been decided, that if the interest of a fund or the profits of an estate be given by will, the devisee will take the fund or estate absolutely. This is generally the construction, but it does not obtain where the will shows a different intent, for the testator's intention, to be gathered from the whole will, must have effect.  Cassilly vs. Meyer, 4 Md. 1. Magruder vs. Peter, 4 G. & J. 323. In the present case, 

 [*507]  only the rents and profits are given to these nieces, with limitations over; and upon the happening of contingencies set out in the will, the estate is disposed of by another declaration of trust, upon the supposition, that a time would arrive when neither the nieces nor their descendants could enjoy the rents and profits. If the rents had been in terms limited to them for life, the point would have been clear of difficulty, on the authority of Lowry vs. Tiernan, 2 H. & G. 34, and numerous other decisions. The result must be the same, if that intent can be collected from the will. It declares what the trustees are [**28]  to do with the rents, "from and immediately after the death" of the nieces, not adding, in case they shall not have appointed or disposed of the rents in their lifetime, or equivalent words, but showing that the fee was to remain in the trustees, to gratify other purposes declared by the testator, which looked beyond a failure of issue of both nieces. In the case of Lowry vs. Tiernan, the court remarked upon the circumstance, that no power had been reserved to the wife over the principal, except by last will and testament, and then only in a certain event. Here no power over the estate is given at all, either absolutely or conditionally; the power relates to the rents and profits only. It was also said in that case, that rights were reserved to future children who would take as purchasers, and that these contingent rights must be protected. The same is the case here, and regard being had to the general intent of the will, we think the same construction should be applied. If we were to hold, that the nieces could make sweeping appointments, to operate beyond their own lives; so as to defeat the expectations of others, we should be setting up for this testator a will that he did [**29]  not make for himself.  Wilson vs. Farquharson, 5 Md. 134.
We are also of opinion that they had power to appoint the rents and profits arising out of the contingent remainders to each, depending on the previous death of the other, as that acquired by Mrs. Cook, by the death of Mrs. Pennington without issue. In Fearne on Remainders, (by Smith, Ed. of 1845,) Vol., 2, 436, it is said, that "executory interests in persons in being and ascertained are assignable in equity, for a 

 [*508]  valuable consideration, and even for good consideration, except as against bona fide creditors;" and that by this it is meant, "that an assignment of them is treated in equity as a contract or agreement, of which it will decree a specific performance." Wright vs. Wright, 1 Ves. Sen. 409. 2 Peere Wms. 182, 187, 191. But on this point it is enough to say, that in Miller vs. Williamson, 5 Md. 219, it was decided, that a contingent interest depending on the death of another, was assignable, and relief was granted accordingly, which settled the doctrine in this State. Whether such an interest of a feme covert can [**30]  pass at common law, except in the mode provided by our acts of Assembly, for transferring the estates of married woman, we need not decide; because this proceeding is in a court of equity, where a feme covert is allowed to deal with her separate property, and if this deed is not good at law, it may be treated and enforced as an agreement to assign or appoint. Tiernan vs. Poor, 1 G. & J. 216. And inasmuch as Mrs. Cook is asking relief against the operation of this instrument, on the ground that she had not power so to dispose of the rents, she must, if she succeeds to any extent, submit to be bound by her agreement, as far as under the will she had power to appoint.
But it is said, on the part of the appellants, that this will contains a restraint upon alienation or appointments, except of the rents as they might accrue and fall due, by force of the words "from time to time." Lord Thurlow thought that the meaning of these words was to limit the appointment and prevent anticipation, and he hesitated before deciding otherwise; but, finally, yielded to what he considered the necessary deduction from previous decisions. It is a remarkable fact that they were introduced [**31]  by the master in chancery, in the settlement of a married woman's property, made under direction of the court, for the very purpose of preventing a sweeping appointment, and when their effect upon an appointment afterwards came before the same court, the Chancellor held that the words were not sufficient.  Pybus vs. Smith, 1 Ves. Jr. 189. 3 Brown's Ch. Rep., 339. Speaking of this case, Lord Eldon, in Jones vs. Harris, 9 Ves. 493, said: "The court 

 [*509]  settling the property, in order to protect it, with all the anxious terms then known to conveyancers, in a day or two afterwards, while the wax was yet warm upon the deed, the creditors of the husband got a claim upon it, by an informal instrument, and the same judge who had made such efforts to protect her, was, upon authority, obliged to withdraw that protection." Yet this construction has ever since been applied there to settlements containing this expression. What effect they shall have in Maryland, is a very important question, when we consider the time elapsed since the cases in which they received a judicial construction, that numerous settlements are drawn after [**32]  the same form, substantially, and that much property may now be held, under like instruments, in reliance upon what was supposed to be the established doctrine. Under such circumstances we deem it unsafe to disturb the interpretation they have received. And we feel less hesitation in thus deciding in the present case, because the party now seeking to escape from the accepted construction, is herself a party to the deed, by which the power of appointment was exercised, and evidently supposed at that time, that she could pass the rents and profits by anticipation.
With these impressions of the will we should decide with the court below, but for the questions of fact presented by the record. We are of opinion that the appellants did not make out a case of fraud on the part of Husbands, in obtaining the property from Mrs. Cooke and Mrs. Pennington, but the case shows, as we think, that the deed was executed under a mistake, or rather that it conveyed more than the parties intended. In the first place it is to be observed, that the defendant does not fully and frankly answer the bill in this aspect of the complaint; he refers to the deed as containing the contract, instead of answering [**33]  the charge of mistake in direct terms.  Hamilton vs. Whitridge, 11 Md. 128. Besides, in his conversation with the witness Bridge, about the rents due after Mrs. Pennington's death, when Bridge said, he thought Mrs. Cooke could sell nothing that she did not hold, the defendant replied, "that that had been his own opinion, but that he now thought otherwise; and then went on to state the express words of the 

 [*510]  deed, and to show how the words of the deed gave it to him," and in a subsequent part of the examination he states, "that his lawyer said he could keep it after Mrs. P's death; that his own opinion had been to the contrary once, but that his lawyer had given him to understand, that by the words of the deed, he could keep Mrs. P's one-half of the Harrison street property after Mrs. P's death, and during the life of Mrs. Cooke." We consider this a clear intimation on the part of Husbands, that his own opinion of his right to the rents was founded on the original contract, as understood by the parties, until he received professional instruction as to the operation of the deed, and that his subsequent claim was based on the deed, as giving more than he [**34]  could rightfully recover under the agreement of purchase. In addition to this, the draughtsman proves the mistake in plain terms. He says: "Witness certainly received instructions as to the interest intended to be conveyed by the deed, and it was intended to convey thereby the interest which each actually had at the time, and not what either might acquire by the death of the other. Witness thought that the deed only conveyed that interest, and would think so now but for the doubts of counsel." Now, what other construction can this language receive than this, that he was instructed to prepare a deed, conveying a certain interest in the property, and, by mistake, made it to embrace a greater interest than the parties intended? It is of no consequence, that he does not state clearly from whom he received his directions. He says, however, that Mrs. Cooke never called on him about the deed, nor did he see her before it was executed. It appears from his testimony, that Pennington first spoke to him about drawing the deed, and that Husbands saw him several times afterwards, before it was prepared. The inference is clear, that he received instructions from one or both of them, and this is [**35]  established by the evidence of Lovegrove, who states, that Spurrier received instructions from Pennington and Husbands. As Spurrier states what the instructions were, Husbands had a very good reason for saying to Bridge, that he once thought the deed did not convey the interest in remainder, because he was privy to the whole transaction, including 

 [*511]  the directions by which the deed was prepared, and, according to Spurrier's testimony, must have known that it was not designed to transfer the contingent interests. The rules governing cases of this kind are very stringent, and we are not disposed to relax them, but this is not like the cases in the Court of Appeals, in which the doctrine relied upon in argument was announced. In Wesley vs. Thomas and Watkins vs. Stockett, 6 H. & J. 24, and 435 it was shown as to one case, that the deed was in the form in which the parties intended and directed it should be drawn, and, as to the other, the contrary did not appear; but in the former case, the court stated the grounds on which questions of this kind must turn; that there were numerous instances where parol proof was admitted to correct mistakes in written agreements;  [**36]  and that mistakes and misapprehensions of the drawers of deeds, are as much a head of relief as fraud and imposition. Whatever courts may have held, as to the nature or character of proof necessary to correct mistakes in deeds, we suppose none can be more forcible than the testimony of the draughtsman himself, that he had not drawn the instrument according to the instructions he received, when considered in connection with, what we consider, the admission of Husbands to Bridge, that the deed covered a larger interest than the parties intended to transfer. If a mistake in law be committed, that is, if a deed be prepared, according to the directions of the parties, in a particular form, with the impression and design that it shall serve a purpose which the law does not allow, the case is to be determined on a different principle. Such were the cases of Anderson vs. Tydings, 8 Md. 427, and Campbell vs. Lowe, 9 Md. 500.
The decree will be reversed and the cause remanded, in order that the deed may be reformed, and the case disposed of according to the views of the contract herein expressed; in which adjustment an account should be taken in respect [**37]  to the rents received, on account of Mrs. Pennington's interest under the will, since her death; that the same may be paid to Mrs. Cooke, or invested for her separate use.
Reversed and remanded with costs. 

19 of 187 DOCUMENTS 

JOSHUA S. INLOES' Lessee, vs. GEORGE C. HARVEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 519; 1857 Md. LEXIS 61 

DECEMBER, 1857, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

Ejectment brought by the appellant, on the 9th of May 1855, to recover certain leasehold property then in the possession of the appellee. Plea, non cul.

Exception. The plaintiff gave in evidence certain deeds proving title in John Zell and Alexander Harper, on the 24th of September 1850, on which day they conveyed the property to Thomas W. Vigurs, who took possession thereof. The plaintiff then further offered as evidence of his title a deed from Vigurs to him, as trustee, dated the 10th of March 1854, under which he took possession of the property. This deed recites the appointment by the circuit court for Baltimore county, as a court of equity, in a cause therein pending, of Inloes as trustee of the complainants in said cause, under a deed of trust filed therein, and that, on the petition of the complainants, it was ordered by said court, on the 10th of March 1854, that the trustee, Inloes, should invest the net proceeds of sale in said case, or so much thereof as was necessary, in the two parcels of land mentioned in said petition, one of which is that conveyed by the deed. The deed then proceeds, in consideration of $ 1750,  [**2]  paid by Inloes to Vigurs, the receipt of which is acknowledged, to convey the property to Inloes, as trustee as aforesaid.

The defendant then gave in evidence, on his part, the record of certain proceedings in equity in the circuit court for Baltimore city, instituted by Susan E. Taylor, against Vigurs and others, the object of which was to set aside, for her benefit, the title of Vigurs, under the deed to him from Zell and Harper, as having been acquired by him fraudulently, he having taken the title to himself, in his own name, as of his own absolute estate, whereas he should have taken it as trustee for the complainant, having purchased the same with her money, and to cause the same to be conveyed and assured to her. This record shows that this bill was filed on the 21st of February 1854, and the subpoena thereon, issued the same day, was served on Vigurs before the 28th of February 1854, on which day it was duly returned. After answer and other proceedings, a decree was passed on the 30th of November 1854, by which the title of Vigurs was annulled, and he was ordered to convey and deliver the property to Harvey, as trustee for the complainant, under a marriage settlement between [**3]  the complainant and Wm. B. Dukehart, whom she had married pending the proceedings, and who was duly made a party thereto. On the 15th of December 1854, an injunction was issued to compel Vigurs to perform the decree, and the persons in possession to deliver up the property, which was returned "non est" as to Vigurs, and was served upon Inloes on the 21st of December 1854, who refused to obey the same. A writ of habere facias possessionem was then issued on the 12th of January 1855, and the sheriff, by virtue thereof, put Harvey in possession of the property, and he continued in the possession so acquired, and held the property at the time of bringing this ejectment, under the aforesaid decree, and as trustee of said Susan E. Dukehart. Inloes was never made a party to the proceedings under which this decree passed.

Whereupon the plaintiff asked the court to instruct the jury that, upon the evidence offered, if believed by them, the legal title to the possession of the premises, for the recovery of which this action is brought, was vested in Inloes by the deed of assignment from Vigurs to him, and remained vested in him at the time of the demise laid in the declaration, and that [**4]  the plaintiff is entitled to recover, notwithstanding the decree and other facts offered in evidence by the defendant. This prayer the court (LEE, J.) refused to grant, and to this ruling the plaintiff excepted, and the verdict and judgment being against him, appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

A purchaser pendente lite is bound by the judgment or decree rendered against the party from whom he makes the purchase.  

COUNSEL:
Edward O. Hinkley and Thos. S. Alexander, for the appellant:

The rule pendente lite nil innovetur, is not universal in its application. There are cases of hardship in which it does not apply, and there is no reason why a party, situated as Inloes is in this case, should not be called in and have an opportunity of making defence, before he is peremptorily turned out of possession, without notice. He was never made a party to the proceedings in which the decree was passed, and was a bona fide purchaser, pendente lite, for a valuable consideration and without actual notice. Although the decree entered in his absence is prima facie evidence against him, it would be competent for him, on any supplementary proceeding, to show collusion between the parties to the decree, or any other circumstance rendering it against equity to enforce the decree against him. We contend that he should not be turned [**5]  out without notice, and that the writ of habere facias possessionem will never go against such a purchaser, without notice first given to him to show cause. In 2 Story's Eq., sec. 908, it is conceded that the title of purchasers pendente lite is not "absolutely null and void at all times, and for all purpose," and that the title so acquired must, in some cases, be pursued, and it is there said, an injunction will be granted to restrain a party from making vexatious alienations of real property pendente lite, for in every such case the plaintiff may be put to the expense of making the vendee a party to the proceedings; and, at all events, his title, if he prevails in the suit, may be embarrassed by such new outstanding title under the transfer. Chancellor Kent always held, that you must, in some cases, follow the title acquired pendente lite. See, also, Story's Eq. Pl., secs. 351, 351 (a,) for cases in which it is held to be necessary to make such a purchaser a party to the proceedings. And, further to sustain our views on this point, we refer to Mitford's Pl., 73, 74. Calvert on Parties, 100. 1 Hogan, 202, L'Estrange vs. Robinson. 4 Dow, 435, Daly vs. Kelly. 2 Drury & Warren, 362,  [**6]  Higgins vs. Shaw. 2 Ves. & Bea., 200, Metcalfe vs. Pulvertoft. 13 Simons, 516, Solomon vs. Solomon. 11 Beavan, 502, Johnson vs. Thomas. 1 Peters, 149, Greenleaf vs. Queen. 4 Johns. Ch. Rep., 38, Green vs. Slayter. 2 Johns. Ch. Rep., 441, Murray vs. Lylburn. 11 Wend., 442, Parks vs. Jackson. 6 J. J. Marshall, 519, Yoder vs. Swearingen. 3 A. K. Marshall, 220, Murray vs. Johnson. 3 Littell, 365, Carr vs. Callaghan. 1 Iredell's Eq. Rep., 146, Proctor vs. Ferebee.

It is further insisted, that, whatever may be the effect of the decree on the conscience of a party purchasing pendente lite, with actual or constructive notice of the proceedings, it cannot operate at law as a transfer of the legal title acquired by the purchaser, from such purchaser to the party claiming the benefit of the decree.

F. K. Howard and S. T. Wallis for the appellee:

The act of 1785, ch. 72, sec. 13, provides, that in all cases where a decree is passed for a conveyance, and the party against whom it shall pass shall neglect or refuse to comply therewith, such decree shall stand, be considered and taken in all courts of law and equity to have the same operation and effect as if the conveyance had been [**7]  executed conformably to such decree. If, then, Inloes was a party bound by this decree, the legal title to the property is, by force of it, vested in the defendant, the record showing that Inloes has refused to obey it. That he is so bound, is well settled. He was a purchaser pendente lite of the title of Vigurs. The proceedings had for their object to set aside that title as fraudulently acquired by Vigurs, and resulted in a decree annulling the title and decreeing a conveyance to the complainant. Pending this litigation, Inloes becomes a purchaser of this very property, and if ever a case could arise in which the rule pendente lite nihil innovetur can be applied, this is one. The general rule on this subject is clearly defined. Story's Eq. Pl., sec. 156, and 1 Story's Eq., secs. 405, 406, where it is said, that "a purchase made of property actually in litigation, pendente lite, for a valuable consideration, and without any express or implied notice, in point of fact, affects the purchaser in the same manner as if he had such notice; and he will accordingly be bound by the judgment or decree in the suit." There is nothing to exempt this case from the operation of the general rule,  [**8]  which has been applied in numerous cases precisely similar, and has been sustained by repeated adjudications. See 1 Pet., 299, Mechanics Bank of Alexandria vs. Seton. 1 Johns. Ch. Rep., 566, Murray vs. Ballou. 7 Johns. Ch. Rep., 65, Jewett vs. Palmer. 7 Wend., 152, Jackson vs. Andrews. 2 Dana, 406, Watson vs. Wilson. 5 Ohio, 461, Bennet vs. Williams. 7 Blackford, 243, Green vs. White. 1 Strobhart's Eq. Rep., 180, Lewis vs. Mew. 1 Yeates, 574, Walker vs. Butz. 27 Penn. State Rep., 428, Hersey vs. Turbett. 31 Miss. Rep., 83, McCulsten vs. Miller. 22 Barb., 166, Harrington vs. Slade. 8 Ala., 570, Chaudron vs. Magee. 2 Randolph, 93, Newman vs. Chapman. 6 H. & J. 21, Tongue vs. Morton. 1 H. & J. 386, Garretson vs. Cole. 2 H. & G., 473, Frazer vs. Palmer. 2 Md. Ch. Dec., 301, Oliver vs. Caton. 7 Md. 537, Feigley vs. Feigley.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON, TUCK and BARTOL, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*524]  LE GRAND, C. J., delivered the opinion of this court.
There is but one question involved in this case, and we think the Superior Court decided it correctly. It is, whether a purchaser pendente lite is bound by the judgment rendered against the [**9]  party from whom he makes the purchase? This was an action of ejectment brought by the appellant to recover certain property of which he had been dispossessed under a writ of habere facias possessionem. The defence was, that in an equity proceeding against the person under whom he claimed, to set aside a conveyance alleged to have been made fraudulently, a decree was passed in conformity with the prayer of the bill, and the property secured to the complainant, and that during the pendency of this proceeding, the appellant purchased the property in question from the defendant. The Superior Court, in fact, decided that the appellant, being a purchaser pendente lite, was concluded by the decree in the equity proceedings, and, notwithstanding the very ingenious argument of the counsel for appellant, we are of opinion, decided correctly. We might cite many cases in affirmance of this view, but we content ourselves with a reference to sections 405 and 406 of 1 Story's Eq. Jur., where will be found, stated with clearness, the law applicable to the subject, and the reasons of public policy on which it rests. In section 405 it is said: "A purchase made of property actually [**10]  in litigation, pendente lite, for a valuable consideration, and without any express or implied notice in point of fact, affects the purchaser in the same manner as if he had such notice; and he will accordingly be bound by the judgment or decree in the suit." And in section 406 it is said: "Ordinarily, it is true, that the decree of a court binds only the parties and their privies in representation or estate. But he who purchases during the pendency of a suit, is held bound by the decree that may be made against the person from whom he derives title. The litigating parties are exempted from taking notice of the title so acquired; and such purchaser need not be made a party to the suit. Where there is a real and fair purchase without any notice, the rule may operate very hardly. But it is a rule founded upon a great public policy, for, otherwise, alienations made 

 [*525]  during a suit might defeat its whole purpose; and there would be no end to litigation. And hence arises the maxim, pendente lite nihil innovetur; the effect of which is, not to annul the conveyance, but only to render it subservient to the rights of the parties in litigation. As to the rights of these [**11]  parties, the conveyance is treated as if it never had any existence; and it does not vary them." See, also, 6 H. & J. 21, Tongue vs. Morton.
This disposes of the case which was before the Superior Court. If there was any fraudulent design on the part of those who were the parties to the equity proceedings, to defeat the appellant, the latter, on proof of the fact, and the additional one, that, in execution of such fraudulent intention, he was in point of fact defrauded, he has his remedy in equity.
Judgment affirmed. 

20 of 187 DOCUMENTS 

JOSEPH KELLER vs. THE STATE.--SEBASTIAN LANHARDT vs. THE STATE.--JOHN ZWANGER vs. THE STATE.--GEORGE BECK vs. THE STATE--CONRAD HOFFMAN vs. THE STATE.--JACOB WOLEBER vs. THE STATE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 525; 1857 Md. LEXIS 62 

DECEMBER, 1857, Decided 

PRIOR HISTORY:
 [**1]  APPEALS from the Criminal Court of Baltimore city.

In these cases, each of the appellants was indicted for a violation of the license laws. Each indictment contained eight counts, charging, in substance, that the traverser, on the 2nd of May 1856, unlawfully kept, in the city of Baltimore, an ordinary, or place for the sale of, exposed for sale, and sold, spirituous liquors, to wit, whiskey, brandy, gin, rum, and fermented liquors, to wit, wine, porter, ale, and lager beer, in quantities less than a pint, without first obtaining a license so to do, contrary to the form of the act of Assembly in such case made and provided, &c. The pleas were non cul., and the cases were submitted to the court, to be tried on the following admission of facts, signed by the State's Attorney and the attorney for the traversers:

"It is admitted that the parties indicted are the brewers of lager beer, and that they retail, in small quantities less than a pint, in lager beer saloons by them kept, the beer by them so manufactured, without license."

The court (STUMP, J.) found the parties guilty, and imposed a fine of twenty dollars upon each of them. From these judgments the traversers appealed.  [**2]  

The act of 1856, ch. 353, entitled, "An act to raise additional revenue to pay the debts of the State, by increasing the rates of license to ordinary keepers and traders," provides, by its 1st section, that it shall not be lawful for any person "other than the grower, maker or manufacturer of the specific articles which shall be therein exposed for sale, except such maker or manufacturer as hereinafter specified," to sell, or expose for sale, in any shop, &c., certain enumerated articles, including "spirituous or fermented liquors, in quantities not less than a pint," "without first obtaining a license, in the manner prescribed by this act," "provided, nevertheless, nothing here contained shall be construed to exempt the establishment of lager beer, or the vendors thereof." The 2nd section makes it the duty of the comptroller to prepare licenses answering to the provisions of this act. The 3rd section makes it the duty of any person desiring to sell or barter any of the articles enumerated in the first section, to take out a license therefor, for which he is to pay according to prescribed rates. The 4th section provides, that if any person "shall desire and purpose to set up and [**3]  keep an ordinary, tavern, or inn, or a victualing house, cook shop, or oyster house, or any other place, at or in which spirituous or fermented liquors, or lager beer, may be sold or bartered in quantities less than a pint, at any one time, it shall be the duty of such person or persons" to apply to the clerk of the county where he resides, or to the clerk of the court of common pleas, if he resides in the city of Baltimore, for a license, and the rate at which he is to pay therefor, is then prescribed. The 5th, 6th and 7th sections relate to the time when the licenses shall expire, and to unexpired and fractional licenses. The 8th section enacts, "That no applicant for a trader's license shall be permitted, under such license, to sell any spirituous or fermented liquors, unless he shall take out an ordinary license of twenty-five dollars; provided, however, that nothing herein contained shall be construed so as to allow them to sell in quantities less than a pint." 

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

The title of the act of Assembly of 1856, ch. 353, is: "An act to raise additional revenue to pay the debts of the State, by increasing the rates of license to ordinary keepers and traders." HELD:

That a provision in this law requiring venders of lager beer, manufactured by themselves, to take out licenses, does not contravene the 17th section of the 3rd article of the Constitution, which provides that "every law shall embrace but one subject, and that shall be described in the title."

A State law, taxing, by way of a license, those who sell, in small quantities, lager beer manufactured by themselves within the State, is constitutional; it is a law which the State has the power to pass, in exercise of the right to regulate its internal police, and every thing that relates to the morals and health of the community.

The license law of 1856, ch. 353, and the previous one of 1827, ch. 117, and its supplements, are to be considered as in pari materia, and persons neglecting to obtain licenses, as prescribed by the act of 1856, are amenable to the penalties imposed by the previous acts.

Penal laws ought not to be so strictly construed as to defeat the obvious intent of the Legislature, and though they are not to be extended by construction, they should receive a rational construction.

If a statute enjoins an act to be done, without pointing out any mode of punishment, an indictment will lie for disobeying the injunction of the Legislature.  

COUNSEL:
John H. Ing and Chas. F. Mayer for the appellants:

1st. The appeals were properly taken. The case of State vs. Lancaster was the case of a judgment confessed, whilst these are cases of special [**4]  verdicts, which are to be treated as if they arose on demurrers, where, on appeal, the whole record is brought up for review. In case of a special verdict, there is no such thing as a motion in arrest of judgment. Stephen's Pl., 124. But even if it were a judgment upon an agreed case, an appeal will still lie. 16 Pet., 291, United States vs. Eliason. 10 How., 345, 346, Stimpson vs. Balto. & Susq. Rail Road Co. See also, on this point, 3 G. & J. 158, Hysinger vs. Baltzell. 4 G. & J. 407, Charlotte Hall School vs. Greenwell. 9 Gill 242, Cushwa vs. Cushwa.

2nd. The act of 1856, ch. 353, under which these prosecutions took place, imposes no penalty, and authorizes, at common law, on its words, no punishment. It is a mere revenue law, imposing no penalty, and making no appropriation of one if imposed, and, therefore, only entitles the State to an action of debt for a failure to take out the license. 2 Strange, 828, Rex vs. Malland. 2 Johns., 379, Jones vs. Estis. 9 Bac. Abr., 254. Plowden, 206. 1 Bl. Com., 56. Dwarris on Statutes, 695, 715, 737, 750.

3rd. Manufacturers of lager beer are not, by the act, under an obligation to obtain licenses to sell in quantities less [**5]  than a pint, especially as manufacturers of other kinds of beer are expressly exempted. To the manufacturers, as we insist, the act has no sort of application. Its 4th section is to be read in connection with the first, which expressly exempts the manufacturers of this beer from taking out licenses, and applies solely to those who sell lager beer, not being manufacturers thereof. It is said, this act must be construed in connection with the previous license laws, but even if this be so, those laws expressly exclude growers and manufacturers.

4th. The Legislature had, constitutionally, no right to tax manufacturers of lager beer with cost of licenses to authorize them to sell their manufactured products. Fines, duties or taxes may be imposed on persons or property, "with a political view, for the good government and benefit of the community," (Dec. of Rights, art. 13,) but this is not a tax of that character; it is not a police regulation to preserve the health and morals of the community, but a mere revenue act, imposing taxes for the purpose of paying the State debt, as indicated by its title. Such taxes must be imposed equally upon the property of each individual, according [**6]  to its actual worth. Dec. of Rights, art. 13 and art. 21. But the State has no right to tax in the mode provided for in this law. It may tax personal property, but that same property cannot afterwards be accumulatively taxed in the shape of a license, which is, in effect, a tax on the property itself. Imported manufactured articles may be taxed as all other property, either specifically or in the form of a license to sell, (12 Wheat., 419, Brown vs. The State of Maryland; 5 How., 592, License Cases;) but the domestic manufacturer, whose property is once taxed specifically, cannot afterwards be burthened with a second tax in the shape of a license.

5th. But this act is also unconstitutional, because its title is not descriptive, as required by the 17th section of the 3rd art. of the Constitution. 7 Md. 160, Davis vs. The State. Its title says it is "An act to raise additional revenue to pay the debts of the State, by increasing the rates of license to ordinary keepers and traders." This gives no warning of such a provision as that under which these parties were prosecuted and fined, and is, in this particular, a plain violation of the constitutional provision which says, that [**7]  "Every law shall embrace but one subject, and that shall be described in the title." By the previous laws on the subject, ordinary keepers and traders were required to take out licenses, but manufacturers of lager beer were not so required. By the title of this law, its subject is the increasing of the rates of license for those who, under previous laws, were required to have licenses, and any provision in it subjecting a new class of persons to its operation, comprehends a subject not described in the title, and more than one subject, and, therefore, renders the law, or at least that portion of it, void.

Milton Whitney, State's Attorney for Baltimore city, for the State:

1st. No appeal lies in these cases, and they must be dismissed. In Rawlings vs. The State, 1 Md. 127, this court, in speaking of the manuscript case of Lancaster vs. The State, decided at September term 1850, in which the appeal was dismissed, on the ground "that the case could only be brought to the court by writ of error," say: "The question raised in the court below was submitted without argument, upon an agreed statement of facts. There was no motion in arrest of judgment; we suppose the appeal was [**8]  dismissed for that reason." That is precisely this case. It was submitted to the court below upon an agreed statement of facts. There was no motion in arrest of judgment, which would have brought up the whole record. 4 G. & J. 416, Charlotte Hall School vs. Greenwell. 5 G. & J. 110, Sasscer vs. Walker. There was no assignment of errors in the court below, and there is no error appearing on the record. It is an appeal from the judgment of the court imposing a fine, without any assignment of errors, and without the judgment of the court below upon a motion in arrest of judgment. If this appeal lies, then an appeal can be taken in any and every case, without raising the points below upon which the party intends to rely on his appeal. No point of law appears, by the record, to have been made in the court below. The act of 1827, ch. 117, authorizes the court, upon conviction, to impose a fine, or imprison the party, and no appeal has ever been allowed where imprisonment could be imposed by the court as part of the punishment.

2nd. But assuming the appeal will lie, it is then insisted, upon the part of the State, that the court below had power to impose the penalty in this case,  [**9]  and that the judgment of the court was legal and proper. The act of 1856, ch. 353, clearly makes it the duty of parties desiring to sell lager beer, to take out a license for that purpose, and there can be no valid objection to the constitutionality of this law. But it is said, the act imposes no penalty for refusing to take out a license. In reply to this objection it may be said, first, that this act is to be construed in connection with that of 1827, ch. 117, and its supplements of 1832, ch. 273, and 1834, ch. 232, which do impose penalties, these laws being all in pari materia; and secondly, that it is a clear principle of law, that whenever a statute prohibits any matter of public grievance, or commands a matter of public convenience, without enacting any penalty for disobeying its prohibitions or commands, those who violate its provisions, may be prosecuted by indictment, and punished by fine. 5 New Hamp., 257, State vs. Fletcher. Wharton's Cr. Law, 39. 1 Russell on Crimes, 49, 50. 1 Barr. 224, Gearhart vs. Dixon. 6 Humph., 17, State vs. Maze. 9 Yerger, 353, Moore vs. The State. 2 Strobhart, 12, State vs. Thompson.  

JUDGES:
The cause was argued before LE GRAND, C. J., TUCK and BARTOL,  [**10]  J.  

OPINIONBY:
TUCK 

OPINION:

 [*531]  TUCK, J., delivered the opinion of this court.
These cases were argued and will be decided together, as they all depend on the same condition of facts and law. In view of their importance, as affecting the public interest, we have considered them upon the merits, and having concluded that the parties were properly indicted and convicted, it is immaterial to them whether we affirm or dismiss the appeals. The latter point we have not examined.
These appellants were indicted, each in eight several counts, for violating the license laws, from which they claim exemption, because they "are manufacturers of lager-beer, which they retail in small quantities less than a pint, in lager-beer saloons without license."
And, first, it is contended, that the title of the act of 1856, ch. 353, is not sufficiently descriptive within the seventeenth section of the third article of the constitution, which declares, that "every law enacted by the Legislature shall embrace but one subject, and that shall be described in the title." In the case of Davis vs. The State, 7 Md. 151, a construction was placed on this clause of the constitution, which we think [**11]  maintains the validity of this act of Assembly, against the objection now under consideration. This law relates to licenses to ordinary keepers and traders, as the subject of legislation. The purpose is declared to be the raising of additional revenue, to pay the debts of the State by increasing the rates of license. The subject of the act would have been sufficiently indicated by the title, if this purpose had not been declared. The act does not dispose of the fund raised from these licenses, or in any manner treat of the revenue or debts of the State. It might, with as much reason, be said, that because a person violating the act may be punished by indictment, three subjects are embraced, to wit; revenue, licenses and crimes. The evils designed to be prevented by this clause of the constitution, 

 [*532]  are well stated in Davis vs. State, and we do not perceive that this act is multifarious in the sense of that instrument, or calculated to contravene its purposes.
It is also contended, that the act is unconstitutional, because it lays a tax, by way of license, on manufacturers of lager-beer, which, it is said, compels them to pay more than their fair proportion towards the [**12]  support of government; that it is a revenue measure, and not an exercise of legislative power, under the last clause of the 13th article of the bill of rights, "with a political view, and for the good government and benefit of the community." We might dispose of this objection by referring to the case of Burton, et al., vs. The State, 3 Gill 1, in which several questions were decided, and points ruled, upon the act of 1844, ch. 280, entitled "An act imposing duties on promissory notes, bills of exchange, specialties and other instruments of writing, to aid in paying the debts of the State," and which act, as to some of the instruments then before the court, was declared to be valid. The title plainly showed, as does the title of the act of 1856, that the proceeds of the duties imposed, were to be applied in payment of the public debt, yet it does not appear to have been urged by counsel, or to have occurred to the court, that the act was void, because persons who might use stamped paper would be contributing to the support of government, on a basis other than "his actual worth, in real or personal property;" and we think that, considering the large amount raised [**13]  by that source of revenue, and the opposition to the law in some sections of the State, the question would have been decided, if the court had thought that act violated the old bill of rights, which was the same as the present, as far as it relates to this question.
But the system of legislation to which this act belongs, may be vindicated upon the plainest grounds of public policy, acknowledged and acted upon in most, if not all, the States of the Union, to wit: the right to regulate their internal police, and every thing that relates to the morals and health of the community, besides having received the sanction of the highest tribunal known to our institutions. In the case of Brown vs. The State of Maryland, 12 Wheat. 419, it was decided, that 

 [*533]  a State Legislature could not require the importer of foreign articles to take out a license from the State before selling a bale or package so imported, because such legislation would be repugnant to two provisions of the constitution of the United States, that which declares, that "no State shall, without the consent of Congress, lay any imposts or duties, on imports or exports, except what may be absolutely [**14]  necessary for executing its inspection laws;" and that declaring, that Congress shall have power "to regulate commerce with foreign nations, and among the several States, and with the Indian tribes;" but it was conceded, that this prohibition continues only so long as the article remains the property of the importer, in the original form or package in which it is imported, and that when the importer has so acted upon the thing imported, that it has become incorporated and mixed up with the mass of property in the country, it loses its distinctive character as an import, and becomes subject to the taxing power of the State, whether in the form of licenses to those who may deal in quantities less than the original package, or through sales by licensed auctioneers, or by regulations for the safety and health of its citizens. In the License cases, 5 Howard 504, Ch. J. Taney, refers to Brown vs. The State of Maryland, as "drawing the line between foreign commerce, which is subject to the regulation of Congress, and internal or domestic commerce, which belongs to the States, and over which Congress can exercise no control," and all the judges who heard the cases concurred [**15]  in affirming the validity of State laws, regulating the sale of ardent spirits, by requiring licenses to sell by retail. These were fully argued, and most of the judges delivered separate opinions, in view of the importance of the questions involved, and there was a difference among them on some of the points, but there was no dissent as to this power of the State. Ch. J. Taney says, "but although a State is bound to receive, and to permit the sale by the importer, of any article of merchandize which Congress authorises to be imported, it is not bound to furnish a market for it, nor to abstain from the passage of any law which it may deem necessary and advisable to guard the health or morals of its citizens, although such law may discourage importation or diminish 

 [*534]  the profits of the importer, or lessen the revenue of the General Government. And if any State deems the retail and internal traffic in ardent spirits injurious to its citizens, and calculated to produce idleness, vice or debauchery, I see nothing in the constitution of the United States, to prevent it from regulating and restraining the traffic, or from prohibiting it altogether, if it thinks proper." To [**16]  the same effect, see the opinions of Justices McLean, (588, 591, 592, 595;) Daniel, (617;) Woobury, (623, 626, 627;) Grier, (631.) The conclusion to be drawn from those cases is, that the liquors sold by the parties, plaintiffs in error, stood on no higher ground than domestic spirits, and that such spirits are subject to State authority as objects of taxation, or of license in restraint of their sale; and it follows, that if the liquors, for selling which the present traversers stand indicted, were merely sold by them, the validity of the act of 1856, could not be doubted.
But it is supposed that the appellants are protected, although the liquor sold is domestic, because they are manufacturers, and only retail beer of their own brewing. We are not now dealing with the power of the State, to tax, by license or otherwise, the manufacturers of this article; the question is, can they claim the right to trade or traffic in it, in small quantities, when all other persons are required to take out licenses for the purpose? It is very manifest that this position, if allowed, might defeat in a great degree the object of the license laws, so far as they are designed to protect [**17]  the morals of the community. For every distiller and brewer may become a retail dealer, or have a tippling saloon annexed to his establishment, and thus evade the license laws altogether; or the small vender may make brewing a part of his business, with the same injurious effect upon the policy of the State. If, as was held in Brown vs. The State of Maryland, the imported article is liable to be affected by a State license law, as soon as the original package is broken up for use or retail by the importer, (see opinion of Chief Justice Taney, 5 Howard 575,) we cannot perceive why a manufactured domestic article shall not be liable to the same laws, when placed in the market for retail, even granting that the manufacturer, as such, would be exempted from this species 

 [*535]  of tax. In the language of Ch. J. Taney, in 5 Howard 577, as applied to imports, we may say, that although a State may not have the power to prevent the manufacture of a deleterious article, "it is not bound to furnish a market for it, nor to abstain from the passage of any law which it may deem advisable or necessary to guard the health or morals of its citizens." See also Bode vs. The State, 7 Gill 326. [**18]  It is also insisted, that the fourth section of the act of 1856, ch. 353, does not contain any prohibition against opening the places therein mentioned, but only makes it the duty of persons desiring to do so, to apply for a license in the manner prescribed, and does not impose any penalty for neglecting to obtain a license before selling in quantities less than a pint. To this the answer is, that the act of 1827, ch. 117, and its supplements, and the act of 1856, are to be considered as in pari materia, all of them relating to licenses; and that as the third section of the act of 1827, makes it unlawful "to open, set up, or keep any ordinary, tavern, or inn, &c., &c., or any place at or in which any spirituous or fermented liquor shall be sold or bartered, in quantities less than a pint, at any one time, without first obtaining a license;" and inasmuch as the last act does not alter the punishment imposed by the act of 1827 and its supplements, persons neglecting to obtain license as prescribed by the act of 1856, must be considered as amenable to the penalties then in force. It is quite plain, that the act of 1856, was passed with reference to previous legislation on the same [**19]  subject, and with those acts before the law makers, because, the last act is a literal copy of some portions of the act of 1827. It is true, that in those laws there is no mention of lager beer, and on this an argument was made at the bar, that the offence charged against the defendant, is not within the prohibitions of the act of 1827 and its supplements; but we do not concede the force of this argument. The design of the legislature was to impose on the venders of lager beer the same restraints as were applied to keepers of houses for the sale of other liquors named in the act; and when they are expressly included among those required to take out licenses, they can plainly perceive what the law demands, and should comply. If they 

 [*536]  do not, they are amenable to the penalties denounced against others, in whose predicament they choose to place themselves, by a manifest and wilful neglect of what the State authorities require, as necessary to the peace and order of society. "Even penal laws, which it is said should be strictly construed, ought not to be so strictly construed as to defeat the obvious intention of the legislature." American Fur Co., vs. United States, 2 Peters 358. [**20]  5 Wheaton 76. And, though they are not to be extended by construction, they should receive a rational interpretation.  House vs. House, 5 H. & J. 125. If a statute enjoin an act to be done, without pointing out any mode of punishment, an indictment will lie for disobeying the injunction of the legislature. Russell on Crimes, 49. Rex vs. Davis, Sayer's Rep., 163. Gearhart vs. Dixon, 1 Barr. 224. 4 Bl. Com., 122. Here the penalty is provided by previous laws, and the plain intent was, to place the keepers of lager beer establishments on the same footing with others, required to obtain licenses to sell in small quantities, and, as these acts are in pari materia, they are liable to like punishment under the original and supplementary laws of 1832, ch. 273; 1834, ch. 232.
Judgment affirmed. 

21 of 187 DOCUMENTS 

JOHN SANDERSON vs. JAMES STOCKDALE, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 563; 1857 Md. LEXIS 65 

DECEMBER, 1857, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Baltimore city.

This appeal was taken from an order of the court below (KREBS, J.) refusing to grant an injunction and appoint a receiver upon a bill filed by the appellant against the appellees. The allegations of the bill and the purport of the exhibits therewith filed, are fully stated in the opinion of this court.  

DISPOSITION:
The decision below is reversed, and the cause remanded for further proceedings.  

HEADNOTES:

A promise to execute a mortgage to secure a debt, without designating or describing the property to be mortgaged, and not even stating whether it was to be real or personal estate, is too vague and indefinite to be enforced by a court of equity.

Partnership creditors, before judgments obtained, have no lien on the partnership effects for the payment of their debts, but the partners themselves have such lien for the discharge of all the partnership debts, and this lien of the partners may, in many cases, be made available for the benefit of creditors.

Partnership effects may be legally transferred, bona fide, for a valuable consideration, either to one or more of the partners, or to mere strangers, but when the transfers are fraudulent, they cannot impair or injuriously affect the claims of partnership creditors.

Under the 2nd section of the act of 1835, ch. 380, a partnership creditor may, without first obtaining judgment on his claim, proceed in equity to vacate any transfer, assignment or contract between the partners disposing of partnership effects among themselves, for fraudulent purposes.

Under this act, "any creditor or creditors, plaintiff or plaintiffs," may, without first obtaining judgment on his claim, proceed in equity to vacate "any conveyance, or contract, or other act, as fraudulent against creditors."

A bill filed by a partnership creditor, charged that the partnership effects had been misapplied and appropriated to the private purposes of the individual partners, by which the creditors of the firm have been delayed, hindered and defrauded; that the firm is insolvent, and that a dissolution, or pretended dissolution, thereof, and transfer or assignment of the partnership effects were designed, to effectuate the dishonest purpose of defeating creditors, and appropriating such effects to the private purposes of the partners, and that unless they are arrested in the prosecution of this purpose, the complainant will sustain great and irreparable injury. Upon appeal from an order refusing to grant an injunction and appoint a receiver on this bill, HELD:

1st. That as the case now stands, the complainant is entitled to have the assignment considered fraudulent and void, and, therefore, should have an injunction to prevent the partnership effects from being sold or disposed of in any manner prejudicial to his claim, until his rights can be ascertained and settled in the future progress of the case.

2nd. Such injunction should embrace all the effects included in the alleged fraudulent transfer or disposition, and which are to be found in the possession or under the control of either or any of the partners, and also any other effects still belonging to the firm, or which may be in the possession or under the control of either or any of the partners, by virtue of any conveyance, or contract, or any other act, not bona fide.

3rd. But he is not entitled to an injunction to prevent a disposition of the bona fide separate property of the partners, and which is not held or claimed by the individual members of the firm, under any fraudulent transfer of property originally owned by the partnership.

4th. After the cause is remanded, it will be proper for the court below, at any time after reasonable notice to the defendants, or their solicitor, to appoint a receiver of the effects covered by the injunction, provided it shall be shown to the court that such a measure is necessary to the ultimate security of the complainant.  

COUNSEL:
Wm. S. Bryan and Henry Webster for the appellant, argued:

1st. That under the act of 1835, ch. 380, sec. 2, the appellant has a right to proceed in equity to vacate the assignment of the 27th of June 1857, without obtaining a judgment. This law permits a party to proceed in equity "to vacate any conveyance, or contract, or other act, as fraudulent against creditors," without first obtaining a judgment on his claim. It would be a narrow construction of this act to say, it allows a creditor to attack a deed, and not a parol assignment fraudulent and invalid on its face. The words are comprehensive, embracing any "contract or other act," and clearly include just such a case as the present.

2nd. That the bill states a case which would require [**2]  a court of equity to annul this assignment. The assets of an insolvent partnership are, in equity, primarily applicable to the payment of the partnership debts. The attempt, therefore, on the part of the appellees to defeat this equitable right of the partnership creditors by a pretended assignment, is fraudulent. 1 H. & G., 96, McCulloh vs. Dashiell. 2 Md. 1, Glenn vs. Gill. 19 Vermont, 279, Washburn vs. Bank of Bellows Falls. 1 Sandford's Ch. Rep., 348, Jackson vs. Cornell. 4 Barb., 571, 590, 691, Burton vs. Tisdall. 2 Paige, 400, Devean vs. Fowler.

3rd. That a court of equity having acquired jurisdiction of the case, will retain it, for the purpose of doing complete justice. It will, consequently, decree an account of the partnership, and payment of the appellant's claim, primarily out of the partnership effects, and, failing these, out of the private estate of the partners. 2 Johns. Cases, 424, Armstrong vs. Gilchrist. 10 Johns., 587, 595, Rathbone vs. Warren. 2 Hill (S. C.) Ch. Rep., 111, Backler vs. Farrow.

4th. That as there is good reason to apprehend that the partnership effects will be misapplied, through the fraud of the appellees, pending this suit, equity [**3]  will issue an injunction and appoint a receiver. 1st. The general grounds on which injunctions are issued by courts of equity, are well stated in Pennell vs. Roy, 17 Eng. Law & Eq. Rep., 417, and in 2nd Story's Eq., sec. 872. In Thompson vs. Diffenderfer, 1 Md. Ch. Dec., 489, the Chancellor said, where "the facts charged in the bill present an aspect of imminent danger, and contemplated, if not actual, fraud," there was a judicial necessity for an injunction and a receiver. It is held that even a bona fide possessor of property will be displaced, and a receiver appointed, if there is danger from his insolvency, fraud, or misconduct, that he will make a misapplication of it. 2 Md. Ch. Dec., 157, Drury vs. Roberts. 2nd. The case of Uhl vs. Dillon, 10 Md. 500, is not in conflict with the positions here assumed. In that case there was nothing on which to ground the jurisdiction of a court of equity, but here the act of 1835 expressly gives the jurisdiction, because we call upon the court to set aside an executed transaction as fraudulent and void, and the injunction is asked as auxiliary to the principal relief sought. 3rd. In Albert & Wife vs. Winn & Ross, 7 Gill 446, an injunction [**4]  was granted to restrain the fraudulent alienation of property. This was on the ground that whatever equity would undo, it would prevent. In Ellicott vs. Insurance Co., 7 Gill 308, a similar injunction was granted. In the case at bar, as in the two last mentioned, the specific fraud contemplated is pointed out. It is very usual to issue injunctions to prevent the alienation of property pendente lite, when there is reason to apprehend a fraudulent disposition of it, as in the ordinary case, where a bill is filed by a wife against her husband for divorce and alimony. 4 Gill 105, Ricketts vs. Ricketts. 4th. The case stated in the court's opinion, in Kerr vs. Potter, 6 Gill 425, is the present one. See, also, 4 Paige, 574, Bloodgood vs. Clark. 2 Story's Eq., sec. 834.

5th. That as Stockdale's private property is liable to contribute to the payment of the partnership debts in the proportion to be ascertained when the account of the partnership is taken, and as the bill charges that he has in contemplation a fraudulent disposition of it, an injunction should be granted to restrain the alienation of it.

T. Parkin Scott for the appellees, argued:

1st. That the promise [**5]  to give a mortgage, made on the 27th of July 1857, after the sale and delivery of the hogs, was and is without consideration, and void.

2nd. That the promises of Stockdale, made in September 1857, to secure or pay the debt by assigning securities, were conditional and voluntary, and are not binding, and, besides, are too vague, indefinite and uncertain to be enforced by a court of equity.

3rd. That a debtor, in failing circumstances, has a right to give preferences. 9 Gill 231, Powles vs. Dilley. 3 Md. 225, Glenn vs. Grover & McColm. 7 Md. 177, Falconer vs. Clark & Griffith. Act of 1854, ch. 193, sec. 13.

4th. That the complainant has no lien on any part of the property mentioned in the bill, and, therefore, had no right to attack any disposition which the parties may have made of it.

5th. That the refusal of the court below to grant the injunction or appoint a receiver, was correct, is clearly settled by the case of Uhl vs. Dillon, 10 Md. 500, and the case of Glenn vs. Gill 2 Md. 16.  

JUDGES:
The cause was argued before ECCLESTON, TUCK and BARTOL, J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*567]  ECCLESTON, J., delivered the opinion of this court.
This appeal [**6]  is taken, by the complainant, from an order of the circuit court for Baltimore city, refusing to grant an injunction and appoint a receiver.
The bill was filed on the 19th day of September 1857, and alleges, that for some time prior to the 27th of June, and up to the 17th of September, in the same year, the defendants had been doing business as partners, in the city of Baltimore, under the name and firm of Ulery, Stockdale & Co., and, as such, became indebted to the complainant in the sum of 

 [*568]  $ 19,695, for hogs sold to them, for which the defendant, James Stockdale, executed and delivered to the complainant three promissory notes, signed in the partnership name, dated the 14th of July 1857, and amounting, in the aggregate, to the above mentioned sum; which notes have not been paid, two of them being over-due and protested before the filing of the bill, and the third falling due a few days after, which note, Stockdale informed the complainant, would not be paid at maturity. That the hogs have been sold by Stockdale, and he has received the money for them, as he has acknowledged.
The bill also alleges, that he promised to procure an endorser for the three notes, as an additional [**7]  security for their payment, but he has failed and refused to do so; that having failed and refused to comply with that promise, Stockdale promised, in writing, on the 27th of July 1857, to give the complainant notes secured by mortgage, which he has since refused to do. That Ulery, Long and Cope are citizens and residents of the State of Pennsylvania, and out of the reach of the process of the courts of Maryland; that the partnership is unable to meet its just liabilities, and is insolvent; that the notes of the firm have been protested, in the city of Baltimore, for non-payment. The bill also alleges, that the complainant has heard, and believes, that misunderstandings and unfriendly differences have arisen among the members of the partnership, with respect to the partnership property. And the complainant avers, that Stockdale has charged his partners with wrongfully withholding from the partnership property, funds and effects to the amount of forty-five thousand dollars, and carrying the same beyond the limits of this State; that Stockdale has attributed the embarrassed and insolvent condition of the partnership to this conduct of his partners. The bill also states, that on the 17th [**8]  of September 1857, an advertisement appeared in the Baltimore Sun, a newspaper published in that city, containing a notice of the dissolution of the partnership, signed by all the members of the firm, and stating that the partnership was dissolved on the 27th day of June 1857; that Long and Cope had disposed of all their interest in the partnership to Stockdale, who would liquidate the affairs of the late partnership, 

 [*569]  and further stating that Stockdale and Ulery would continue the business, and pay all the debts of the late firm, and collect all that were due the same; which notice is alleged to be the first ever given to the public of the dissolution of the partnership, which had taken place nearly three months before, according to the advertisement, during all which time the business was conducted in the partnership name.
The complainant also avers, he believes that the partnership effects have been misapplied, and appropriated to the private purposes of the individual partners, and that the creditors of the partnership have been thereby delayed, hindered and defrauded, and he charges that the pretended dissolution and assignment above mentioned, is a fraudulent device,  [**9]  designed still further to effectuate the same dishonest purpose of defeating the just claims of creditors, and misapplying and appropriating the partnership effects to the purposes of the individual partners. And it is averred, that unless Stockdale, Ulery, Long and Cope are arrested in prosecuting their said purpose, and prevented from carrying the same into effect, by the interposition of the court of equity, the complainant will sustain great and irreparable damage. And he alleges that he is informed, and believes, that Stockdale owns a large amount of real estate in the city of Baltimore and Baltimore county, and that the partnership of Ulery, Stockdale & Co., own real estate in the said county, but the complainant is unable to describe the same, and is ignorant of its value. He also avers he has good reason to believe, and does believe, that the real estate belonging to Stockdale, and that belonging to the partnership just mentioned, may be conveyed away and disposed of, so as to be beyond the reach of their creditors, both individual and partnership, unless the court should interpose and prevent such disposition and conveyance. And the bill charges that Ulery, Stockdale, Long [**10]  and Cope, have such a design in contemplation.
The prayer of the bill is, that the defendants may be restrained, by an injunction, from carrying away, wasting, misapplying and disposing of the partnership funds and effects of the firm of Ulery, Stockdale & Co., or in any wise intermeddling 

 [*570]  with the same, and that a receiver may be appointed to take charge of them under the direction of the court; that the assignment mentioned to have been given, as stated in the advertisement of the 17th of September, may be declared to be null and void; that an account of the partnership of Ulery, Stockdale & Co., may be taken, and a decree passed for the payment of the complainant's claim out of the said partnership effects and estate, and if they shall be found insufficient to pay the same, that the individual partners may be decreed to pay the balance remaining unpaid out of their separate estate, and that Stockdale may be enjoined and prohibited from alienating, selling and conveying away, or in any wise incumbering his personal and real property in the city of Baltimore and Baltimore county, or elsewhere, if he has any, and that he shall discover whether he has any, and that he shall [**11]  give a description of the same, and a statement of its value, and be decreed to mortgage the same to the complainant, to secure his said debt, or that the same be sold for the payment of the same, or to pay such portion as the said Stockdale may be rightfully chargeable with by the rules of equity and good conscience, or that he may mortgage the same for such portion of the said debt as it may be right he should secure by mortgage; and that the complainant may have such other and further relief as his case may require, and as to right may appertain.
With the bill were filed, as exhibits therein mentioned, copies of the three notes, a copy of the letter alleged to have been written by Stockdale, in which he promised to give a mortgage, and also a copy of the advertisement of the dissolution of partnership.
On the 24th of September 1857, were filed two of said notes, with the protests of them, and the letter from Stockdale, mentioned in the bill, with an affidavit of the complainant, stating those two notes and the letter to be the originals which they purport to be, and that the third note was not then due, but would be due and payable on the 25th of September 1857, and had been deposited [**12]  in bank for collection.
There was also filed an affidavit of Henry Webster, one of 

 [*571]  the complainant's solicitors, dated the 24th of September 1857, stating that on or about the 10th of the same month, the deponent was consulted by the complainant in relation to his claim against the defendants; that subsequently, before the 17th day of the same month, he had several interviews with James Stockdale, one of the defendants, about the same matter; that he said the debt mentioned by the complainant in his bill, and secured by the notes, as therein stated, was bona fide, and should be paid, every dollar of it; that the said partnership was about to be dissolved, and he wanted more time to pay it; that he had settled with his partners, to whom he did not owe a dollar, and that they had just withdrawn forty-five thousand dollars out of the firm, which was the cause of its then embarrassment, and inability to pay its debts. Stockdale further stated, that his partners had become dissatisfied with his management of their business; that they could not agree about it, and that the firm would be dissolved on Friday, the 18th day of September 1857, before which day he wished to arrange [**13]  for an extension of time upon the complainant's claim, by renewing the notes of the firm, and securing their payment by sundry parcels of property and securities belonging to him, Stockdale, which he proposed to transfer to the complainant, for that purpose. The deponent further states, that the complainant offered to extend the time of payment of his claim as proposed, but when the deponent had prepared some of the papers to consummate the arrangement, Stockdale changed his mind, and insisted that if the extended notes should not be met at maturity, the complainant should accept the property offered as security absolutely in payment, and return the notes to him; which the complainant declined to do. The deponent also states, that the notes mentioned in the bill were referred to by Stockdale as having been issued for hogs sold by the complainant to said firm, in the month of July 1857; that the hogs had been sold by the firm to Mr. Smith, the distiller, and were all paid for.
The complainant's claim to relief, upon the ground of a promise by Stockdale to give a mortgage, cannot be sustained. There is no description of any property designed to be mortgaged; 

 [*572]  there being [**14]  not even so much as a statement whether it should be real or personal estate; and a court of equity cannot undertake to enforce a promise so perfectly vague and indefinite. Thus it becomes unnecessary to inquire whether, exclusive of the alleged promise of a mortgage, there are other grounds which entitle the complainant to relief?
The object of the bill is to secure the payment of a claim based upon three promissory notes given in the partnership name, for property sold by the complainant to the firm. It is alleged that the partnership effects have been misapplied, and appropriated to the private purposes of the individual partners, and that the creditors of the firm have been thereby delayed, hindered and defrauded.
The insolvency of the partnership is alleged; and the bill charges that a dissolution, or pretended dissolution, of the part-ship, and transfer or assignment of the partnership effects, were designed to effectuate the dishonest purpose of defeating the just claims of creditors, and misapplying and appropriating those effects to the private purposes of the partners. The complainant also states, that unless the partners are arrested in the prosecution of their said purpose,  [**15]  and prevented from carrying the same into effect, by the interposition of the court, he will sustain great and irreparable damage.
Looking to these allegations in connection with others more fully stated in the bill, there is, in our opinion, good ground for the complainant to claim a reversal of the decision below.
The rights of partnership creditors, with reference to partnership effects, came under consideration in the case of Glenn vs. Gill 2 Md. 1. The court there refer to Reese & Heylin vs. Bradford, 13 Ala. 837, and adopt the doctrine stated in that case in relation to such creditors. It is there said, that, as partnership creditors, they "have no lien on the partnership effects for the payment of their debts, and they stand, in respect to partnership property, as individual creditors do to the property of individual debtors, without having any lien thereon, until their debt is reduced to judgment, which will create a lien on real estate, and when execution is issued thereon, a lien is created on the personalty."

 [*573]  Whilst the creditors have no lien upon the partnership effects, by virtue of their debts, those effects may [**16]  be legally transferred, bona fide, for a valuable consideration, either to one or more of the partners, or to mere strangers. Collyer on Part., sec. 174, (Ed. of 1848.) Story on Part., sec. 358, and the cases cited in the notes. It may, however, be generally stated, "that where the partners, themselves, have a lien upon the partnership effects, for the discharge of all the debts and obligations thereof, (as they have in all cases where they have not parted with it,) that lien may, in many cases, be made available for the benefit of the creditors. But then the equities of the creditors are to be worked out through the medium of that of the partners." Story on Part., sec. 360.
Although the authorities recognize the validity of bona fide transfers of partnership property by the partners, the principle is as clearly established, that when the transfers are fraudulent, they cannot impair or injuriously effect the claims of partnership creditors. Collyer on Part., secs. 573, 902, 903. Story on Part., sec. 163.
Notwithstanding the principles announced in Glenn vs. Gill we do not perceive how the authority of that case will be, in any degree, impaired [**17]  or interfered with, by holding the complainant entitled to relief against a transfer of partnership property between the partners, alleged to have been fraudulently made, for the purpose of defrauding their creditors, the firm, at the time, being insolvent.
If, prior to the act of 1835, ch. 380, sec. 2, it might have been necessary for the complainant to have a judgment upon his claim before he could obtain the relief he seeks, or any portion thereof, such necessity is now dispensed with by that act. It provides: "That in no case of a proceeding in equity to vacate any conveyance, or contract, or other act, as fraudulent against creditors, shall it be necessary for any creditor or creditors, plaintiff or plaintiffs, in the cause, to have obtained a judgment on his demand, in order to the relief sought in the case, either in his or her own behalf, or in behalf of any other creditors who shall claim to participate in the benefit of the decree in the case."

 [*574]  This language is very comprehensive, both in relation to the transactions which may be vacated as fraudulent, and the creditors who may institute proceedings to vacate them without first having obtained judgments [**18]  upon their claims. The transactions are, "any conveyance, or contract, or other act," and those who may proceed to vacate them for fraud, without having judgments, are "any creditor or creditors, plaintiff or plaintiffs." Now, surely, if any creditor or creditors may do so, partnership creditors may. And such language as "any conveyance, or contract, or other act," must be comprehensive enough to include any transfer, assignment or contract between partners disposing of partnership effects among themselves, for fraudulent purposes.
The advertisement of the 17th of September 1857, purports to give notice of a dissolution of the partnership on the 27th of June previous, and the notice being signed by all the members of the old firm, it furnishes evidence that Long and Cope had retired from the firm, and had disposed of all their interest to Stockdale. This notice of dissolution, and the assignment or disposal of partnership effects therein mentioned, the bill charges as being fraudulent, and designed to effectuate the dishonest purpose of defeating the just claims of creditors, and misapplying and appropriating the partnership effects to private purposes. And the insolvency [**19]  of the firm, at the time, is also alleged.
Under the act of 1835, upon the case as now presented, the complainant is entitled to have the assignment or transfer to Stockdale considered, for the present, fraudulent and void, and, therefore, he should have an injunction to prevent the partnership effects from being sold or disposed of, in any manner prejudicial to his claim, until the rights of the parties shall be ascertained and settled by the future proceedings in the cause. And such injunction should embrace all the effects included in the transfer or disposition among the partners, alleged in the bill to be fraudulent, and which are to be found in the possession or under the control of either or any of the partners, as also any other effects or property still belonging to the late firm, or which may be in the possession or under the 

 [*575]  control of either or any of the partners, by virtue of "any conveyance, or contract, or any other act, not bona fide."
 Uhl vs. Dillon, 10 Md. 500, has been relied upon by the appellee's counsel, but that case differs widely from this, and the points of difference are sufficiently manifest to render it unnecessary [**20]  for us to specify them.
The appellant contends that he is not only entitled to relief in relation to partnership effects, but as they may prove insufficient to give him full redress, he has a right to claim that the separate property of the members of the late firm, and especially of Stockdale, should be held liable, in this case, to make up any deficiency in the partnership effects, and, therefore, he contends that the separate, as well as joint property, should be protected, by injunction, for his benefit. But we do not think so. Under the circumstances disclosed in this case, the appellant is not entitled to an injunction in regard to separate property, bona fide such, and which is not held or claimed by the individual members of the firm, under any fraudulent transfer of property originally owned by the partnership. There is no allegation that either of the members of the late firm has fraudulently transferred or disposed of any portion of his separate property.
The views which have been expressed, render it proper that the decision of the court below, made on the 26th of September 1857, overruling the application for an injunction and appointment of a receiver, should be [**21]  reversed, and the cause remanded for further proceedings, so that an injunction may be issued, according to the principles announced in this opinion, that an answer to the bill may be filed, and such other proceedings may be had as may be necessary and proper.
At any time, after reasonable notice to the defendants, or their solicitor, it will be proper for the court below to appoint a receiver, for the purpose of taking charge of the effects which may be covered by the injunction, provided it shall be shown to the court to be necessary for the ultimate security of the complainant, in case his claim upon those effects shall be finally established.
The costs are to await the final result.
The decision below is reversed, and the cause remanded for further proceedings. 

22 of 187 DOCUMENTS 

OTHO W. EICHELBERGER and JAMES P. ERSKINE, vs. WILLIAM F. MURDOCK and ALEXANDER MURDOCK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 373; 1857 Md. LEXIS 1 

JUNE, 1857, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

Assumpsit brought by the appellees against the appellants, to recover the amount of certain drafts and a promissory note, drawn and made by Lake & Co., and endorsed by the defendants, dated respectively the 5th of December 1842, and the 6th of February 1843, and assigned by the Union Bank to the plaintiffs. Plea non assumpsit.

Exception. The facts of the case are fully stated in the opinion of this court. The plaintiffs asked two instructions, the first of which the court, (FRICK, J.,) rejected, but granted the second. The defendants also offered two prayers, which the court rejected. The plaintiffs' first prayer, asserts their right to recover the whole amount of the drafts and notes, sued on, with interest from maturity, provided, the jury find they were drawn by Lake & Co., endorsed by the defendants, and duly protested, and that the Union Bank, on the 23rd of August 1843, transferred them to the plaintiffs for value, and paid to the plaintiffs $ 2243, the balance of the proceeds of the stock mentioned in the evidence, and that this stock was sold by the authority of Lake & Co., and the surplus so paid over, under the letter [**2]  of Lake & Co., to the cashier of said bank, of the 14th of June 1843, and that the several papers offered in evidence were executed by Lake & Co., and that when the drafts and note were so transferred, and said surplus so paid to the plaintiffs, the bank then held liabilities of the plaintiffs, for the accommodation of Lake & Co., upon which Lake & Co., were liable to the bank, and also other liabilities of Lake & Co. The other prayers are sufficiently stated in the opinion of this court. Both parties excepted to the ruling of the court below and appealed, but the plaintiffs dismissed their appeal, after the argument of the case in this court was concluded.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Where a consignee receives goods or money with instructions to deliver or pay them to a third party, such party cannot maintain either trover or an action for money had and received, until the consignee does some act by which he binds himself to such third party; without such act there is no privity of contract between him and the third party, and the title still remains in the consignor.

A letter, directing a bank to which the writer had pledged certain stock as collateral security for a specific debt, "to hold the stock as a general collateral security for all the writer's liabilities to the said bank, at present existing or which may hereafter be incurred by him," authorises the bank to apply the surplus of the stock, after payment of the specific debt, pro rata, to all such liabilities.  

COUNSEL:
T. Yates Walsh and John Nelson for the appellants, argued:

That the ruling of the court below, in granting the prayer of the appellees and rejecting those of the appellants, was erroneous, because by the terms of the authority derived from Lake & Co., the Union Bank was bound to apply the surplus paid over to the appellees, to the notes and bills of exchange of Lake & Co., upon which the appellants were endorsers and acceptors, and that the arrangement made between the bank and the appellees with a [**3]  view to avoid such application, was a fraud upon the rights of the appellants. The instructions by Lake & Co., directed the surplus to be paid to any paper of theirs, which the bank should deem itself insecure in. The proof shows that the paper of Lake & Co., endorsed by the defendants, was insecure, and that the bank so deemed it. What right then had the bank to go out of the terms of the instructions applying the surplus proceeds of this sale, and pay it over to the plaintiffs? The plaintiffs had no interest whatever, as holders or endorsers of the paper of Lake & Co., endorsed by the defendants. One of the plaintiffs was a director in the bank, knew of the arrangement between it and Lake & Co., in regard to this application, and their effort to appropriate these funds in a mode different from that specified in that arrangement, is in fraud of the defendants. 1 Md. Rep., 85, 86, Bayne vs. Suit.

Reverdy Johnson and Reverdy Johnson, Jr., for the appellees, argued:

1st. That the court erred in rejecting the first prayer of the plaintiffs, because having paid the bank full value for the note and acceptances sued upon, the plaintiffs were entitled to recover their full amount [**4]  with interest, although they received from the bank the $ 2243, surplus sales of stock, as the bank was not prohibited negotiating these securities for value, nor was it prohibited securing itself as to these, or any other of Lake & Co's liabilities, by other means than by the pledged stock. 14 East, 582, Williams vs. Everett. 3 Price, 58, Grant vs. Austen. 1 Mees. & Wels., 365, Brind vs. Hampshire. 5 Pet., 580, Tiernan vs. Jackson.

2nd. That the court, if it did not err in rejecting the plaintiffs' first prayer, was not in error in granting the second, nor in rejecting those of the defendants, because the most favorable construction of the letter of Lake & Co., of the 14th of June, to which the defendants are entitled, is that the surplus proceeds of stock was to be divided, pro rata, among all Lake & Co's liabilities to the bank, in which the bank deemed itself insecure, (which must have been the case with most, Lake & Co. having then failed,) and not that the surplus should be applied exclusively for the defendants' benefit; the bank could therefore have recovered of the defendants, any balance on the note and acceptances now in suit, after deduction of a proportionable dividend [**5]  of the surplus, and its assignees for value, the plaintiffs, are equally entitled to recover to that extent. The stock was originally pledged to secure the specific loan of $ 8100, and nothing more. The object of the paper of February 1843, was to let the bank hold on to the excess of this stock, over the $ 8100, for any paper on which Lake & Co. were then, or might thereafter, be liable to the bank. The paper of June 1843 was not necessary to enable the bank to apply the stock; it had this already by the previous paper. This latter paper was given for a different purpose. It was not designed to give the bank any security, but to give the plaintiffs the security, after payment of any debts the bank deemed insecure. It does not change the right of the bank to apply the surplus to any debts it deemed insecure, and the acceptance of this paper is no promise on the part of the bank, to apply the surplus to any such debts. It simply says, apply the surplus as you had a right to do under the paper of February 1843, and then the balance to the Murdocks The insecurity is a matter to be judged of by the bank, at the moment the stock was sold.  

JUDGES:
The cause was argued before LE GRAND, C. J.  [**6]  , ECCLESTON, and TUCK, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*376]  LE GRAND, C. J., delivered the opinion of this court.
This was an action brought by the appellees against the appellants, to recover the amount of certain drafts, and a promissory note, drawn and made by Lake & Co., of New Orleans, and by the appellants endorsed. The drafts and notes were discounted at the Union Bank of Baltimore, for the accommodation of Lake & Co. There is no question of sufficiency of demand and notice, nor of the genuineness of the paper. The dispute arises out of a state of facts which may be thus indicated: It appears from the record, that on the 13th day of February 1843, the Union Bank of Maryland, as collateral security for the payment of a specific liability of Lake & Co., held one hundred and fifty shares of the stock of the Farmers and Merchants Bank of Memphis, Tennessee; and on that day received from Lake & Co., the following letter:
"Baltimore, February 1843.--The President and Directors of the Union Bank of Maryland, are hereby authorized to hold the one hundred and fifty shares of the stock of the Farmers 

 [*377]  and Merchants Bank of Memphis, now standing in their name as a general collateral [**7]  security for all our liability to the said bank at present existing or which may hereafter be incurred by us.
LAKE & Co."
On the 14th day of June, the bank received the following note:
"Baltimore, June 14th, 1843.--In conformity with the original understanding between Messrs. W. F. & A. Murdock and ourselves, in regard to their paper discounted for our use, by, and now held by your bank, we beg to inform you that any surplus arising either from sale or otherwise of the F. & M. Bank, of Memphis stock, now held by your bank, and for any other paper of ours your bank deems itself insecure in, is to go towards the liquidation, with your bank of any of our said paper drawn or endorsed by W. F. & A. Murdock.
With great respect, &c.
LAKE & Co."
On the 8th day of September 1843, Lake & Co. authorized the bank to sell the stock which had been hypothecated, and which was accordingly done on the 9th of the same month, realizing therefor $ 69.50 per share, making in the aggregate $ 10,425. In notifying Lake & Co. of the sale, Mr. Mickle, the cashier of the Union Bank of Baltimore, after stating the amount of sale, says, leaving "a surplus according to the statement of account herewith submitted,  [**8]  of $ 2243.44, which surplus has been paid over to Messrs. W. F. & A. Murdock, under your letter to the bank of the 14th of June last." On the same day the amount ($ 2243.44) was paid to the Messrs. Murdock, and receipted for by them. In the receipt given by them is the following:--"We hereby, in consideration of the receipt of the above mentioned sum of money, guaranteeing the said Union Bank of Maryland from all loss or damage they may sustain by reason of the said payment." After these facts were given in evidence, it was proven, that the bill of exchange, promissory note and draft, to recover the amount of which this suit was brought, were assigned on the 26th day of August 1843, to the appellees, the bank receiving therefor from them the full amount thereof. It was shown by the receipt of Lake & Co., dated the 15th day of April 1841, that 

 [*378]  the appellees' notes in their favor, or endorsements of Lake & Co's own paper of various dates and sums, in the aggregate amounted to nearly $ 22,000; all of which notes and endorsements were granted for Lake & Co's sole use and accommodation; and proved that the notes, or the renewals of such as were stated in the receipt as being [**9]  in the hands of the Union Bank of Baltimore, continued to be so held at the time of the sale of the Memphis bank stock. The appellants then proved, that they had stopped payment sometime prior to the sale of the stock; and also, that prior to, and up to the time of the trial, one of the appellees was a director of the Union Bank, and knew and approved of every step taken by the bank in regard to the liabilities of Lake & Co., and especially of the arrangement of the 14th of June 1843, and the sale of the 9th of September following.
On this state of case, the appellants submitted two prayers to the court, both of which were rejected; the appellees, also, offered two prayers, the first of which was rejected, and the second granted. Both parties appealed; but inasmuch as the appeal of the appellees in this case has since been dismissed, it is not necessary we should review the action of the court below in regard to the first prayer of the appellees.
The theory of the prayer, granted by the court on behalf of the appellees, is, that if the jury should believe the facts, which we have cited from the record, then the appellees were entitled to recover the amount of the note and acceptances [**10]  sued on with interest, less the proportion to which the same would be entitled, of the sum of $ 2243, proceeds of the sale of the Memphis Bank stock, having regard to the entire debt due the bank by Lake & Co. at the time when such surplus was paid by the Union Bank to the appellees, and the note and acceptances transferred to the latter.
The first prayer of the appellants is basedupon the ground, that if the jury should believe that when the bank received the instructions of Lake & Co., of June 1843, Erskine and Eichelberger's liabilities to the bank were insecure, and in concert with the appellees, adopted the arrangement of the 26th of August 1843, as a means whereby the said bank should be 

 [*379]  saved harmless in regard to said liabilities, and that Erskine and Eichelberger received no advantage from the sale of the Memphis bank stock, then, there could be no recovery in this action. The second prayer of the appellants declares, that if the jury should find from all the evidence, that the arrangement of August 1843, between the appellees and the Union Bank of Baltimore, was adopted to avoid and evade the contract of the 13th day of February 1843, and that of June of the [**11]  same year, then such arrangement was tortious and wrong, and conferred no title on the appellees to the note and acceptances sued upon.
The ruling of the court in regard to the first prayer of the appellees, the appeal from it having been dismissed, is not now before us; but if it were we would have no hesitation in saying it was erroneous. The cases cited at the bar are explicit and direct to the point contained in that prayer. They clearly establish this principle, that where a consignee, or remittee, receives goods, or money, with instructions to hand them or pay it over to a third party, such third party cannot maintain either trover, or an action for money had and received, until the consignee or remittee does some act by which he binds himself to such third party; without such act, there is no privity of contract between him and the third party, the title still remaining in the consignor or remittor. The cases we refer to on this point are the following: Williams vs. Everett, 14 East., 582. Grant vs. Austen, 3 Price, (Excheq. Rep.,) 58. Brind vs. Hampshire, 1 Meeson & Welsby 365.  Tiernam vs. Jackson, 5 Peters 580.
It is impossible [**12]  for us to perceive any wellfounded objection to the instruction which the court did give. If the appellants have any ground whatever of defence it is derived from the letters of Lake & Co. to the Union Bank of Baltimore, of dates 13th of February 1843 and June 14th of the same year. The Memphis Bank stock was pledged specifically for an obligation of Lake & Co's for $ 8100. The letters of February and June, can bear no other construction than that, after that debt was paid, the surplus should be applied to other liabilities of Lake & Co. The appellants cannot contend 

 [*380]  that it was to be applied exclusively to their liabilities. The letter of June clearly confines the application of the surplus to any paper "drawn or endorsed by W. F. and A. Murdock." But it was said at the bar this note ought to be construed in connection with the one of February. If this be done the appellants have no right to complain of the court's instruction. What does that note say? It does not appropriate the stock as a security, exclusively, for the liabilities of Erskine and Eichelberger; on the contrary, it appropriates it "as a general collateral security for all our liability"  [**13]  to the bank, "at present existing, or which may be hereafter incurred." The instruction of the court is in strict conformity with this direction; it allowed the appellants an abatement in the proportion which their indebtedness to the bank stood to the fund to be applied, and the whole amount of liability of Lake & Co.
The first prayer of the appellants, which the court rejected, only denied the right of the plaintiffs to recover, provided the jury found they did not derive "any advantage" from the arrangements made between the Union Bank and Lake & Co. The instruction given by the court did allow them as great an advantage as that given to any other person or persons who had become liable to the bank for Lake & Co; and they realized this advantage in the verdict of the jury. It follows necessarily, if these views be correct, the prayers on behalf of the appellants were properly rejected. We affirm the judgment.
Judgment affirmed.
TUCK, J., dissented.  

23 of 187 DOCUMENTS 

JOHN H. THOMAS vs. WILLIAM E. BARBER and SAMUEL W. BARBER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 380; 1857 Md. LEXIS 2 

JUNE, 1857, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

This was a scire facias under the mechanics' lien laws, issued on the 11th of April 1855, upon a claim filed the day preceding, by the appellees against the appellant and Jacob F. Kridler, for materials alleged in the claim to have been furnished to Kridler as contractor, builder and architect, of a house erected on a lot, of which the appellant was at the time of their delivery the owner or reputed owner. The writ, return, advertisement, claim, pleas and issues, are fully stated in the opinion of this court.

Exception. The proof in the case shows, that Kridler was building three houses adjoining each other, one of which is the house in question; that the lumber was obtained for these three houses from various places, and all of it was usually dropped at defendant's house, and was used indiscriminately for all three; that the items of which this claim is composed, were sometimes ordered by Kridler and sometimes by his hands. The plaintiffs then offered in evidence the notice to the appellant, which is set out in the opinion of this court, and also a deed from Kridler and Israel to the defendant, dated the 20th of November 1854,  [**2]  of the leasehold interest in the lot sought to be charged with the lien. The defendant then offered in evidence an agreement between himself and Kridler, dated the 11th of July 1854, by which Kridler contracted, for $ 6000, to build the house for him, and convey or have conveyed to him the lot free of incumbrances, except the ground-rent, and also proved the lease of the lot by Williams and wife, to Kridler, dated the 19th of September 1854, and the assignment thereof by Kridler to Israel, dated the 20th of October 1854, subject to the defendant's title, and with the agreement on the part of Israel, to convey the property to the defendant, on repayment of the sum of $ 2500, for which Kridler had pledged it to him. It was admitted by the plaintiffs, that it was their invariable custom to settle with Kridler on the first of July and January, every year, for purchases made by him during the previous six months, and that on the 1st of July 1854 he gave them his note for $ 518.85, in pursuance of that custom; which, however, has not been paid. The defendant then offered the following prayers.

1st. (This prayer is fully stated in the opinion of this court.)

2nd. That if the jury [**3]  find that Kridler executed the contract given in evidence by defendant, the plaintiffs are not entitled to recover for any materials which they may find to have been furnished to Kridler, on account of the property in question, previous to sixty days before the 5th of January 1855, provided they find there was no special contract between the plaintiffs and Kridler, for furnishing materials generally to the house, but that the same were sent for, and furnished from time to time, as the state of the job required.

4th. That if the jury believe from the evidence, that the materials claimed for, were furnished on the individual credit of Kridler, and not on that of the house in question, then the plaintiffs are not entitled to recover.

5th. That in order to entitle the plaintiffs to recover in this action, the jury must first find that the materials were furnished on the credit of the house in question, and that such was the understanding at the time they were furnished.

The court, (PRESSTMAN, J.,) granted the fourth prayer, with this modification; "but that the jury are not at liberty to infer, that the note offered in evidence, and given by said Kridler, was a waiver of [**4]  the lien of the plaintiffs, unless they shall also find that the said note was paid," and rejected the others. To this ruling the defendant excepted, and the verdict and judgment being against him, appealed.  

DISPOSITION:
Judgment reversed, without a procedendo.  

HEADNOTES:

Where a lien claim as filed, the scire facias, and the sheriff's published notice, all name the defendant as owner or reputed owner, and another party as contractor, builder and architect, to whom the materials were furnished by the claimants, the defendant must in such a case be regarded as owner, whether so in fact or not, and the claimants cannot recover, unless they have given him the notice required by the lien laws.

A notice to the owner, which merely states the intention "to claim the benefit of the lien, provided" by the lien laws, "for materials furnished and work done, for and about the erection and construction" of the described building, saying nothing of the nature and kind of materials, nor of the amount claimed, and making no reference to a claim filed, is not a sufficient notice under the lien laws.  

COUNSEL:
S. T. Wallis for the appellant, argued:

1st. That the contract for furnishing the materials, having been made with "a contractor or builder," the lien cannot be affixed to the defendant's property, without the notice required by the acts of 1838, ch. 205, sec. 9, and 1845, ch. 176, sec. 1. Whether he was owner in point of fact or not, he was so for the purposes of this case. The claim, the scire facias, the notice, all allege that he was the owner, and that the materials were furnished to a contractor. The testimony shows the same fact. He was the equitable owner, in point of fact, from the date of his contract with Kridler, on the 11th of July 1854. If, therefore, the acts of Assembly require notice to the party, who was the owner at the time the lien was attempted to be enforced, and who was the equitable and "reputed owner" all the time, then Thomas was the proper person to whom the notice was to be given. 7 Md. Rep., 315,  [**5]  Mills vs. Matthews. But, as has been already said, the scire facias and the notice, treat him as owner or reputed owner, and there can be no recovery except upon proof that all the formalities required in the case of an owner or reputed owner, have been strictly complied with as to him. The plaintiffs have so put their own case. The notice to Thomas was not sufficient. The act of 1838, ch. 205, sec. 9, provides, that the party furnishing materials, shall not be entitled to a lien, when his "contract" for furnishing them was made with a contractor, unless he shall give notice of the "same," that is, of the contract to the owner, and "that he intends to claim the benefit of the lien." No notice of the contract was given, or of any thing from which it was possible for Thomas to learn what the contract was. The act of 1845, ch. 176, sec. 1, provides, that in a similar case, the claimant shall not be entitled to a lien, "unless within sixty days after furnishing such work or materials, he shall give notice of the same," (that is, notice of the furnishing of such materials,) "and of his intention to claim the benefit of the lien." Both acts require notice of two things. Thomas had notice [**6]  but of one, viz., their intention to claim the benefit of the lien. There is nothing from which he could learn the nature of the contract, to which he was a stranger, the kind and character of the materials, the amount due for them, or any thing else he was entitled to know; nothing to enable him to retain in settlement with Kridler, as by the act of 1845, ch. 287, sec. 8, he was entitled to do, the amount for which he might be made responsible to the claimants. The lien had not then been filed to come in aid of the notice and supply defects. It was not filed until the 10th of April, three months afterwards. There is no other proof when the notice was served, than that the endorsement says, the 5th of January. Sec. 11 of the act of 1838, ch. 205, prescribes, what the lien-claim must contain; the nature or kind of work done, and the kind or amount of the materials furnished, and the time when they were furnished. Yet in a case in which the letter of the law was complied with, and all this information given, the Court of Appeals say its spirit was not fulfilled; he must not only state the amount claimed, but must give a bill of particulars, whereby all who may be interested in the premises [**7]  can ascertain, not only the amount demanded but the correctness and reasonableness of the demand. The items must be furnished, in order that persons interested may know for what services and materials the sum alleged to be due is claimed, and thus have an opportunity of proving the injustice or the extravagance of the demand. 6 Gill, 27, Carson vs. White. If a stranger to the contract is entitled to this information from the claimant, he is surely equally entitled to it in the notice, when no claim has been filed, and there is no other source from which he could learn it. For these reasons the appellant insists, there was no sufficient notice to bind him as owner, and that the court, therefore, erred in refusing his first prayer.

Cornelius McLean and George H. Williams for the appellees, argued:

1st. That the ruling of the court below upon the first prayer was correct. The evidence shows that Kridler was owner, and as such contracted for the materials, and no notice was necessary to be given to Thomas in any event. He bought the house from Kridler as its owner, after the delivery of these materials, and was bound to know that a house in progress of erection was responsible [**8]  under the lien law. He affirms Kridler to have been such owner, by receiving a conveyance from him, and there is not a particle of evidence in the cause, to show that Kridler was at any time the contractor or builder of Thomas. His agreement was to sell his own house to Thomas, when he had finished it. If that be so, then the notice to Thomas was mere surplussage, only given for abundant caution, and a defective notice to one not entitled to any notice at all, cannot vitiate a claim properly preferred against the house, and against the person truly liable; and for a like reason, the addition of the name of Thomas in the claim as filed, cannot be a fatal defect, if indeed it be a defect at all. Further, this is a proceeding in rem, and the scire facias either brings in the true parties, or concludes the property by judgment rendered, and had it turned out that neither Kridler nor Thomas were owners, still the claim was sufficiently filed to bind the property, if either was the owner or reputed owner, which is all that the act requires. The jury may have found that Kridler was the owner, and no notice necessary, and the wording of the prayer, that the plaintiffs were not entitled to [**9]  recover, by reason of a defective notice to Thomas, excluded the jury from finding that Kridler was the owner, and that the notice was otherwise sufficient, or in fact that no notice at all was necessary; and also excludes from the consideration of the jury the first and third issues, which do not at all involve the question of notice, but only the furnishing of the materials and the sufficiency of the claim of lien. And the prayer assumes, that in filing the claim, the law requires the claimant, at his hazard, to ascertain the true owner, and so much of the law as provides for filing it against the reputed owner would be repealed. The act evidently makes the true description of the lot when the claim is filed, and when the scire facias is published, the important matter, and in this case in which Kridler was at the outset the owner without a proper title, and subsequently became contractor to finish, demonstrates the propriety of this construction of the law.

2nd. Assuming that Kridler was contractor and builder, the notice, so far as time is concerned, was sufficient. It was within sixty days after furnishing the materials. November 17th was the date of the last delivery, and [**10]  January 5th was the date of the notice. In substance it was sufficient, because the lien law only requires, that the particulars should be filed in the clerk's office, 6 Gill, 17, Carson vs. White. The act of 1845, ch. 176, sec. 1, does not entitle the owner to notice of any thing, but that the benefit of the lien is intended to be claimed, and that the materials have been furnished under contract to the contractor. It does not, nor does any act, provide that the particulars are to be furnished with the particularity required when the claim is lodged in the clerk's office, and the court therefore was not in error in refusing the first prayer. The second section of the act of 1845, draws a distinction between giving notice, and the filing of a claim or statement.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON, TUCK and BARTOL, J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*386]  ECCLESTON, J., delivered the opinion of this court.
The scire facias in this case issued from the Superior Court of Baltimore city, for the purpose of enforcing a claim under the lien laws. The writ recites, that on the 10th of April 1855, William E. Barber and Samuel W. Barber filed a claim in the said court,  [**11]  "against Jacob F. Kridler and John H. Thomas, for the sum of $ 95.31, on a three-story brick tenement, with a three-story back building, twenty-two and-a-half feet front, fronting on the south-west side of McCulloh street, first house north-west of Hoffman street in said city, with a depth of about fifty-three feet, and on the lot whereon said tenement is erected, and the ground adjacent thereto and used therewith, of which the said John H. Thomas was the owner, or reputed owner, for lumber sold and delivered by the said William E. Barber and Samuel W. Barber, to the said Jacob F. Kridler, as contractor, builder and architect."
The writ was issued on the 11th of April 1855, and on the return day the sheriff made the following return:
"Copy served on John H. Thomas, defendant in possession, and summoned. Non est, Jacob F. Kridler; also advertised 

 [*387]  according to law, as per advertisement hereto annexed. (Signed,) Samuel Hines, sheriff."
The advertisement states the issuing of the writ, describing the property and the lien-claim as set forth in the scire facias, calling Thomas "the owner, or reputed owner;" and stating the lumber to have been sold to Kridler,  [**12]  as contractor, builder and architect." It then gives notice to all claimants and persons interested to be and appear in the court, "to show cause, if any thing they know or have to say, why the said sum of money above named should not be levied of the said buildings to the use of the said William E. and Samuel W. Barber, according to the form of the act of Assembly in such case made and provided."
Thomas appeared and filed three pleas:
1st. That the materials were not furnished, and that the sum of money was not due and unpaid as alleged.
2nd. That the contract for furnishing the said materials was made with an architect, builder, or other person than the owner of the lot on which the building was erected, and that the plaintiffs did not, in manner and form as required by the acts of Assembly in such case made and provided, give notice of the same, and of their intention to claim the benefit of the alleged lien.
3rd. That no lawful sufficient claim of lien was filed as required by the acts of Assembly.
Upon issues based on these pleas the cause was tried.
The lien-claim, as filed, does not appear in the record, but, by agreement, is to be used as if it had been inserted. It is [**13]  as follows:
"William E. Barber and Samuel W. Barber, vs. Jacob F. Kridler and John H. Thomas.--Mechanics Lien.--In the Superior Court of Baltimore city.
William E. Barber and Samuel W. Barber, of the city of Baltimore, Maryland, claim a lien for the sum of $ 95.31, on a three-story brick tenement, with a three-story back building, twenty-two and-a-half feet front, fronting on the south-west side of McCulloh street, first house north-west of Hoffman street, in said city, with a depth of about fifty-three feet, and 

 [*388]  on the lot whereon said tenement is erected, and the ground adjacent thereto, and used therewith, of which the said John H. Thomas was, at the time of the delivery hereinafter mentioned, the owner, or reputed owner, for lumber sold and delivered by the said William E. Barber and Samuel W. Barber to the said Jacob F. Kridler, as contractor, builder and architect, of the kind, at the prices, and delivered at the respective times stated in the account hereto annexed and filed herewith.
MCLEAN & WILLIAMS, Attorneys for Claimants.
Mr. Jacob F. Kridler and John H. Thomas, Bot. of Barber & Brother.

________________________________________________________________________________

  1854.	
May   25.--625 ft. 3x5 w. pine, 20.2 1/2,	$ 15 63	
   Hauling,	37	$ 16 00	
July  11.--1080 ft. 3x9 hemlock, 16.1 3/4,	18 90	
   Hauling,	50	19 40	
  "   12.--1080 ft. 3x9 hemlock, 16.1 3/4,	18 90	
   Hauling,	50	19 40	
Aug.  15.--208 ft. 3x4 w. pine, 26.2 3/4,		5 72	
Sept. 12.--254 ft. 4x4 cullings, 2,	5 08	
   960 ft. 3x4 hemlock, 16.1 3/4,	16 80	
   Hauling,	50	22 38	
Nov.  17.--159 ft. 4x4 panel, 4 1/2,		7 16	
Oct.  25.--1500 ft. laths, w. p.--Jacob cart, 37 1/2,		5 25	
		$ 95 31	
________________________________________________________________________________

 [**14]  
Received to be recorded 10th day of April 1855. Same day recorded and examined,
Per, EDWARD DOWLING, Clerk."
On the 5th of January 1855, the following notice was served upon the present appellant:
"John H. Thomas, Esq.--Sir, You are hereby notified, that we intend to claim the benefit of the lien provided by acts of Assembly, for materials furnished, and work done for and about the erection and construction of a certain three-story building, situate on the westwardly side of McCulloh street, being the first house north-west from Hoffman street, in the 

 [*389]  city of Baltimore, of which Jacob F. Kridler was the architect, contractor and builder, and you the owner, or reputed owner.
Very respectfully yours, &c.,
BARBER & BRO., Lumber Merchants."
"Baltimore, Dec. 28, 1854."
Inasmuch as our decision is based upon the proceedings already mentioned, a further statement of the evidence contained in the bill of exceptions is deemed unnecessary.
At the trial the defendant submitted four prayers, all of which, as presented, were refused; but the court granted the third, (marked 4th,) with a qualification.
The verdict and judgment being in favor of the plaintiffs, the defendant [**15]  appealed.
The first prayer asks the court "to instruct the jury, that if they find that Kridler executed the contract given in evidence by the defendant, then the notice to the defendant, offered in evidence by the plaintiffs, is not sufficient to entitle the plaintiffs to the benefit of a lien against the defendant, as owner of the property in question, and that the plaintiffs are therefore not entitled to recover in this action."
For the purpose of giving effect to a claim, under the lien laws, if the contract for furnishing materials shall have been made with "any architect, builder or other person, except the owner or owners of the lot upon which the building may be erected, or his, her or their agent," it is necessary that, within sixty days after furnishing such materials, notice thereof, and of the intention to claim the lien, shall be given in writing, by the claimant, or his agent, "to the owner or owners, or agent, if residing in the city or county of Baltimore." See the Acts of 1838, ch. 205, sec. 9; 1845, ch. 176, sec. 1, and 1845, ch. 287, sec. 8; also the case of Hess & others, vs. Poultney & Brown, Ante, 257.
In prescribing the form [**16]  of the claim to be filed, the 11th section of the first act directs, that it shall set forth "the name of the claimant, and of the owner, or reputed owner, of the building, and also of the contractor, architect or builder." And in reference to a notice by publication, directed by the 17th section of the original act, the 9th section of 1845, ch 

 [*390]  287, requires such notice to specify the name of the owner, or supposed owner, of the building, and of the contractor, if any, at whose instance the materials were furnished.
The notice to Thomas--the lien claim as filed--the scire facias--and the sheriff's published notice--all name Thomas as "owner, or reputed owner," and Kridler as "contractor, builder and architect." And the lien-claim not only thus describes those parties, but says, "the said John H. Thomas was, at the time of the delivery hereinafter mentioned, the owner, or reputed owner," of the property designated as that on which the lien is claimed, "for lumber sold and delivered by the said William E. Barber and Samuel W. Barber to the said Jacob F. Kridler, as contractor, builder and architect, of the kind, at the prices, and delivered at the respective times [**17]  stated in the account hereto annexed and filed herewith."
With such proceedings before us, so far as this case is concerned, we must regard Thomas as owner, and Kridler as contractor, builder and architect. This being so the plaintiffs were not entitled to recover under this scire facias, unless notice was given to Thomas according to the requirements of the acts which have been referred to, and this we think has not been done.
The claim was not filed until the 10th April 1855; the notice was given on the 5th of January preceding, merely stating an intention "to claim the benefit of the lien provided by the acts of Assembly for materials furnished, and work done for and about the erection and construction of a certain three-story building," &c. It says nothing as to the nature or kind of materials furnished or work done, leaving the owner entirely without information in regard to the amount intended to be claimed.
The act of 1845, ch. 176, sec. 1, requires in such a case as this that a claimant shall, within sixty days after furnishing work or materials, "give notice of the same, "(that is, notice of the furnishing of such work or materials,)" and of his intention to [**18]  claim the lien." In a case where the notice makes no reference to a claim filed, and could make none in consequence of there being no such claim on file, how can such a notice as 

 [*391]  the present be considered a compliance with the act? What useful information did it furnish in reference to the amount of the claim?
The 8th section of chapter 287 of the same session, confirms us in the belief, that this notice is not such as the Legislature designed it should be. That section gives the owner who receives notice of a lien claimed for materials, the right to retain out of the cost of the building, as between himself and the contractor, "the amount which he may ascertain to be due to the party giving such notice." This provision is an equitable one, and designed for the protection of the owner. Requiring such a notice to be given as will render the law practically useful to him, imposes no hardship upon a material man or mechanic, whilst it only secures to an owner what the Legislature evidently intended for his benefit.
As the notice received by Thomas says nothing in regard to the amount claimed, it gave him no information in reference to what amount he would be entitled to [**19]  retain out of the contractor's claim.
Like the case before us, the scire facias, in Hess & others, vs. Poultney & Brown, was issued upon a claim for materials. There the want of a proper notice to the owners was held to be a defect, which so effectually defeated the claim that the court did not award a procedendo. And considering the present notice defective, we think the first prayer of the defendant should have been granted. The judgment must therefore be reversed, and no procedendo ordered.
This renders an examination of the other prayers unnecessary.
Judgment reversed, without a procedendo. 

24 of 187 DOCUMENTS 

DANIEL MCCOY, Garn. of SILAS H. DEWEY, vs. EDWARD BOYLE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 391; 1857 Md. LEXIS 3 

JUNE, 1857, Decided 

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

Attachment on warrant, issued at the instance of the appellee, to affect the goods, chattels and credits of Dewey. The warrant, dated the 23rd of September 1853, is addressed "To the clerk of Baltimore county court;" and "Mr. Norwood" is directed to issue the writ. The affidavit of the plaintiff is dated the same day, and states, that "Edward Boyle, a resident of the United States," personally appeared, &c. The writ, dated the 22nd of September 1853, recites, that the justice "hath this day issued his warrant to clerk of the court of Common Pleas," &c., and was, as appears by the sheriff's return, "laid in the hands of" McCoy and others, "in the presence of" two witnesses, on the 23rd of September 1853, and the short note returned "non est, copy set up." McCoy failed to appear, and judgment of condemnation was entered against him, after a judgment nisi at the previous term. The plaintiff having given the requisite bond, issued a fi. fa. on this judgment. McCoy then appeared and moved to strike out the judgment and quash the attachment; because, 1st, the judgment was improvidently entered and was a surprise upon him; 2nd, the affidavit upon [**2]  which the attachment was awarded is defective in not averring the plaintiff to be a resident of one of the United States, as required by the attachment laws. This motion the court (MARSHALL, J.) overruled, and the garnishee appealed, both from the judgment of condemnation and from that overruling his motion to quash.

In the appellate court, the appellee moved for a writ of diminution to correct the date of the attachment from the 22nd to the 23rd of September 1853. The writ was granted, and under it a motion was made in the court below to make this correction, which the judge ordered to be done, it being, in his judgment, manifestly a clerical error, and the diminution record, showing the amendment, was then sent up.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

A writ of attachment was dated the 22nd of September, but professed to be founded on a warrant dated the 23rd of September, and was, in fact, issued on the latter day: HELD, that the date of the writ was manifestly a clerical error, and it was not only competent to but the duty of the court, to order it to be amended.

Since the act of 1834, ch. 79, sec. 1, the total omission in the affidavit of the plaintiff, in an attachment case, of the averment of his citizenship, is not fatal, and the averment that he is "a resident of the United States," is clearly sufficient.

A sheriff's return to a writ of attachment, "laid in the hands of" the garnishee "in the presence of" two witnesses, is sufficient, though it does not certify that the sheriff "made known" to the garnishee to appear and show cause why condemnation should not be had.

The warrant for an attachment was addressed "To the clerk of Baltimore county court," and "Mr. Norwood," the clerk of the court of Common Pleas was, by it, directed to issue the writ. There was no such court as Baltimore county court, but there was the court of Common Pleas: HELD.

That the prefix of the words, "clerk of Baltimore county court" in the address of the warrant, is mere surplussage and of no effect.  

COUNSEL:
J. J. Snyder and Jas. Malcolm for the appellant, argued:

1st. That the court below erred in its order, directing the date of the writ of attachment to be amended. There is nothing in the record or in the docket entries to warrant such an amendment, and where can the court find authority to correct the process without having any thing to correct by? If the record is to stand as it originally stood, the attachment clearly issued improperly,  [**3]  because the affidavit was not made until the day after the writ issued. Act of 1795, ch. 56, sec. 1.

2nd. That the affidavit upon which the attachment was issued is defective, in not averring that the plaintiff was a resident of one of the United States, and this is a fatal defect. 6 G. & J., 335, Wever vs. Baltzell. 10 Do., 274, Baldwin vs. Neale. 1 Gill, 372, Boarman vs. Israel. Act of 1834, ch. 79, sec. 1.

3rd. That the plaintiff is not entitled to condemnation of the funds, if there were any, in the hands of the garnishee, until service of interrogatories upon the garnishee and failure to answer, or proof that funds are in his hands. Acts of 1715, ch. 40, sec. 4, and 1795, ch. 56, sec. 5. The sheriff's return does not show that he warned the garnishee to appear, and is not in the form given in the books. 2 Ev. Harris, 503. The garnishee must be warned into court, and when so warned interrogatories must be exhibited to him, if the plaintiff cannot prove the indebtedness, and upon failure of the garnishee to answer, and then only, is the plaintiff entitled to judgment of condemnation. This return fails to show that this warning was ever given, and the judgment of condemnation [**4]  was, therefore, improperly entered.

4th. That the warrant being directed to the clerk of Baltimore county court, if it authorised any one, did not authorise any other person than the clerk of that court to issue the writ of attachment. The official character of the party who issued the writ must appear, the proceedings in attachment being always stricti juris. 4 H. & J., 192, Prentiss vs. Gray.

T. Yates Walsh for the appellee, argued:

1st. That the date of the writ is manifestly a clerical error, and was properly corrected by the court below. The writ refers to the warrant of the justice as the authority for issuing it, and the warrant bears date the 23rd of September. It was, therefore, in fact, issued on the same day with the warrant, and this is manifest from the face of the record.

2nd. That since the act of 1834, ch. 79, sec 1, the averment in the affidavit, that the plaintiff "is a resident of the United States, is sufficient." 1 Gill, 172, Boarman vs. Israel. But apart from this act, the learned counsel on the other side have been led into error by the mistake in the marginal note to the case of Baldwin vs. Neale, 10 G. & J., 274. Since the passage of the [**5]  act of 1825, ch. 114, no one has ever doubted that such an averment is sufficient.

3rd. The position assumed by the appellant's third point, is, an attempt to overrule a practice which has existed, at least, for a century, viz: that a judgment nisi at the first term, becomes, for all purposes, a final judgment at the second term. Hinkley on Attachments, 87. The suggestion, that the plaintiff was bound to serve interrogatories upon the garnishee, is certainly a novelty. The objection, that there was no evidence before the court to establish the fact that there were effects of the defendant in the hands of the garnishee, cannot, since the act of 1825, ch. 117, be raised here. The return of the sheriff is in the usual form and in compliance with the law.

4th. The last objection, that Mr. Norwood's proper official title was not given in the warrant, cannot be important. He was directed to issue the writ, and was the Clerk of the court of Common Pleas. There was no such court then in existence as Baltimore county court.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and TUCK J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*395]  LE GRAND, C. J., delivered the opinion of this court.
This [**6]  was an attachment on warrant, issued out of the Court of Common Pleas of Baltimore city, at the suit of the appellee, against the goods, chattels, credits, &c., of Silas H. Dewey, upon a promissory note for three hundred and twenty-five dollars, due upon the 5th of August 1853. The affidavit of the plaintiff is dated the 23rd of September 1853, and the warrant of the magistrate, directed to the clerk of Baltimore county court, is dated as of the same day. The attachment bears date the 22nd day of September, a day anterior to the date of the warrant. It was laid in the hands of several persons, among the rest, in those of McCoy; he not appearing, a judgment was had against him by default. After giving the necessary bond, the appellee sued out a writ of fieri facias. The appellant, McCoy, then appeared and moved to strike out the judgment and quash the writ of attachment. This motion the court overruled, from which ruling, as well as from the order of the court, directing the amending of the date of the writ of attachment from the 22nd to the 23rd of September, this appeal is taken.
We concur in the ruling of the court below. The date of the writ was manifestly a clerical error. [**7]  It professes to be founded on the warrant of the justice, and was so in fact issued. This fact was apparent on the records of the court, and it was not only competent to but the duty of the court, to order the amendment of the date of the writ.
In support of the motion to strike out the judgment, and to quash the writ of attachment, it was insisted on behalf of the appellant, first, that the affidavit of the appellee did not show that the plaintiff was a citizen of one of the United States, and second, that the return of the sheriff did not, in words, show, that the garnishee had been summoned.

 [*396]  We think both of these objections are answered by the decision in the case of Boarman vs. Israel & Patterson, Ex'rs, 1 Gill 372. At page 381 of the report of that case, the court, referring to the absence of the averment of the citizenship of one of the plaintiffs, say, that although the point had not been made below, yet, nevertheless, notwithstanding the act of 1825, chapter 117, it is a fit subject of review in this court. They then proceed to show, that although under previous legislation such omission would be fatal, yet, such is not the case [**8]  since the passage of the act of 1834, ch. 79, sec. 1. They say, "by this act of Assembly, under 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." In that case there was a total omission of averment as to the citizenship of one of the plaintiffs, whilst in the case now before us there is no such omission; so far from it, the averment is distinct, that the plaintiff is "a resident of the United States.
The case of Boarman vs. Israel & Patterson, Exc'rs, was like the one now before us. The judgment rendered in it, as in this, was by default; and the return of the sheriff the same, in words, with the exception of the names of the parties, as the one in this case. The return in both cases, states the writ to have been "laid in the hands," &c., of the garnishee. Although such return is not in strict conformity to the form given in 2 Vol., Evans' Harris, 503, it does not therefore follow it is not sufficient. If the writ was "laid in the hands" of the garnishee, [**9]  it was in fact notifying him of the proceeding and of the clause of scire facias which it contained. We have caused the records of Baltimore county court and of the Superior court, for many years past, to be examined, for the purpose of ascertaining the practice which has prevailed, in regard to returns of sheriffs in attachment suits, and find they have been uniformly the same as in this case. This circumstance, alone, would induce us to pause before we would declare, that all which had heretofore been done was error; but in the case which we have cited from 1 Gill, we think, the 

 [*397]  sufficiency of such a return must be considered, on every correct principle of reasoning, as having been adjudged. The court there say:--"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 these 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." The return [**10]  in that case was the same as the one in this; the court there, on the inspection of the record, discovered no defect in it; nor do we in the one in the present instance.
The other objection, founded on the form of the address of the warrant of the justice, we deem of no importance. It is headed, to the "clerk of Baltimore county court," and then "Mr. Norwood" is directed to issue the writ. At the time of the issue of the attachment there was no such court as "Baltimore county court;" but there was one of "Common Pleas for Baltimore city," of which Mr. Norwood was clerk, as is shown by the record. We regard the prefix of the words "clerk of Baltimore county court," as mere surplussage and of no effect.
Judgment affirmed. 

25 of 187 DOCUMENTS 

JESSE ROBERTSON vs. THE AMERICAN HOMESTEAD ASSOCIATION.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 397; 1857 Md. LEXIS 4 

JUNE, 1857, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Baltimore city.

On the 1st of May 1853, the appellant executed to "The American Homestead Association of the city of Baltimore," a mortgage of a leasehold interest in a lot of ground in the city of Baltimore. This deed states that: "Whereas, the said Jesse Robertson is a member of the said association, duly incorporated, and it is a condition precedent to the money below named being loaned to him, that these presents should be executed, therefore he executes the same: Now this indenture witnesseth, that the said Jesse Robertson, in consideration of the premises, and of $ 460, current money, to him in hand paid by the said corporate body, the receipt whereof is hereby acknowledged, hath bargained and sold, and by these presents doth grant, bargain and sell, assign, transfer and make over, unto" the said body corporate, and its "assigns," the property above mentioned. "Provided, however, that if the said Jesse Robertson, his heirs, executors, administrators or assigns, shall truly pay, and perform the payments and obligations hereinafter, and as hereinafter mentioned, to be paid and performed by him, then these presents shall be void." The mortgagor [**2]  then covenants, "truly to pay to the said body corporate, or the assigns thereof, interest at the rate of six per cent. per annum, payable monthly, from the day of the date hereof, upon the aforesaid sum of $ 460; also to pay the further sum of one dollar, weekly, payable every Friday, until the time arrives when each unredeemed share of the said body corporate's stock, shall be worth, in cash, above all losses and liabilities, the sum of $ 200, and the said body corporate shall have sufficient funds on hand, to pay to the holders of every unredeemed share of its stock, the said sum of $ 200, clear of all losses and liabilities; also, that he shall truly pay all ground-rent, taxes, and public dues, for which the herein mortgaged property is and may be liable, when the same shall be due; also to pay all fines imposed by the articles of association, of the said body corporate, for neglect to make the said payments, or any of them, as and when they are payable; also to keep the said mortgaged property and premises fully insured from loss by fire, for the use and benefit of the said body corporate, and the assigns thereof, during the continuance of these presents. All and singular these [**3]  payments and obligations shall continue in force, until each unredeemed share of the aforesaid stock shall be worth, as aforesaid, $ 200."

The mortgage then gives a power of sale, under the act of 1836, ch. 249, upon three months' default of the mortgagor, to pay and perform the above mentioned payments or obligations, or any of them, and contains the mortgagor's assent to a decree, under the act of 1833, ch. 181.

On the 25th of August 1855, the association filed their petition, in the court below, alleging that Robertson has neglected for more than three months past, to make the weekly payments of money and of interest, mentioned in the above mortgage to be paid by him, and that default has thus taken place, and praying that a decree may be passed for the sale of the mortgaged premises. With this petition was filed the mortgage, and the following statement of claim, with the affidavit annexed, of the treasurer of the association, "that the aforegoing account is a just and true account of the mortgage debt, due and unpaid by the said Jesse Robertson to the said association."

________________________________________________________________________________

  "Mr. Jesse Robertson,	
      To The American Homestead Association,		DR.	
1853, May  21st.	Cash for redemption of 4 shares, a	$ 115	$ 460 00	
1854, Oct. 13th.	Ground-rent & cost of distraint paid,	   16 36	
  "    "     "	Cash for insurance,	    2 00	
1855, Aug. 11th.	Int. on 18.36 for 9 mos. 29 days,	      90	19 26	
  "    "     "	15 months' fines, non-payment of	
	  interest, a	      40	6 00	
  "    "     "	Int. unpaid 15 2/3 months, on	  460	36 03	
  "    "     "	59 weeks' fines, non-payment of	
	  dues, a	      20 cts.	11 80	
			$ 533 09	
  Cr. By cash paid weekly dues,		$ 167 00	
	        Balance due,		$ 366 09	
________________________________________________________________________________

 [**4]  

The court, (KREBS, J.,) on the same day, (25th of August 1855,) passed a decree: "That unless the said mortgagor shall, on or before the 27th day of August 1855, pay to the said mortgagee, or bring into court to be paid to it, the sum of $ 366.09, together with the costs of this proceeding, then the mortgaged property, in the said proceedings mentioned, shall be sold," and appointing a trustee to make the sale. From this decree the mortgagor appealed.  

DISPOSITION:
Decree reversed and cause remanded.  

HEADNOTES:

An appeal lies from a decree passed under the act of 1833, ch. 181, and its supplements, and on such appeal, the appellate court will examine the terms and conditions of the mortgage, and determine whether the decree is in conformity therewith.

In proceedings under this act, the court has no power to pass any decree, not in conformity with the conditions of the mortgage, and embraced in the terms of assent to the decree contained in the mortgage itself.

The court is not authorised to determine judicially, by its decree, the amount due on the mortgage, and a decree for a sale "unless a certain sum is paid," when, upon the face of the mortgage, no such sum could be due at the time of the decree, and there was no covenant or engagement in the mortgage to pay any such sum, is erroneous.

The statement of his mortgage-claim on oath, required to be filed by the mortgagee before the sale, may be filed either before or after the decree, but such statement is not conclusive, and the amount actually due is open to examination on proof, either before the sale or after the order of ratification nisi.

Mortgages to building associations, authorised and made valid by the act of 1852, ch. 148, are not within the provisions of the act of 1825, ch. 50, or if they are, the act of 1825 is repealed, pro tanto, by that of 1852, and the 9th section of this latter act, by fair implication, brings such mortgages within the provisions of the act of 1833, ch. 181, and its supplements.

In ascertaining the present value, in gross, of the sums secured by such a mortgage, the court cannot look beyond the mortgage itself. A covenant to pay "all fines imposed by the articles of association," does not make such articles a part of the mortgage, or authorise the court to consider them in construing the mortgage, or in ascertaining the amount to which the mortgagee is entitled, in presenti, out of the proceeds of sale.

In the case of such a mortgage, the mortgagor is not entitled to redeem, on payment of the money advanced to him by the association, with interest.

The rule for ascertaining the amount which the mortgagee is entitled to receive, in presenti, in satisfaction of such a mortgage, is to ascertain by proof the probable duration of the society, then to estimate the aggregate amount of the monthly instalments, payable during that time, and from that sum rebate a just amount for interest, and add thereto the arrearages due, after allowing for payments made to the society.

Mortgages to building associations, such as are contemplated and provided for by the act of 1852, ch. 148, if executed in conformity to the provisions of that act, are free from all objection on the ground of usury. 

COUNSEL:
Richard R. Battee and Levin Gale for the appellant, argued:

1st. That the act of 1833, so far as it gives a summary power of foreclosure by sale, without notice to the mortgagor, applies only to mortgages given to secure the payment of certain liquidated amounts of money, at a definite period. This mortgage, if it be a mortgage and not a deed of trust, is not given to secure such definite sum, but to enforce the performance of certain covenants, some of which are purely collateral, and those which covenant for the payment of money, being for the payment of such small sums, (the largest being $ 1,) that they are not within the chancery jurisdiction. Act of 1715, ch. 41, sec. 7. De nimimis [**5]  non curat lex.

2nd. That even if cases of this kind are embraced within the act, yet this decree does not follow the mode prescribed. The act authorises a decree for the sale of the mortgaged premises, at any one of the periods limited for a default of the mortgagor. This decree instead of pursuing this form, first adopts the account filed by the association, decides it to be the correct statement of the amount due, and then decrees that unless that sum be brought into court or paid within two days, the property shall be sold. This is an entire departure from the mode prescribed by the act, even if the amount named in the decree were apparently correct. The act does not authorise the court to determine, by the decree, the amount due upon the mortgage. The court cannot fix beforehand the amount to be paid. But the slightest examination of the alleged mortgage will show, that it does not stipulate for payment of any such sum, or any sum that by any calculation can be made to amount to that sum. This defect is properly examinable upon this appeal, and the decree must be reversed for this reason if no other. 7 Gill 302, Williams vs. Williams. 5 Md. Rep., 99, Hays vs. Dorsey.

3rd.  [**6]  That this mortgage is void under the act of 1825, ch. 50, which requires that all mortgages, to be valid, must specify the principal sum or sums intended to be secured. The mortgage in Cole vs. Albers & Runge, 1 Gill, 424, was fixed as to time and amount: it could not exceed a certain sum. This is unlimited both as to time and amount. There is nothing upon its face to show what an unredeemed share is, or how many such shares there are, and yet the mortgagor is to go on paying until these shares shall be worth $ 200 each. There is nothing, therefore, upon the face of the paper, by which the extent of its obligations can be determined. It has been likened to the case of an annuity, but in such case there is but one event uncertain, and that is limited, viz., the life of the party; here the mortgagor is surety for every transaction of the association, and for every one of its officers; it may last millions of years. What bill of discovery could ever ascertain the extent of such an obligation? How could a creditor ascertain it? It is impossible to say, from the face of this deed, whether the weekly payments are to be continued for ten weeks or ten thousand. It not only stipulates that [**7]  the mortgagor shall pay $ 1 weekly, until each unredeemed share shall be worth $ 200, but, to make assurance doubly sure, adds, over and above all losses and liabilities, and until the association shall have funds sufficient to pay each holder of such share $ 200 in cash. Thus it makes the mortgagor surety for every debtor of the association, and liable for any default of any of its officers. The corporation may go on prosperously, until the near approach of the time of its anticipated fruition. Funds may have been realised, sufficient to pay each fortunate holder of an unredeemed share $ 199. Another week, and the requisite amount to complete the $ 200, will be in the treasury, when lo! the treasurer absconds with all the assets of the company. The slow effort of gradual accumulation must be again resumed, and years are again occupied in the process, and even then when its affairs again become prosperous, there can be no assurance that it may not be again reduced to insolvency by unfortunate speculation, unforeseen accident, or the fraudulent conduct of its officers. Yet, during all this time, no matter how long, according to the terms of this deed the mortgagor is not only obliged [**8]  to go on paying his weekly dues, but is also compelled to pay interest on the whole sum originally obtained by him from the association, although he may have paid, in the mean time, more than that amount twice over. And the only benefit he is to derive from all this is, when the association does finally accomplish its purpose, of accumulating for its unredeemed shareholders $ 200 for each share, his property is then to be relieved from the burthen, provided, in the meantime, it has not been sacrificed by a force sale, without notice to him, for perhaps the non-payment of a dollar. Such an instrument must be void under the act of 1825. But it is supposed this defect is remedied by the act of 1852, ch. 148. But it is respectfully submitted, that that act does not authorise such a deed as this. It says, any member of such associations may execute a mortgage to secure the payment of the unpaid instalments, "on the share or shares" purchased by him. What is there on the face of this deed to show that Robertson was paying any thing on his shares, or that he held any shares in the concern? To come within the provisions of this law, the mortgage should show upon its face the number of shares [**9]  the mortgagor held, and the time within which the association was to close, or at least the facts should be stated which would indicate the time.

4th. That the contract contained in this mortgage is usurious, and therefore void. The intention of the parties, and the words used in the instrument, must determine whether it be usurious or not. If the court can see that it is a decree to cover up usury, they will unravel the transaction and declare the instrument void. 3 H. & J., 109, Tyson vs. Rickard. 6 G. & J., 18, Trumbo vs. Blizzard. 3 Do., 123, Stockett vs. Ellicott. 2 Parson's on Cont., 385. Now this deed itself recites, that the $ 460 was loaned to the mortgagor, and requires him to pay interest on this loan. The mortgage is foreclosed as a loan, and the treasurer of the association, in his affidavit to the statement of claim filed with the mortgage, swears to it as a loan. It demands interest to be paid monthly over and above weekly dues and fines, and the account filed with the mortgage, shows on its face that the transaction is grossly usurious. The only question then is, is such a contract void? Chief Justice Taney in his opinion in the case of Dill vs. Ellicott, says [**10]  such a contract is void under the 49th sec. of the 3rd art. of our constitution. All the English cases say, that a contract expressly prohibited by law is void. See 10 Bing., 107, DeBegnis vs. Armistead. 23 Amer. Jurist., No. 45, April 1840, page 12. 2 Pet., 527, Bank of U. S., vs. Owens. Smith on Cont., 203, 225. 1 Parson's on Cont., 382. Story on Cont., secs. 613, 614.

John Carson for the appellee, argued:

1st. That the contract is not usurious, because it is in no sense a loan, but a dealing with partnership funds. 8 Eng. Law & Eq. Rep., 62, Burbidge vs. Cotton. 15 Do., 477, Seagrave vs. Pope. 6 Bing. New Cases, 180, Silver vs. Barnes. There is no loan of money in the case, nor is such a loan necessary to constitute the deed a mortgage. It does not say the $ 460 is to be returned in any event, and how can it be a loan when there is no stipulation for its return? To constitute usury there must be a loan, and unless the principal is secured, or is to be returned at all events, it is not a loan. 6 Cowen, 653, Hall vs. Daggett. 9 Paige, 334, Quackenbush vs. Leonard. 22 Barb., 124, Pomeroy vs. Ainsworth. That the contract is one of partnership, and not a loan of money, is apparent [**11]  from the fact that the mortgage nowhere stipulates for a return of the money advanced, but for the payment of the weekly sums of money due by each shareholder. Robertson was interested in the common fund out of which he was paid when he sold his stock to the association, and he is now interested in every dollar repaid, and has expressly stipulated for the benefit of that which he now terms usury, by taking stock and selling it to the association; for its charter, and the act of 1852, ch. 148, secs. 6 & 7, and the mortgage, show that one of the purposes of the association was to purchase this stock, and Robertson, by his sale, got the benefit of the very provision which he now seeks to strike down as usurious. To render the contract void for usury, the papers must show on their face an unquestioned case of usury, and the bill will not be dismissed unless it shows the usury beyond doubt. 4 G. & J., 420, Chambers vs. Chalmers. 2 Md. Ch. Dec., 513, McKim vs. White Hall Co. How can the court discover, from the face of these papers, either a usurious intent, or a reservation of more than is legal, when they do not disclose the time the association will last, and, consequently, the amount [**12]  the members will pay in?

2nd. That this mortgage is not obnoxious to the act of 1825, ch. 50. That act has received a judicial exposition in the case of Cole vs. Albers & Runge, 1 Gill, 424. The court there say, the design of the act 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. The present mortgage is not within this act, according to this exposition of it, nor is it within the mischief which the act seeks to prevent; for it contains a clearly expressed contract and one carefully limited to interest, dues, ground-rent, taxes and insurance. Though the time be uncertain it may be approximated, or the proceeds of sale may be invested and applied in payment of the mortgage as it becomes due, or the whole be paid off at once, with rebate of interest. There is no more objection to this mortgage, on the ground of uncertainty as to time, than to one given to secure an annuity. 2 Md. Ch. Dec., 64, Peyton vs. Ayres. 1 H. & G., 280, Buchanan vs. Deshon. But, besides this, the present mortgage is expressly authorised by the 7th sec.  [**13]  of the act of 1852, ch. 148, whatever may be the construction of that of 1825, ch. 50. If there is any conflict between them, the act of 1825 is repealed pro tanto by that of 1852.

3rd. That the acts of 1833, ch. 181, and 1839, ch. 9, embrace this case. They require a conveyance by way of mortgage and an assent to the passing of a decree, and both these are shown by the record. And again, the act of 1852, ch. 148, sec. 9, gives to building association mortgages the benefit of the act of 1833, and its supplements. The form of the decree is such as is authorised by the act of 1839, ch. 9. The propriety of the decree, the validity of the sale under it, the amount of the mortgage debt, or whether there be any mortgage debt due, can only be inquired into after the passage of the order nisi. 3 Md. Ch. Dec., 39, Eichelberger vs. Harrison. 5 Md. Rep., 101, Hays vs. Dorsey. Until then the proceedings are ex-parte, and whether the decree be merely that the property be sold or be in the form of the present one, "unless the defendant pay the mortgage debt," it is immaterial and not error; because the decree is not a judicial decision upon the amount due under the mortgage, nor is such decree [**14]  conclusive against the mortgagor in this respect. Whether the account filed with the mortgage is correct or not, this court cannot determine on this appeal. The objection is to be made at the ratification of the sale. You can then show any cause why there should be no sale, either that the whole debt, or a part of it, has been paid.  

JUDGES:
The cause was argued before LE GRAND, C. J., TUCK, and BARTOL, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*406]  BARTOL, J., delivered the opinion of this court.
It has been decided by this court, that from a decree passed under the act of 1833, ch. 181, and its supplements, an appeal lies.  Williams vs. Williams, 7 Gill 302. Hays vs. Dorsey, 5 Md. 99. On such appeal, this court will review the proceedings as presented by the record, examine the terms and conditions of the mortgage, and determine whether the decree is in conformity therewith. In a proceeding under that act the court has no power to pass any decree, which is not in conformity with the conditions of the mortgage, and embraced in the terms of assent to the decree, contained in the mortgage itself.
In this case the decree ascertains the sum of $ 336.09 to be due [**15]  from the appellant to the appellee, and directs, "that unless the mortgagor shall, on or before the 27th day of August 1855, pay to the mortgagee, or bring into court to be paid to him, the sum of $ 366.09, together with the costs of this proceeding," that the mortgaged property be sold.
That sum is the amount stated to be due in "the statement of claim" filed by the appellee under the 3rd section of the act of 1833. But, upon looking at the mortgage, it is obvious that no such sum could be due at the time of the decree. The mortgage contains no covenant or engagement for the payment of any such sum. It provides for the payment of:--
1st. "Interest monthly on $ 460.00."
2nd. "One dollar weekly, payable every Friday."
3rd. "All ground-rent, taxes and public dues, for which the mortgaged property may be liable."
4th. "All fines imposed by the articles of association of the 

 [*407]  said body corporate, for neglect to make the said payments, or any of them."
5th. "To keep the mortgaged property fully insured from loss by fire, for the benefit of the mortgagee, during the continuance of the mortgage."
It is also stipulated, that these obligations are to continue "until the time [**16]  arrives, when each unredeemed share of the said body corporate's stock shall be worth in cash, above all losses and liabilities, the sum of $ 200, and the said body corporate shall have sufficient funds on hand, to pay to the holders of every unredeemed share of its stock the said sum of $ 200, clear of all losses and liabilities."
There is no provision in the mortgage for the payment of the sum of $ 460, named therein as the consideration for which it was executed, nor any part of it as a mortgage debt.
The petition of the appellee alleges a default by the mortgagor for more than three months, "in not paying the weekly instalments and the interest secured by the mortgage."
Upon the face of the mortgage therefore, and on the allegations in the appellee's petition, the circuit court had no power to decree the sum of $ 366.09 to be due; and in so far as the decree directs the mortgagor to pay that sum to the mortgagee, or to bring it into court to be paid to him, it is erroneous.
The 2nd section of the act of 1833 simply empowers the court "to decree, that the mortgaged premises be sold, at any one of the periods limited for the default of the mortgagor." The proceedings contemplated [**17]  by the act are ex-parte, and the court is not authorised, by its decree, to determine judicially the amount due upon the mortgage. Before a sale can be made under the decree, the mortgagee is required to file a statement of his mortgage claim, verified by oath. That may be done either before or after the decree. See Hays vs. Dorsey, 5 Md. 99. But such statement is not conclusive, and the amount actually due is open to examination on proof, either before the sale or after the order of ratification nisi.
For the reasons above stated, we must reverse the decree of the circuit court. But considering that the appellee is entitled to a decree of sale, under his petition and the mortgage exhibited, 

 [*408]  our duty, under the act of 1832, ch. 302, sec. 6, is to remand the cause to the circuit court, in order that the decree may be corrected, and such further proceedings may be had as are contemplated by the act of 1833, and as may be necessary for "determining the cause upon its merits."
The act of 1832 imposes on this court the further duty of "determining and declaring the opinion of this court on all points which may have been made before it, or which [**18]  may be presented by the record." And in conformity with its requirements, we proceed to the consideration of the several questions presented.
It has been objected that this mortgage is inoperative, for want of compliance with the provisions of the act of 1825, ch. 50, in not specifying on its face the principal sum it is intended to secure, or the length of time during which the several sums thereby secured are required to be paid.
A conclusive answer to this objection is to be found in the provisions of the act of 1852, ch. 148, which, in express terms, authorises such mortgages as this, and makes them valid. This mortgage is not within the provisions of the act of 1825, or, if it be, that act is repealed pro tanto by the act of 1852, ch. 148, whereby building associations, incorporated under its provisions, are empowered to take such mortgages as the one before us, the very terms of the mortgage being prescribed by the 7th section of that act. The same act of 1852, by fair implication, brings such a mortgage as the present within the provisions of the act of 1833, ch. 181, and its supplements.
In the 9th section it is provided, "that the oath of the treasurer or other financial [**19]  officer of any such corporation, whose duty it may be to keep the books of accounts of any such corporation, shall be so taken and deemed to be, a full compliance with the provisions of the act of Assembly of 1833, ch. 181, and its supplements."
The objection that the several sums secured to be paid, are each too small, to be within the jurisdiction of the Chancery Court, can not apply to this case; because it appears by the petition filed, that there was due at the time of the decree, an amount sufficient to bring the case within the jurisdiction of the court.

 [*409]  In the further progress of the case, the duty will devolve on the circuit court, to ascertain the amount which the appellee is entitled to claim under the mortgage. It is obvious that the sum actually due, according to the covenants in the mortgage, cannot be ascertained by estimating the sum of $ 460, named in the mortgage, as if it were a debt secured, or money to be repaid, there being no covenant in the mortgage, or any obligation on the mortgagor, requiring him to repay that sum, or any part of it, as such. The mortgage debt can consist only of the several items above enumerated, that is to say, for money [**20]  due to the corporation on account of the monthly interest, the weekly instalments for fines imposed by the articles of the association, if any, and for ground rent, taxes and costs of insurance, if any have been paid by the corporation, which may be in arrear, after allowing to the appellant, the credits to which he may be entitled for payments made by him; and the balance due on said several items, constitutes the whole mortgage debt in presenti, and if the same be paid, a sale of the property will be prevented, and the decree will stand as a security for future instalments and liabilities.
In case of a sale of the mortgage property in entirety, it will be the duty of the circuit court to ascertain by proof the amount of the present value, in gross, of the sums secured by the mortgage, payable in future. To prescribe a precise rule for such ascertainment is not free from difficulty; because the period of time, during which they are to be paid, is not specified in the mortgage. In ascertaining that sum, the court cannot look beyond the mortgage itself; there is no such reference made in the mortgage to the "rules and articles" of the association as to make them part of the mortgage, [**21]  or to authorise the court to consider them, in construing the mortgage, or ascertaining the amount which the mortgagee is entitled to receive in presenti out of the proceeds of sale. It has been determined, that under a mortgage similar to the one under consideration, the mortgagor is not entitled to redeem, on payment of the money advanced to him by the society, with interest. Seagrave vs. Pope, 15 Eng. Law. & Eq. Rep. 477. But although the time during which the payments are 

 [*410]  to be made, is not specified, there is a contingency stated in the mortgage, on the happening of which the payments are to cease; and its duration may be ascertained by proof, or approximated with as much certainty and exactness, as the duration of a mortgage securing an annuity for the life of a person. It is true that there are no tables or precedents for such ascertainment as is required in the present case, because such mortgages are of comparatively recent origin, and we are without judicial decisions fixing the rule of ascertainment. We are of opinion, however, that the true rule is to ascertain by proof the probable duration of the society, then to estimate the aggregate amount of [**22]  the weekly and monthly instalments payable during that time, from that sum rebate a just amount for interest, and add thereto the arrearages due, after allowing for payments made to the society, and the sum thus ascertained is the amount which the mortgagee is entitled to receive in presenti in satisfaction of the mortgage.
To illustrate the view of the court, let it be supposed that on proof taken in the cause, it should be determined, that the association will continue for four years longer; then the ascertainment would be as follows:

________________________________________________________________________________

Weekly dues for 4 years (208 weeks) a $ 1,	$ 208.00	
Interest on $ 460, 4 years,	110.40	
	$ 318.40	
From this rebate interest thereon for 1/2 the time,	
  (2 years,)	38.20	
	$ 280.20	
To this add arrearages due after allowing payments	
  made,	
________________________________________________________________________________

The sum in the case supposed would be the amount, which the mortgagee is entitled to be paid out of the proceeds of sale.
The only remaining question to be considered, is the objection to the decree urged by the appellant, on the ground that the mortgage is usurious in its terms. To this it is sufficient to say, that the contract, so far as it is disclosed upon the record, contains [**23]  no proof or element of usury. The only proof of the contract is to be found in the mortgage, which 

 [*411]  appears to be in all respects such an instrument as is contemplated by the act of 1852, the consideration for which, was not a loan of money to be repaid, but the sum of $ 460, paid to the mortgagor by the society, as the ascertained value in advance of his shares of stock in the corporation. And although, in the preliminary part of the mortgage, it is recited to be "a condition precedent to the money below being loaned to him that these presents should be executed," yet the consideration is stated to be $ 460, "in hand paid by the corporation to the mortgagor," while the mortgage contains no covenant or obligation whatever for the repayment of said sum or any part of it. This court cannot regard the principal sum named in the mortgage as in any sense a loan, nor the contract, as it appears in the record, usurious.
We have carefully considered the question of the legal operation and effect of mortgages to "building associations," such as are contemplated and provided for by the act of 1852, and have no hesitation in pronouncing them, if executed in conformity with the provisions [**24]  of that act, free from all objection on the ground of usury.
We adopt the views expressed by the court of Queens Bench in Silver vs. Barnes, 6 Bing, N. C. 180, and by the courts of chancery in England, in Burbidge vs. Cotton, 8 Eng. Law. & Eq. Rep. 57, and Seagrave vs. Pope, 15 Ibid. 477. This last case involved the construction of a mortgage, executed in conformity with the Statute of 6 & 7 Will. IV., ch. 32, almost identical in its terms with the mortgage before us.
In construing this contract, this court confines itself entirely to the terms of the mortgage--there being no other proof in the cause, and considering that there is no evidence of usury to be found in the record, we are not called upon to express any opinion as to the effect of usury in a contract, under our constitution and laws.
For the reasons above stated, the decree below will be reversed with costs in this court to the appellant, and the cause remanded for further proceedings.
Decree reversed and cause remanded. 

26 of 187 DOCUMENTS 

WM. MCCANN vs. GEORGIANA TAYLOR & others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 418; 1857 Md. LEXIS 6 

JUNE, 1857, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Baltimore city.

The bill in this case was filed by the appellees, the wife and infant children of Charles R. Taylor, on the 11th of December 1856. It alleges, that Taylor and wife, on the 15th of September 1852, executed a deed of trust to William J. Ward and others, of certain lands in the city and county of Baltimore, for the sole and separate use of the wife, during the joint lives of herself and husband, and after the death of either, in trust for the survivor, so long as he or she shall remain unmarried, with remainder in trust for their children; that this deed, thus executed by the grantors, was delivered to Ward, with instructions to procure it to be executed by the grantees, and then deliver it to the wife, that she might have it duly recorded, but from misapprehension or inadvertence on her part, or some other cause which the complainants cannot explain, but certainly, as they are assured and verily believe, from no purpose or intent to defraud, hinder or delay the creditors of the husband, and from no improper motive whatever, it was not recorded until the 17th of April 1854; that at the time of its execution, the husband owned property [**2]  of large value over and above that conveyed by the deed, had retired from business, and his debts were small and far less than the value of his property not included in the deed; that at the time of its enrollment the husband had not resumed business, his debts were small in comparison with the value of his available means, occasioned no inconvenience to him, and he entertained no apprehension of his ability to meet all his engagements as they should mature, out of his property not covered by the deed. The wife then avers, that she had no doubt this deed was made in good faith by her husband, and, therefore, united with him in its execution, thereby relinquishing her dower in the property conveyed by it, and on subsequent occasions has united with him in conveyances of other portions of his real estate, for the purpose of facilitating his business operations, and more recently to provide for payment of his debts, and she is therefore advised she is a purchaser for a valuable consideration of the interests reserved by this deed to herself and children, and being certainly free from the imputation of fraud or impropriety on her part, and having no notice of any fraudulent or improper [**3]  motive on the part of her husband in the execution of this deed, she insists that these interests cannot be impeached at the instance of any of her husband's creditors, and more especially of any creditor who became such after the enrollment of the deed.

The bill then charges and avers, that McCann recovered a judgment against the husband at March term 1856 of the circuit court for Baltimore county, for $ 1066.61, with interest from the 5th of March 1856, and costs, and has caused execution to be issued thereon, and has levied the same on the property conveyed by the deed, and is about to sell the same under this execution; that the complainants have understood that McCann pretends that this deed was made in fraud of the creditors of said Charles, hoping and desiring thereby to cast suspicion upon its validity, so that there may be a sale of the estate at a gross undervalue; that this judgment was recovered upon a note of the husband, dated the 13th of February 1855, at four months, after the execution and recording of the deed, and that McCann had actual notice of the making and enrollment of the deed before the time of his becoming a creditor as aforesaid; that McCann well knows [**4]  that the complainants have no moneys wherewith they might assist to pay off this judgment, and will be unable to prevent a sacrifice of their interests in the property as is contrived and intended by him, except by the interposition of the court for their protection; they submit, that McCann becoming a creditor subsequent to the enrollment of the deed, and with notice thereof, ought not to be permitted to proceed with his execution to a forced sale of the property to the sacrifice thereof, and the irreparable injury of the complainants, but ought to be compelled to institute a proceeding to determine the validity of the deed, so that in case it may be adjudged fraudulent as against creditors, provision may be made for the satisfaction of those aggrieved, by a sale of an adequate part of the property, and the residue secured to the complainants; that on the 9th of July 1855, the husband conveyed his contingent interest in the property embraced in the deed to Frederick Schumacker, for the consideration of $ 1250.

The bill then prays for an injunction, to restrain McCann from enforcing his execution by a sale of any part of the property conveyed by the deed, and for general relief,  [**5]  and makes McCann, the trustees in the deed, (one of whom was Frederick Schumacker,) parties defendants.

On the day the bill was filed, the court, (KREBS, J.,) ordered the injunction as prayed, upon a bond being filed in the penalty of $ 1000, and this having been done the writ issued restraining McCann from enforcing his execution by a sale of any part of the property conveyed by the deed. On the 20th of December 1856, McCann filed his answer and entered a motion to dissolve the injunction, which was set down for hearing on the 7th of January following, but subsequently, on the 28th of January 1857, he entered an appeal from the order granting the injunction, and gave bond to prosecute his appeal, in the penalty of $ 15,000, fixed by the court, and then proceeded to enforce his execution, by causing the sheriff to advertise the property for sale on the 2nd of March 1857. The complainants then, on the 11th of February 1857, filed a petition in the court below, charging that this proceeding of McCann was a breach of the injunction, and praying an attachment against him for contempt, but the court, on the 26th of the same month, dismissed the petition, and from the order of dismissal [**6]  the complainants appealed.

On the next day the complainants, (the record on McCann's appeal having been transmitted to the appellate court,) through their solicitor, applied to the Court of Appeals, then in session, by way of petition, alleging, among other things, that their petition in the court below for an attachment had been dismissed by that court, on the ground that the injunction was virtually dissolved or superseded by McCann's appeal, and praying that he might be restrained from proceeding with his execution pending his appeal, and until the Court of Appeals shall have determined whether the injunction ought to be dissolved or continued.

Upon this application the Court of Appeals, (LE GRAND, C. J., ECCLESTON and TUCK, J.,) ordered the petition to stand for hearing on the 17th of March 1857, "and in the meantime that the appellant, McCann, suspend all further proceedings in enforcement of his execution by a sale of the property in the proceedings mentioned, as having been conveyed by" the deed above referred to, "provided that a copy of this order and of said petition be served on the said appellant on or before the 5th of March next." Service of this order and petition [**7]  having been duly made, the matter of the petition was argued before LE GRAND, C. J., ECCLESTON and MASON, J.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

A bill alleged, that a husband executed a deed of certain property in trust for his wife and self during life, with remainder in trust for their children, that at the time of making it he was fully competent to do so because, if indebted at all, he was so only to a very small amount, and retained property in value greatly above any such indebtedness, that the defendant obtained judgment against the husband upon a note executed after the enrollment of the deed, and with actual notice of its existence, and has caused execution to be issued on this judgment, and to be levied upon the property conveyed by the deed, pretending that it was fraudulent as to creditors, and desiring thereby to cast shadows and doubts upon the title, so that there may be a sale of the property under the execution at a gross undervalue, to the irreparable injury of the complainants, who were the wife and infant children of the husband. HELD, that the case thus made authorised the granting of an injunction to restrain execution of this judgment.

Upon an appeal from an order granting an injunction, the appellate court is confined to the case made by the bill; the answer cannot be considered.  

COUNSEL:
Thos. S. Alexander, in support of the petition, argued:

1st. The complainants below, who are the wife and children of Charles R. Taylor, claim the benefit of a conveyance made by Taylor to trustees in trust for their benefit. They charge that the appellant became the creditor of Taylor after the execution of the deed of trust and with notice thereof. On the authority of McDowell vs. Goldsmith, 6 Md. Rep., 319, he is not in a position to impeach the deed as a fraud on creditors. The bill further charges, that he pretends that the deed is fraudulent, and has levied his execution on the entire trust estate, which is very valuable, in the expectation that whilst the title is thus clouded by his pretences, he may purchase it at a gross undervalue. On this is grounded the equity of the complainants. In the present state of the case it must be assumed that the injunction was rightfully issued.

2nd. The only question of difficulty involves the construction of the act of 1853, ch. 374. Prior to the year 1835 an appeal would not lie from an interlocutory [**8]  order granting or continuing an injunction. By chaps. 346 & 380 of the act of that year, an appeal is granted in such cases, and, as the latter act supersedes the inconsistent provisions of the former, where the plaintiff had failed to give bond on obtaining the injunction, the defendant, by entering his appeal, might suspend the operation of the injunction, provided he gave bond in the penalty and with condition to be prescribed by a judge of the Court of Appeals. By necessary implication, where the plaintiff had given bond, the defendant's appeal, though accompanied by bond, would not suspend the effect of the injunction.

The act of 1853 provides, that an appeal from an order granting or continuing an injunction shall not operate to suspend the injunction in any case, unless the defendant, at the time of entering his appeal, shall give bond, with a condition prescribed by the act, and in a penalty and with security, to be approved by the judge granting the injunction, or the clerk of the court out of which it issued. The act does not declare that in all cases where such bonds are given the injunction shall be suspended, but that the appeal shall not operate to suspend the injunction [**9]  in any case, unless bond is given in the prescribed manner and form. Hence it results, that where the plaintiff has failed to give bond in obtaining the injunction, the defendant may supersede the injunction by entry of an appeal, and giving bond as prescribed by the act of 1853, but that if the plaintiff had given bond his injunction cannot be superseded by the entry of an appeal and the giving of such bond. The first object of the act, therefore, was to substitute a new form of security in the place of that which had been allowed by the act of 1835, ch. 380.

The next object of the act was to determine the precise effect of the appeal in the case provided for by the previous clause. And upon giving such bond--not in any and every case, but in a case in which, by the preceding clause of the act, the defendant was entitled to give bond to stay the operation of the injunction--the appeal shall operate in the same manner (that is, to the same extent as a supersedeas) as appeals do from final decrees. It is not to be imagined that the Legislature, after limiting the operation of the preceding clause to the specific case where the plaintiff had failed to give bond on obtaining his [**10]  injunction, intended to render this limitation nugatory, and to embrace within its scope the distinct case, wherein the plaintiff, by giving bond, had protected his injunction against the effect of the defendant's appeal. Cases of injunctions to stay waste are expressly excepted by the act of 1835, ch. 380. This exception is not incorporated into the act of 1853. Is it not a part of the act by necessary implication, or will it be insisted that a defendant, by appealing and giving bond in the form prescribed by the act of 1853, can suspend the operation of an injunction to stay waste? Such consequences must inevitably flow from the construction put on the act by the appellant. Again, it is to operate "in the same manner as appeals do from final decrees." But what kind of final decrees? There may be a final decree awarding simply payment of money, or specific performance of an agreement, or a divorce, or a perpetual injunction. And if we may assume that an appeal from a decree for payment of money will stay execution of the decree absolutely, that an appeal from a decree granting to the wife a divorce will not renew her duty of cohabitation, and that an appeal from a decree awarding [**11]  a perpetual injunction will not, in any sense, impair the effect of the injunction; the inquiry is pregnant, to what class are we to refer for the purpose of determining the precise effect of an appeal from an order interlocutory, awarding or continuing an injunction? And the answer is obvious: to the class which includes a final decree awarding a perpetual injunction. The unmistakable object of this clause of the act is, to assimilate the status of the parties to an appeal from an interlocutory order granting or continuing a provisional injunction, pending the appeal, to the status of parties, to an appeal from a final decree awarding a perpetual injunction, pending an appeal from such final decree. And by parity of reason, as the act of 1835, ch. 380, of which the act of 1853, ch. 374, is amendatory, and the preceding clause of this last act professes to regulate appeals from orders appointing a receiver, the last clause of this last act is to be construed so as to assimilate the status of parties to an appeal from an interlocutory order appointing a receiver, pending the appeal, to the status of parties, to an appeal from a final decree appointing a receiver, pending an appeal from [**12]  such final decree. The question then is, what is the effect of an appeal from a final decree awarding a perpetual injunction? Is the injunction thereby avoided? or does its vigor remain unimpaired?

In Thompson vs. McKim, 6 H. & J., 333, it was declared, that an appeal does not ordinarily stay the operation of the order from which the appeal is taken. It would seem to be, therefore, sufficient to insist that there is no precedent in England or in this State in favor of taking an appeal from a final decree awarding a perpetual injunction, out of the operation of the general rule. The practice of our courts was originally framed by analogy to the provisions of the act of 1713, ch. 4, relating to judgments at law, and is now more certainly warranted by the provisions of the act of 1826, ch. 200, which extends equally to judgments and decrees. But it is to be observed, in the first place, that the expressions in these acts are negative, that no judgment or decree should be stayed unless bond be given, and not affirmative, that execution of any judgment or decree shall or may be stayed or delayed by the party giving bond. In the next place the letter of these acts is limited to the [**13]  mere ordinary cases of judgments or decrees for payment of money or delivery of property. Thus the penalty of the bond is to be double the sum of money recovered, or double the value of the property directed to be delivered; and the condition is to be for payment of the sum of money or delivery of the property, &c. &c. Other cases, doubtless, which are not within the letter have been brought within the purview of these acts by equitable construction thereof. But an appeal from a decree awarding a perpetual injunction is equally unaffected by the letter of the statutes, and the precedents of the court. Indeed the jurisdiction of the court to interfere by injunction to prevent irreparable injury, could not exist practically and beneficially in association with the right of the defendant to supersede the injunction by entering an appeal from the order by which it is awarded or continued. The appeal bond would afford a very inadequate remedy against the threatened wrong, which we are to assume is incapable of compensation in damages. Cases may be imagined in which the continuance of an injunction for a very brief space may occasion grievous injury to the party against whom it is directed.  [**14]  The protection against the unjust application of the processes of the court is to be found in its discretion to impose terms or conditions on the party asking for the grant or continuance of the injunction, and I do not deny the authority of this court, or of the inferior court, in many special cases, to stay the operation of the injunction pending an appeal, if such supersedeas can be allowed without defeating the object of the application.

Every consideration of general convenience is in favor of this construction of the act, which is likewise sustained by the anomalous state of the law, which would be effected by giving to it a different interpretation. As the law now stands a complainant whose injunction is dissolved on consideration of bill and answer, may reinstate the injunction by entry of an appeal from the order of dissolution. If it is assumed, that the injunction being continued after the coming in of the answer may be superseded by the appeal of the defendant from the order by which the injunction is continued, it will result, that a party whose equity is sworn away by the defendant's answer, receives protection which would be denied to one whose equity was confessed [**15]  by the answer.

3rd. An appellate tribunal must have the power, inherent and essential to the exercise of its jurisdiction, to determine the status of the parties and of the subject matter pending an appeal, else the object of the appeal may be defeated. In Thompson vs. McKim, 6 H. & J., 302, at the instance of the appellant, this court ordered a stay of execution of the order from which the appeal had been taken, upon the very intelligible ground, that the execution of the order might have occasioned irreparable injury to the appellant. In this case the application is made by the appellee. But the principle is the same. If the appellant is permitted to contemn the authority of the order from which the appeal is taken, the subject matter of the appeal may be destroyed, the object of the suit may be defeated, and this court may find that its jurisdiction has been invoked to aid the appellant in the perpetration of an irremediable wrong. It is the duty of this court, in common with all others, to have a care that its authority shall not be perverted to the purposes of injustice. All laws relating to appeals, whether they refer to the persons by whom an appeal may be taken, or the [**16]  time for entering an appeal, or the manner of prosecuting the same, the status of person or property to be affected by the appeal, or the form or effect of the judgment to be rendered on the hearing, or the mode of enforcing such judgment, must, of necessity, be interpreted and enforced by this court. This court must have the discretion likewise to determine the appropriate time and manner of intervening in the exercise of its jurisdiction, and, as a general proposition, it may be asserted, is bound to intervene at that stage of the cause and in such form as may be most conducive to the general purposes of justice. It cannot prescribe to itself any rule of procedure which will practically cast on the inferior tribunals the authority of passing definitively on the construction of any laws which relate in any degree to the subject of appeals. But if we are entitled to the judgment of this court in construction of the act of 1853, at what other time, in what other manner, is the question to be presented? It cannot be discussed at the hearing of the appeal on its merits, for it is not presented by the record brought up by the appellant. And it may be added, if the appellant is at liberty,  [**17]  in the meantime, to act on his own construction of the act of 1853, or on the construction, placed on it by the court below, the ultimate judgment of this court in our favor will be valueless. In short, if this court cannot now construe the act of 1853, and enforce such construction, the suitor will be practically deprived of his constitutional right to appeal from any order of an inferior court, passed professedly in contravention of that act.

James Malcolm against the petition.

The act of 1853, ch. 374, provides "that in all cases where an appeal is taken from any order, either granting an injunction or appointing a receiver, or from an order refusing to dissolve an injunction, the operation of such an order shall not be stayed in any case unless the party praying the appeal give bond with security," &c., "and upon the giving of such bond the appeal shall stay the operation of all such orders, in the same manner as appeals do from final decrees." The language of this act seems too clear for doubt. It applies to all cases of appeals from orders granting injunctions, appointing receivers and refusing to dissolve injunctions, and says, that from any such order an appeal shall [**18]  not stay its operation unless bond is given, but upon giving the bond the appeal shall stay the operation of all such orders.

After the case was thus argued upon this petition, it was held under a curia, and before a decision was made, the appeal of McCann, from the order granting the injunction, and that of the complainants from the order dismissing their petition for an attachment, came up for hearing, and were argued before LE GRAND, C. J., ECCLESTON, TUCK and BARTOL, J.

The appeal of the complainants involves the construction of the act of 1853, ch. 374, and the argument upon this was as above stated: upon the appeal of McCann.

James Malcolm for the appellant, argued:

That the case presented by the bill was not a case for an injunction, because there could be no irreparable damage done to the complainants by a sale under the execution referred to in the proceedings, for if the deed is fraudulent and void no damage could be done them, and they had no standing in a court of equity, and if the deed is valid, then the appellant had a right to sell Charles R. Taylor's interest in the property; and all that the execution purports to sell, is his interest whatever [**19]  that may be. The proposition of the bill is to establish the doctrine, that if a party makes a fraudulent conveyance, the creditors must file a bill or institute a proceeding to test the bona fides of the deed sought to be attacked, and if it is found to be valid, the party takes nothing by his proceeding, and if fraudulent then he only receives sufficient to pay his claim, and nothing for his trouble and expense, and the balance is secured to the fraudulent grantee. We insist that the contrary doctrine has been established in this court by the express decision in Spindler vs. Atkinson, 3 Md. Rep., 409. See also, 17 Conn., 493, Owen vs. Dixon. If enforcing this execution was any clouding of the title, it was such as every creditor by his execution has the right to make of his debtor's property. The bill does not make a case of irreparable damage, for even if the deed is valid no damage could be done the complainants, for we could only sell Taylor's life interest in the property.

Thos. S. Alexander for the appellees.

The merits of this appeal must depend on the case made by the bill. The answer forms no part of the record on the hearing of an appeal from an order granting [**20]  an injunction. 5 Md. Rep., 472, Alexander vs. Worthington. The case may, therefore, be rested on the averment, that McCann became a creditor subsequent to, and with notice of, the deed of trust, and being a subsequent creditor he cannot impeach such a conveyance. 5 Gill, 449, Worthington vs. Shipley. 6 Md. Rep., 172, Worthington vs. Bullitt. Ibid, 319, McDowell vs. Goldsmith. The case of Warnick vs. Michael, 11 G. & J., 153, affirms the power of a court of equity to issue an injunction in such a case as this, and the same decision was made by Chancellor Bland. These cases show, that such is the law of Maryland whatever it may be elsewhere, and there is nothing in the case of Spindler vs. Atkinson, to controvert this position; for in that case the creditor who was enforcing his execution became such prior to the deed.  

JUDGES:
LE GRAND, C. J., ECCLESTON and MASON, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*429]  LE GRAND, C. J., delivered the opinion of this court.
This is an appeal from an order of the circuit court for Baltimore city, granting an injunction restraining the execution of a judgment obtained by the appellant against Charles R. Taylor, the husband of Georgiana, one of the appellees. Under [**21]  the decisions of this court, on this appeal, we are confined to the case made by the bill.  Wagner vs. Cohen, 6 Gill 97. Guyton vs. Flack, 7 Md. 398. Alexander vs. Worthington, 5 Md. 471.
The bill, in substance, states this case:--That Charles R. Taylor made a deed of certain property, in trust for his wife and self during life, provided the survivor should remain unmarried, with remainder in trust for their children; that the 

 [*430]  note on which the judgment was rendered is dated subsequently to the deed, and that at the time of making said deed of trust, Taylor was fully competent to do so, because, if indebted at all, was so only to a very small amount, and retained the ownership of property largely in value beyond any such indebtedness; that although the deed of trust was not left for record until the lapse of nineteen months after its date, yet, it was of record at the time of the execution of the promissory note on which the judgment was rendered, and besides which McCann had notice of its existence. The bill then avers, that the appellant, as is understood by the complainants, desiring to possess himself of [**22]  the property mentioned in the deed, pretends it was made to defraud and hinder Taylor's then and subsequent creditors, hoping and designing thereby to cast shadows and doubts upon the title to the property and thus diminish its value at a sale under the execution, which he has caused to be issued on his judgment. This is, substantially, the case presented by the bill, and to it must be limited the view of this court. So confining it we see nothing which does not justify the action of the court below. The bill undoubtedly makes a good case. It avers bona fides, competency of Taylor to make the deed, notice of its existence to McCann by its registration, and irreparable damage to the appellees by the execution of the judgment. Looking to the face of the bill there is nothing to militate against the force of these circumstances, except it be the failure to record, in proper time, the deed. This fact, although not very satisfactorily explained in the bill, is not of any great importance in this case, the bill averring knowledge on the part of McCann, of its existence. Conceiving the bill to have made a good case, we accordingly affirm the order appealed from and remand the cause for [**23]  further proceedings. When the case is brought to issue, possibly circumstances may be shown annihilating the equity set up in the bill.
It must be borne in mind, that this case is different from that of Spindler vs. Atkinson, 3 Md. 409. There, the debt was created prior to the deed, whilst in this case, it was subsequently incurred. We deem it unnecessary to allude to 

 [*431]  the other subjects discussed by counsel, reserving the expression of opinion in regard to them until the case shall, if ever, come before us again.
The case made by the application of the appellees to this court to suspend the execution of the judgment until its opinion should be pronounced on the petition filed, need not now, after what has been said in this case, be passed upon. Of course we are not to be understood, as denying the right of McCann to dispose of the life estate of Taylor in the property. Although the bill alleges that it had been conveyed to Mr. Schumaker, yet, that person is no party to this proceeding, and, therefore does not invoke the protection of the court. If his title be good, the purchaser would take nothing; if not good, then he would acquire, in the absence [**24]  of other claimants, the life interest of Taylor. These observations are made to avoid misapprehension in regard to what we have previously said.
Order affirmed.
ECCLESTON, J., dissented.  

27 of 187 DOCUMENTS 

HIRSH ROSE and HERMAN GAUSS, vs. SAMUEL BEVAN, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 466; 1857 Md. LEXIS 10 

JUNE, 1857, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

This is an appeal from an order granting an injunction and appointing a receiver, passed by the court below, (LEE, J.,) upon a bill filed by the appellees against the appellants. The allegations of the bill are sufficiently stated in the opinion of this court. The mortgage from Gauss to Rose, dated the 1st of April 1854, referred to in the bill and exhibited with it, conveys all the stock in trade and household and kitchen furniture, in the house and store occupied by the mortgagor, "and also all other property and effects which may hereafter be brought into said building by the said Gauss, or may be substituted by him in lieu of that hereby mortgaged." The defendants, after filing their answers, appealed.  

DISPOSITION:
Order affirmed and cause remanded.  

HEADNOTES:

A bill, alleging that the complainants had recovered judgments against one of the defendants, on which executions had been issued and levied upon certain goods in a store, and that the other defendant interposes a prior mortgage of these goods to prevent a sale thereof to satisfy the judgments, and that the property so mortgaged and levied upon, is more than sufficient to pay the mortgage, and that the mortgagor has no other property out of which the judgments can be satisfied, and has, since the execution of the mortgage, been permitted to use and dispose of the goods, and that part of the goods levied on are not the same as those mortgaged but others, and that unless the goods levied on be taken from the possession of the mortgagor they will be disposed of and the complainants subjected to an entire loss of their claims, makes a good case for an injunction restraining the mortgagor from selling the goods, and the appointment of a receiver.

A mortgage of a stock of goods in a store, "and also other property and effects which may hereafter be brought into said building by the mortgagor, or may be substituted by him in lieu of that hereby mortgaged," conveys to the mortgagee no interest in, or lien on, such goods as were subsequently purchased out of the proceeds of the sale of those mortgaged.

A mortgagee, before he has the right to foreclose, has the right in case of apprehended danger or loss of the mortgaged goods, to have a receiver appointed.

Though a debtor's equitable estate in personal property cannot be seized and sold under a fi. fa., yet a creditor may file his bill and obtain a decree for the sale of the property absolutely and pay off the incumbrances, and then satisfy his own claim. 

COUNSEL:
John J. Snyder for the appellants, argued:

1st. That no court of equity has a right to issue an injunction and appoint a receiver, or do either on such a bill as the present, and especially has not the right, before answer, to appoint a receiver. But even if it could have so acted before answer, the vague and indistinct allegations of the bill, dealing only in apprehension or conjecture,  [**2]  not even imputing a fraudulent intent, or purpose, or combination to defeat any rights of the complainants, could not warrant either receivership or injunction. The mere unexplained "belief," without setting forth the facts upon which it is founded, is not sufficient. 4 Gill, 382, Warfield vs. Owens. The cases of Clagett vs. Salmon, 5 G. & J., 348, and Harris vs. Alcock, 10 G. & J., 251, do not, it is respectfully submitted, sustain the propositions for which they are cited by the other side. In neither of these cases was a receiver appointed, or indeed asked, and the injunction granted in the former case was upon the express allegation of a fraudulent purpose to defeat the complainant's claim.

2nd. That the court erred in ordering a receiver and injunction, because, as alleged in the bill, there was another suit then pending in the same court embracing the same subject. In the suit of Rose against these complainants, prohibiting them from proceeding with their writs of fi. fa., the rights of both parties to this property would, or could have been, adjudicated and determined. Besides the indebtedness of Gauss to the complainants was contracted long after the execution of the mortgage [**3]  to Rose, and which being of record, they are presumed to have had notice of its existence. At the time of filing this bill, Rose himself could not have successfully invoked the interposition of the court for the sale of the property, because his mortgage debt was not then due. By what right then can the complainants claim to have the property sold? There is nothing in the bill which will authorise this extraordinary interference.

Geo. W. Dobbin and Wm. A. Talbott, for the appellees, argued:

1st. That the levy of the execution set out in the bill gave the complainants an equitable lien upon the property mortgaged, and the mortgagee having asserted his mortgage claim, no sale could be made to satisfy the execution save by a decree of a court of equity. The complainants, therefore, were entitled to have a decree, to pay first, the mortgage debt, and then their executions, the averment in the bill (which on this appeal must be taken to be true) being, that the property was more than sufficient to pay the mortgage and execution debts. 10 G. & J., 251, Harris vs. Alcock.

2nd. That as the mortgagee allowed the mortgagor to remain in possession and dispose of the property, and [**4]  interposed his mortgage to prevent the possession of the mortgagor from being disturbed, and as the bill avers that the mortgagor had no other property to satisfy the executions, and that the property would be entirely made way with and disposed of, and the proceeds applied to other uses than paying the complainants' debt, the issuing of the injunction and appointment of a receiver was the only mode by which the rights of the complainants could be preserved. 5 G. & J., 348, Clagett vs. Salmon.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON, TUCK and BARTOL, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*469]  LE GRAND, C. J., delivered the opinion of this court.
This appeal is taken from an order of the Superior Court of Baltimore city, sitting in equity, granting an injunction and appointing a receiver, on a bill filed by the appellees against the appellants.
The material averments of the bill may be thus stated: The appellees sold, at various times, to the appellant, Gauss, certain dry goods for which, from time to time, they took his promissory notes, which not being paid on their maturity, suits were brought before a justice of the peace, and judgments obtained thereon, amounting in [**5]  number to five, whereon writs of fi. fa. were issued, and levied on the goods of the said Gauss. The bill then alleges that the appellant, Rose, by virtue of a mortgage executed to him by Gauss, claims to prevent the execution and sale of the goods levied upon to satisfy the judgments of the appellees; that the property claimed to have been mortgaged, and in fact levied upon, is in value more than sufficient to satisfy the mortgage; that the appellant, Gauss, has no other property out of which the judgments of the appellees can be 

 [*470]  satisfied. The bill further avers that since the execution of the mortgage the appellant, Gauss, has been permitted to use and dispose of the goods mortgaged to Rose, and that a part of the goods levied on are not the same goods as those mortgaged, but others; that if the goods levied upon be not taken from the possession of Gauss they will be disposed of, and the appellees subjected to an entire loss of their claim. The bill asks an injunction to prevent Gauss from selling the property, the appointment of a receiver to take charge of them, and sale thereof to satisfy, after the payment of the debt, secured to be paid by the mortgage to Rose,  [**6]  the claim of the appellees. The bill undoubtedly makes a good case. Its averments, on this appeal, whatever may be the real state of the case, must be taken as true. Among other things it denies the property levied upon to be the same as that covered by the mortgage. If it be not the same, then, to the extent of the difference, the mortgagee has no right to interfere, or, if any portion be the result of purchases made out of the proceeds of sale of the goods mortgaged, he has no right, as to such portion, to interfere, he having no interest in, or lien on, the same.  Hamilton vs. Rogers, 8 Md. 301. The case of Clagett vs. Salmon, 5 Gill & John 314, establishes the right of a mortgagee, before he has a right to foreclose, in the case of apprehended danger, or loss of the goods, to have a receiver appointed, and the case of Harris & Chauncey, vs. Alcock, 10 Gill & Johnson 226, shows that, although a debtor's equitable estate in personal property cannot be seized and sold under a fieri facias, yet, a creditor may file his bill and obtain a decree for the sale of the property absolutely, and pay off the incumbrances, and [**7]  then satisfy his own claim. This is the case made by the present bill, and we therefore affirm the order appealed from and remand the cause for further proceedings.
Order affirmed and cause remanded. 

28 of 187 DOCUMENTS 

RICHARD B. DORSEY, Exc'r of WILLIAM H. DORSEY, vs. ARABELLA DORSEY, and ROBERT J. BRENT, vs. RICHARD B. DORSEY, Exc'r of WILLIAM H. DORSEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 471; 1857 Md. LEXIS 11 

JUNE, 1857, Decided 

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

These two appeals were, by agreement, taken up and argued together. The record, in the first case, shows, that the appellant, Richard B. Dorsey, as executor of William H. Dorsey, filed his petition in the orphans court, alleging that he had in hand, as executor, $ 3503.49, applicable by law to the costs of administration debts and legacies, subject to an agreement between the counsel of Arabella Dorsey, and of the petitioner, filed in the case of Dorsey vs. Dorsey, decided by the Court of Appeals in 9 Md. Rep., 31, in which Arabella Dorsey was petitioner, and the appellant defendant; that acting in good faith, and not believing that under the will of William H. Dorsey, the said Arabella was entitled to more than a life estate in the property, and that if he paid over all the net assets in hand, to her, as her absolute estate, he would be responsible to other parties, the executor, with a view to the due administration of the assets, and the proper ascertainment of the rights of said Arabella, employed counsel, who filed his answer resisting her petition; that the orphans court decided against him, and ordered the assets, after all [**2]  proper deductions, to be paid over to said Arabella, from which order he appealed, but it was affirmed by the Court of Appeals; that he is now ready to pay over the net assets to said Arabella, but desires the court to allow him to pay to his counsel, Robert J. Brent, Esq., a reasonable fee, for arguing the case between him and the said Arabella, in the orphans court, and in the Court of Appeals; that it will be his duty as executor, to institute suits to recover a large sum of money, several thousand dollars, which he believes to be justly due his testator, from the firms of "Duvall, Keighler and Dorsey," and "John H. Duvall & Co.," and that the prosecution of this claim will involve considerable professional labor and trouble on the part of the counsel he may employ, and that it will be necessary to pay such counsel liberally in the premises. He then prays the court to decide, what cash fee should be now paid his counsel, for instituting these suits, and what shall be reserved for a contingent or further compensation, until a recovery shall be had on these claims.

The order of the orphans court in the former case, which was affirmed by the Court of Appeals, and the admissions [**3]  in the answer of the appellant, made in that case, are fully stated in the opinion of this court. The agreement of counsel, in relation to the former case, referred to in the petition, was also filed as an exhibit with it, but need not be stated.

The answer of Arabella Dorsey, the only party who by the former decision, is interested in the residue of the estate, admits the execution of the agreement mentioned in the petition, but denies that the executor had any right to employ counsel, and incur costs at her expense, to defeat her just claim to said residue, which was established both by the decision of the orphans court and the Court of Appeals. She alleges, that her claim was resisted by the executor, in part for the benefit of his wife; that an executor has no right to litigate questions for the benefit of third parties, at the expense of the estate, especially in a case like this, where, by the decision of both courts, it clearly appears, there was no probable ground for resisting her claim, and still less was there any ground for an appeal, after the decision of the orphans court against him; that by the true meaning of the agreement referred to, the entire balance of $  [**4]  3503.49, was to be paid over absolutely to her, without any deduction for costs and expenses or any thing else, and that the fund was actually placed in the hands of the counsel mentioned in the agreement, in order that it might be so paid over, on the decision by the court, of the question of ownership; that by the decision of the orphans court, the entire sum of $ 3503.49, without any deduction for costs, or any thing else, was ordered to be paid over to her, and this order was affirmed by the Court of Appeals, which decision is final. She denies that it is the duty of the executor, to institute the proposed suits against the firms mentioned in the petition. On the contrary, she avers such suits cannot be for the benefit of any one except the counsel employed; that she is entitled to any fund that may be so recovered, and that in fact, at this time, no money is due from these firms to the estate, because at his death the testator was largely indebted to them, and the moneys collected by them since, are not sufficient, on proper application and division among the partners, to pay the amount so due by the testator.

Two letters from W. H. Keighler are filed with the answer, showing [**5]  the financial condition of these firms to be as stated in the answer.

The orphans court ordered the petition to be dismissed, and from this decision the executor appealed.

In the second case, the petition was filed by Robert J. Brent, alleging his employment by the executor, as counsel in the case of Dorsey vs. Dorsey, and that he argued the same both in the orphans court and the Court of Appeals, and charges for his services, $ 200 in each court, and claims payment out of the assets now in the hands of the executor; that the executor has employed him to file one or more bills in chancery, for the settlement of the partnership accounts, of the firms mentioned in the petition of the executor, who has no funds in hand to pay him a fee, except the $ 3503.49, which he is about to pay over to the said Arabella, and he prays that his fees in the former case, and a reasonable fee for said bills in chancery, may be allowed by the court out of this balance.

The answer of the executor admits the allegations of the petition, and refers to the petition filed by him in the first case, and prays that it may be taken as part of this answer.

The orphans court ordered this petition [**6]  also to be dismissed, and from this decision the petitioner appealed.  

DISPOSITION:
Upon the appeal by the executor, order affirmed, with costs; upon the appeal by Brent, order affirmed, without prejudice and without costs.  

HEADNOTES:

In an amicable suit between an executor and a legatee, instituted for the purpose of determining the true construction of the will, and whether under it the legatee was entitled to the whole residue absolutely or for life only, the orphans court decided in favor of the legatee, and passed an order directing the executor to pay to such legatee the sum of $ 3503.49, then in his hands, and also any balance he may hereafter receive, after deducting proper charges and expenses. At the time this order was passed, the executor admitted that all the debts and expenses of administration, so far as they had then accrued, had been fully paid. Upon appeal by the executor, this order was affirmed by the Court of Appeals. HELD,

1st. That this affirmance definitively established the right of the legatee to the $ 3503.49, and the orphans court could not subsequently apply any part of this sum to pay counsel fees for conducting the case in which the order was passed.

2nd. That the executor ought to be allowed, out of any assets of the estate other than this sum, reasonable counsel fees for conducting the case in the orphans court, but not in the Court of Appeals; the judgment of the orphans court was necessary, and sufficient to protect him in the administration of the estate, and it was not his duty to appeal.

3rd. That no allowance whatever ought to be made to the executor, out of the estate, to pay counsel fees and costs for suits, proposed to be instituted to recover certain debts alleged to be due the testator, it appearing that such suits are unnecessary, and that their institution would be contrary to the wish, and detrimental to the interest, of the only party interested in the estate.  

COUNSEL:
No counsel appeared for the appellant in either case.

Geo. Wm. Brown for the appellee, argued:

1st. That both by the agreement of the parties under which the controversy in relation to the ownership of the residue of the testator's estate upon the true construction of his will, was instituted, and the decision of that case in the court below, and the appellate court, this sum of $ 3503.49 was directed to be paid over, absolutely and entirely, to Arabella Dorsey, the widow of the testator. The matter is res adjudicata, by the decision of both courts. If there were any deductions of, or charges against, this fund for counsel fees, they should have been set up in that case. It is too late to do so in any subsequent proceeding: interest reipublicae ut sit finis litium. Besides, the answer of the executor to the original petition of Arabella Dorsey, admits that all the expenses of the estate had been paid so far as they had accrued, which, of course, embraced the [**7]  expense of the answer itself, and he claimed that the entire balance, under his construction of the will, belonged to said Arabella for life only.

2nd. That the executor had no right to appeal to this court and charge for counsel fees on such appeal. Act of 1798, ch. 101, sub-ch. 8, sec. 5. 8 Gill, 285, Ex-parte Young. Dorsey's Test. Law, 93. 4 Gill, 55, Compton vs. Barnes. Hill on Trustees, 570, 572.

3rd. There is no proof before the court that the fees claimed were reasonable and proper under the circumstances, and, therefore, nothing to show that the orphans court erred in its decision.

4th. The suits proposed to be brought, and for which fees are claimed, are clearly unreasonable, and fees should not be allowed for them. The amount of such fees cannot be ascertained by this court, there being no proof in the record to show what they should be.

5th. Mr. Brent, in the case of Dorsey vs. Dorsey, before the orphans court, was, in fact, the counsel of the mother of the testator, as appears from the agreement filed in this case. She was the substantial party in interest, and the proceeding was for her use and benefit, and the name of the executor was used only for [**8]  the protection of her supposed rights. It was, therefore, incumbent on her to pay the counsel whom she had employed, and his fees cannot be charged against the estate.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON, TUCK and BARTOL, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*475]  BARTOL, J., delivered the opinions of this court in these cases:--1st. Upon the appeal by the executor:
By the order of the orphans court of Baltimore city, passed on the 6th day of October 1855, in a cause wherein Arabella Dorsey, (the appellee in this case,) was petitioner, and Richard B. Dorsey, executor of William H. Dorsey, (the appellant,) was respondent, it was ordered and adjudged, that the said executor pay over to the said Arabella the sum of $ 3503.49, which he then had in hand; and, also, that he thereafter, "from time to time, pay to said Arabella, as her absolute property, the balances which he may hereafter have in hand belonging to the estate of said William H. Dorsey, after deducting proper charges, expenses, and any debts which may be due by said estate, if any there should be."

 [*476]  On appeal to this court, that order was affirmed at the June term 1856. See 9 Md. 31. [**9]  
That suit was an amicable action, instituted in conformity with the agreement between the counsel of the parties, for the purpose of determining the true construction of the will of William H. Dorsey, and of ascertaining the rights of Arabella Dorsey, one of the devisees, In the answer of the appellant to the petition of said Arabella, filed in the said cause, it is stated, "that all the debts of said William H. Dorsey have been fully paid, and likewise the expenses of administration so far as they have accrued," that certain legacies had been paid, &c., and "that there remains a balance of $ 3503.49, and that the said balance constitutes, so far as he knows, the entire residuum of the estate of said William H. Dorsey," with the exception of certain unsettled balances alleged to be payable to said estate from the two firms mentioned in the will.
The petition of the appellant in this case, prays the court to allow him to pay out of said balance in his hands certain reasonable fees alleged to be due by him to his counsel, for services rendered in arguing said cause in the orphans court, and in the Court of Appeals; and also certain fees for professional services to be rendered [**10]  by said counsel in prosecuting suits, which the appellant considers necessary, for the purpose of recovering certain debts alleged to be due from said firms to the testator.
We consider that the prayers of the petition were properly refused by the orphans court.
The decision of this court, already referred to, affirming the order of the 6th of October 1855, was a final adjudication upon the question involved, which definitively established the right of Arabella Dorsey, (the appellee in that case,) to the said sum of $ 3503.49, the balance then in the hands of the executor, and the orphans court could not rightfully apply any part thereof to the payment of the alleged fees, even if they were established by proper proof to be due, and were adjudged to be payable out of the estate of William H. Dorsey.
In view of all the facts of this case, as presented by the record, this court is of opinion, that no allowance whatever 

 [*477]  ought to be made to the executor, out of any assets which may come to his hands, for the purpose of defraying the costs of suits proposed to be instituted, for the recovery of debts alleged to be due from the firms mentioned; because it is apparent that [**11]  such suits are unnecessary, and ought not to be instituted; and the more especially because it appears from the answer of Arabella Dorsey, who is the only person interested in the estate, that the institution of such suits would be contrary to her wish, and detrimental to her interest.
We are of opinion, however, that the appellant ought to be allowed out of any assets in his hands, or which may hereafter come into his hands, (other than the sum above mentioned,) for any fees which may be proved to be just and reasonable, paid by him to his counsel, for services rendered in the preparation and argument of the cause aforementioned, in the orphans court. The judgment of that court was necessary to protect him in the administration of the estate; and those costs were properly incurred by him.  4 Gill 55. But, beyond such allowance, it would be unreasonable and unjust to charge the estate. The expenses incident to the appeal are not properly chargeable upon the estate.
The judgment of the orphans court was a sufficient protection to the executor; it was not his duty to carry the case farther. If other persons were interested in seeking a reversal of the judgment,  [**12]  an appeal was open to them, or if the appeal was prosecuted for their benefit, the expenses incident thereto ought to be borne by them; it would be inequitable to charge the costs thereby incurred upon the estate of one, against whose wishes and interests the appeal was prosecuted.
Order affirmed, with costs.
2nd. Upon the appeal by Brent:
The decision by this court, of the case of Richard B. Dorsey, Exc'r of W. H. Dorsey, vs. Arabella Dorsey, at the present term, governs this case; and the opinion of the court therein filed is referred to.
The petition in this case seeks to charge the same fund in the hands of the executor, as is sought to be charged in the 

 [*478]  other case. But the right of Arabella Dorsey to the whole of said fund is res adjudicata.
We consider, however, that the appellee, (the executor,) should be allowed out of any other funds coming to his hands as executor, to the extent stated in the opinion to which we have referred, for reasonable and proper counsel fees, costs and expenses, incurred by him in the procurement of professional services in the case referred to in the petition, while the same was pending in the orphans court. We affirm,  [**13]  without prejudice and without costs, the order of the orphans court in this case; because to remand for further proceedings, would subject the parties to a useless expense, which may be avoided by the executor's filing his application for such an allowance.
This opinion is not to be understood as prejudicing any claim of the appellant against Dorsey individually, for any professional services rendered him in the Court of Appeals or elsewhere.
Order affirmed, without prejudice and without costs. 

29 of 187 DOCUMENTS 

MISSOURI JOHNSON vs. JANE BRANNAMAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 495; 1857 Md. LEXIS 13 

JUNE, 1857, Decided 

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

The appellee, applied to the orphans court to have an infant, Mary Ann Brannaman, about three years old, her great-grandchild, bound to her as an apprentice. The mother testified that the child was illegitimate, and that when about six months old, she gave her to the appellant, in whose possession she now is, and who, at that time, kept and now keeps a house of ill-fame; and that she is willing the child should be bound to the appellee. It was also proved that the appellee is a woman of excellent character, and has means of taking care of the child, and giving her proper maintenance and schooling.

The court having decided to bind out the child, the appellant, to prevent this binding, and to enable her to retain possession of the child, tendered to the court a bond with surety in the penalty of $ 266.66 2/3, conditioned to provide for the due and comfortable maintenance, and sufficient and proper clothing, of the child, until she attains eighteen years of age. The court refused to receive this bond, and passed an order binding out the child to the appellee, and from this order the present appeal was taken by the appellant.  

DISPOSITION:
Appeal [**2]  dismissed.  

HEADNOTES:

An appeal will not lie from a decision of the orphans court, refusing to take a bond, tendered under the second section of the act of 1793, ch. 45, to prevent the binding out of an infant; the character of the party offering the bond, whether he be a suitable and proper person to perform the duties imposed by its condition, are matters left to the judgment and sound discretion of the orphans court.

The laws in relation to the care and custody of infants, were passed for their benefit, and not to promote the views of those who may seek to obtain possession of their persons.

The words of the act of 1793, ch. 45, that the orphans court shall not bind out the child, "if any relation or other person" shall give bond, "for the due and comfortable maintenance," and "for the reasonable schooling and education of the child," mean any person suitable for the performance of the duties, imposed by the condition of the bond.

In this case, the orphans court properly refused to receive the bond offered by the keeper of a house of ill-fame, in order that she might retain possession of a female child, against the application for her apprenticeship made by a relative of the child competent in character and means to maintain and educate her.  

COUNSEL:
R. C. Barry for the appellant.

The only power which the orphans court has to bind out an orphan, is conferred by the act of 1793, ch. 45, and the second section of this act provides; "that when any child shall be before the court for the purpose of being bound out as an apprentice, if any relation or other person will with good and sufficient security, enter into bond in the penalty of one hundred pounds, for the due and comfortable maintenance, and for the providing sufficient and proper clothing for such child till of age as aforesaid, and also for the reasonable schooling and education of such child, then the court shall not proceed to bind out such child as aforesaid." By the act of 1798, ch. 101, sub-ch. 15, sec. 20, it is declared, that the orphans court shall not under pretext of incidental power or constructive authority, exercise any jurisdiction whatever, not expressly given by this act or some other law. The court in this case, by binding out the child exceeded its powers. The tender of a sufficient bond, under the act of 1793, deprived the court of jurisdiction. The character of the appellant does not alter the question, or enlarge the powers of the [**3]  court. Though a court of chancery in this State has power to deprive an improper person, even a parent, of the custody of an infant and commit it to proper custody, yet the orphans courts have no such authority. Theirs is a special jurisdiction, limited by the express grant of the laws creating them, and conferring jurisdiction. For these reasons it is insisted, that the order appealed from should be reversed.

Benjamin C. Presstman for the appellee.

I think that under the decision of this court, in the case of Lammott vs. Maulsby, 8 Md. Rep., 5, no appeal will lie to this court in this case. The principle there established is, "that where an inferior court exercises a special limited jurisdiction, conferred by statute, no appeal from its decisions in such cases lies to this court." The act of 1842, ch. 25, conferred upon the orphans court special limited jurisdiction, such as they did not previously possess, and by the second section an appeal is given to the county courts, in all cases arising under that act. By the present constitution of the State, an appeal will lie under that act, from the orphans court of Baltimore city, to the superior court of Baltimore city, which [**4]  is clothed with the same powers as the county courts in this regard.

The sufficiency of a bond is under the terms of the act of 1793, ch. 45, clearly left to the discretion of the orphans court. For what reasons the court refused to accept this bond, is not set forth in the record. The taking of the bond is confided to the discretion of the court, and very properly so. It was not intended, that in the exercise of this delicate responsibility, the court should assign all the reasons which operated on their minds. I think the language of the court, in the case of Lammott vs. Maulsby, establishes, that the construction of the act of 1842 gives authority to the orphans court, to hear and determine all matters of dispute between masters and apprentices. The court in this case had entertained jurisdiction to hear and determine the petition filed, and had taken testimony on the subject, before the bond was tendered. The tender of the bond, at best, was but a fact for the consideration of the court, after jurisdiction had attached.

But what is meant by a bond for the due maintenance, and the reasonable schooling and education of such child, will be better understood by looking at [**5]  the object of the statute, as declared in the preamble. It is "to guard against the liability of destitute children, becoming useless or depraved members of society." Something more then is required of the court, than to consider merely the pecuniary sufficiency of the obligors. I cannot believe the highest judicial authority of this State will adopt the conclusion contended for by the appellant, that it is a matter of no moment, whether the appellant who seeks to obtain possession of the child, is a woman of bad character or not, and that whether she keeps a house of ill-fame, and a place for open prostitution, will not impair her right to have the custody of this child. Such a doctrine would be a blot upon the escutcheon of the State, upon whom rests the sacred trust of guarding the morals of her children. Although I admit, that the orphans courts can exercise no implied powers, I think their action in this case, in refusing to take the bond, was justified by the manifest intention of the framers of the act of 1793, and that the bond was, in no fair and true sense, sufficient for the due maintenance and education of the child.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON [**6]  and TUCK, J.  

OPINIONBY:
TUCK 

OPINION:

 [*499]  TUCK, J., delivered the opinion of this court.
A minor having been brought before the orphans court, for the purpose of being apprenticed, under the act of 1793, ch. 45, the appellant, who had possession of the child, appeared and offered to give bond for her due and comfortable maintenance, in pursuance of the last proviso of the second section of that act. Upon taking evidence and consideration of the case, the court refused this application, and bound the child to the appellee, from which order this appeal was entered.
It is supposed, that the words of the act of Assembly make it the imperative duty of the orphans courts to place such children under the care of any person who may offer the necessary bond, and that they can exercise no judgment in the matter; and this demand, it is said, must be gratified without reference to the character of the party. To this we cannot assent. It is to be observed, that the acts of Assembly, in relation to the care and custody of infants, were passed for their benefit, and not to promote the views of those who may seek to obtain possession of their persons; and this jurisdiction has been confided to [**7]  the sound discretion of the orphans courts. As was said in a case of guardianship, the orphans court may make an injudicious choice, but it is not probable that the Court of Appeals could make a better one, ( Compton vs. Compton, 2 Gill 241,) and the principle applies equally here.
The words of the act must be interpreted to mean, any person suitable for the performance of the duties imposed by the condition of the bond. The present record illustrates the correctness of this construction. It is shown that the appellant is a very improper person to take charge of a female infant. And yet, in a controversy between her and a relative of the child, competent in point of character and means, who, with the approbation of the mother, seeks to rescue her from the example of corrupt and vicious associations, we are told that the appellant, a stranger in blood, may, as matter of right, 

 [*500]  claim that she shall remain under this contaminating influence, to be brought up, most probably, in the courses of life which the appellant appears to have followed. This surely would be to defeat the ends for which this act was passed, which were to afford necessary instruction,  [**8]  and to prevent such persons from becoming useless and depraved members of society, and was justly discountenanced by the court below.
Appeal dismissed. 

30 of 187 DOCUMENTS 

STATE OF MARYLAND vs. THE MAYOR and CITY COUNCIL OF BALTIMORE, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 504; 1857 Md. LEXIS 15 

JUNE, 1857, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Baltimore city.

This appeal was taken from an order of the court below, (KREBS, J.,) dismissing the petition of the State, filed in the case of Elizabeth Smith vs. John S. Gittings, and others, pending in that court, in which certain property of Lambert S. Norwood, late clerk of the court of Common Pleas, conveyed to John S. Gittings, in trust, to indemnify the sureties upon his official bond as clerk, had been sold and the proceeds brought into court for distribution. This petition claimed for the State the entire balance of the fund in the hands of the trustee, amounting to $ 8097.73, in part payment of two judgments, one for $ 2992.42, and the other for $ 14,684.67, recovered by the State upon the bonds of Norwood, as clerk. This claim was resisted by the Mayor and City Council of Baltimore, who alleged, that Norwood was indebted to the city of Baltimore in the sum of $ 18,000, for which they claimed that this fund was partially responsible, and for which they had instituted suits upon Norwood's bond. The facts of the case are fully stated in the opinion of this court.  

DISPOSITION:
Order reversed and a final decree passed.  

HEADNOTES:

Where the State and other parties are creditors under the same bond of the same party, who has conveyed his property by a deed of trust, to indemnify his sureties on the bond, the State, by virtue of its prerogative, is entitled to priority of payment out of the proceeds of the property sold by the trustee in the deed under the direction of a court of equity.  

COUNSEL:
Chas. J. M. Gwinn for the [**2]  State, argued:

1st. That the court below erred in dismissing the petition of the State, upon the ground that the city had brought suit on the bond of 1851, because the deed of trust executed by Norwood to Gittings, in September 1853, was made to secure the sureties upon the bond of June 1853, and the city had no interest whatever, arising out of the bond of 1851, in the distribution of the fund held by the trustee under this deed, made to secure the sureties on the bond of 1853.

2nd. That the court erred in dismissing this petition upon the ground that suit had been entered in the name of the State for the use of the city, because it was apparent to the court from the copy of the bond filed in the case, and referred to in the answer of the city to the State's petition, that the city had no claim, either at law or in equity, against Norwood, which they could successfully prosecute, for the reason that the bond of 1853 was not stamped, and, therefore, no recovery could be had upon it by a suit in the name of the State for the use of the city. 9 Gill, 105, State vs. Milburn. It is submitted, that a court of equity cannot proceed upon the hypothesis that there is a contest at [**3]  law in regard to the liability of a party upon a bond, when the bond in proof before the court discloses, by reason of its want of a stamp, that it cannot be enforced by the city claiming under it, either at law or in equity. For an analogy, see Owens vs. Collinson, 3 G. & J., 25. The city ought only successfully to have resisted the State's petition in a case where its equitable claim to the action of the court was founded upon the theory, that it had a prima facie case at law. But where a court of equity perceives that its jurisdiction is invoked in aid of a proceeding at law, and the facts, shown as the basis of such prayer, demonstrate conclusively that there is no legal right in the party claiming such interference, it is a manifest denial of equity to all other persons interested, to consider such application, or to act with reference to it in any manner.

3rd. That the court erred in its action, because the city, having a remedy at law upon the bond of 1853, if any legal rights under this bond were possessed by the city, should have been remitted to the pursuit of such legal rights by the court, and should not have been received as a party to or considered in a proceeding [**4]  which was for the benefit of the cestui que trusts of the deed of September 1853, against the will of all or any of those cestui que trusts.

4th. The proceeding in the court was for the protection of those who claimed rights in the property conveyed by Norwood to Gittings, and for the safety of Gittings, as trustee in administering his trust; and the court, in ordering the administration of the trust, ought to have followed that priority among those claiming an interest in the fund, which is recognised by the law. 1 Story's Eq., sec., 553. And for this reason, if it were conceded, for the sake of the argument, that the city had any rights under the bond of 1853, its claim could not interfere with the right of the State to be first paid the debt due it, which had been sued for on this bond, and for which judgment had been recovered. The claim of the State was a lien upon the real estate of Norwood, in the hands of Gittings as trustee, and upon the proceeds of that estate in his hands: (Act of 1778, ch. 9, sec. 6; 1 Bland, 443, Jones vs. Jones; Ibid, 503, Hodges vs. Mullikin; 1 H. & J., 546, Davidson vs. Clayland;) and the State was entitled to priority of payment by reason of such [**5]  lien. The act of 1778, awards the priority to the State from the date of suit, except as against such liens as existed prior to suit brought by the State, and it is difficult to see why the claim of the city which was in no form a lien, either before the commencement of the suit brought by the State, or at the commencement of that brought in the name of the State for the use of the city, and for which no judgment had been recovered, could be set up by the court as entitled to be considered in the application of the fund, which was subject to the court's order, to the partial liquidation of the judgment obtained by the State.

5th. The court below was bound to recognise the claim of the State to priority in payment, when the lien of the State, prior to the claim of the city, was apparent in the cause. The prior right of the State to payment did not depend on the fact that the suit was on a bond made to the State, but on the fact recognised in the act of 1778, that it was for money due the State. The claim of the city, if it had any upon this bond, did not derive any preference from the character of the bond, but remained a private claim which relied upon the bond as an ordinary [**6]  cause of action. Nor was there any more force in the reason given in the order appealed from, that the safety of the trustee forbade the exercise of this legitimate authority of the court below. The trustee would have been as safe in paying the judgment claim of the State, as in paying under the order of the court any lien for materials furnished for the house of Norwood, which was conveyed to Gittings, as trustee. The claim of the State was as perfect to the fund, in preference to the alleged claim of the city, as was the right of the material men to the claim of the State before suit brought by the State.

6th. The court below erred in dismissing this petition, because it was in exact accordance with the deed of trust directing the property to be applied, to save harmless the sureties on the bond of 1853, and these sureties can only be saved harmless by appropriating the money derived from the proceeds of the property so conveyed and in court, to the satisfaction of liens thereon in their proper order, which order would apply the fund now in hand to the partial payment of the judgments of the State. If this court should be of opinion that, because of the transfer of all Norwood's [**7]  property to Gittings as trustee, and the subsequent administration of the fund thus acquired by the court below, the State was left remediless at law, to enforce either of its judgments, but that the proceeds in the hands of the trustee, are, for the reasons set forth, applicable to both judgments because of the priority of the State's claim, this court, for full relief, on hearing this appeal, ought to pass a decree, directing the court below to order payment by the trustee, out of the fund in his hands, of the first judgment in full, and the balance of the fund to the partial payment of the second judgment. Or if this court should be of opinion that the fund ought to be applied, under the deed of 1853, to the relief of the sureties, who are cestui que trusts under that deed, then it ought to order the court below to direct payment, by the trustee, of the sum ascertained by the Auditor's account to be in his hands for distribution, in partial payment of the judgment for $ 14,684.67, recovered by the State on the bond of June 1853.

Grafton L. Dulany for the City of Baltimore.

The answer, or rather the petition, of the Mayor and City Council of Baltimore, prays that the city [**8]  may be put upon an equality, as the creditor of Norwood, in the distribution of the fund arising from the sale of property, conveyed by him in trust to Gittings, with the State. The State, by its petition claims, that this fund should be applied primarily to the discharge of its debt, to the exclusion of all others, and for this pretension asserts its prerogative right and also its statutory preference, under the act of 1778, ch. 9, sec. 6. Assuming that the State and city are both creditors of Norwood, and also that each has an equal claim on his sureties, and that his deed to Gittings, was designed to indemnify his sureties against all damage they might sustain from the demands of the one as well as the other, the claim of the State to take the whole fund in the hands of the trustee, in satisfaction of its entire debt, to the exclusion of all participation in the same fund by the city, has no foundation in any principle either of law or equity.

It is admitted, that if the State had commenced suit against Norwood, before his deed to Gittings, it would have had the priority and preference, under the act of 1778, in the payment of its debt. But the deed was executed on the 26th [**9]  of September 1853, and no action was instituted against Norwood until the 7th of January 1854. Now at the time of the institution of the suit by the State, Norwood had no property, at least none which contributed to any portion of the fund now in court for distribution, because previously to that period, by a good and valid deed, founded upon a valuable and meritorious consideration, he had conveyed it all away. The preference of the State must have a legal existence. It can otherwise have none in equity, for there "equality is equity," a principle antagonistic to the State's claim. Here there can be no legal priority, since, by the words of the act of 1778, it could only attach to the property belonging to the debtor, on the day of the institution of the suit, but in this case no such preference could attach, for on that day the debtor had no property, having previously transferred it for the benefit of his sureties, which has been decided to be a valuable consideration. It is said, in the case of the State vs. The Bank of Maryland, 6 G. & J., 217, a deed made by an individual debtor, capable of taking the benefit of the insolvent laws, to a creditor or a surety, might be valid and [**10]  effectual to pass the property, and if so, why, in the present instance, did not the property pass to the trustee, by the deed of September 1853? And if it did pass, still to allow a preference to the State, would be to attach the right of priority, not to the property of the debtor but to that of other persons. It is no answer to say, that if preference be allowed to the State, under the circumstances of the case, the sureties will be protected as fully, as by any other mode of distribution of the fund, for still the legal ingredient, essential to the existence of a right of preference is wanting, viz: that the property at the time of the institution of the suit, must have belonged to the debtor. Nor will equity lay hold of any circumstances to create a preference where none exists, but in this respect reluctantly follows the law, and allows it, when legal, contrary to its own favorite maxim that equality is equity. Upon this question of preference, I rely upon the case in 6 G. & J., 205, above cited, as conclusively establishing the right of the city, to participate with the State in the distribution of the fund in the hands of the trustee.

As for the objection, that the city [**11]  had no claim at all because of the omission of the stamp upon the bond, it is unnecessary to inquire how far that would, at any time, have been requisite, since the act of 1856, ch. 352, makes all bills, notes, or bonds, drawn or executed previous to the act, as valid in law as though the stamp act had never been passed. This is a public law to which obedience is due, which the court will notice though not in the record, and which will avail to insure the defeat of the objection to the bond for want of a stamp. 1 Cranch., 110, United States vs. Schooner Peggy.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON, TUCK and BARTOL, J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*509]  ECCLESTON, J., delivered the opinion of this court.
Lambert S. Norwood having been elected clerk of the Court of Common Pleas for the city of Baltimore, in November 

 [*510]  1851, gave bond to the State of Maryland, on the 29th of that month, in the penalty of £  5000, for the faithful performance of the duties of his office. On this bond Elizabeth Smith and J. Marbury Turner were sureties. Under the act of 1853, ch. 409, Norwood, as clerk, gave a new bond to the State, on the 29th of June, in the same year, in [**12]  the penalty of $ 50.000, on which Elizabeth Smith, J. Marbury Turner and J. Wesley Watkins, became sureties.
On the 26th of September 1853, Norwood executed a deed of trust to John S. Gittings, conveying a leasehold property therein described, and "all the real and personal estate which Norwood then possessed, and all choses in action, and all his rights, credits and effects, of whatsoever kind they might consist, and all his estate in expectancy, reversion and remainder." After reciting that the bond for $ 50.000 had been given, it is stated in the deed to be the design of the grantor, "more effectually to secure his said sureties on said bond, from any loss that might possibly occur from being on said bond." And the trust, as declared, gives to the trustee authority "to sell and dispose of all property, real and personal, on such terms and in such manner as may be legal and most conducive to the interests of those interested in the execution of this trust, and to collect and reduce into possession all choses in action, rights and credits, and the proceeds thereof to apply to pay any loss or losses that the aforesaid sureties on the bond of the said Lambert S. Norwood may [**13]  sustain, if such there be; or in case of any such loss being likely to occur, then to make such other disposition of the property, as in his judgment may be deemed best, to indemnify said sureties from any loss whatever."
On the 13th of November 1853, Elizabeth Smith, apprehending loss to herself and her co-sureties, exhibited her bill of complaint in the Circuit Court for Baltimore City. The object and design of which bill was, to get a decree for the sale of the leasehold property, or house and lot mentioned in the said deed, and all the other property thereby conveyed; and also that the court should take cognizance of the trust created by the deed, so that the same might be administered 

 [*511]  under the direction of the court, for the benefit of all who might be interested therein. The bill likewise contained a prayer for general relief. John S. Gittings, John W. Watkins, J. Marbury Turner, Lambert S. Norwood and others, were made defendants; all of whom consented, by their answers, that a decree for a sale should pass as prayed. Gittings, Watkins, Turner and Norwood, all admitting the facts stated in the bill to be true.
The court passed a decree, on the 27th of December [**14]  1853, for a sale as prayed, appointing John S. Gittings, trustee, to make the same, and directing him to bring into court the money arising on such sale, and the bonds or notes taken for the same, to be disposed of under the directions of the court. It was also ordered and decreed, that the said John S. Gittings should, in all things, proceed and act under the directions of the court, in the execution of the trust reposed in him by the deed from Norwood. The decree also authorised Gittings to apply for directions, from time to time, and reserved to the court the right to pass such orders and decrees respecting the trust, as might seem advisable and proper for the administration thereof, and the protection of the trustee. The decree, likewise, provided, that the parties, or any of them, might apply for such further decrees, or orders and directions, as might seem to them proper, reserving the right to the court to pass such as might seem necessary.
Under this decree, after giving bond as directed by it, Gittings, as trustee, made the sale of the leasehold property on the 18th of February 1854, which was reported by him, and on the 19th of May following the same was ratified.
In reporting [**15]  the sale he further reported, that he had received from Lambert S. Norwood the sum of $ 6506.34, to be applied by the trustee in accordance with the deed of trust filed in the cause; and the trustee prayed that the same might be distributed, under the directions of the court, in like manner as the proceeds of the sale of the leasehold estate were to be, or otherwise as parties entitled thereto might respectively establish their claims thereto.
The auditor made a report, including therein the amount for 

 [*512]  which the leasehold estate was sold, and likewise the sum of $ 6506.34, received by the trustee from Norwood; from which report it appeared, that after allowing costs, expenses and claims, entitled to preference, there remained a balance of $ 8097.73, subject to be disposed of by the court's direction. This report was made on the 13th of June 1854, and was ratified on the 30th of the same month.
On the 4th of January 1854, the State of Maryland instituted suits in the Superior Court for Baltimore City, upon the two bonds given by Norwood. And on the 29th of May following, a judgment, by confession, was entered in each case; that on the first bond being for $ 2992.42, and [**16]  that on the other for $ 14,684.67, with interest, from the 1st of December 1853, upon the principal of each judgment.
The State filed a petition in the circuit court, on the 13th of June 1854, in the case of Elizabeth Smith against John S. Gittings, Lambert S. Norwood, and Others, claiming any balance of the trust fund, remaining undisposed of, after the payment of any liens existing upon the leasehold property, prior to the institution of suits by the State.
On the 13th of June 1854, an order was passed, "That the matter of the within petition be set down for hearing on Monday the 20th inst., provided a copy of this order, and the said petition, be served on the solicitors for plaintiff and defendants, on or before the 16th inst."
Within due time, the solicitors of the respective parties admitted notice of the order and petition.
J. M. Turner filed an answer to this petition, in which he admits the matters and things charged therein, to be true, as to the indebtedness of Norwood to the State, and submits to such decree in the premises as may be right.
Elizabeth Smith, in her answer, says she believes the facts stated in the petition to be true, as to the bonds and judgments,  [**17]  but she does not know whether the amounts therein stated to be due on the several bonds are the true amounts or not, "nor is she advised that she is interested, in this case, in ascertaining whether they are correct or not; and she is perfectly willing that the funds now (then) in court, or to be brought 

 [*513]  into court, or in the hands of the trustee, or to be in his hands, should be applied as prayed." She further answers: "But this respondent has been informed and believes, that the said Lambert S. Norwood is charged, by the Mayor and City Council of Baltimore, with a default in the collection of some of the revenues of the city, which they claim to hold his bonds responsible for, and she avers that the said Mayor and City Council are interested in the disposition of the said balance, and she prays that they may have an opportunity of claiming the said balance, before it shall have been acted upon" by the court.
In the answer of John S. Gittings, he says, his report will disclose the amount of money then in his hands, and the amount of the proceeds of the sale of Norwood's house, for which he is willing to account when the same shall have been received, but he does not admit [**18]  that he has received the whole thereof. He admits the other facts stated in the petition, but further answering, "says, he has been informed and believes, that the Mayor and City Council of Baltimore claim the said balance, under the said bonds, for defalcations of the said Norwood, in making collections for them while clerk as aforesaid, and he therefore prays, before the distribution of the said balance, that notice may be given to the said Mayor and City Council, so that they may have an opportunity of setting up their claim in this case, and having the same adjudicated."
The court passed an order directing notice to be given to the Mayor and City Council; and on the 30th of June 1854, they filed what they called an answer to the State's petition, but which, with as much propriety, might be called a petition. In this they set out an alleged indebtedness to them, on the part of Norwood, as clerk, for moneys received by him for them, amounting to $ 18,000, for which they claimed the fund in court was partially responsible; in which answer they asked to be made parties to the suit, and that their claim might be audited, and distribution made to them upon equal terms with other creditors.  [**19]  They referred to both bonds, but without specifying the nature or amount of the claim under each of them; and filed with their answer an account marked "Exhibit Y," which is as follows:

 [*514]  "Statement of account.--Money due by Lambert S. Norwood, late clerk of the Court of Common Pleas, to the Mayor and City Council of Baltimore:

________________________________________________________________________________

To ordinary licenses under the act of 1782, received	
  by him, as appears by the books in the	
  office of the register of the city and in the	
  Court of Common Pleas,	$ 15,009 88	
To jail fees under the act of 1827,	1985 08	
	$ 16,994 96	
________________________________________________________________________________

Suits are now pending in the Superior Court to recover the above amounts."
With regard to the suits just mentioned, the following admission appears in the record: "It is admitted that a suit was entered in the Superior Court of Baltimore city, in the name of the State use of the Mayor and City Council, vs. Norwood and others, and a suit in the name of the Mayor and City Council of Baltimore, vs. Norwood and others, on his bonds as clerk of the Court of Common Pleas, for Baltimore city, at the May term 1854, and are on the trial calendar, for this term, (September 1854,) in said court.  [**20]  " The record does not show when or how those suits were terminated.
Subsequently to the filing of the answer and claim of the Mayor and City Council, J. M. Turner filed a further answer denying their right to be made parties, and also insisting that they had no claim, whatever, upon the trust fund.
The circuit court passed an order dismissing the petition of the State, from which this appeal is taken.
The order is in the following language:
"The petition of the State of Maryland, filed in this case, praying that an order may be passed to authorize the payment to the State, by the trustee, in the petition mentioned, of the fund now in his hands, after certain payments therein mentioned are made, having been considered, and it appearing to the court that certain suits are now pending on the bonds filed in this case against the principal and sureties in behalf of the Mayor and City Council of Baltimore, to recover certain sums of money for which it is alleged said sureties are liable to said city on said bonds, and the court being of opinion that it should 

 [*515]  pass no order such as is prayed in said petition, under which the said fund would pass from the hands of the trustee [**21]  pending the trial of said cases, and it is ordered and adjudged, this second day of December 1854, that the said petition be dismissed with costs."
The deed was designed to secure the sureties in the second bond, and as the claim of the State under that bond, and the judgment upon it, amounts to more than the balance of $ 8097.73 of the trust fund, subject to the court's order, it is certain the State can have no title to any part of that balance by virtue of any claim under the first bond. So likewise no responsibility of Norwood and his sureties, to the Mayor and City Council, under the first bond, (if any exists,) can give them a claim upon this balance of the fund.
If it should be conceded that the Mayor and City Council have a claim against Norwood and his sureties, under his second bond as clerk, on account of moneys collected by him for them, still the State's claim under that bond is entitled to such a preference as will exclude the city from any participation in the trust fund.
We need not inquire, whether the deed of trust prevented the suits instituted by the State from creating a lien upon the property conveyed by it; for, without any lien, the State may be entitled [**22]  to a priority or preference in payment, in such a case as this, according to the principle recognized in Smith, et al., vs. The State, in 5 Gill 45. There the court say: "The authorities, cited by the appellant proved that in such a case as the present, the State has no lien. None is claimed. A priority of payment over other debts, they also not being liens, is a very different thing; and we think a prerogative of the State."
Although in the State vs. The Bank of Maryland, 6 G. & J. 205, the preference claimed by the State was defeated, by reason of the deed of trust, it does not necessarily follow that the result must be the same here. That case is very different from this. There the cestui que trusts, under the deed, were creditors, generally, of the bank; and it did not appear that such creditors, or any of them, were debtors to 

 [*516]  the State, as sureties for the bank, or debtors to the State in any other respect, and as such, having or claiming an interest in the property transferred for their use, by the deed, or in the proceeds thereof.
Here the cestui que trusts, who have any interest in the fund now in controversy,  [**23]  are debtors to the State, and are claimed to be debtors to the city also, and with reference to the question now before us, must be so considered, for otherwise there is an end of the city's claim by the terms of the deed itself, without a necessity for the State to rely upon the doctrine of preference. Both creditors are therefore claiming through the grantor in the deed, and through his sureties the cestui que trust, in the deed; and under the same bond.
If, in view of the facts, irrespective of the State's prerogative of priority, the city would have a claim upon the fund, the State would certainly have one quite equal in grade to that of the city. This being true, then if the State's prerogative is taken into consideration, the priority given by it must exclude the city, where there is not enough to overpay the State. And as the present fund is not sufficient to pay the judgment of the State upon the last bond, the Mayor and City Council can have no right to a portion of the balance in dispute.
The judgment of the State shows the amount recovered therein under the second bond; and the right of the State to have the trust fund applied toward the payment of its claim, has not [**24]  been denied by the grantor in the deed of trust, by the trustee, or by either of the cestui que trusts, except in so far as the answers of John S. Gittings and Elizabeth Smith, make reference to an alleged claim on the part of the Mayor and City Council, and suggest the propriety of their being heard, so that their claim might be presented and adjudicated before the fund should be disposed of by the court.
They had an opportunity of being heard, and they did exhibit their claim, which, in our opinion, does not entitle them, in opposition to the State, to participate in the disputed fund; which claim, so exhibited, on its face shows that suits to recover the same were pending in the Superior Court, and these suits are, evidently, the same to which reference is made in the order dismissing the State's petition.

 [*517]  Believing, as we do, that the claim on which these suits were based cannot entitle the city to any portion of this fund, but that the State should have the whole, the order dismissing the petition must be considered erroneous. We will therefore pass a decree reversing the decision below, and ordering the costs in both courts, to be paid out of the balance of [**25]  said fund, and the residue thereof to be paid to the State, in part payment of its judgment on the second bond.
Order reversed and a final decree passed. 

31 of 187 DOCUMENTS 

LEWIS LOHRFINK vs. HENRY STILL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 530; 1857 Md. LEXIS 17 

JUNE, 1857, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

This was an action for a malicious prosecution, brought by the appellee against the appellant. The declaration was in the usual form, except that it omitted to aver that the alleged malicious prosecution was "without probable cause." Plea, non cul.

1st Exception. After the testimony had been closed, and several prayers offered on the part of the defendant and acted on by the court, but which need not be stated, the plaintiff asked leave to amend his declaration, by inserting in a specified place the words, "and without any reasonable or probable cause whatsoever," and moved that the declaration "may be deemed and taken to read as if said amendment were made." The court, (FRICK, J.,) passed an order that the plaintiff "have leave to amend at bar as prayed." The defendant objected to making the amendment without first withdrawing a juror, but the court overruled the objection. He then objected to making the amendment in the present nar in the manner proposed, and asked for a new nar. This objection the court also overruled, and permitted the amendment to be made as prayed, and to these several rulings the defendant excepted.  [**2]  

2nd Exception. After the application to amend had been reduced to writing and presented to the court, the defendant stated his objections to the mode of amendment, the court then granted leave to amend as prayed, and the defendant excepted, and tendered his exception to be signed, when the court, before signing it, asked the defendant's attorneys if they were taken by surprise by the application to amend, and whether the amendment, as made, altered, in any respect, the case as presented to the jury? which question they declined to answer. The court then signed the exception, and ordered the case to proceed before the same jury without re-swearing them, stating that the ends of justice and the justice of the case, in its opinion, did not require a continuance. To this ruling the defendant excepted.

3rd. Exception. The defendant then tendered a demurrer to the declaration, upon the ground that it was defective in not averring that the alleged prosecution was without probable cause, and that no new nar having been filed under the leave to amend, and the old one not having been, in point of fact, amended, there is no allegation that the alleged prosecution was without probable [**3]  cause. The plaintiff objected to the reception of this demurrer, which objection the court sustained, and to this ruling the defendant excepted.

The jury then rendered a verdict in favor of the plaintiff for $ 500 damages, and the defendant then moved in arrest of judgment, because:--1st, the declaration, as originally filed, was, and is, defective in omitting the material allegation, that the alleged prosecution was without probable cause; 2nd, the said declaration was not amended, although leave to amend was asked and granted; 3rd, such amendment could not be considered as made unless actually made; 4th, it could not be made by interlineation; 5th, it could only be made by withdrawing a juror and filing a new nar; 6th, by amendment of the nar, the plea filed to the original nar was necessarily out of the case; 7th, the verdict is a nullity, because there was no issue; 8th, and for other reasons. The court overruled this motion, and the defendant appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

In an action for a malicious prosecution, the omission to aver that the alleged prosecution was without probable cause, is a fatal defect in the declaration.

In such an action the plaintiff asked leave to amend his nar, by inserting the words, "without probable cause," and "that the declaration might be taken to read as if said amendment were made," and the court ordered that he "have leave to amend at bar as prayed." HELD:

That this permission to amend does not, per se, amount to an amendment; the amendment must actually be made, either by altering the declaration in the cause, or by filing a new one.  

COUNSEL:
Benjamin C. Barroll for the appellant, argued:

1st. That prior to the act of 1852, ch. 177, the laws of this State imperatively required a juror to be withdrawn before an [**4]  amendment of the pleadings could be made. Acts of 1785, ch. 80, sec. 4, and 1809, ch. 153. The act of 1852 enlarged the power, but not the mode, of amendment. The first section simply extends the power of amendment to the writ; the ninth section providing that no continuance shall be granted upon amendments, applies only to actions of ejectment which had been provided for in the preceding sections, or, if it applies to all cases of amendments, it simply provides that such amendments shall not operate a continuance of the case; that is, its postponement to the next term, unless the ends of justice, in the opinion of the court, require such a continuance, and, therefore, in no wise repeals the provisions of the previous laws requiring the withdrawal of a juror upon every amendment of the pleadings.

2nd. That when the court allowed the amendment it was the duty of the plaintiff to file his amended nar. He had no right to alter, by erasure, interlineation or otherwise, the records of the court. Ev. Prac., 246. The leave to amend could not operate as an amendment, and the court had no power to say that the nar should read as it did not read. There was, therefore, no amendment, in point [**5]  of fact, made, and the nar stood, and still stands in the record, without the material averment of want of probable cause.

3rd. That when a plaintiff amends, it is the right of the defendant to modify his defence to suit the new case as made by the amendment. Before an amendment is made the original pleading is withdrawn, leave being granted, and, consequently, when a nar is withdrawn for amendment the plea to it is out of the case, (5 Hill, 556, Barstow vs. Randall,) and as the court compelled the defendant to proceed the case was not at issue, and the verdict, therefore, was a nullity. 3 H. & J., 561, Kerr vs. The State.

4th. That it was the right of the defendant to take issue upon matter of law by his demurrer, which ought to have been received and sustained because of the absence of the material averment of want of probable cause. 3 G. & J., 377, Turner vs. Walker. 6 Md. Rep., 400, Cochrane vs. The State.

5th. The motion in arrest of judgment brings up the question of the regularity of the pleadings. 4 Md. Rep., 434, Terry vs. Bright. If the case was at issue under the amended nar, the jury found their verdict on a different issue from that which they had been sworn [**6]  to try, and should have been sworn over again. The defendant did not ask or desire a continuance, but only desired to plead anew to the amended nar, and that the forms of the law should be complied with.

Oliver Miller for the appellee.

The several exceptions in this case present but two questions: 1st, did the action of the court below in regard to the amendment of the nar effect an amendment thereof? and 2nd, could such an amendment be made without the withdrawal of a juror? If the affirmative of these questions can be sustained, the judgment must unquestionably be affirmed.

In regard to the first question, the record shows that the motion to amend was reduced to writing, that it sets out the words sought to be inserted, and the place where they are to be inserted in the nar, and then prays that "said nar may be deemed and taken to read as if said amendment were made," and that the court, by its written order, granted the leave to amend at bar, "and permitted the amendment to be made as prayed;" that is, the court ordered the nar to read as if the proposed words were inserted in the specified place. It cannot be material how the amendment is made, provided it appears [**7]  upon the record of the case to have been done. Now this motion to amend, and the order of the court thereon, were both in writing, and formed as much a part of the record of the case in the court below as did the original nar or the plea thereto. It is insisted, therefore, that this order of the court operated as an amendment of the declaration to the extent of such order; in other words, that it perfected the declaration. Though there are no decisions of our own courts upon this question, yet the very point has been decided by the highest tribunals of other States. 3 Ala., 741, Palmer vs. Lesne. 12 Iredell, 275, Holland vs. Crow. 2 Hawk., 214, Ufford vs. Lucas. The amendment being thus made, no new pleadings were required to put the case at issue. The plea of non cul not having been withdrawn, such plea applied to the amended declaration, and the case was at issue.

The second question depends upon the proper construction of the act of 1852, ch. 177. It is conceded that under the previous laws such an amendment could only be made by withdrawing a juror. Does this act make no change in this respect? Its evident design is to promote the speedy trial of causes on their merits, and [**8]  thereby save expense and delay, and in this sense it is a remedial law, and should be liberally construed to effect this end. The first section allows amendments of any of the proceedings, including the writ, in all suits and actions at law, and the ninth section provides: "That no continuance shall be granted upon amendments of the plots, writs or any of the proceedings, but the case shall proceed as if no amendment had been made, unless the court shall be satisfied that the ends of justice require a continuance." It is too clear for argument that this latter section applies to all cases in which amendments are allowed by the preceding parts of the act. Is it not equally clear that the case is to proceed "as if no amendment had been made," unless the court before which it is tried is satisfied the ends of justice require a continuance? But how can it so proceed if a juror is to be withdrawn? These words, directing the case to proceed as if no amendment had been made, must be stricken from the law, if the withdrawal of a juror in every case of an amendment is still necessary. The record clearly shows that the ends of justice did not require a continuance, because the court asked the [**9]  counsel for the defendant whether the application to amend took them by surprise, and whether the amendment as made altered in any respect the case as presented to the jury? and this inquiry they declined to answer, admitting, by their silence, that an affirmative response could not be given.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and BARTOL, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*534]  BARTOL, J., delivered the opinion of this court.
This is an action for a malicious prosecution. The declaration was defective, in not averring that the alleged malicious prosecution was "without probable cause." That such averment 

 [*535]  was essential is not now, and has never been, doubted. It constitutes the gist of the action. 2 Chitty's Pl., 608, 609, note(x.) 2 Saund. Pl. & Ev. 652, 654, 659.  7 Cowen 717.
After the jury had been sworn, and all the evidence offered to them, the plaintiff asked leave to amend the declaration, by inserting the words, "without any reasonable or probable cause whatsoever," and "that the declaration might be taken to read as if said averment were made," and the court granted leave to amend at bar as prayed. The defendant [**10]  objected to the amendment being made, without first withdrawing a juror, which objection the court overruled. The defendant also objected to the making of said amendment in the manner proposed, which objection the court overruled, and the defendant excepted. The court directed the trial to proceed before the same jury without their being re-sworn, to which also the defendant excepted.
The first question presented by these exceptions is, whether the leave to amend the declaration operated as an amendment? It is clear that a permission to amend does not, per se, amount to an amendment. A party may have leave to amend, and yet not choose to avail himself of it. The amendment must actually be made, either by altering the declaration in the cause, or by filing a new one.
In this case no amendment was, in point of fact, made in conformity with the leave granted by the court. The declaration remained unchanged; and as it now appears in the record, it contains no averment of "want of probable cause," without which it is insufficient.
We think the court erred in treating the leave to amend as an actual amendment, and for that reason the judgment ought to be reversed.
The exceptions [**11]  in the case present another question, involving the construction of the act of 1852, ch. 177, which is by no means free from difficulty; and as its decision is not material to the determination of the present case, this court forbears to express any opinion thereon, the more especially, because the same was not fully argued, and the cause was not heard by a full court.

 [*536]  The motion in arrest of judgment presents the same questions as were raised by the exceptions taken at the trial. But inasmuch as the reversal of the judgment upon the exception already considered disposes of the present appeal, it is unnecessary to express any opinion upon that motion, and in order that the amendment of the declaration which was allowed by the court below may be properly made, and the case be tried upon its merits, this court will reverse the judgment and award a procedendo.
Judgment reversed and procedendo awarded. 

32 of 187 DOCUMENTS 

CHARLES STREET AVENUE COMPANY vs. JOSEPH MERRYMAN and OTHERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 536; 1857 Md. LEXIS 18 

JUNE, 1857, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Equity Side of the Circuit Court for Baltimore county.

This appeal was taken from an order of the court below, (PRICE, J.,) granting an injunction, upon a bill filed by the appellees, to restrain the appellant from making a road upon the land of the complainants.

The act of 1854, ch. 204, incorporating the Charles street Avenue Company, recites, in its preamble, that "It has been represented to this General Assembly, by many of the inhabitants of the ninth election district of Baltimore county, and others, that additional highways leading to the city are much required for the public convenience in that part of the county, and that an avenue leading from the present termination of Charles street would greatly promote that convenience." The first section then enacts: "that a company be incorporated to make a Turnpike road from the present Northern terminus of Charles street, in or near the city of Baltimore, to a point on the road, known as the Powder Mill road, in Baltimore, near the powder magazine." The subsequent sections provide for subscriptions to the stock, the organization, name and management of the company, and the ninth section invests the company [**2]  so organized "with all the powers and authority necessary for the construction of a turnpike, between the termini, mentioned in the first section of this act," prescribes the width of the road, and of what materials and in what manner it shall be constructed, and then, "in order that the route or intended course of said road may be known to all concerned, with as much precision as possible," this section further enacts: "That said road shall commence, as aforesaid, at the present termination of Charles street, and shall run thence in a direct line with said street extended in a direction about due north, until it reaches or approximates the northern outline of a farm in said county, known as Clover Hill, the property of Joseph Merryman and others, thence diverging to the west or northwest," and following a route, which is particularly defined, to the other terminus. The tenth section gives the company power to purchase and condemn lands and materials for the use and construction of the road. The twelfth then enacts: "that nothing in this act shall be construed to authorise or empower the location of the said Turnpike road through or over the grounds occupied by the Maryland State Agricultural [**3]  Society, without their consent, or until they shall have abandoned the use of said grounds as a place for the holding of their annual show or fair, nor shall it be lawful to lay out or extend the said road through the buildings, yards, or orchards of any person or persons, without the consent of the owner or owners thereof."

The bill alleges that the complainants are owners in fee of Clover Hill farm, mentioned in the ninth section of this act, and believing it would be for their advantage, as such owners, to have Charles street extended in a straight line so as to cross their land, and desiring to advance their interests in that behalf as well as the public convenience, they gave their support and furtherance to a plan projected for such extension, which found such favor with the General Assembly that the above mentioned law was passed; that by reason of the inducements afforded by the route prescribed in this act, they, and others, subscribed to the capital stock of the company, which was duly organised, and proceeded for a time to carry out the directions of its charter, but afterwards, in continuing to lay out and construct the road between the end of Charles street and the [**4]  southern edge of Clover Hill, instead of pursuing, as it ought, a straight course about due north, the road was made, at a place on the land of one Wyman, to deviate for the space of 1850 feet and pursue a circuitous and longer route, which at some points is distant full 300 feet from the proper straight line; that complainants opposed the purpose so to deviate when it was first formed, and have continued to resist and protest against it, but the company, nevertheless, has established this deviation as the permanent route for, and have constructed the road thereon, and have now no purpose to relinquish it, and pursue the direct north course prescribed by the charter, and in making this deviation the company has plainly violated its charter; that this deviation operates to the great injury of the complainants, for had the road pursued, as it ought, a straight course from the end of Charles street across their farm, its value would have been greatly enhanced thereby, and building lots thereon brought a higher price than they can if the road persues the circuitous course as now laid out, and had the road been continuously straight the property of the complainants on the line thereof would [**5]  have commanded an unobstructed view to the city of Baltimore, of which advantage it is deprived by this deviation; that complainants never would and never did consent to any plan by which this road should be made through their land in any other than a straight line with Charles street, and it was because they saw the charter had prescribed such a course, and relying upon a faithful adherence thereto by the company, that they came to its support; that notwithstanding the cesser and suspension of its powers caused by this deviation, the company is proceeding to make the road across complainants' farm, and has commenced to pull down the fences and make excavations of the soil, for that purpose, though expressly forbidden and prohibited by them from entering or trespassing thereon, all of which actings, doings, and proceedings, are contrary to equity, and tend to the irreparable injury of their farm and of the complainants. The bill then prays for the injunction, which was granted, and from the order granting it, the defendant, after answer filed, appealed.  

DISPOSITION:
Order reversed.  

HEADNOTES:

An act of Assembly reciting that additional highways, leading to the city of Baltimore, "are much required for public convenience, and that an avenue leading from the present termination of Charles street, would greatly promote that convenience," incorporated a company to make such a road. By this act it is provided that the road shall commence at the present northern termination of Charles street, "and shall run thence in a direct line with said street extended, in a direction about due north, until it reaches the northern outline" of a farm called "Clover Hill," thence in a prescribed line to the other terminus. Power is then given the company to condemn lands to construct the road, and by the twelfth section it is enacted, that it shall not be lawful "to lay out or extend the said road through the buildings, yards or orchards, of any farm, without the consent of the owner." HELD:

That this act was passed for the public convenience and benefit, and the prohibitory restrictions contained in the twelfth section must be construed as requiring and authorising a deviation or change in the location of the road at such points, from the prescribed route, and not as a cesser of the corporate franchise in case the consent of the owners cannot be obtained.

The mode of obtaining such charters from Parliament is different from the legislative practice in this State; this charter must be construed as found on the statute book, and operation and effect given to it according to the intention of the Legislature to be gathered from its provisions.  

COUNSEL:
J. Malcolm and Charles H. Pitts for the appellant, argued:

1st. That the company had not violated its [**6]  charter. By the terms of the 12th section, it was expressly forbidden to construct a road through the yards and orchards of any person on the route without the owner's consent, and, therefore, was authorised by necessary implication to deviate from the direct north line, whenever such line should intersect any thing laid down in the restrictions of the charter. The bill does not allege, that the company obtained the consent of Wyman, upon whose lands the deviation was made, or that it had the power to pass straight through his property, and there is, therefore, a failure to allege that the deviation was made by default of the company. The bill should have excluded every restriction contained in the charter. The English Railway Cases are not applicable to this charter; for the mode of obtaining such charters in England, is entirely different from our legislation in such matters, and most of the English charters contain words of express prohibition. In construing this charter, every part of it must be considered, in order to effectuate the intent which the Legislature manifestly had in view by its passage. Its preamble declares, that public convenience required additional highways leading [**7]  to the city of Baltimore. Its object, therefore, was to make an ordinary country highway for public convenience, not to bring the property of the appellees within the city limits that they might sell it for city lots at fancy prices. Nor did the Legislature intend the road should pursue an undeviating straight line. There were no lines or maps before the Legislature as in the English cases, and the 9th section of this law is a mere indication of the route of the road, and contains not a word which says there shall be no deviation. In order that those concerned may know, as nearly as possible, the intended route, its general direction is defined to be about due north. The design was to open up to that region of country a convenient avenue to the city, and thus remedy the evil complained of. The road was prohibited from passing through buildings, yards or orchards, without consent of the owners, but it was never intended it should stop unless such consent could be obtained, and such restrictions clearly show, that the Legislature could not have contemplated it should be built in an undeviating straight line. In making this deviation, therefore, there was no cesser of corporate powers.  [**8]  Nor is there any equity in the complainants' case: they stood by, saw the work going on, the deviation permanently made, and permitted the road to be built up to their farm, and then, after thus obtaining all the benefit of the work, say to the company, you shall stop here, and our neighbors north of us, who united with us in the application for the charter, shall not be benefitted thereby. They are guilty of laches, 1 Swanst., 244, Mayor &c. of King's Lynn, vs. Pemberton.

2nd. That even if there was a deviation not allowed by the charter, there is no such irreparable damage done to the complainants, and stated upon the face of the bill, as would authorise a court of equity to grant an injunction. 1 Md. Rep., 545, White vs. Flannigain. 3 Do., 489, Chesapeake & Ohio Canal Co., vs. Young.

Richard J. Gittings and A. W. Machen for the appellees, argued:

1st. That by deviating, in one part, from the line prescribed by the charter, the company deprive themselves of the right to pursue the statutory line over the land of other owners, who are injuriously affected by such deviation. The 9th section of this charter defines the line of every foot of the road. A straight course [**9]  must be pursued until it passes through "Clover Hill." If it had been intended that the road should have been made by any other than a direct line to this point, the Legislature would have so provided. The 12th section restricts the road from passing through the grounds of the Agricultural Society, and through buildings, yards and orchards, without the consent of the owners, and if these obstructions are met with, and the required consent cannot be obtained, the road must stop. A corporation can only exercise the powers which are expressly granted to it, and no power having been given to make a deviation, none can be made. 1 Mylne & Keen, 162, Blakemore vs. Glamorganshire Canal Navigation Co. 6 Mees. & Wels., 340, Payne vs. Bristol Railway Co. 2 Do., 824, Lee vs. Milner. 1 Swanst., 250, Mayor of Kingston, vs. Pemberton. 9 Beav., 391, Gray vs. Liverpool & Bury Railway Co. 12 Do., 134, Cohen vs. Wilkinson. 3 Barn. & Adol., 108, King vs. Cumberworth. 1 Nev. & Perry, 197, King vs. Cumberworth. 2 Perry & Davidson, 648, Queen vs. Eastern Counties Railway Co. 6 Nev. & Man., 91, King vs. Edge Lane. 11 Pet., 545, Charles River Bridge, vs. Warren Bridge. 9 How., 186, Perrine vs. Chesapeake &  [**10]  Delaware Canal Co. 21 Penn. State Rep., 22, Penn. Railroad Co., vs. Canal Commissioners. 8 Richardson, 177, Rail Road Co., vs. Payne. Dwarris on Statutes, 661.

2nd. That a permanent deviation having been made, the complainants were entitled to an injunction to restrain the company from proceeding upon their land. 2 Eden on Injunction, 371, 374, note, and cases above cited. This deviation makes the road a different road from that laid down in the charter, and the complainants, as land-owners, have the right to say to the company, you cannot use our land for a different purpose from that contemplated by your charter. According to the English authorities before cited, this is not a case of mere trespass but of contract, the breach of which may well be enjoined. It is a distinct ground of equity jurisdiction, to restrain incorporated companies from an abuse of their powers to the injury of individuals. 2 Story's Eq., sec. 927. 7 Md. Rep., 511, Steuart vs. Mayor & C. C. of Balto. 1 Eng. Railway Cases, 153, Dun River Nav. Co., vs. North Midland Counties Railway Co. 31 Eng. Law & Eq. Rep., 252, Pinchin vs. London & Blackwall Railway Co. But even if the injunction rested solely upon the [**11]  ground of irreparable mischief, such mischief abundantly appears by the bill: the farm of the complainants is threatened with alteration as such, (1 Md. Rep., 545, White vs. Flannigain,) and secondly, a permanent easement is about being unlawfully established upon it.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON, TUCK and BARTOL, J.  

OPINIONBY:
TUCK 

OPINION:

 [*542]  TUCK, J., delivered the opinion of this court.
The act of 1854, ch. 204, under which the Charles Street Avenue was commenced, was passed for the public convenience and benefit, by affording an additional highway between Baltimore city and the county, the termini and route of the road being indicated in the act. It does not appear that the owners of property on the line of the road were parties to this legislation, and assented to the act, even conceding that that would have furnished an equity against its further construction in the direction proposed. It is a law passed in the exercise of legislative authority clearly possessed by the State, by virtue of which the company were authorized to condemn and appropriate private property for the uses of their charter. The appellees may have had private views in giving [**12]  their support in furtherance of the plan for this improvement, but if these are likely to be frustrated by the conduct of the company, as now complained of, there is nothing in the act to show, that 

 [*543]  the plan was to fail altogether on that account. We may therefore lay out of view all that is averred in the bill, as to what the appellees expected to have enjoyed by opening this avenue.
We need not review the English canal and rail road cases referred to in the argument, because the mode of obtaining such grants of power from Parliament, is different from the legislative practice in this State, and the cases differ in other respects. We must take this charter as we find it on the statute book, and give it operation and effect according to the intention of the Legislature, to be gathered from its provisions.
It may be conceded that, apart from the twelfth section, the company would have been confined to a direct line to "Clover Hill." But, then, it might have passed through buildings, yards, and orchards, without the assent of their owners, by force of the authority conferred by the tenth section, to condemn property for the location and construction of the road. This being [**13]  so, the case must depend upon the effect to be given to the twelfth section, and the construction to be placed upon the whole act. In this aspect, one of two conclusions must be arrived at; either that the company must be permitted to diverge from the route indicated, as far as may be necessary to comply with the terms of that section, or the improvement must cease altogether, if such obstacles are presented, and the owners will not agree to have their buildings, yards, and orchards, appropriated for the purposes of the law; and the question for our decision is, which of these two results did the Legislature intend?
It was said, in argument, that if the Legislature had intended an avenue should be made by any other than a direct line to "Clover Hill," the law would have so provided. We think that no satisfactory conclusion can be deduced from the want of express words conferring such a power, because it may as reasonably be said, that if the avenue was to have been opened to that point, by a direct line and no other, and the Legislature had designed that the public convenience should be promoted by having an additional highway, only in the event of its being 

 [*544]  straight as [**14]  far as "Clover Hill," appropriate language would have been employed to give that effect to the twelfth section. But this was not done. The act clothes the company with ample powers to make a public improvement, imposing terms of restriction, as to the condemnation of particular kinds of property, and we are asked to say that these, by necessary implication, were designed to defeat the purposes of the grant, if the contingency mentioned in that section should arise. We think the whole act must be considered in connection with what was the expressed purpose of the State in conferring those powers upon the company. And, seeing that the public benefit was in the contemplation of the Legislature, and that the act does not destroy or take away the authority of the company, upon the state of things referred to in the 12th section, the prohibitory words employed should be construed as merely requiring a change in the location of the road at such points, and not as a cesser of the corporate franchise.
Being of opinion that the injunction was improvidently issued, the order appealed from will be reversed.
Order reversed. 

33 of 187 DOCUMENTS 

GEORGE U. GRAFF vs. THE MAYOR AND CITY COUNCIL OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 544; 1857 Md. LEXIS 19 

JUNE, 1857, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

By the act of 1853, ch. 376, entitled, "An act for supplying the city of Baltimore with pure water," power is given to the Mayor and City Council of Baltimore to "agree with the owner or owners of any land, real estate, spring, brook, water or water-course, earth, timber, stone or other materials, which the said Mayor and City Council of Baltimore may conceive expedient or necessary to purchase and hold, for the purpose of introducing water into the said city," and if they cannot so agree, provision is made for summoning a jury "to inquire into, assess and ascertain the sum or sums of money to be paid by the said Mayor and City Council of Baltimore, for the land, spring, brook, water-rights, or other property, which they may deem necessary to purchase and hold, or use for the purpose;" such jury, to be sworn justly and impartially, to value the damages which the owner will sustain, by such use and occupation of his property, to reduce their inquisition to writing, and sign and seal the same, which shall then be returned to the clerk of the circuit court for the county where the land is situated, and filed in his office; "and shall [**2]  be confirmed by said court at its next session, if no sufficient cause to the contrary be shown, and when confirmed shall be recorded; and such inquisition shall describe the property taken, or the bounds of the land condemned, and the quantity or duration of the interest in the same, valued to the Mayor and City Council of Baltimore, and such valuation, when paid or tendered to the owner or owners of said property, or his, her or their legal representatives, shall entitle the said Mayor and City Council of Baltimore, to the use, estate and interest in the same, thus valued, as fully as if it had been conveyed by the owner or owners of the same." The act then provides, that the city authorities shall have power to issue certificates of debt, to the limit of $ 2,000,000, to defray the expenses of this improvement.

Under this law an ordinance was passed by the city authorities, in July 1856, adopting a plan for the introduction of water into the city, by the way of Stony Run. A portion of the land embraced in this plan, belonged to Graff the appellant, and was situated in Baltimore county; notice was given to him by the proper agent of the city, to stop the improvements thereon,  [**3]  which he was engaged in making, and that the city would forthwith take the proper steps to summon a jury to value the property, and would object to the valuation of any work or improvements he might thereafter put thereon. A jury was then summoned under the law, made an inquisition, assessing the damages to the appellant at $ 30,000, which was duly returned to the clerk of the circuit court for Baltimore county. This court passed an order confirming the inquisition nisi, after which the city passed an ordinance repealing the previous ordinance adopting this plan, and directing their counsellor to resist the confirmation of any and all inquisitions which have been had thereunder, who thereupon showed cause against the confirmation of the present inquisition, alleging that Graff had no right to demand confirmation thereof, and that the city does not desire to have it confirmed, and has made no application for that purpose, but, on the contrary, has abandoned all design and intention to use and occupy the land, and has disclaimed all right, title and demand thereto. But the court, (PRICE, J.,) after full argument on both sides, ordered the inquisition to be ratified and confirmed.

Graff [**4]  then demanded from the city authorities, payment of the sum awarded to him by this inquisition, which being refused, he then filed his petition in the superior court of Baltimore city, setting forth the above proceedings, alleging that he had thereby been put to great expense for counsel-fees and other necessary charges, and was and is greatly disturbed and injured in his possession and enjoyment of the said land and charging that, by this inquisition, and confirmation thereof, it was conclusively adjudged that the said sum of $ 30,000 should be paid to the petitioner for his said property, by the Mayor and City Council of Baltimore; and praying for a mandamus, commanding the said Mayor and City Council, forth with to provide or procure funds in manner according to law, for payment of this claim. The city authorities answered this petition, admitting the proceedings under the inquisition, but insisted, that by the act of 1853, ch. 376, power was given to the court to confirm it, only at the instance and upon motion of the respondents, whereas it was confirmed at the instance of Graff, and against the remonstrances of respondents, and the confirmation was, therefore, without power in [**5]  the court, and a mere nullity. The answer then avers, that Graff has not been disturbed in the possession of his land, nor has he at any time offered to deliver possession of the same to respondents, nor does he intend, as they have heard, so to do, even on payment of the $ 30,000, but on the contrary intends to continue his possession, and to maintain the same upon the plea, that as the respondents have abandoned the scheme of using his property to convey water to the city, they have lost their power and capacity to acquire and hold the same; that before the confirmation of this inquisition, respondents, upon considerations of public interest and convenience, abandoned, as it was their duty to do, the expensive and inexpedient plan of conveying water to the city by the way of Stony Run, and disclaimed all intention of taking, using or condemning any land on said run, as appears by the ordinance passed for that purpose; that, upon the facts set forth in the petition, Graff has a remedy, if he has any rights, whatever, better adapted to the circumstances of his case, in a court of equity, than the one he is now seeking by mandamus; and that the court, has no jurisdiction to issue the [**6]  same.

The court, (LEE, J.,) passed an order discharging the rule which had been previously laid, and dismissing the petition, from which Graff appealed.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

An act of Assembly for supplying the city of Baltimore with pure water, authorised, in order to the condemnation of land for that purpose, a jury to be summoned and sworn, "to inquire into, assess and ascertain the sum or sums of money to be paid by" the city authorities, for the property "which they may deem necessary to purchase and hold or use for the purpose," whose inquisition shall be returned to the clerk of the circuit court of the county where the property is situated, and "shall be confirmed by said court at its next session, if no sufficient cause to the contrary be shown, and such inquisition shall describe the property taken, or the bounds of the land condemned, and the quantity or duration of the interest in the same valued to the" city, "and such valuation when paid or tendered to the owner or owners of" the property, "shall entitle" the city "to the use, estate and interest in the same thus valued as fully as if it had been conveyed by the owner or owners." Under this act an inquisition was taken and duly confirmed by the proper court, valuing the damages to the appellant, for the taking and use of his property at $ 30,000, but the city before payment or tender of this sum, abandoned the design to use the property, and refused to pay the amount so awarded, and upon appeal from an order refusing a mandamus to compel such payment, HELD,

1st. That the judgment of confirmation decides the value of the land, from which there is no appeal directly to the appellate court, and consequently its propriety cannot be inquired into in this collateral way.

2nd. That the city is not bound by the mere inquisition and judgment of confirmation thereon, and could rightfully abandon the location in question; payment or tender of the valuation is necessary to give the city title to the property.

3rd. That the city may be made liable, in another form of proceeding, to the appellant, for any loss or damage he may have sustained by reason of the conduct of its authorities in the premises.  

COUNSEL:
A. W. Machen and Wm. Schley, for the appellant.

The act of 1853, ch. 376, gives a power, without limit or restriction as to necessity, to the city authorities to purchase and condemn lands for the purpose of introducing water into the city of Baltimore; in case of disagreement a jury is to ascertain the damages to be paid by the city; their inquisition, the act says, shall be confirmed, unless sufficient cause to the contrary be shown. When, therefore, the land is condemned, the inquisition made, returned, and confirmed, it is a taking of the property by the city for its use; the land is then taken in the sense of this act for public use, and the obligation to pay becomes fixed, whether it be actually used for the specified purpose or not. The finding of the jury in their inquisition, which must describe the property taken and its confirmation by the court, is a conclusive and binding act. We therefore, upon all the proceedings in this case, insist:

1st. That the inquisition, confirmed as it has [**7]  been by the circuit court, is a final adjudication, and conclusively establishes the appellant's right to the sum thereby ascertained and awarded. (1 Md. Rep., 567, Hamilton vs. Annapolis & Elk Ridge Rail Road Co., and the same case in 1 Md. Ch. Dec., 109; 8 G. & J., 443, Wil. & Susq. Rail Road Co., vs. Condon; 8 Md. Rep., 7, Lammott vs. Maulsby; 2 H. & G., 50, Raborg vs. Hammond; 22 Pick. 263, Harrington vs. Commissioners of Berkshire; 21 Do., 260, Carpenter vs. Commissioners of Bristol; 4 Barb., 64, People vs. Supervisors of Westchester; 2 Greenlf's Rep., 179, Westbrook vs. North; 4 New Hamp., 517, Hampton vs. Coffin; 5 Adol. & Ellis, 814, King vs. Thames & Isis. Nav. Co.; 3 Mylne & Craig, 440, Salmon vs. Randall; 9 Excheq. Rep., 402, In Re Ware; 6 Gill, 391, Methodist Church vs. Mayor & C. C. of Balto.; 8 Do., 443, Richardson vs. Mayor & C. C. of Balto.; 10 Pet., 449, Voorhees vs. Bank of U. S.; 4 How., 404, Stimpson vs. Westchester Rail Road Co.;) and it is right it should be so, for it seems the appellant's claim to damages (and some damages he certainly has sustained,) is merged in this statutory remedy, and it would be unrighteous if the city, after bringing him before a jury,  [**8]  and taking the chance for a verdict more beneficial to itself, and then keeping him in suspense and fast bound up to the last moment, should have power to nullify a judgment of its own seeking. 3 Metcalf., 381, Dodge vs. Commissioners of Essex. 2 Eng. Railway Cases, 1, Queen vs. North Midland Railway. 19 Barb., 263, Turrell vs. Norman. 15 Eng. Law & Eq. Rep., 368, Hawkes vs. Eastern Counties Railway Co., and the same case in the House of Lords, 35 Eng. Law & Eq. Rep., 19, 22, 28.

2nd. That the city's abandonment of the property can have no effect upon the present question, because: 1st, it took place while the inquisition was pending in the circuit court and that tribunal has finally adjudicated upon its operation; the point is not now open; 2nd, in the case of an inquisition regularly confirmed, though the city may relinquish the right to use the condemned property, it cannot open the settled question of damages, or deny the obligation of the judgment in so far as it works against itself. If the city changed its plan it was not the appellant's fault, and the consequences cannot be thrown upon him. The inquisition was a valid contract between the parties, and the city had no right [**9]  to recede; the law requires that it shall be confirmed unless sufficient cause be shown, and it was the imperative duty of the court to confirm it. 73 Eng. C. L. Rep., 755, Macdougall vs. Patterson. And upon this point in addition to the cases already cited, see 2 Gill, 20, Balto. & Susq. Rail Road Co. vs. Compton. 11 G. & J., 404, Ches. & Ohio Canal Co. vs. Grove.

3rd. The city having once set in motion the machinery provided by the act of Assembly, and formally declared its purpose of taking the land, could not evade the obligation of compensation, but may be compelled by mandamus to proceed. 4 Barn. & Adol., 327, King vs. Hungerford Market Co. Ibid, 333, King vs. Commissioners of Market Manchester, note. 6 Hare, 594, Walker vs. Eastern Counties Railway Co. 4 Eng. Railway Cases, 615, Tawney vs. Lynn & Ely Railway. 1 Do., 400, Stone vs. Commercial Railway. 69 Eng. C. L. Rep., 1043, Queen vs. South Devon Railway Co. A fortiori, is it not competent to the city to refuse payment after the claim to damages has passed into judgment. Notwithstanding its character as a municipal corporation, the city of Baltimore stands just like any private corporation, when, in the exercise of a statutory [**10]  power, it is appropriating to the use of its citizens, lands lying outside of its corporate jurisdiction. 3 Hill, 538, Bailey vs. Mayor &c. of New York.

H. R. Dulany and G. L. Dulany, for the appellees.

Each case like the present must depend upon the construction of the particular act of Assembly, giving the power. The mode of taking land in England for public use is entirely different from that which prevails with us, and hence the English authorities cited by the counsel for the appellant are wholly inapplicable to the present case. The American cases, cited by them, only establish the principle, which we admit, and which is conclusive of this case, that when the title to the land is vested in the public, then the right of the owner to his damages becomes vested, and not till then. The inquisition in this case, and its confirmation, do not constitute a judgment to pay, but is simply a condemnation of the land for future use, an assessment of damages for future loss, and future injuries. The constitution of our State entitles a party to compensation whenever his land is taken for public use; it is the taking of his land which gives him the right to compensation; whenever [**11]  the title is fixed in the public, the correlative right of the owner to damages is fixed. Now when, under this law, was the title to this land to become vested in the city? The answer is plain from the language of the act: "such valuation," (fixed by the inquisition and its confirmation) "when paid or tendered to the owner," shall "entitle" the city to the use of the land, as fully as if conveyed by the owner. Actual payment or tender of the valuation fixed by the inquisition must precede the vesting of the title in the city, and until then the title is in the owner. In the case of Susq. Rail Road Co. vs. Nesbit, 10 How., 395, in construing an act of Assembly similar to this, the Supreme Court decide this very question. See also, 7 Md. Rep., 516, Steuart vs. Mayor & C. C. of Balto. We insist then:

1st. That the question, whether the corporation of Baltimore is liable or not, depends upon the true construction of the act of 1853, ch. 376, on the general principle, that whenever a special power is conferred by law, all questions which arise concerning the extent or the obligations to be incurred in the exercise of such power, must be determined by reference to the provisions of [**12]  the law from which it emanates.

2nd. That this law, inasmuch as it clothes with authority a great public corporation for the purpose of enabling it to accomplish an object highly beneficial to the whole community, should be most liberally construed, and that the presumption of law is strongly against the supposition, that the power thus vested will be perverted for purposes of oppression. 21 Conn., 306, Bradley vs. New York & New Haven Rail Road Co.

3rd. That, according to the proper interpretation of the act in question, a locus poenitentiae remains to the city, until money, awarded by the jury, is actually paid or tendered to the owner of the property which it may desire to take.

Note. The argument upon the question, whether mandamus is the proper remedy in such a case, is omitted, as the decision is adverse to the appellant on the question of right.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON, TUCK and BARTOL, J.  

OPINIONBY:
TUCK 

OPINION:

 [*551]  TUCK, J., delivered the opinion of this court.
This record presents two propositions for our consideration: the right of the appellant to the money claimed, and the propriety of the remedy employed.
Upon the  [**13]  first we agree with the appellee's counsel, that the case of the Balto. & Susq. Rail Road Company vs. Nesbit, 10 Howard 395, is decisive of the present appeal, if we are 

 [*552]  to recognize that decision as authority. The charter of that company, (1827, ch. 72,) as far as concerns the present inquiry, is substantially the same with the act under which the claim of the appellant is now made. Why different constructions should be placed upon them we do not perceive. If the title to the land condemned under the first of these laws did not vest in the company, because the valuation had not been paid or tendered, it follows, that such payment or tender was necessary to give title to the city of Baltimore in the property of the appellant. The court say: "It can hardly be questioned that, without acceptance by the acts and in the mode prescribed, the company were not bound; that if they had been dissatisfied with the estimate placed upon the land, or could have procured a more eligible site for the location of their road, they would have been at liberty, before such acceptance, wholly to renounce the inquisition. The proprietors of the land could have no authority to coerce [**14]  the company into its adoption. This being the case there could, up to this point, be no mutuality, and hence no contract, even in the constrained and compulsory character in which it was created and imposed upon the proprietors by the authority of the statute." And, in another part of the opinion these terms are called "conditions indispensable to the vesting of a title in the company."
Now, if the title does not vest in the city until payment or tender, and the owner could compel payment by legal process, there would be no mutuality. The city might be required to pay for land that it may never use or need for the purposes of the act. This certainly would be a hardship on the citizens of Baltimore, from which, we think, they should be relieved by adopting the interpretation of the Supreme Court in the case cited.
This may be a severe system of legislation, as was said, because it places the property owner at the discretion, not to say caprice, of the other party, by allowing it to condemn and afterwards abandon the property. But this construction is not likely to work so much injustice as that contended for by the appellant, because, by the latter, the city is deprived of all choice [**15]  of another location, after a condemnation is once made 

 [*553]  and affirmed, no matter how great the necessity might be afterwards for adopting another, even if the owner of the land condemned had not sustained any damage by the act of the city in making the condemnation. These inquisitions, too, often tax the corporation beyond the value of the land, or the damages sustained, and the only relief it has against such wrong is to decline taking the land; of this the owner cannot complain. In cases, however, where the owner has suffered loss by the acts or delay of the corporation, redress might be had in another way.  3 Bland 386. And this is an advantage which he has over the other party. If the property be used and occupied without payment or tender, the case would stand on a different principle, independent altogether of the valuation, as the basis of recovery, for although the State may authorize the condemnation of private property for public use and convenience, those who are clothed with the power are not to exercise it capriciously, or so as to inflict wrong on the citizen who may be called on to submit to this high power.  Moale vs. City of Balto., 5 Md. 314. [**16]  
The inquisition allows the owner such "damages as he will sustain by the taking, use and occupation" of the premises, and this is in pursuance of the oath which the law requires to be administered to the jury. The clause, authorizing the condemnation, implies, that the city should have an election to take or reject the property, after the condemnation, in requiring the jury to ascertain and assess the sum or sums of money to be paid by the Mayor and City Council, &c., "for the land, spring, brook, or water-right, or other property which they may deem necessary to purchase and hold, or use for the purpose."
This means, necessarily, a purchase after the inquisition, by payment or tender of the valuation of the jury, because a previous agreement with the owner, would render the functions of a jury altogether unnecessary, and involves the power to reject the location altogether. The entry for purposes of condemnation is not a taking, use and occupation, within the meaning of the act, and, as we have seen, does not devest the owner's title, or confer it on the city. The act of Assembly has not made the inquisition and confirmation obligatory on 

 [*554]  the city, further than this,  [**17]  that they ascertain the damages to be paid. If there be injustice in this, as alleged in the present case, the fault is in the law, and not to be imputed to those who administer it.
Our conclusions are: 1st, that the judgment of confirmation decides the value of the land, from which there is no appeal directly to this court; and, consequently, its propriety cannot be inquired into in this collateral way. 2nd, that the city is not bound by the mere inquisition and judgment thereon, and could rightfully abandon the location in question; and 3rd, that the city may be made liable, in another form of proceeding, to the appellant for any loss or damage he may have sustained by reason of the conduct of its authorities in the premises.
For as much as the appellant has no right to the amount in dispute, on the basis of the inquisition, we need not consider the questions propounded as to the remedy.
Order affirmed. 

34 of 187 DOCUMENTS 

FREDERICK JAMES DUGAN vs. JOHN SMITH HOLLINS and wife, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 41; 1857 Md. LEXIS 23 

JUNE, 1857, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Baltimore city.

Under the bill filed in this case, on the 12th of June 1848, by Frederick James Dugan, against his co-devisees and legatees, in the will of Cumberland Dugan, deceased, the complainant claims from the defendants:

1st. The sum of $ 13,750, mentioned in the fourteenth clause of the will, with interest from the 3rd of December 1836, the date of the grant of administration upon the estate of the deceased.

2nd. The sum of $ 4583.33, being one-third of $ 13,750, given to Hammond Dugan, under the same clause of the will, with interest as above.

3rd. One-fourth in his own right, and one-third of one-fourth under Hammond Dugan, of the amount due the estate of the deceased, for payments made as security for Robert S. and John S. Hollins, mentioned in the fifteenth clause of the will.

4th. Two-thirds of the sum of $ 9772.31, with interest from the 18th of February 1847, being the amount paid by the complainant on the decree in favor of John S. Gittings and others.

And the complainant insists, that no further distribution of any part of the estate, real or personal, of which the testator died seized or possessed, shall [**2]  be made until he be first paid the several amounts so due him, and if the undistributed estate is not sufficient for such purpose, that he is entitled to a decree, against the defendants, Rebecca Hollins and her children, for one-half thereof, and against the children of Cordelia Margaret Hollins, for the other half. The complainant also contends, that for the purpose of establishing the equality provided for by the will, the parties are confined to the will itself, and have no right to look to the present value of the property specifically devised, or to any gift made subsequent to the will.

By this will, executed on the 5th of October 1832, the testator ordered and directed, that his "funeral expenses and all his just debts shall be paid, out of whatever part of his estate his executrix and executors, or a majority of them, shall think proper," and then devised and bequeathed to his wife, Margaret Dugan, "in lieu of all claim of dower and thirds," a farm called Duck Cove, a lease-hold lot, called the Ferry Point Lot, appraised in the inventory at $ 3000, all his slaves, and furniture, and plate, also a life-estate in four houses in Cumberland Row, in ten ground-rents from property [**3]  on Dugan's wharf, yielding about $ 900 per annum, in his dwelling house and lot, and in a stable and lot on Crowls alley. To his two daughters, Rebecca Hollins, wife of John Smith Hollins, and Cordelia Margaret Hollins, wife of Robert S. Hollins, he devised the Washington Cotton Factory, one moiety to each, and also to each a house and lot on Dugan street, worth $ 925, and a warehouse and lot on Dugan's wharf worth $ 3525; which devises were made in trust, for the sole and separate use of his daughters, for life, with remainder to their children. To his son, Hammond Dugan, he devised one-half the reversion in his dwelling house and lot and the stable and lot in Crowls alley; the reversion in one of the houses and lots in Cumberland Row, one-sixth of the reversion in four other houses and lots, a house and lot on Water street, another on Dugan street, and a warehouse and lot on Dugan's wharf. To his son, Frederick James Dugan, he devised and bequeathed one-half the reversion in his dwelling house and lot, valued at $ 7725, one-half the reversion in the stable and lot, in Crowls alley, a lease-hold lot, called the Water Street Lot, appraised in the inventory at $ 3000 but valued at $  [**4]  2000, certain lots on Fells Point, valued at $ 12,823, a house and lot on Dugan street, valued at $ 925, a warehouse and lot on Dugan's wharf, valued at $ 3525, the reversion in one of the houses and lots in Cumberland Row, valued at $ 7700, and one-sixth of the reversion in four other houses and lots. To the children of his son, Frederick J., he devised property worth $ 7500, a part of which, however, by the construction of the will has been adjudged to belong to the two sons of his daughters, to whom also he devised property worth $ 14,975, a portion of which, valued at $ 11,000, has been adjudged to belong to Gittings and others, by the decree already referred to. (The above valuations of the property were made by admissions in the cause.) The fourteenth and fifteenth clauses of the will are, as follows:

"Item XIV. And whereas it is my wish and desire, that my four children, Hammond Dugan, Frederick James Dugan, Rebecca Hollins, and Cordelia Margaret Hollins, shall be placed by me as nearly as possible on an equality, in the division of my estate, under the present will, and under such conveyances, gifts, &c., as I may have made to them respectively, and also having regard [**5]  to their respective situations; and whereas the Washington cotton factory, hereinbefore devised to the use of my said two daughters, Rebecca and Cordelia Margaret, was purchased by me for the sum of $ 27,500, I therefore order and direct that as early after my demise as may be practicable, my executrix and executors shall sell such portions of my bank or other stock, as shall produce the sum of $ 27,500, and pay therefrom, to my son Hammond Dugan, the sum of $ 13,750, and to my son, Frederick James Dugan, the sum of $ 13,750."

"Item XV. And whereas I am, at this time, security on sundry negotiable promissory notes, drawn by Robert S. Hollins in my favor, and by me endorsed, amounting to about the sum of $ 10,000 more or less; and whereas my daughters, Rebecca and Cordelia Margaret, or either of them, may at this time hold a note or notes of mine, drawn in their favor and each of their favor; now my will and desire is, that the foregoing promissory notes, any or either of them, is to be no charge whatever on my estate, but if any claim whatever is made on my estate, in respect of said notes or either of them, so endorsed or drawn by me, then and in that case my said daughters,  [**6]  or the one making or occasioning such demand or charge, shall cease to receive and be entitled to receive any share or dividend from my estate, so devised to their use respectively, be wholly determined; and should it so happen that my estate should be made responsible for any sum whatever, on account of said notes endorsed or drawn by me, for my said daughters, or for either of their said husbands, then and in that case, I order and direct, that whatever sum may be paid by my estate, on said account, shall be charged by my executrix and executors, against my said daughters, or against such one as may have occasioned any such charge on my estate."

He then bequeathed fourteen shares of Baltimore and Ohio Rail Road stock to his children, grand-children and great-grand-children, and directed that all instalments on these shares, as they may be called for by the company, shall be paid by "his executrix and executors out of his estate." He then directed "his executrix and executors to invest so much money, to be taken from his residuary estate, anything in this will notwithstanding, as will produce $ 150 annually, and pay the same to his grand-son, John Merryman Smith, during life.  [**7]  "--The will then concludes, as follows:

"Lastly. All my lands in Baltimore county or elsewhere; all my bank, road, insurance, or other stocks, except my Baltimore and Ohio Rail Road stock; all my notes, bonds, mortgages, accounts, or other evidences of debt or claims belonging to me; also my wharf, commonly called "Dugan's wharf," extending from the south side of Dugan's street and running north to Pratt street; also one-half of my said wharf at the head, on Pratt street, with all and singular my claims, rights and demands, for damages appertaining to the same; also the reversion of ten annual ground rents on Dugan's wharf, of about $ 900 per annum, after the death of my wife; also all the grounds out of which the said rents issue; also all the rest, residue, and remainder of my estate, real, personal and mixed, I give devise, and bequeath to my four children," naming them, one-fourth "of the said entire residue," in trust for each of his two daughters, in the same manner as the other property devised in trust for them, and the remaining half "of the said residue of my estate" to his two sons, to be equally divided between them.

The testator died on the 1st of November 1836,  [**8]  and the executors named in the will having renounced, letters testamentary were granted to the executrix, Margaret Dugan, who gave bond, as such, dated the 3rd of December 1836, with her two sons, Frederick J. and Hammond Dugan, as her sureties, and continued such executrix until January 1846, when her letters were revoked and administration d. b. n., c. t. a. granted to John S. Hollins, and Rebecca his wife. It was admitted, that her sons, Frederick J. and Hammond, acted as agents of the executrix, and after the death of the latter the former acted as such agent, until the revocation of her letters, in the transaction of business generally connected with the administration of the estate.

The inventory and list of debts show an amount of personalty of about $ 60,000, including the Ferry Point and Water Street leasehold lots, appraised at $ 3000 each, and 949 shares of Franklin bank stock at $ 24.50 per share, making $ 23,250.50. Of this stock 292 shares were sold by the executrix, in September and November 1840 and June 1841; that sold in 1840 bringing $ 17, and that in 1841, $ 5.25 per share. Dividends were regularly declared and received on this stock up to January 1841, when [**9]  it was admitted the bank failed, and that only the sum of $ 8739.75 has been realized to the estate from all this stock.

The executrix passed three accounts, the first on the 10th of August 1840, showing a balance due the estate of $ 44,557.51; the second on the 29th of March 1843, when the debts of the deceased, except the Gittings' claim, were paid, and the losses on sales, up to that time, accounted for, showing a cash balance on hand of $ 6298.14, besides specific property, appraised in the inventory at $ 24,214.25, including the unsold shares of Franklin bank stock, and the two leasehold lots, above mentioned; the third on the 4th of June 1846, after the revocation of her letters, showing, after deducting commissions and specific bequests to the widow, of the Ferry Point Lot and other property bequeathed to her absolutely, and the Water Street Lot, bequeathed to the complainant and delivered over to him, a cash balance of $ 3420.40, and stocks appraised in the inventory at $ 16,214.25, including the Franklin bank stock.

The administrators d. b. n., c. t. a. returned an inventory on the 3rd of July 1846, showing that the personal estate of the testator then consisted [**10]  of certain bank, road and insurance stocks, appraised at $ 5752.50, including the unsold shares of Franklin Bank stock, at $ 7.50 per share, making $ 4927.50. The accounts of these administrators show a balance due the estate of $ 260.92, as of the 10th of January 1849, after deducting a payment of $ 4500 on the Gittings' claim, made on the 21st of August 1846, and other allowances. These administrators also brought suit in September 1846, against the executrix, Margaret Dugan, and the complainant, as surety upon her bond, alleging, that she owed large sums of money to the estate, and, instead of paying the Gittings' claim, had, with full notice thereof, appropriated to herself the Ferry Point Lot, already mentioned as bequeathed to her, and delivered over to the complainant the Water Street Lot, bequeathed to him, and otherwise wasted the assets of the estate. On this suit a judgment was entered, by agreement, on the 12th of June 1848, against the complainant and Margaret Dugan, for the sum of $ 4710.25, with interest from the 4th of June of 1846, this sum being the aggregate of the balance in the hands of the executrix, as admitted by her last administration account and other moneys [**11]  received and not accounted for, but this ascertainment was made without prejudice to the right of the plaintiffs to advance thereafter a claim for any loss occasioned by the delay of the executrix in selling any part of the personal estate.

The Gittings' claim, above mentioned, originated in a bill filed on the 3rd of January 1837, by John S. Gittings and others against the executrix and devisees of Cumberland Dugan, claiming a conveyance of certain real estate, (being part of that which was devised by said Dugan's will to the two sons of his two daughters,) and an account of rents and profits received from the same by said Dugan, in his life-time, and his executrix since his death. Upon this bill decrees were passed on the 24th of March 1841, and the 25th of March 1843, directing the conveyance prayed for and the payment of $ 10,870.81, with interest from the 10th of December 1841, on account of the claim for rents and profits. These decrees were, upon appeal, affirmed by the Court of Appeals, at its December term 1845, and the cause being remanded, subsequent proceedings were had therein to make the leasehold and personal property, bequeathed by Cumberland Dugan, and then in [**12]  the possession of Frederick J. Dugan, the present complainant, responsible for the amount thereof; and pending such proceedings the said Frederick, on the 18th of February 1847, paid the balance of the decree then remaining due, with costs, amounting to the sum of $ 9772.31, and had the same entered to his use.

Hammond Dugan died in 1841, leaving a will devising to his mother his entire property. His estate was settled up and his debts paid by a contribution from the complainant and his sisters. After the death of Hammond, his mother, Margaret Dugan, by two deeds dated the 25th and 26th of March 1841, conveyed all the property devised to her by Hammond, including the Duck Cove farm which she had previously conveyed to him and re-acquired under his will, and the Ferry Point lot bequeathed to her by her husband's will, in trust to be divided amongst her three surviving children by commissioners named in the deeds. This partition was made, and being approved by the parties, was confirmed and perpetuated by a deed between them, dated the 1st of July 1844, by which the complainant granted, released and confirmed, to his sisters, the parts allotted to them respectively, and they did [**13]  the same in reference to his part. By this partition the complainant had allotted to him the Ferry Point lot at a valuation of $ 2500.

Margaret Dugan was subsequently, on the 18th of June 1846, upon proceedings instituted for that purpose, in Baltimore county court, declared a lunatic, and the wife of the complainant appointed the committee of her person, and the son of Cordelia M. Hollins committee of her estate. After the bill in this case had been filed the said Margaret died, and her committee passed an account by which the sum of $ 13,438.72 was accounted for, leaving a balance of $ 706.61 in his hands, subject to the order of the court, which balance was divided amongst the complainant and the other representatives of the said Margaret, without an administration upon her estate; and the furniture on hand at her death was likewise specifically divided in the same way. The slaves given to her by her husband's will, she had manumitted in her life time with the consent of the complainant and his sisters.

The record also shows, that proceedings were instituted in Baltimore county court, by John S. and Robert S. Hollins and their wives, against the complainant, for the partition [**14]  of a farm in Baltimore county, constituting part of the residuum of the testator's estate not specifically devised, upon which a decree was passed by consent, on the 29th of March 1847, ordering a sale for partition. The proceeds of such sale were distributed amongst the parties to that cause, but before the decree was passed it was agreed between them, that the payment over to the complainants in that case, of their shares of the sale, should not prejudice the present complainant, Frederick J. Dugan, in any suit between the parties in relation to the distribution and settlement of the estate of said Cumberland Dugan.

It was admitted, (in reference to the complainant's third claim,) that John S. Hollins and Robert S. Hollins failed in business in 1833, and applied for the benefit of the insolvent laws, and obtained discharges thereunder, the latter in April 1834, and the former in June 1840; that in the year 1829, Cumberland Dugan began to endorse for the accommodation of his son-in-law, Robert S. Hollins, who conducted the Washington Factory on joint account with his brother; that this accommodation, at the date of the will, 5th of October 1832, consisted of endorsements of notes [**15]  to the amount of $ 10,320, and advances in cash to the amount of $ 3000 more, and continued in this condition until the 30th of May 1835, when Cumberland Dugan made affidavit to his claim upon said notes and cash loaned, against the insolvent estate of Robert S. Hollins, and filed the same with his trustees; that the notes which were the basis of this claim had been taken up by said Cumberland in the year 1834, in his life time, and that upon the claims as filed with the permanent trustee, the executrix, Margaret Dugan, received a dividend of $ 910.54 from the insolvent estate of said Hollins.

It was also admitted that after the date of his will, Cumberland Dugan advanced the sum of $ 3400 to the complainant, to enable him to purchase a house; and that the testator's daughter, Cordelia M., wife of Robert S. Hollins, died in January 1848, leaving a will, by which, in execution of the power secured to her under the deeds from her mother, of the 25th and 26th of March 1841, above mentioned, she devised all the estate conveyed to her by these deeds to a trustee, for the benefit of her husband during life, with remainder to her children; and that since the filing of the bill the complainant [**16]  has been found a lunatic, upon proceedings duly instituted for that purpose.

The bill in this case, filed as above stated, avers that by the will of the testator the entire interests of the daughters in the estate are charged with the payment of the legacies of $ 13,750 given to the complainant and his brother, Hammond, by the fourteenth clause of the will, and with such other sums as may be required to effect that perfect equality which the testator designed should exist amongst his children in the distribution of his estate; that the sums which the testator advanced and loaned to John S. and Robert S. Hollins are, with interest, a charge upon the shares or interests in the estate of the testator devised to his daughters and their children; that the devisees and legatees have entered into possession of the several parcels of real and personal property specifically devised and bequeathed to them, but no distribution of the general residuum of the estate has been made, nor has any part of the aforesaid legacies of $ 13,750 each, been paid, and the stocks which were specially set apart and devoted by the will to their payment, have been applied to the payment of the debts of the [**17]  testator; that in order to prevent a sale of his estate, the complainant paid the residue ($ 9772.31) of the decree in favor of Gittings and others, on the 18th of February 1847, and had the same entered to his use, and though his property was liable for the whole amount of this claim, yet he is advised and charges that it was equally chargeable upon the estates devised to Hammond and the daughters, and that each of the daughters ought to have paid and contributed one-third part thereof; that the administrators d. b. n., c. t. a. have sued the complainant at law, as security on the bond of Mrs. Dugan, the executrix, for a devastavit alleged to have been committed by her; that Mrs. Dugan has been declared a lunatic, and that the property and effects in the hands of her committee ought to be applied to make good any devastavit she may have committed in exoneration of her sureties, and that Hammond Dugan having been one of the sureties, his estates in the hand of his devisees or alienees is justly chargeable with one-half of this pretended waste. The bill then prays for an account of the estate of the testator, and of the several claims of the complainant, in respect of said legacies [**18]  of $ 13,750, and of the payments made by the testator for John S. and Robert S. Hollins, and of the payment made by the complainant on account of the decree in favor of Gittings and others, and that the administrators d. b. n., c. t. a. may be enjoined from prosecuting their aforesaid action at law against the complainant.

The defendants by their answers insist that the whole personal estate of the testator, whether specifically bequeathed or not, was chargeable with his debts, in exemption of his real estate, and deny that the will charges the real estate, or any part of it, with the payment of any of the debts or legacies, or that any part of the Gittings' claim paid by the complainant can be brought against them, or against the real estate devised to them by specific devise or otherwise, but, on the contrary, they allege that the complainant was first bound to apply the amount of the judgment for devastavit ($ 4710.25, with interest from the 4th of June 1846,) in reduction of the amount paid by him on account of the Gittings' claim, and that then the specific bequests in the hands of the complainant were next liable for the balance of said claim, which bequests were worth much [**19]  more than such balance. They deny that Mrs. Dugan personally, or any part of her estate, should be held liable on account of the judgment for devastavit, or for any default or waste for which the complainant may be shown to be liable, or for any part of his claim as assignee of Gittings and others, because they say that the complainant and his brother, Hammond, as long as the latter lived, were, from the death of the testator, the agents of the executrix in the administration of her husband's estate, and that upon the death of Hammond, the complainant was her sole agent in that respect, and she relied entirely upon him in the administration of the estate, and that for many years past, and before she was declared non compos mentis, she was, from extreme age and imbecility of mind, incapable of exercising any judgment in regard to the affairs of the estate; they allege that Hammond Dugan duly accounted for the assets of the estate received by him, and are, therefore, advised and charge that the complainant cannot, under the circumstances, throw off the liability for any devastavit in the administration from himself upon his mother or the estate of his deceased brother. They further insist [**20]  that by the partition and the deed of July 1st, 1844, carrying out the same, the complainant is concluded from setting up any of the claims mentioned in the bill against any of the property of Hammond Dugan, which, by such partition and deed, was vested in the respondents or any of them. They deny that the legacies of $ 13,750 to each of the testator's sons, to be paid by the executors out of the sales of the bank and other stocks, can be charged upon any part of the testator's real estate devised specifically or otherwise to the respondents, or vested in them in any other way or manner; and they further say that from the particular clause mentioning these legacies, as well as from the whole will, it is clear the testator meant to make them a charge upon his personalty alone, out of which pecuniary legacies are generally payable; and they also submit whether, under this clause, taken in connection with other portions of the will, these legacies are to be considered more than general legacies, but if deemed specific legacies of so much bank or other stock to pay them, the respondents will then contend that as it was the duty of the complainant, as agent and surety of the executrix,  [**21]  to have obeyed the directions of the will, and sold, without delay, a sufficient amount of stock to pay them; any loss arising from the delay in selling the stock should be borne by the complainant. The two sons of the testator's daughters, answering for themselves, say that the reversion in the property, which was decided to belong to Gittings and others, was devised specifically to them, and that by the decree in favor of Gittings, they have lost the value thereof, and they now insist that if the complainant is entitled to claim of them, or any of the respondents, as legatees or devisees of the testator, to make good any loss arising from the application of the bank or other stocks to the payment of the debts of the estate, they are equally entitled to claim of the complainant, as devisee of their testator, to make good in part the loss of the property so devised to them, and they will, in that case, set up their claim against the complainant as such devisee. The respondents also aver that the liabilities referred to in the fifteenth clause of the will, were all paid by the testator in his lifetime, and they deny that this clause embraces such liabilities so paid, but only refers [**22]  to and means to secure the liabilities of the testator, by reason of the particular notes therein specified, which should not be paid or settled by the testator in his lifetime, but should become a demand or charge upon his estate, to be paid by his executors; and they further deny that there has been any charge made against the estate by reason of any note or notes referred to in said clause, as held by the testator's daughters, or either of them. The respondents, John S. and Robert S. Hollins, rely upon their discharge under the insolvent laws in bar of any personal claim against them, and the respondents generally rely upon lapse of time and the statute of limitations as a bar to the complainant's several claims.

The respondents also filed exceptions denying that under the averments of the bill, the complainant can claim payment for any devastavit on the part of Margaret Dugan as executrix, either from her or her estate, in the hands of her committee, or can claim any portion of the estate of Hammond Dugan, in the hands of the respondents, for any liability of his as cosurety on the testamentary bond of his mother or otherwise, or can claim as one of the assignees of his mother [**23]  of Hammond Dugan's estate, and the other property conveyed in the deeds from his mother of the 25th and 26th of March 1841. They also aver in these exceptions that the above claims, or some of them, if embraced in the averments of the bill, and likewise any claim of the complainant to any fund in the hands of the administrators de bonis non of Cumberland Dugan, are properly cognizable in a court of law, and not in a court of equity.

The cause was then submitted to the chancellor (JOHNSON,) who delivered an opinion on the 26th of January 1854, which is reported in 4 Md. Ch. Dec., 139, and on the same day passed an order referring the case to the auditor, to state accounts in conformity with the views expressed in his opinion, and reserving "all questions not therein decided" for further consideration and order. On the 9th of March following, the cause was removed to the circuit court for Baltimore city, under the act of 1853, ch. 123, and on the 26th of May following, the complainant entered an appeal in the latter court from the above order or decree of the chancellor.

The special auditor, to whom the case had been referred, then made his report, accompanied by several accounts,  [**24]  to which both parties filed exceptions. These exceptions being argued, the court, (KREBS, J.,) on the 15th of June 1855, delivered the following opinion thereon:

"The accounts to which these exceptions are filed, was stated by the special auditor, according to the principles, as he understood them, and under the direction of the chancellor's opinion, delivered on the 26th of January 1854. The chancellor, in deciding the case, says, that he is of opinion that the complainant, Frederick J. Dugan, has a right, in a court of chancery, to call upon the other parties to the partition referred to in the case 'to contribute their fair proportions of the money paid by him in discharge of the decree in favor of Gittings and others, mentioned in the proceedings.' In this passage the chancellor was regarding the parties solely as co-parceners, and deciding that when one had paid money in discharge of a paramount lien or claim upon his share, the others were bound to contribute equally to reimburse him. But the chancellor proceeds to state, that 'by the last clause of the will of Cumberland Dugan, he bequeathed all the rest and residue of his property, real, personal and mixed, partly by specific [**25]  description and partly in general terms, to his four children, Rebecca Hollins, Cordelia Margaret Hollins, Hammond Dugan and Frederick J. Dugan, the shares given to his daughters being in trust. And it is alleged, and the allegation not seriously if at all denied, that some property embraced in this residuary clause remains to be distributed. Especially it is said that ground rents amounting to $ 900 per annum, in which the testator's widow (now deceased) had a life estate, and which constitute a part of the residue, yet remain to be distributed. And the complainant insists that no further distribution shall be made, including the amount in the hands of the administrator of Margaret Dugan, until he is paid the sum due him. It being the opinion of the court that the complainant is entitled to contribution, in respect to the amount paid by him, in satisfaction of the decree obtained by Gittings, an account must be stated for the purpose of ascertaining how much he is entitled to, and it would seem proper, in the mean time, that no further distribution should be made, as insisted on by the complainant.'

"It must be understood, from this portion of the chancellor's opinion, that he [**26]  looked to this residue of the testator's estate, real, personal and mixed, as property to be taken into view in settling the question of contribution between the parties, especially the ground rents amounting to $ 900 per annum, which, as he states, constitute a part of this residue, and this is the more manifest from the fact, that he says that no further distribution of it should be made, because if it was not to be held to be applied, as it might be deemed equitably liable, for contribution to reimburse the complainant, there was no reason why it might not have gone, at once, into the hands of the parties entitled to this residue. It is assumed by the chancellor, and conceded by the parties, that the personal estate of the testator, not specifically bequeathed, is insufficient to pay or refund the balance of this decree paid by Frederick J. Dugan; and if he meant to intimate, and I think it cannot be questioned that he did, that this real estate in the hands of the general residuary devisees was liable to pay this balance, this intimation must rest on the ground that a residuary devise of real estate is applicable to the payment of the debts of a testator before specific legacies [**27]  of personal estate. That this is a general residuary devise of all the testator's estate, not previously devised or bequeathed specifically in his will, is manifest from the language employed by the testator. After specifying certain portions of it, in dividing it amongst his children, he describes it as 'the said entire residue.' In the case of Spong vs. Spong, 3 Bligh, 105, the court, after maturely considering the question, for it was one of the points on which the decision of the court below was reserved, decides that a residuary devise of real estate is not a specific devise, and the reasoning of the judge who delivered the opinion in the House of Lords, is conclusive to show that these two descriptions of devises differ entirely in their character, and I am of opinion that a general residuary devise of real estate is not entitled to any such privileges as would exempt it from being resorted to for the payment of the debts of the testator, after exhausting his personal estate not specifically bequeathed. I do not think that the opinion of the Court of Appeals in Chase vs. Lockerman, 11 G. & J. 185, conflicts in any degree with the position above assumed. On the contrary, I [**28]  think it is sustained by the principles and reasoning set forth in that opinion. The 'general rule of marshalling assets,' the court says, 'is to apply first the personal estate, then lands devised to be sold for the payment of debts, then lands descended, lastly, estates specifically devised, even though they are generally charged with the payment of debts.' Now the court did not intend to include in the personal estate to be first applied under this rule, personal property specifically bequeathed, as the Court of Appeals says, in the case of Alexander vs. Worthington, 5 Md. 493, 'it was assumed in Chase vs. Lockerman, as a point clear in all the authorities, that land descended was first applicable in payment of debts in relief of personal estate specifically bequeathed,' and this question, the court says, in the former case, 'is too well settled in England and in this country, to justify argument thereon.' When, therefore, would the leasehold estate of this testator, which he has specifically devised, the only portion of his estate, with a trifling exception, not yet applied to the payment of his debts, be resorted to for that purpose, according to the order of appropriation [**29]  prescribed by the above rule? It cannot be doubted, I apprehend, that it would come in 'lastly' amongst 'the estates specifically devised,' and would consequently be resorted to after a general residuary devise. It is to be observed that this testator 'orders and directs his funeral expenses and debts to be paid out of whatever part of his estate his executrix and executors, or a majority of them, shall think proper.' He does not restrict them to his personal estate. He then makes a number of specific devises and specific bequests, one of the latter to his wife, and lastly, devises and bequeaths various enumerated parcels of his real and personal estate, together with the general residue, real, personal and mixed, as an entire residue, to his four children: 'all his stocks,' except the Baltimore and Ohio rail road stock, 'all his notes, bonds, mortgages, accounts, or other evidences of debts or claims,' including his whole personal estate, except specific legacies, together with several parcels of his real estate.

"It cannot be doubted that he intended his debts to be paid out of this 'entire residue,' as he denominates it, especially as he does not designate particularly any [**30]  part of his estate out of which they are to be satisfied. He certainly could not have meant that his specific legacies should be taken whilst any part of this residue was unapplied. And I am, therefore, of opinion that the devisees, under this residuary clause, can only claim that part of the 'entire residue' that remains after all the debts are satisfied. That he did not intend this residuary devise of all his stocks, and of the real estate included in it, to be taken by the devisees to whom it was given as a specific and absolute gift, is manifest from the fact that though he gives them 'all his stocks,' yet in a preceding part of his will he directs his executors to sell 'such portions of his bank or other stocks' as shall produce the sum of $ 27,500, and in another part of his will he directs 'as much money to be taken from his residuary estate as will produce $ 150 annually,' to be paid to one of his grandsons, evidently looking to it as the fund to meet the pecuniary demands upon his estate, whether created by his will or by obligations existing in his life time. And further, it was the manifest purpose of the testator to equalize the shares of his estate, that his four children [**31]  were to take under his will, and in making this equal division by his specific devises and bequests, he allots to them, respectively, various parcels of his property, giving to one, as he did to his son Frederick, a leasehold lot of ground, and the improvements thereon, in the city of Baltimore. Now if this specific legacy, or any part of it, should be taken to pay debts, the equality which he has so carefully established, would be disturbed, whereas, by taking from the residuary devise, which he gave to them equally in real and personal property, so much as may be necessary to pay all his debts, this equality is not at all affected.

"Being of opinion, then, that so much of the amount of the decree paid by Frederick J. Dugan, as the personal estate of the testator, other than his specific legacies, is insufficient to satisfy, must be supplied by the real estate embraced in this general residuary devise, the next inquiry is, what personal estate is there other than specific legacies? There is, 1st, a small balance in the hands of the administrators de bonis non, and 2nd, the amount of a judgment for a devastavit committed by the executrix, Margaret Dugan, rendered against her and [**32]  Frederick J. Dugan, he and Hammond Dugan being the securities on her administration bond, the latter having died before the suit was brought.

"The defendants, in their answer, insist that the complainant should be made liable for the whole amount of this devastavit, because he, and his brother Hammond, so long as he lived, were, from the death of their father, the agents of their mother, the executrix, in the administration of the testator's estate, and, after the death of Hammond, the complainant was sole agent, when she relied entirely upon him in the administration of the estate, and for many years before she was declared non compos she was incapable of exercising any judgment in regard to the affairs of the estate; and they allege that Hammond duly accounted for the assets of the estate received by him, and that the complainant cannot throw off the liability for this devastavit upon his mother, or the estate of his deceased brother. This right, claimed by the defendants, to charge the complainant with the amount of this devastavit, is founded upon the imputation that he, whilst acting as agent as aforesaid, received and retained this money, and never accounted for it to the [**33]  executrix. This court cannot act upon the assumption that he really did this without proof of the fact. The whole allegation in the answer, upon this subject, is new matter introduced by the defendants, and the burden of proof is upon them to show, by evidence, that he was an unfaithful agent. The admissions in the cause do not furnish this evidence. They say that Hammond accounted for all the assets that came into his hands as her agent. Why may not the complainant have accounted likewise? This devastavit might have occurred long before Mrs. Dugan became non compos, and at a time when she was perfectly competent to attend to the affairs of her husband's estate, which she no doubt was at the time of his death, otherwise the testator would not have appointed her executrix. There is no evidence of habits of waste or extravagance on the part of the complainant which might afford grounds for supposing that he squandered this money, or that specific sums of money came into his hands under such circumstances, either in regard to amounts or otherwise, as would justify this court in regarding him as having appropriated this money to his use. In fact there is nothing in the cause to satisfy [**34]  the court that he should be charged with it, for the reasons stated by the defendants.

"In this view, Mrs. Margaret Dugan having been primarily liable to make good this devastavit, whatever estate she left at her decease should be applied in reduction of this judgment, before her securities, or their estates, can be called upon to contribute. Her estate, it appears, was of inconsiderable value, and is in the hands of the complainant and the defendants, in equal shares, and the amount of it must be contributed by the three equally, in reduction of the judgment, and unless they can agree amongst themselves in regard to the value of her estate, it must be ascertained by the auditor of this court. The balance of this judgment must be paid, one-half by the complainant, as one of the securities of Margaret Dugan, on her administration bond, and the other half out of the estate of the other security, Hammond Dugan, in the hands of the complainant and defendants, in equal shares, and sufficient to pay the share of said judgment, for which he was responsible.

"The balance of the said decree that may remain unsatisfied, after the application of the personal estate of Cumberland Dugan,  [**35]  to be derived from the above sources, must be obtained from the real estate mentioned in the said general residuary clause. The court will pass such order, referring this case to the auditor, and decree for the sale of property, as may be necessary to furnish relief to the complainant, upon the principles indicated in this opinion."

The court, accordingly, on the 5th of July 1855, passed a decree for a sale of the residuary estate of the testator, remaining undistributed and undisposed of, to repay the complainant the amount paid by him in discharge of the decree in favor of Gittings and others, and referring the case to the auditor to state accounts, in conformity with the principles decided in the above opinion. From this decree the complainant entered an appeal, on the 29th of September 1855, and the record was transmitted and filed in the appellate court on the 23rd of November 1855. Afterwards, on the 9th of February 1856, and after the auditor's report and accounts came in, the defendants entered an appeal from the same decree, and it was agreed that one common record should be used at the hearing of all the appeals taken by both parties.  

DISPOSITION:
Cause remanded.  

HEADNOTES:

Where a cause is removed from the court of chancery to a circuit court, under the act of 1853, ch. 123, the jurisdiction of the former passes to the latter court, and an appeal may be taken in the latter court, from an order or decree in the cause passed by the chancellor, as if no removal had taken place.

Where an appeal is taken in due time, but the record is not transmitted to the appellate court until after the expiration of nine months, still, under the act of 1842, ch. 288, the appeal must be entertained if it does not appear that the appellant is in default.

A testator, by a clause in his will, ordered and directed, that as early after his demise as may be practicable, his executors should sell such portion of his "bank and other stocks" as shall produce the sum of $ 27,500, and pay therefrom $ 13,750 to each of his two sons. HELD:

That these are demonstrative legacies, which, when the fund on which they are chargeable does not exceed them in amount, are to be treated, in some respects, as specific; they are liable to abate with specific legacies in the payment of debts, and entitled to contribution from them if the fund demonstrated has been so applied to the exemption of specific legacies.

Where there is sufficient personalty for the payment of debts a simple contract creditor cannot resort to the realty for payment, when the realty is devised and is not charged with the debts.

If a specific legacy be taken for the payment of a simple contract debt, the legatee will be entitled to contribution from other specific legacies, but he cannot charge with contribution the real estate which is devised.

Real estate devised is not liable for the payment of debts until after the whole personal estate, including legacies, shall have been exhausted.

One-third of the excess of the whole assets, over the debts and costs of administration, belong to the widow absolutely as purchaser, and where she, as specific legatee, is called on for contribution, such one-third must be deducted from the amount of her specific legacies, and the residue only held liable to contribution.

An executrix retained bank stock unsold, to await the result of a suit, for a large sum, against the estate; large dividends were received on this stock, and there was no evidence it was considered unsafe, or of any ground for apprehending loss, until the sudden failure of the bank, which occurred before the termination of the suit against the estate. HELD:

That there was no devastavit by the executrix in omitting to sell the stock, and the accidental depreciation of its value, though she was directed by the will to sell it as soon after the testator's death as practicable, to pay legacies. 

COUNSEL:
Thomas S.  [**36]  Alexander and John Nelson, for the complainant argued:

1st. That the order of the chancellor, of the 26th of January 1854, is open for review upon the complainant's appeal. 1st. The appeal was entered in the proper forum. The cause was removed, after the passage of this order, from the Court of Chancery to the Circuit Court, and the appeal was entered in the latter court, where the record was, which it is the object of an appeal to bring up. By the Constitution and laws, relating to the removal of cases, these two courts were one and the same as to this case; the Court of Chancery was abolished, but the proceedings in it were not abolished. Upon the removal of the proceedings in this case, the jurisdiction of the Chancery Court passed to the Circuit Court, and the case stood in the latter court precisely as if there had been no removal. 8 Md. 322, Brown vs. Gilmor. 1 Bland, 67, Strike's case. 2nd. The appeal was taken in due time, and that the record was not transmitted within nine months, does not appear to have been the fault of the appellant, and the appeal must therefore be entertained, 9 Gill 440. Hannon vs. Robey. 3rd. But the appeal from the final decree in the [**37]  case passed by the Circuit Court, which was taken in due time, and is free from all objections, brings up for review all previous orders or decrees passed in the cause. Acts of 1830, ch. 185, sec. 1, 1841, ch. 11, and 1845, ch. 367, sec. 3. The final decree meant by these acts is the decree finally disposing of the case, and upon appeal from such decree all previous decrees and orders, whether final or interlocutory are open for review. 3 Gill 138, Dugan vs. Gittings. But the decree of the chancellor was, in fact, an interlocutory and not a final decree, or an order in the nature of a final decree, and is, therefore, clearly open for review upon the present appeal from the final decree. Neither the entry of an appeal from this order and the failure to prosecute it, nor the removal of the cause can affect the right to review the merits of this decree upon this appeal. It was clearly competent for the Circuit Court, at all times before the final decree, and at the time of passing the final decree, to correct errors in any antecedent decree or order, or proceeding in the cause. 6 H. & J. 114, Snowden vs. Dorsey. 12 G. & J. 285, Clagett vs. Crawford. 1 Md. 394, Young vs.  [**38]  Frost. Md. Ch. Pr., 178. 3 Md. 555, Ware vs. Richardson. 3 Md. Ch. Dec., 398, Young vs. Mackall. Ibid, 431, Williams vs. Savage Manf. Co. 16 How., 82, Fourniquet vs. Perkins.

2nd. That the complainant's first and second claims founded upon the fourteenth clause of the will should have been allowed. In this clause the testator in order to equalize the shares of his four children, directs his executors to sell such portion of his bank and other stocks, as shall produce the sum of $ 27,500, and pay therefrom $ 13,750 to each of his two sons. These are demonstrative legacies, which failing the fund upon which they are charged are mere general pecuniary legacies payable out of the residue of the estate, but, to the extent of the fund chargeable, are in the nature of specific legacies; the bank and other stock, are appropriated by the will to their payment, and, to the extent of these stocks, they are specific bequests. 3 Ves. & Bea., 2, Smith vs. Fitzgerald. 1 Merivale, 178, Acton vs. Acton. 2 Wms. on Exc'rs., 993, 995, 999, 1003, 1174. These stocks have been applied to the payment of debts, and we now insist that the complainant's first two claims should have been allowed. 1st.  [**39]  Because real estate passing under a residuary clause of a will ought to be applied to the payment of debts to the entire exoneration of personal estate specifically bequeathed. That there is a residuary clause in this will, is clear from the fact that the testator speaks of it as a residue, charges money on it as a residue; and though there is no residue descending to heirs at law, yet there is a residue devised to those who would be heirs at law in the same proportion as they would take by descent; assuming then that there is a residuary clause, we say the real estate passing by it is to be applied to pay debts to the entire exoneration of specific legacies. 2nd. Because the intention of the testator to apply the proceeds of his bank and other stocks to these legacies, is explicitly set forth in the will for the purpose of producing equality amongst his children; and the charge of the debts upon his realty, not specifically devised, is equally manifest. 3rd. Because the personalty specifically devoted to the payment of these claims, having been applied by the executors to the payment of debts, the legatees are entitled to be substituted to the creditors and paid out of realty not [**40]  specifically devised, and in the event of an insufficiency of this general fund may claim contribution from all other legatees and devisees of the testator.

In support of these positions we refer to Ambler, 127, Hanby vs. Roberts, and the same case in 1 Dickens, 105. 1 Dow. & Clark, 365, Spong vs. Spong, and same case in 3 Bligh N. S., 84. 2 Myl. & Cr., 707, Mirehouse vs. Sciafe. Sugden's Law of Prop., 423 to 426, 64, in Law Lib., 290. These authorities clearly show that our positions are correct where the debts to which the specific legacy has been applied are specialty debts; and the case of Chase vs. Lockerman, 11 G. & J. 204, settles the law in this State in the same way, so far as such debts are concerned. But as the debt paid in this case was a simple contract debt, it is objected that the specific legatee cannot call upon the devisee of the realty for contribution, and the case of Chase vs. Lockerman, is relied upon as sustaining this distinction between simple contract and specialty debts. It is true that in that case the right of contribution as against the devisees of the realty is denied in case the debts to which the specific legacies have been applied are simple [**41]  contract debts, but that question did not as we think arise in the case, and the decision therefore upon this point is but an obiter dictum. Nor is there any reason why such a distinction should exist in this State. In England the specialty debt equally charges personal and real estate, but the simple contract debt does not charge the land, and for this reason the legatee in England cannot cast any portion of the debt by simple contract on the land devised or the land descended. But our acts of 1785, ch. 72, sec. 5, and ch. 80, sec. 7, subject lands descended in the hands of the heir, and land devised in the hands of the devisee, to the payment of debts by simple contract and debts by specialty, in equal degree. These acts are not referred to either by the court or the counsel in the argument of the case of Chase vs. Lockerman. Again, by our testamentary law (act of 1798, ch. 101, sub-ch. 8, sec. 17) specialty and simple contract debts are placed upon an equal footing, and are to be paid without priority or preference. Upon principle, therefore, there is no reason why any such distinction should be observed in this State, and we think this court has so decided in the cases of Magruder [**42]  & Tuck, vs. Carroll, 4 Md. 335, and Alexander vs. Worthington, 5 Md. 417.

3rd. That the chancellor also erred in not allowing out of the residuary realty before distribution thereof amongst the residuary devisees, the complainant's third claim for his proportion of the moneys paid by the testator for the husbands of his two daughters as directed by the fifteenth clause of the will, the payment being admitted. And it is further insisted, that in the event of the insufficiency of such residuary estate, all other interests of the daughters taken under the will are liable for those payments.

4th. In opposition to the appeal taken by the defendants, and in support of the complainant's fourth claim, which is allowed by the decree, we insist:

1st. That the claim of Gittings and others, bound all the estate of the testator in due order of administration.

2nd. That, (for reasons already assigned,) after exhausting the personal estate not specifically bequeathed or appropriated, this claim was payable out of the residuary estate, as well real as personal, in exoneration of the personal estate specifically bequeathed or appropriated. And this exoneration of the specific [**43]  legatee rests as well on the general principle, that the residuary estate, whether real or personal, and whether devised as residue or suffered to descend, is liable for payment of debts in relief of the specific legatee, and of the specific devisee, as on the intent of the testator clearly expressed.

3rd. That there is nothing in the chancellor's opinion which conflicts with these views. He expressly declares that the complainant is entitled to compensation out of the residuary estate, to the extent of his entire payment to Gittings. The only error imputable to the chancellor, consists in his assuming that the Ferry Point lot was liable on any principle and in any state of circumstances to contribution. As that lot was bequeathed to the widow in lieu of dower she was to be treated as a purchaser thereof for valuable consideration, and as between her and the complainant claiming under her on the one hand, and all other legatees and devisees of the testator, on the other hand, this lot was entirely exempt from payment of debts. Act of 1798, ch. 101, sub-ch. 13, sec. 5. 10 G. & J. 113, Gibson, et al., vs. McCormick.

4th. Upon the same principle that the widow is a purchaser [**44]  for valuable consideration of all interests given her in lieu of dower, the other personal property specifically bequeathed to the widow is to be thrown out of the account; and especially is the claim of the defendants, that the value of those specifics shall be applied in satisfaction of the Gittings' claim, inadmissible, since those specifics have, in fact, been distributed to those defendants and the complainant, as the representatives of the widow.

5th. The complainant, as assignee of Gittings and others, became subrogated to the original rights and equities of the original claimants; and in this aspect his claim is to be reduced only by any balance which may be found in the hands of the administrator de bonis non of the original testator.

6th. The complainant denies that the Water street lot, though lease-hold, is liable, as between the legatees and devisees of the testator, to the reimbursement of the payment made by the complainant to Gittings, until after the exhaustion of the entire residuary estate of the testator; and in the event of the exhaustion of such residuary estate, this lot is to be brought into contribution with all other property specifically devised [**45]  by the testator.

7th. It is denied that the claim of the complainant is liable to be reduced by the sum, or any part of the sum, recovered by the administrator de bonis non against Mrs. Dugan, the executrix, and the complainant, one of her sureties. But if that judgment is to be brought into the account it is to be reduced, first, by the value of the personal estate of Mrs. Dugan, which was distributed amongst her children; next, by the value of her estate which came to the hands of her committee; next, by the value of said estate in the hands of her administrator, and lastly, the balance then remaining, if any, is to be apportioned between the complainant and Hammond Dugan, deceased, who was co-surety with complainant for the executrix; so that the complainant may be accountable for only one-half part of said balance and one-third part of the remaining half.

Frederick W. Brune and Wm. Schley, for the defendants argued:

1st. That the decree of the chancellor, of the 26th of January 1854, in so far as it rejected the first three items of claim on the part of the complainant, is not open for review on this appeal. 1st. Because the appeal was not taken in the proper forum.  [**46]  There is no provision by law authorising an appeal in one court from a decree passed in another. By the act of 1826, ch. 200, the appeal must be entered in the court in which the decree is passed, and there is nothing in the acts providing for the removal of causes from the Court of Chancery to the circuit courts, which permits an appeal to be taken in the latter from a decree passed by the chancellor. A party has no constitutional right of appeal: it is a matter of favor granted by acts of Assembly, and must be taken modo et forma therein prescribed. 1 Bland, 17 Ringgold's case. 6 Cranch, 314. Durosseau vs. The United States. 2nd. Because the appeal, if properly taken, was not duly prosecuted, the record not having been transmitted within nine months. Whenever an appeal is taken from a final decree, the record must be brought up within nine months, and as we insist, this decree of the chancellor was a final disposition of the first three items of claim on the part of the complainant. Four different claims are presented by the bill, as distinct from each other as if made by different parties. Three of these the chancellor rejects, and as to the fourth, only directs an account to be [**47]  stated. This is as much a final disposition of the three rejected claims as if the bill had been dismissed as to them, and that such a decree would have been final, this court has decided in Hitch vs. Davis, 8 Md. 524. Did not the absolute rejection of these first three claims materially affect the complainant's rights? did it not determine a question of right between the parties? If it did, then it was the subject of an immediate appeal, and was a final decree within the meaning of the acts of 1830, ch. 185, and 1845, ch. 367, and the present appeal by the complainant was prosecuted too late, the complainant himself being answerable for the delay. 5 Md. 368, Sample vs. Motter. Acts of 1841, ch. 46. 1842, ch. 288. 3rd. Because the only view in which the chancellor's decree can be considered as open on this appeal is, that the circuit court erred in following the decision of the chancellor, and the appeal from the decree of that court, taken by the complainant, on the 29th of September 1855, brings up for review all previous decrees and orders in the cause, under the 3rd sec. of the act of 1845, ch. 367. But the decree of the circuit court, from which the complainant appealed,  [**48]  is a decree simply directing an account to be taken, and referring the case to the auditor for that purpose, and is not, therefore, "the final decree or order" meant by the section of the law referred to.

2nd. That if the chancellor's decree is open for review, in reference to the rejected claims, it should be affirmed for the reasons assigned in his opinion, in 4 Md. Ch. Dec., 139 to 146, and others hereinafter presented. The legacies in the fourteenth clause of the will are not charged upon the real estate, either expressly or by implication. The personal estate is the primary fund for their payment, and the real estate, in the hands of the devisee, is never charged with such payment, unless the intention so to charge it is expressly declared or fairly and plainly to be inferred from the terms of the will. 2 G. & J. 32, Simmons vs. Drury. 10 Do., 143, Stevens vs. Gregg. These cases decide, that even a charge upon the land devised does not, in equity, exempt the personal estate from primary liability for the payment of debts and legacies. Besides, under the facts in the record and the various acts of the complainant, and especially by reason of the proceedings between the [**49]  complainant and his sisters for a partition of Hammond Dugan's property, the complainant is estopped from setting up any claim, as one of Hammond Dugan's representatives, against his sisters, by reason of the bequests in favor of Hammond, under the fourteenth and fifteenth clauses of the will. And in reference to the entire claim of the complainant, under the fifteenth clause of the will, being the third claim set up by his bill, we think it is conclusively disposed of by the chancellor, and for the reasons assigned in his opinion, in 4 Md. Ch. Dec., 144, 145.

3rd. That the chancellor in decreeing in favor of the complainant, in reference to the fourth item of his claim, only asserts a right of contribution in his favor against the other parties to the partition, referred to in the decree, to make good to him a proportion of the loss which he suffered by reason of the liability of the Ferry Point lease-hold lot to the Gittings' claim, and while we may not be able successfully to controvert this principle of contribution, we deny, in accordance with our exceptions in the chancery court, that such a claim for contribution is embraced in the averments of the bill. But if the defendants [**50]  are liable for such contribution under the bill, we further insist, their liability can only be to contribute to make good to the complainant, as owner of the Ferry Point lot, a portion of its value of $ 2500 under the partition, and only to the extent to which this lot was liable in the hands of complainant for the Gittings' claim; and that the defendants, who were parties to this partition, cannot be held liable for any contribution, until the whole personal estate of the testator, unadministered, and not specifically bequeathed, including the full amount of the devastavit, for which also the complainant, as surety, was responsible, is first applied in reduction of the amount paid to Gittings, and if any thing should then be due to the complainant on account of his payment, the parties to the partition should not be held to contribute to pay the same, until the Water street lease-hold lot, bequeathed to the complainant, and the other specific bequests which were equally liable with the Ferry Point lot for the Gittings' claim, shall be brought into contribution, and the defendants, Rebecca and Cordelia, can only be held liable for two-thirds of the amount thus finally chargeable against [**51]  the Ferry Point lot, which two-thirds, in no event, can exceed two-thirds of $ 2500, the value of the lot under the partition.

Under the appeal taken by the defendants we insist:

1st. That the decree of the circuit court was erroneous in misconstruing and disregarding the opinion of the chancellor, which was the law of this case until properly brought up for review by this court. When the cause was removed into the circuit court, that court was bound to follow the decision of the chancellor. 1 Bland, 57, Strike's Case. 2 H. & G., 191, Strike vs. McDonald. 2 Paige, 413, Townshend vs. Townshend.

2nd. That this decree was also erroneous in asserting that the real estate, devised under the residuary clause of the will, was applicable to the payment of the amount paid by the complainant on the Gittings' claim, which was a simple contract debt of the testator, before and in exoneration of the lease-hold estate bequeathed to the complainant. And also in asserting, that all the real property embraced in the last clause of the will, including those portions devised by specific description, such as the reversion of the ground-rents and the lands in Baltimore county, should be [**52]  first applied to refund to the complainant the amount paid on the Gittings' debt in exemption of the lease-hold property bequeathed to and acquired by the complainant, while even his bill admits the liability of his property for the whole amount of Gittings' claim, and only asserts that the real property, devised in trust for the respondents, "is equally chargeable" with this claim.

In discussing this point it is worthy of remark, that the bill only seeks contribution, and does not pretend that the real estate, in the hands of the devisees, is primarily liable to the entire exoneration of the specific legacies. Again, the legacies in the fourteenth clause of the will, in reference to which this contribution is asked, are general pecuniary, demonstrative legacies, specific in so far as they point out the fund from which they are to be paid, but general inasmuch as no particular part of the fund is appropriated to their payment, and beyond the fund demonstrated, they are mere general pecuniary legacies, payable out of the residue of the estate. Smith on Real Prop., 824, in 89 Law Lib., 534. 3 Richardson's Eq. Rep., 84, 85, Hull vs. Hull. Ward on Legacies, 370. Powell on Devises,  [**53]  22 Law Lib., 381. 1 Roper on Legacies, 153. 2 Wms. on Ex'crs, 994, 1540. In the case of Chase vs. Lockerman, 11 G. & J. 202, the general principle, that the personal estate is the natural and primary fund for the payment of the simple contract debts, and that devised lands shall not contribute, with specific bequests, to pay such debts, is most distinctly recognized, while in that case the court held, that there was a right of contribution against devisees in favor of specific legatees to pay specialty debts. The cases of Magruder vs. Carroll, 4 Md. 335, and Alexander vs. Worthington, 5 Do., 471, cannot be considered as decisions adverse to the principle contended for, because in the first case the court say, they pass no opinion in regard to the primary liability of the negroes to the real estate in payment of the debts of the deceased; and in the second, that: "It will not be necessary to remark on the distinction supposed between the specialty and simple contract creditor; it is averred that Carroll died in debt for the land purchased by him after the date of the will, and independent of this averment, if the equity could have turned on the supposed distinction, the cause [**54]  would have been remanded with liberty to the party to amend," thus expressly waiving a decision upon this point. The distinction set up in Chase vs. Lockerman, that the rule of contribution, between specific legatees and devisees, is generally confined to specialty debts, is recognized in numerous authorities. 1 Story's Eq., secs. 564, 565, 570, 571. 2 Powell on Devises, 667, 668, in 22 Law Lib., 356, 357. 2 Spence's Eq., 839. 4 Kent's Com., 421. 2 Jarman on Wills, 546, 547, 548, and notes. And that devised lands shall not contribute, with specific bequests, to pay such debts: See 9 Grattan, 549 to 554, Elliott vs. Carter. 5 Barr., 356, Hoover vs. Hoover. 3 Rawle, 237, Walker's Estate. 2 Dev. Eq. Rep., 173, Robards vs. Wortham. 3 Murphy, 194, Miller vs. Harwell. 18 Ves., 138, Tower vs. Ld. Rous. 9 Do., 453, Watson vs. Brichwood. 12 Price, 324, Noel vs. Noel. 1 Brown's Ch. Rep., 454, Ancaster vs. Mayer, and authorities cited under this case in White's Eq. Cases, in 65 Law Lib., 442 to 449. 1 Paige, 190, Rogers vs. Rogers, and same case in 3 Wend., 518. 1 Comstock, 122, Hoes vs. Van Hoesen. 3 G. & J. 157, Hoye vs. Brewer. 4 Do., 302, Wyse vs. Smith. 6 Do., 444, Griffith vs. Frederick [**55]  Co. Bank. 6 Gill 316, Cornish vs. Wilson. Some of these authorities have followed the construction in favor of the priority of devisees which may be given to the fifth resolution in Hazelwood vs. Pope, 3 Peere Wms., 324; and this preference of devisees was also maintained by the decision of the vice-chancellor, in Cornewall vs. Cornewall, 12 Simons, 303, but in England the law is now settled, in conformity with Chase vs. Lockerman, that specific devisees and legatees shall equally contribute to the payment of specialty debts. 2 Collyer, 505 to 509, Tombs vs. Roch. 1 Jones & Latouche, 466, Young vs. Hassard. 14 Simons, 654, Gervis vs. Gervis.

It must be borne in mind that this is the case of a specific legatee, who has received his legacy through a devastavit of the executor, and who has subsequently been obliged, under legal proceedings, to pay a simple contract debt of his testator, for which his legacy was liable, in the hands of the executor, and who now claims, from devisees of the land, contribution for such payment, while neither the legacy so liable, nor any bequest in the will, nor the debts of the testator, are charged on the specific or residuary devises. Stevens [**56]  vs. Gregg, 10 G. & J. 147, and numerous authorities which might be cited, are clear to the point, that a mere charge of land with debts or legacies, will not ordinarily disturb the primary liability of the personalty, for their payment. The authorities are also clear, that every devise of land is specific. Ambler, 173, Forrester vs. Leigh. 1 Peere Wms., 679, Clifton vs. Burt. 5 Ves., 359, Keeling vs. Brown. 7 Do., 147, Howe vs. Ld. Dartmouth. 1 Ves. & Bea., 174, Hill vs. Cock. 2 Mylne & Craig, 705, Mirehouse vs. Scaife. 2 Wms. on Excrs., 847. The court below misconstrued the case of Spong vs. Spong, 1 Young & Jervis, 300, and 3 Bligh, 84, which certainly cannot be considered authority for the point, that "a residuary devise of real estate is not a specific devise," and still less for the proposition that residuary real estate of a testator is the proper fund to be resorted to for the payment of debts, after exhausting his personal estate not specifically bequeathed, and in exoneration of specific bequests. That case, as decided in the House of Lords, is only an authority that an express charge of legacies, such as that contained in that will, must be construed a charge on the residue [**57]  alone, in exemption of the specific devises and bequests. See, on this case, 2 Jarman on Wills, 530. 1 Jones & Latouche, 471, Young vs. Hassard. Sugden on Property, in 64 Law Lib., 290 to 293.

3rd. That the decree was further erroneous in deciding that the complainant is entitled to an account against the administrators de bonis non of Cumberland Dugan, for the amount in their hands, while the defendants contend this is a claim only cognizable in a court of law.

4th. And also in deciding that the complainant was not, under the facts and circumstances of this case, primarily liable for the devastavit of his mother, as executrix; and in contending for the primary liability of the complainant, the defendants insist that the devastavit is not to be measured by the amount of the judgment confessed, but to this there should be added the amount of the loss upon the Franklin bank stock, which the testator directed to be sold "as early after his demise as practicable." And that as the amount of the devastavit alone exceeded the balance of the Gittings' claim paid by the complainant, there was thus no proper legal liability of the leasehold lots bequeathed, or the realty devised for [**58]  the Gittings' claim. 2 Wms. on Excrs., 1283, 1285. 1 Salk., 153, Anon. 5 Ves., 736, Omerod vs. Hardman. 11 Wend., 364, Schultz vs. Pulver. 3 Myl. & Cr., 496, Clough vs. Bond. 6 G. & J. 445, Griffith vs. Frederick Co. Bank.

5th. That in this proceeding the complainant cannot make Margaret Dugan's representatives liable for any devastavit, even if she should be considered primarily liable therefor, because such liability is properly cognizable in a court of law, but if cognizable in this court, then the defendants insist that the complainant is, under the circumstances of this case, estopped from setting up such a claim.

6th. That in this proceeding the complainant cannot make the representatives, or the estate of Hammond Dugan, responsible for any part of the devastavit, as such a claim is properly cognizable in a court of law; but if cognizable in this court, then the defendants insist that the complainant is, under the circumstances of this case, estopped from setting up such a claim. There is no evidence of the insufficiency of the personal estate of Mrs. Dugan to pay the amount of the devastavit, and no part of it can, therefore, be charged against the sureties on [**59]  her bond.

7th. That the decree was erroneous in decreeing an immediate sale of the property therein mentioned, for the payment of the balance of the payment to Gittings, after the application of the personal estates of Cumberland and Margaret Dugan, instead of waiting until such balance should be ascertained by the auditor.

8th. If the principles of the decree of the circuit court should be sustained by this court, the defendants, Hollins of Rebecca, and Hollins of Cordelia, will then set up a claim against the complainant as devisee under the residuary clause, to make good to them the value of the house taken from them, as specific devisees thereof, by reason of the claim of Gittings, under the contract mentioned in the case of Dugan vs. Gittings, against their testator, together with interest on such value from the death of their grandmother, which claim is set up by them in their answers, but entirely disregarded in the opinion and decree of the circuit court.

9th. If this court should hold that the complainant is entitled to contribution from the defendants and Hammond Dugan, as devisees of the realty, on account of the payment by complainant of the Gittings' claim,  [**60]  the defendants will deny that such contribution should extend to affect any portion of Hammond's land acquired by them under the partition thereof, but if any land so acquired should be held liable to such contribution, the defendants will then contend that such liability must be subject to the claim of the owner of the land so held liable against the complainant, as one of the parties and covenantors to the partition, for indemnity for a portion of such liability. 4 Kent's Com., 475. 2 Hilliard on Real Property, 360. 9 Gill 19, Morris vs. Harris.  

JUDGES:
The cause was argued before ECCLESTON, TUCK and BARTOL, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*74]  BARTOL, J., delivered the opinion of this court.
Before considering this case on the merits, it is necessary to dispose of a preliminary question, involving the appellant's right to have the chancellor's order, of the 26th of January 1854, reviewed on his appeal.
It appears that the complainant, in his bill, asserted four items of claim. The chancellor, in his opinion filed with the above mentioned order, examined them all, and disallowing the first three, passed an order referring the case to the auditor to state an account in relation to [**61]  the fourth. Before the account was taken, or any thing further done in the cause, the proceedings were removed, on the 7th day of March 1854, to the circuit court for Baltimore city, under the act of 1853, ch. 123; and the complainant, in that court, entered his appeal from the decree of January 1854, on the 26th day of May of that year. Further proceedings were then had, and the circuit court, on the 5th day of July 1855, passed a decree for the sale of certain property, to satisfy the fourth item of the complainant's demand. The complainant appealed from that decree on the 29th of September 1855. The record was filed here on the 23rd of November 1855, within nine months from the date of the complainant's last appeal; but after the lapse of that time from the 26th of May 1854, when the complainant's first appeal was entered.
The objections taken, on the part of the defendants below, to the complainant's appeal are, 1st, that he had no right to appeal at all, from the chancellor's decree, after the cause had passed to another tribunal; 2nd, that if the appeal was well taken, the record should have been transmitted within nine months from the entry of the appeal, the order [**62]  appealed from being final in its character, as to the three rejected claims; and 3rd, that the court cannot, under the appeal of September 1855, review the proceedings as to the rejected claims.
It is, doubtless, true, that generally an appeal must be entered in the court where the judgment or decree is passed. In 

 [*75]  most cases it can be entered nowhere else. But here the question is, how far this general doctrine has been modified by the acts authorising the removal of causes from one jurisdiction to another. This court has said, in Brown vs. Gilmor, 8 Md. 322, that where a cause is removed, under the act of Assembly, the jurisdiction of the chancery court passes to the circuit court, as if no removal had taken place. It must be considered as a continuance of the same cause. This is a fair interpretation of the acts, and of the design of the legislature in passing them.
The act of 1826, ch. 200, gives the right of appeal; the legislature did not mean to take away that right, by authorising the removal of causes. The object was not to hinder, or delay, or restrict remedies, but to promote the ends of justice; the acts not reserving expressly,  [**63]  yet not taking away any right which suitors would have enjoyed, if the case had not been removed. If the construction were otherwise, the party obtaining the decree might, by causing the papers to be transmitted to another court, immediately after the decree, cut off the opposite party's right of appeal altogether. Surely the law was not designed to produce such consequences, and a construction that may lead to this injustice cannot be adopted.
The first ground of objection, on the part of the appellees, being insufficient, and the appeal of May 1854 being in time, we are to inquire, secondly, how the filing of the record here, after the expiration of nine months, affects the question. And this point, we think, must be ruled against the appellees, upon the authority of Hannon vs. Robey, 9th Gill 440, it not appearing that the appellant is in default.
The propriety of the decree of January 1854 being properly before us, on the appellant's first appeal, and there being no question as to the other, it is unnecessary to decide whether that decree is such a one as, under the acts of Assembly, could be reviewed upon the complainant's appeal of September 1855. We proceed, therefore,  [**64]  to consider the questions presented by the record, upon the pleadings and proofs, under the appeals of both complainants and respondents.
The bill filed in this cause, by Frederick J. Dugan, the appellant, 

 [*76]  seeks to recover certain sums of money alleged to be due to him in the two-fold character of legatee of Cumberland Dugan, and as creditor, by subrogation to the rights of John S. Gittings, who had recovered a decree for the amount of a simple contract debt due him from the testator; the complainant having paid the balance due on said decree, and taken an assignment thereof, on the 18th day of February 1847.
Four distinct claims are presented by the complainant:
1st. As legatee of the sum of $ 13,750, chargeable on the bank stock and other stock of the testator, under the 14th clause of the will, with interest thereon.
2nd. As representative of Hammond Dugan, deceased, for one-third of legacy of the same amount given to him by the same clause of the will; said Hammond having devised all his estate and property to his mother, Margaret Dugan, and she having conveyed the same, by deed dated the 25th day of March 1841, to the complainant and his two sisters, [**65]  Rebecca and Cordelia M. Hollins, in equal proportions.
3rd. For one-fourth in his own right, and one-third of one-fourth, under Hammond Dugan, of payments made by the testator, as security of Robert and John S. Hollins, under the 15th clause of the will.
4th. For two-thirds of the sum of $ 9772.31, with interest from the 18th of February 1847, being the amount paid by complainant on the decree in favor of John S. Gittings and others, as admitted in statement of facts filed the 8th of June 1853.
We shall first dispose of the third item of the complainant's claim, by simply remarking that we concur with the late chancellor, in the construction of the 15th clause of the will, on which it is founded; and, for the reasons expressed in his opinion of the 26th of January 1854, we think that item of claim must be disallowed.
To determine the equitable rights of the complainant upon the other items of his claim, is somewhat more difficult. We have given them our most careful and anxious consideration, and believe that the difficulty in arriving at clear and satisfactory conclusions on the questions involved, arises from the complex 

 [*77]  relations which the parties [**66]  bear to each other, and to the several funds sought to be charged, rather than from any uncertainty in the legal principles on which they depend. These are plain and well established, and a brief statement of them at the outset will aid us in arriving at the equitable rules which govern the case.
1st. It is clear that the legacies given to the complainant and Hammond, by the 14th clause of the will, are not to be treated as mere general pecuniary legacies. They are what are called demonstrative legacies, not strictly specific, but in the nature of specific legacies; that is to say, to the extent of the value of the fund or property on which they are chargeable, (when that does not exceed the amount of the legacy,) they are to be treated, in some respects, as specific; liable to abate with specific legacies in the payment of debts, and entitled to contribution from them, if the fund demonstrated has been so applied, to the exemption of specific legacies. See 1 Roper on Legacies, 224, 237, 363, 364, (edition of 1848,) 2 Wms. on Ex'crs., 995, 1174, (edition of 1849,) and the cases cited by those authors. The conclusion from these authorities is, that as the [**67]  stock on which these demonstrative legacies were charged, has been applied to the payment of debts, the legatees are entitled to a ratable contribution from all the specific legacies which have not been so applied.
2nd. This court considers the law as settled in Maryland, that if there be sufficient personalty for the payment of debts, a simple contract creditor cannot resort to the realty for payment, when the realty is devised, and is not charged with the debts.
3rd. If a specific legacy be taken for the payment of a simple contract debt, while the legatee would be entitled to contribution from other specific legacies, he cannot charge with contribution the real estate which is devised.
These last two rules were expressly recognized and asserted by the Court of Appeals, in the case of Chase vs. Lockerman, 11 G. & J. 185, decided sixteen years ago. That case has not been impugned, as was argued at the bar, by the decision in Alexander vs. Worthington, 5 Md. 471; and has so 

 [*78]  long been considered as established law in Maryland, that this court is not disposed to disregard its authority.
Now let us apply these rules [**68]  to the case before us. It is obvious that inasmuch as the debts, to the payment of which the demonstrative legacies have been applied, were simple contract debts, the complainant is not entitled to subject any of the real estate of Cumberland Dugan to contribution for the payment of any claim which may be due him as legatee. Nor is any portion of said real estate (the same having all been devised) liable for any claim of the complainant as creditor, until after the whole personal estate, including the legacies, shall have been exhausted.
If, upon a proper account being taken, it shall appear that the whole personal estate of Cumberland Dugan, specifically bequeathed, and the bank and other stocks, with the dividends thereon, charged with the demonstrative legacies, be more than sufficient to pay all the balance of the debts due and owing by him, after first applying to such payment the general assets, then the complainant will be entitled to ratable contribution from the specific legacies on his one-half of said demonstrative legacy, and on the one-third of said Hammond Dugan's half of the same legacy, estimating said demonstrative legacy not at the sum named in the [**69]  will, but at the amount of the actual value of the stock pledged for its payment, and the dividends thereon, and in this case such value is the price for which the stock was actually sold.
In estimating such contribution, the same must be charged ratably on each parcel of personal property specifically bequeathed, including the lot of ground on Water street, given to the complainant himself, and the specific legacies given to Margaret Dugan, the mother, except that if it shall appear that the whole assets exceed the whole amount of debts due by the estate, and the expenses of administration, the one-third of such excess would belong absolutely to the widow, as purchaser. See 10 G. & J. 113.
And in charging such contribution on the personalty specifically given to her, such sum so ascertained as belonging to her absolutely, must first be deducted from the amount of her 

 [*79]  specific legacies, and the residue thereof, only, is liable to contribution. And inasmuch as all the specific legacies of Margaret Dugan, including the Ferry Point lot, have passed to the complainant and his two sisters, Rebecca and Cordelia, in equal proportions, and in the same proportions [**70]  they represent the said Hammond's interest in the demonstrative legacy, the several contributions chargeable on said specific legacies must be apportioned between them in like proportions, and the value of the two lots, above mentioned, is to be determined by their appraisement in the inventory.
By the application of these rules the rights of the complainant, in respect to the first and second items of his claim, may be ascertained. These principles are necessary to be decided, in order to adjust the accounts between the parties, although it may appear that the complainant has already received, as specific legatee, more than he is entitled to, in that character, under the will.
The principles already stated, will also indicate the mode in which the complainant's claim as creditor, under the assignment from Gittings, is to be ascertained and adjusted.
The amount paid by him to Gittings was $ 9772.31, and that sum, with interest from the 18th of February 1847, constitutes the basis of the fourth item of complainant's claim.
This court concurs in the opinion of the judge of the circuit court, that the whole balance of the personal estate of Cumberland Dugan, remaining unadministered,  [**71]  is first applicable to the payment of this debt. This balance consists of two items:
1st. The sum remaining in the hands of the administrators de bonis non, which is admitted to be $ 260.92. For that sum they are liable to the complainant in this suit, with interest thereon, from the 10th day of January 1849; their accounts showing that the same has been in their hands since that time, and that no interest has been charged thereon.
2nd. The sum for which Margaret Dugan, the executrix, is chargeable for devastavit; and it is necessary to determine the amount of such devastavit.
It has been contended, in the argument, that she is justly 

 [*80]  chargeable with the loss which occurred by reason of the depreciation in the value of the Franklin bank stock, on the ground that she was guilty of laches and neglect in not selling the same, according to the directions of the will.
We do not concur in that view; the record shows that letters testamentary were granted to her on the 3rd day of December 1836; that on the 3rd day of January 1837, the suit of John S. Gittings and others was instituted, claiming large sums of money from the estate. There was certainly no breach of [**72]  duty by the executrix in retaining the stock unsold, to await the determination of that suit.
It does not appear that the stock was considered an unsafe investment; large dividends accrued and were received thereon, and there is no evidence in the cause of any ground for apprehension of loss, until the sudden failure of the bank, which occurred as early as January 1841, before the final determination of the suit of Gittings.
Besides, the respondents, who were interested as residuary devisees and legatees, had a right, at any time, equally with the complainant, to compel a sale of the stock, by instituting proper proceedings for that purpose.
All the parties interested, however, stood by without taking any action to enforce a sale.
For these reasons this court considers that there was no devastavit by the executrix in her omission to sell the bank stock, and the accidental depreciation in its value.
We are of opinion that the devastavit chargeable upon the executrix, is to be measured by the amount of the judgment recovered against her and her sureties, amounting to the sum of $ 4710.21, with interest from the 4th of June 1846. We are also of opinion that the said judgment [**73]  for devastavit cannot properly be charged, for any part of it, against the sureties of said executrix. It is very evident, from the proofs in the cause, that her individual estate was ample to pay the amount of the devastavit, and as it does not appear that any part of it was collected by the administrators de bonis non, and as all her property, which was chargeable therefor, passed to the complainant and his two sisters, Rebecca and Cordelia, in 

 [*81]  equal proportions, the said devastavit ought to be charged, in equal proportions, to the said complainant and his said two sisters, to the exoneration of the sureties. One-third, therefore, of the said judgment for devastavit is to be deducted from the said claim of the complainant.
After applying to the payment of the said Gittings' debt the said balance in the hands of the administrators de bonis non, and the one-third of the amount of said judgment for devastavit, the balance of said debt is chargeable on the personal estate, only, of Cumberland Dugan, deceased; and for its payment the several legacies must contribute their just and ratable proportions.
Without reversing or affirming on either [**74]  of the appeals, we remand the cause for further proceedings, under the act of 1832, ch. 302.
Cause remanded.
NOTE.--The Reporter has been requested, by the Judges who decided this case, to state, that the court is not to be understood as intimating any opinion on the question, whether if a demonstrative legacy be taken for the payment of specialty debts, the legatee would be entitled to claim contribution from the realty, in the same manner as a specific legatee? This question does not arise in this case, and the court expresses no opinion thereon.  

35 of 187 DOCUMENTS 

NEW ENGLAND CAR SPRING COMPANY vs. THE BALTIMORE AND OHIO RAIL ROAD COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 81; 1857 Md. LEXIS 24 

JUNE, 1857, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

This was a scire facias upon a mechanics' lien, filed by the appellant against fifty cars or coal hoppers, and against Scott & Bolster and the appellee, the owners or reputed owners thereof, claiming the sum of $ 2278.80 for materials furnished and used in the construction of the same. Plea, non assumpsit.

Exception. By a statement of facts it was admitted, that the plaintiffs, a corporation of New York, sold and delivered to Scott & Bolster, machinists of the city of Baltimore, two hundred car rubber springs for $ 2278.80, which still remains due and unpaid; that the car-springs so furnished were intended for and used by Scott & Bolster in the building and construction of fifty coal cars, built by them under a contract for the Baltimore and Ohio Rail Road Company, each of the cars having four of these springs in or on it; that these cars were furnished and delivered to the rail road company, and are now in their possession and in use on their road; that the body of each car is of sheet iron, and is divided into three compartments, the upper part of which is cylindrical and the lower part in the form of a frustum of a cone,  [**2]  the under edge of which has a flange secured upon it, to which a movable bottom is attached; this bottom is made movable in order to discharge the load through the aperture left by removing it; and each car has one or more rubbers or brakes to regulate its speed. It was also admitted, that due notice of the filing of the lien was given to the rail road company.

The plaintiff then prayed the court to instruct the jury, that if they believe the facts stated in the proceedings and statement of facts given in evidence, then the plaintiffs are entitled to recover the amount of their claim; but the court, (FRICK, J.,) rejected this prayer and instructed the jury, "that their verdict must be for the defendant;" to which opinion and instruction the plaintiffs excepted, and the verdict and judgment being against them, appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Coal cars are not subjects of mechanics' liens under the act of 1845, ch. 176; the word "machine" used in that act applies only to fixed or stationary machinery, and does not extend to movable machines. 

COUNSEL:
Llewellyn F. Barry for the appellant.

The act of 1838, ch. 205, sec. 1, subjects "every building, erected within the city of Baltimore, to a lien for the payment of all debts contracted for work done or materials furnished for or about the erection or construction of the same." By the act of 1845, ch. 176, sec. 4, it is enacted, that [**3]  "every machine hereafter to be erected, constructed or repaired, within the city of Baltimore, shall be subject to a lien in like manner as buildings are made subject, under the provisions of this and the original act;" and by section 5: "That any person or persons furnishing work or materials, or both, upon the compliance with the requisitions of this and the original act, shall be entitled to the benefits and advantages of said acts." By the act of 1845, ch. 287, sec. 1, it is declared: "That in the construction of the original lien act, and of its supplement, the same effect shall be given as to acts of Assembly which confer a general jurisdiction, or are remedial in their nature;" and by sec. 2nd: "That the said acts of Assembly shall extend to all work done or materials furnished," &c.

The question of the validity of the lien, in this case, depends on the construction to be given to the above laws and the meaning of the word "machine," as used in the 4th sec. of the act of 1845, ch. 176, whether it embraces the coal cars on which this lien was laid. On the construction of these laws we insist:

1st. That it is the duty of the court to give them such a construction as [**4]  will suppress the mischief and advance the remedy. Dwarris on Statutes, in 9 Law Lib., 694, 697, 718, 720, 721, 722. 1 Bl. Com., 87. Applying this rule of construction the plaintiffs are found to be within the mischief, for the remedy of which these lien laws were passed, and are, therefore, within the spirit of the act. No one can believe, that the legislature, in passing these laws, would designedly exclude the mechanic, who contributed work or materials for coal cars, from the benefit of a lien, while they were giving that privilege to his fellow mechanic, working, perhaps, by his side, under the same roof, on other machines. "A thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter." Bac. Abr., Art. Statute, Letter J., sec. 5. "In order to form a right judgment, whether a case be within the equity of a statute, it is a good way to suppose the law-maker present, and that you have asked him the question: Did you intend to comprehend this case? then you must give yourself such answer as you imagine he would have given." Ibid., sec. 6. By this rule the appellant's case is certainly within the equity of the lien acts.  [**5]  This court gives a very liberal construction to these acts, ut reus magis valeat quam pereat. 3 Md. 168, Okisko Co. vs. Matthews.

2nd. The appellants are not only within the spirit of these, but are also within the letter, these coal cars being within the strict and proper meaning of the word, "machines." For the meaning of the word "machine" see Webster's Dict., 683, Art. "Machine" and "Mechanics." Comstock's Philosophy, (subject, "Mechanics,") 64, 65, 66, 92. Rees' New Cyclopedia, Vol. 22, part 2, title "Machine." Penny Cyclopedia, 247, (Art.) "Machine." Oswald's Etymological Dict., (Art.) Machine. Roget's Thesaurus, 633. Appleton's Dict. of Mechanics, 292. Worcester's Dict., (Art.) Machine. Johnson's Dict., (Art.) Machine. Richardson's Dict., (Art.) Machine. Barclay's Dict. by Dewhurst, 571, (Art.) Machine. Universal Technological Dict., by Crabb, (Art.) Machine. Edinburgh Encyclopedia, (Art.) Machine. Builders of cars, particularly of iron coal cars, are invariably called "machinists." The word machine is a general and comprehensive word, there being many species of which it is, as it were, the genus. In this sense the Legislature used it in the act of 1845. This appears [**6]  also from the fact of their using but one word to embrace the subjects liable to lien. In the original act they used the word "building." In the amendment of 1845, they used the word "machine." Each being the broadest and most comprehensive general term known to the English language, applicable to the subject. In this sense, too, we find it (from the authors above cited) used by philologists, lexicographers, learned writers on mechanics, philosophy and the sciences; and also by those classic writers who are authority in the right use of words and their meaning, and who are recognized as models of taste and propriety, and have contributed to the elevation and formation of the language in which they wrote. Thus Virgil elegantly applies the word to that invention of Minerva, the Trojan horse: 

--Scandit fatalis machina muros, foeta armis.

The meaning of this word machine is scarcely now a mooted question, as the Supreme Court of the United States have decided its meaning, and in accordance with that contended for by the appellants. The word occurs in the patent laws of the United States, Act of Congress, July 4th, 1836, ch. 357, sec. 6. By this section, "any person or [**7]  persons, having discovered or invented any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvement on any art, &c., may obtain a patent therefor." Now cars are not only patentable, but these identical cars are the subject of a patent. Suits have been tried in the Supreme Court in regard to an alleged violation of their patent right. The right to patent them as machines has never been questioned, but repeatedly recognized by that court. See Winans vs. Denmead, 15 How., 339, where a description of the cars appears corresponding with that in the statement of facts in this case, but fuller and more minute, and containing an account of the principles of the invention, and the advantages of the machine over others. No patent can be obtained unless the subject matter is included within the meaning of one of the four words used in the act of Congress, viz: 1. Art. 2. Machine. 3. Manufacture. 4. Composition of matter. The meaning of each one of these words has been given by the elementary writers on the law of patents, both in this country and in England, and recognized and adopted by the decisions of the courts. These cars do not come within the [**8]  definitions of the terms, "art," "manufacture" or "composition of matter," as given by these writers and decisions. See Curtis on Patents, secs. 90, 91, 92, 102 and note 2, 103. 1 How., 204, McClurg vs. Kingsland, et al. Webster's Patent Cases, 512, 517, Cornish vs. Keene. There remains then but one other term, used by the act of Congress, under which cars are patentable, viz: "Machine." In Curtis on Patents, sec. 93, it is said: "A machine, to be the subject of a patent, must be a particular construction of mechanism, containing the improved method of producing the old effect, or the method of producing a new effect. If the subject of the invention or discovery is not a mere function, but a function embodied in some particular mechanism, whose mode of operation and general structure are pointed out, and which is designed to accomplish a particular purpose, function or effect, it will be a machine in the sense of the patent law. A machine is rightfully the subject of a patent when well known effects are produced by machinery entirely new in all its combinations, or when a new or old effect is produced by mechanism, of which the principle or modus operandi is new." In 15 How., 267,  [**9]  Corning vs. Burden, Justice Grier, delivering the opinion of the court, gives the definition of this word thus: "The term machine includes every mechanical device, or combination of mechanical powers and devices, to perform some function and produce a certain effect or result."

These definitions of the word machine, will include in their meaning these cars. They are a "mechanical device, or combination of mechanical powers and devices, (i. e., the lever, wheel, axle and inclined plane,) "to perform some function and produce a certain effect or result," (i. e., to carry coal or heavy lumps more securely and in larger quantities, in proportion to the weight of the car, than can be done in any other manner, or by any other machine.) They are patentable as machines, and were patented as such. In Winans vs. Denmead, 15 How., 330, Justice Curtis, in delivering the opinion of the court, as also the patentee in his specification, is continually calling these very cars machines, and throughout his opinion, the learned justice uses the words invention, structure, device, machine, one for the other as synonyms, and designates these cars by each of these terms. If these cars reap the benefit [**10]  of, and partake of advantages as machines, they must also assume the responsibilities of machines. If they are machines under the patent laws, they must be machines under the lien laws.

3rd. Again, the appellants contend that the court below erred in taking the case from the jury, to whom questions of fact belong. Whether a car is a machine or not, is a question of fact. Under the statute of Missouri, which gives a lien on boats and vessels, and their appurtenances, it was held by the court that it was for the jury to determine what are appurtenances. 9 Missouri, 629, Amis vs. Steamboat Louisa. So, by like reasoning, when a statute gives a lien on machines, it is for the jury to determine what are machines.

Chas. J. M. Gwinn and John H. B. Latrobe for the appellee, argued:

1st. The rejection of the appellant's prayer was right, because even if the particulars set forth in the statement of facts were sufficient to authorise the jury to find from them that the coal cars in question were machines, the prayer ought to have left it to the jury to find the further fact, that such cars so constructed were, in point of fact, machines, and not have taken this fact from the jury [**11]  and reserved it to the court, as it practically does. Whether these cars are machines or not, if there is any evidence on this point, is a matter of fact for the jury, and for the jury alone. How can the court know, judicially, that the mechanical elements described in the agreement as in combination, do constitute the car into which they enter, a machine? For taking this fact from the jury, the prayer was properly rejected. 5 H. & J. 486, Hayes vs. Lusby. 11 G. & J. 367, Abell vs. Harris. 12 Do., 236, Gray vs. Crook. 15 Ala., 378, Orr vs. Burwell. 4 How., 403, Stimpson vs. Westchester Rail Road Co. 5 Do., 4, Wood vs. Underhill. 14 Do., 226, Silsby vs. Foote.

2nd. The court was also right in instructing the jury that their verdict must be for the defendant. For there was no evidence to go to the jury, in point of fact, that these coal cars were such machines as were contemplated by the act of 1845. To make any article in its entirety, as a whole, a machine, it must, as a whole, apply or regulate moving power. It does not become a machine, as a whole, because of a mechanical contrivance attached to it, unless the purpose of such mechanism is an essential part of the main [**12]  object of its construction, and not a mere addendum to facilitate secondary uses. For a definition of the word "machine," see Richardson's and Webster's dictionaries, and Tomlinson's encyclopedia. These cars do not meet the definitions cited by the appellant from Curtis on Patents, 81 to 93, nor from the case of Corning vs. Burden, 15 How., 252, any more than a water-bucket with a more convenient spout, or any mere contrivance adapted to a common utensil would. And it is equally clear that the point is not affected by the statement, in the argument of the appellant, that these cars have been patented as machines. There is no proof of this in the case, and if there was, it would not affect the meaning which the word would receive when construed as occurring in the act of 1845.

3rd. It is respectfully urged upon the court (notwithstanding some observations which have fallen from them) that the law of 1845, ch. 176, sec. 4, does not relate to machines of this character, but to stationary machines connected with the realty. And, therefore, even if we concede that these coal cars were machines, the court below was right in its instruction, that the defendant was entitled to a verdict.  [**13]  The act of 1845, ch. 176, is a supplement to that of 1838, ch. 205. It is an undoubted rule of construction, that the law of 1845 must be so construed that no part of the act of 1838, to which it is a supplement, shall be superfluous, void, or insignificant. Bac. Abr. Title Statute, Letter J. 2 Cranch, 386, 399, Fisher vs. Blight. 4 G. & J. 128, 152, Canal Co. vs. Rail Road Co. This rule of construction cannot be applied to the act of 1845, without making it apparent that the law contemplated only machines which were attached to the realty, as permanent and located fixtures, otherwise the sections from the 2nd to the 9th, inclusive, in the act of 1838, are totally superfluous, void and insignificant. There was a manifest reason for extending the benefit of the lien law to those machines which become fixtures upon land, and which required land to enable them to be worked. But if the rule of construction insisted on by the appellant is sound, a watch sent to be repaired, and returned to the custody of its owner, may be made the subject of this proceeding; for a watch is undoubtedly a machine. Can it be supposed the Legislature contemplated such results? The very writ of execution [**14]  indicates that machines which were annexed to the realty were in contemplation of the Legislature. A writ of levari facias at common law concerned the realty, and its adoption into our law indicates the intention of the Legislature so to apply it.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON, TUCK and BARTOL, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*89]  BARTOL, J., delivered the opinion of this court.
The question presented for decision by this appeal is, whether certain "coal cars" described in the statement of facts found in the record, are the subject of mechanics' lien, under the provisions of the act of 1845, ch. 176, and involves the construction of that act, and of the act of 1838, ch. 205, to which it is a supplement.
Although those acts have been the subject of several adjudications in this court, the question presented by the record has not before been directly decided. In the case of Wells & Miller vs. The Canton Company, 3 Md. 234, and the case of Denmead vs. The Bank of Baltimore, 9 Md. 179, which were cases of liens on machinery, under the act of 1845, the machinery, which was the subject of the lien, was of a fixed or stationary [**15]  kind.
Admitting the coal cars in this case to be, in point of fact, machines, we are of opinion that they are not such machines as are contemplated by the act of 1845. The language of the 4th section of that act is: "That every machine hereafter to be erected, constructed, or repaired, within the city of Baltimore, shall be subject to a lien, in like manner as buildings are made subject, under the provisions of this and the original act to which this is a supplement."
It has been argued that the word machine, in this section, being used without qualification, is extensive enough to embrace all kinds of machines, as well those which are movable as those which are fixed or stationary.
Such a construction would be fraught with the most mischievous consequences. The word machine, if to be taken in its most extended signification, means every thing which acts by a combination of the mechanical powers, however simple or complex it may be. The ingenious argument of the appellant's counsel, and the authorities he cites are sufficient to demonstrate that this word, if to be understood in its broad general sense, will not only comprehend locomotives, 

 [*90]  threshing machines, [**16]  and such like, but that all the various machines used in agriculture and commerce, carriages and vehicles in ordinary use, even watches and clocks, and all the machines in domestic use, would be alike embraced in the terms of the law. Can it be for a moment supposed that the legislature designed to subject all these to the operation of the lien laws? Such things, like the coal cars in question, are mere chattels which pass by delivery; a construction which would embrace them within the provisions of the lien laws, would interrupt the daily transactions of trade in such articles, and render the rights of property in them insecure.
In looking at the provisions of the lien laws, and applying to them the safe and well-established rules of construction which are to govern us, in arriving at the intention of the legislature, we are the more convinced of the propriety of limiting and restraining the meaning of the word machine, used in the law to fixed or stationary machinery. We adopt the language employed by Judge Buchanan, in delivering the opinion of the Court of Appeals, in the case of the Canal Co. vs. The Rail Road Co., 4 G. & J. 1, 152: "Statutes should be [**17]  construed with a view to the original intent and meaning of the makers, and such construction should be put upon them as best to answer that intention, which may be collected from the cause or necessity of making the act, or from foreign circumstances; and when discovered, ought to be followed, although such construction may seem to be contrary to the letter of the statute. That, therefore, which is within the letter of the statute, is sometimes not within the statute, not being within the intention of the makers."
We are to inquire, "what was the mischief and defect against which the common law did not provide?" and which the statute was designed to cure; and "it is the duty of the court to make such construction as shall suppress the mischief and advance the remedy." Dwarris on Stat., 9 Law Lib. 694. In this case the mischief to be cured was, that by the common law, the mechanic who erects, constructs or repairs fixed or stationary machinery, like him who builds a house, is without that safe security for compensation which a 

 [*91]  specific lien on the house or the machine would afford; the design of the act of 1838, and its supplements, was to afford that security.  [**18]  But with reference to movable machines, the common law affords ample and complete security to the mechanic, by leaving in him the right of property, or in the case of repairs done, giving him a lien thereon, while they remain in his possession; and he has the right to retain the possession and his right of property, or his lien, until his claim for construction or repair is paid. There is no sound reason for imputing to the Legislature the intention of extending the operation of the lien laws to cases which were not within the mischief sought to be remedied. We have not failed to consider the provisions of the act of 1845, ch. 287, which directs that the lien laws under consideration shall receive a liberal construction, as remedial acts. But after mature reflection, we are constrained to adopt the conclusions already stated as entirely consistent with the rules of construction governing the subject.
The act of 1845, makes machines subject to a lien, "in like manner as buildings are made subject, under the provisions of this and the original act, to which this is a supplement. The original act of 1838, and the supplement, must therefore be construed together, as one act; and looking [**19]  to their various provisions, the manner in which the lien is to be asserted, the mode and time prescribed for filing the claim of record, and the form of the action and execution for its recovery, we cannot hesitate in saying, that many of the provisions of the law are inapplicable to movable machines, and conclusively show that the legislature did not intend to embrace them within its operation.
These conclusions are at variance with some of the language employed in the opinion of this court, in the case of Denmead vs. The Bank of Baltimore; and while we adhere to the judgment pronounced by the court in that case, we are compelled to say, that a careful consideration of the question before us, has convinced us that the construction of the word machine, in the act of 1845, as extending to such as are "movable in their operation and use, such as a locomotive, a 

 [*92]  threshing machine, and the like," is not justified by sound rules of interpretation, or in accordance with the intention of the legislature. This question did not arise in the case just cited, and its decision was not involved in the judgment pronounced by the court.
In the decision of this case, we have [**20]  considered the question presented as if the coal cars, which are the subject of the lien, were admitted to be machines--a question, however, which we do not mean to decide--and being of opinion that they are not within the provisions of the act, subject to mechanics' lien, we concur in the propriety of the instruction given to the jury by the Superior Court, and affirm the judgment.
Judgment affirmed. 

36 of 187 DOCUMENTS 

CLARA V. WILLIAMS and others, vs. JOS. HOLMES and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 Md. 281; 1856 Md. LEXIS 22 

DECEMBER, 1856, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Orphans Court for Baltimore city.

This appeal was taken from an order of the court below, directing a sale of the leasehold estate of William Williams, deceased, and refusing to make partition of the same. The facts of the case are fully stated in the opinion of this court.  

DISPOSITION:
Decree reversed and cause remanded.  

HEADNOTES:

Under our testamentary system, the orphans courts have authority to make distribution in kind of personal estate, remaining in the hands of the administrator after payment of debts, consisting of chattels real, and they may make such distribution even where infants are parties interested.

It is the policy of our testamentary system to require distribution to be made in kind, unless a sale is necessary for a satisfactory division, and whether such necessity exists or not, is for the court to decide in view of the circumstances.

The absence of power in the orphans court to appoint a guardian ad litem to infants, would not render nugatory and void the authority to make distribution, expressly given to that tribunal whose duty it is to take special care of the rights of infants in all cases before them involving such rights.

The orphans court has the power, under a liberal construction of the remedial act of 1810, ch. 34, whenever called upon to distribute specific personal property, whether chattels real or personal, if they think proper so to do, to appoint two disinterested persons to make such distribution.

In making such distribution, it is not absolutely necessary in every case that the specific property allotted to each party should be equal in value; the inequality may be remedied by payments in money, the court having ample power to sell a portion of the estate to provide for such payments.

A report of a partition previously made and set aside by the court, may, in a subsequent application for a partition, be used by the witnesses as a written memorandum to refresh their recollections, but not as evidence to show the correctness of the partition therein set forth.  

COUNSEL:
T. Parkin Scott for the appellants, argued:

1st. That the orphans court has full power, authority and jurisdiction to divide all the specific property and estate of an intestate, remaining after payment of debts, amongst the distributees. Chattels real are assets, and, by the express requirements of the law, leasehold property must be returned and included in the inventory of the estate. There is no limitation or exception specified, but all the surplus, of whatever it may consist, whether chattels real or personal, must be distributed by the court. This is clear from the provisions of the act of 1798, ch. 101, sub-ch. 15, secs. 1 and 12; sub-ch. 14, sec. 12, and sub-ch. 11, sec. 16. That the orphans court have the power to divide specifically such leasehold property, was clearly decided by Chancellor Bland, in Hewitt's case, 3 Bland, 184. The court [**2]  ought not to decree a sale if distribution can be made without sale. 6 G. & J., 192, Evans vs. Iglehart. 8 G. & J., 244, Alexander vs. Stewart. 2 Md. Rep., 103, Hanson vs. Brawner. And the court may itself make distribution, or appoint persons to do it, this power being given to them under the proper and liberal construction of the act of 1810, ch. 34, sec. 5. It makes no difference that infants are interested in the distribution. The law makes no exception in their favor in this particular. If a guardian ad litem be necessary for such distribution, then, I contend, that the orphans court has the power to appoint one in such a case. But suppose they have no such power, what necessity is there for such a guardian, when the proceedings are before a court whose peculiar office it is to guard and protect the rights and interests of infants and orphans?

2nd. That the leasehold estate in this case is susceptible of advantageous partition amongst the widow and children of the deceased, so as to give a part thereof to each, and, for the purpose of establishing this fact, the plat and proceedings upon the former partition, made under the direction of the court and afterwards set aside,  [**3]  are admissible to show the nature and condition of the property, and to show how it can be divided; or that it was competent for the witnesses to refer to them as a memorandum, to refresh their memories and to illustrate their evidence, considering the circumstances under which such proceedings were had and the plat made.

3rd. That in making distribution of the specific property of the intestate, it is not necessary that the portion allotted to each child should be of the same value, and that the shares may be equalised in value by the addition or substraction of money, and that in this case there was money of the estate in the hands of the administrator to do so. 1 Peere Wms., 447, Clarendon vs. Hornby. 1 Green's Ch. Rep., 345, Brookfield vs. Williams.

John Stewart for the appellees, argued:

1st. That the report of the commissioners and the proceedings in reference to the partition which was set aside, cannot be considered by this court on this appeal:--1st. Because the case set forth in those proceedings has been finally adjudicated in the orphans court, there having been no appeal from the order annulling that partition; and 2nd. Because those proceedings are totally [**4]  irrelevant to the question at issue on the present appeal.

2nd. That the order appealed from in this case was right and proper:--1st. Because the orphans court have not the power by law to divide chattels real between the distributees of a deceased party, their power merely extending to the distribution of "specific articles," named in the inventory. By the act of 1798, ch. 101, sub-ch. 1, sec. 16, power is given to the court to make distribution, in case the surplus in the hands of the administrator shall consist of "specific property, or articles mentioned in the inventory;" and by the act of 1810, ch. 34, sec. 5, power is given to that court, "whenever a distribution of specific articles is to be made," to appoint two disinterested persons to make the same. The question then is, is leasehold property embraced in the phrase "specific articles?" We say not, and that these words are applicable only to articles of personal property mentioned in the inventory. We find this very phrase defined in the 12th sec. of the 12th sub-ch. of the act of 1798, ch. 101, where it is said: "In case the personal property of a ward shall consist of specific articles, such as slaves, working beasts,  [**5]  animals of any kind, stock, furniture, plate, books, and so forth." Thus we have in the very same act a clear definition and explanation of the terms "specific articles," showing that they embrace only articles of personal property, such as are specified above, and that they do not include chattels real. See also on this subject the Acts of 1831, ch. 311, sec. 1; 1835, ch. 380, sec. 9; 1816, ch. 203, sec. 2. 6 H. & J., 67, Scott vs. Burch. 2 H. & G., 120, Brodess vs. Thompson. 2 Bland, 25, Crapster vs. Griffith. 6 G. & J., 199, Evans vs. Iglehart. 2nd. Because the orphans court has not the power to appoint a guardian ad litem, and that the guardian of the infants had no right to act for them in the premises. This court, by the 20th sec. of the 15th sub-ch. of the act of 1798, ch. 101, is forbidden to exercise any jurisdiction not expressly given by that act under pretext of incidental power or constructive authority. They cannot therefore appoint a guardian ad litem for the infants, and without such a guardian the division of leasehold estate cannot be made. 3rd. Because the orphans court have the right to distribute all the personal estate of the deceased, and in case of chattels [**6]  real, where infants are among the parties to the distribution, the only mode of distribution is by sale and division of the proceeds.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and MASON, J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*284]  ECCLESTON, J., delivered the opinion of this court.
At the instance of the widow and some of the children of William Williams, deceased, the orphans court of Baltimore city appointed three persons to re-appraise and distribute the personal estate of the deceased, among the parties entitled to the same. On the 30th of August 1855, the persons so appointed made a report to the court, that the leasehold property, 

 [*285]  (now in controversy,) was capable of a division which would operate equally among the representatives of the deceased, and that a division thereof had been made in the manner set forth in the report.
On the 3rd of September 1855, after the division or distribution had been reported, some of the distributees filed a petition, praying that the order of the court under which the division had been made might be revoked, and that the reappraisement and division, or partition, should be pronounced by the court null and void. To this [**7]  petition Clara V. Williams and William H. Williams, the administrators, filed an answer; and on the 24th of September 1855, the court granted the prayer of the petition, by revoking their former order, and pronouncing the re-appraisement and partition null and void. From which decision no appeal has been taken, and both parties concede that it is not now before us for revision.
On the 25th of the same month, the present appellants filed a petition, praying the court to appoint a day for making a distribution of the estate, and, by summons, to call upon the parties in interest to appear, and that the court would distribute the estate.
Three days afterwards a petition was filed by Joseph Holmes and Mary E. Holmes, his wife, Catharine Schaum, Alexander Williams, and Matilda Williams, by her next friend, Joseph Holmes, in which they pray that the chattels real belonging to the estate may be sold, and the proceeds distributed.
The children of the deceased are: William H. Williams, (the appellant,) Mary E. Holmes, Catharine A. Schaum, and Alexander, Caroline H., Matilda, Sarah, Mary Ann, Clara V., and Amelia E., Williams; the five last named being minors. Clara V. Williams, (the appellant,  [**8]  ) is the widow of the deceased, and it appears she has been appointed guardian to three of the children, but their names are not given.
On the 2nd of October, the petition of the appellants was answered, by Joseph Holmes and Mary E., his wife, Catharine A. Schaum, Alexander Williams and Caroline Williams. They allege that all the personal estate had been sold except chattels real, which they say the orphans court have no right to divide.

 [*286]  On motion of the counsel for the administrators, their petition for a distribution, and that of Joseph Holmes and others, for a sale, the court ordered to be consolidated, and thereafter to be taken and considered as one case.
Evidence was offered for the purpose of showing that the leasehold property would admit of partition, without injury to the parties entitled; and proof of a contrary character was also given.
On the 5th of November 1855, the court passed a decree directing the leasehold property to be sold. This they did, as the language of the decree clearly shows, because they were of opinion that they had "no power to divide specifically, or by partition, leasehold estate, and "that an infant could not, either by himself or [**9]  through a guardian, give consent to such division."
From this decree the present appeal is taken, and requires us to decide whether under our testamentary laws, without a sale, the orphans courts have authority to make distribution of leasehold property remaining in the hands of administrators after the debts of the intestate have been paid.
By the act of 1798, ch. 101, sub-ch. 7, it is provided, that the inventory of a deceased's estate, which is required to be taken and returned, shall include leases for years, and that they "shall be considered as assets in the hands of an executor or administrator."
The 11th sub-ch. commences, by directing that when all the debts of an intestate have been paid, or a sufficient amount of the assets allowed to be retained to pay them, "the administrator shall proceed to make distribution of the surplus," among the parties entitled to the same under the provisions of that chapter, the 16th, and concluding, section of which provides, that "in case the surplus remaining in the administrator's hands after payment of all just debts exhibited and proved, or notified and not barred, or after retaining for the same, shall consist of specific property, [**10]  or articles mentioned in the inventory or inventories, the administrator, if he cannot satisfy the parties, may apply to the court to make the distribution, and the court may appoint a day for making distribution, 

 [*287]  and, by summons, call upon the said parties to appear, and the court may, at the appointed time, proceed to distribute, but if a majority in point of value shall neglect to appear, or appearing shall object to the distribution of the articles, or if the court shall deem a sale of the said articles, or any part of them, more advantageous, a sale shall be directed accordingly, and the rules hereinbefore laid down, relative to a sale by order of the said court, shall be observed."
The 12th sec. of sub-ch. 14, authorises an executor or administrator to appoint a meeting of creditors, or of persons entitled to distributive shares or legacies, or a residue, on some day by the court approved, and "payment or distribution may be there made, under the court's direction and control."
In the 1st section of sub-ch. 14, among other matters declared to be within the jurisdiction of the orphans court, are included, "superintending the distribution of the estates of intestates, [**11]  securing the rights of orphans and legatees, and administering justice in all matters relative to the affairs of deceased persons, according to law."
In Hewitt's case, 3 Bland's Rep., 184, it appears Eli Hewitt died intestate, leaving his three sons, Eli, Rezin and Jacob, his heirs at law, and that at his decease he was seized of certain real estate in fee, and possessed some chattels real; which the bill alleged to be incapable of division, and prayed that they might be sold for the purpose of dividing the proceeds. The bill was filed by Eli, making his two brothers defendants. By a commission from chancery Jacob had been found a lunatic, and placed in the custody of Rezin as his trustee. Because the trustee was personally interested in the controversy, the chancellor considered it necessary to appoint a disinterested, capable person, as guardian to the lunatic, to answer for him. And such guardian was appointed.
The special and distinctly expressed object of the bill, as understood by Chancellor Bland, was "to obtain a partition of an intestate's estate among his heirs."
The chancellor did not doubt his authority to make partition of real estate claimed either by descent,  [**12]  or by purchase; nor did he doubt the power of his court to make partition of 

 [*288]  any personal property among its several owners: nevertheless he dismissed the bill so far as related to the chattels real, and referred the parties "to the orphans court to obtain the proper distribution." Why he did so may be seen by the following quotation from his opinion: "But this bill does not allege that these parties, or any of them, are at present in actual possession of the chattels real of which the intestate died possessed; on the contrary, it has been verbally admitted, that these chattels real passed into the hands of his administrator, and yet remain to be accounted for by him. The administrator of the intestate has not been made a party to this suit; nor could he, with propriety, have been made a party solely for the purpose of obtaining a partition of any of the personal estate in his hands; because the power to make a distribution of the surplus of the personal estate remaining in the hands of the administrator, has been conferred upon the orphans court, with which this court should not interfere, except on account of some special circumstances to which the powers of the orphans [**13]  court may not be altogether adequate. Nothing of the sort has been intimated in this case."
From this decision it was evidently the opinion of the learned chancellor, that where the application is to make partition or distribution of leasehold property, belonging to the estate of an intestate, remaining, as a surplus, in the hands of the administrator, the application should be made to the orphans court; which tribunal has the appropriate jurisdiction over the subject, with which the chancery court will not interfere; except on account of special circumstances, in regard to which the powers of the orphans court may not be fully adequate.
That one of the parties is a lunatic, requiring the appointment of a guardian ad litem, is not one of those special circumstances alluded to, as rendering the power of the orphans court inadequate; because, in the case before the chancellor, Jacob Hewitt, one of the defendants, was a lunatic.
In the case of a lunatic defendant, when his trustee is a party interested in the suit or proceeding, a guardian ad litem for the lunatic, is as necessary, according to the usual practice in the courts, as such a guardian would be for an infant. 

 [*289]   [**14]  And if Jacob Hewitt, instead of being a lunatic had been an infant, we cannot suppose that would have changed the decision of the chancellor, as to the appropriate tribunal for making distribution of the chattels real.
Reference has been made to the subject of a guardian ad litem, because the counsel for the appellees insist that the orphans court have no power to appoint such a guardian; and for that reason, where infants are concerned, the court cannot make partition of leasehold estate. Express authority to make such an appointment, it is said, is no where given, and by the 20th sec. of sub-ch. 15, of the act of 1798, the court cannot, "under pretext of incidental power, or constructive authority, exercise any jurisdiction whatever not expressly given" by that act, or some other law.
Whilst, however, it is said the absence of power to appoint a guardian ad litem, will prevent the court from making partition of leasehold property, specifically, yet it is not only conceded by the appellees, but earnestly insisted upon, that the court even where infants are concerned, may direct a sale of such property and distribute the proceeds, and may divide or distribute, in kind, any [**15]  other species of personal estate. But surely there is as much necessity for such guardian to protect the interests of minors, in the latter class of cases as in the former. And if without such guardians, in the latter the court may proceed as the appellees contend, why may they not do so likewise in the former? The testamentary laws contain no provisions which create any distinction between chattels real and other personal property requiring the appointment of guardians ad litem in proceedings relating to the one and not to the other.
Viewing Chancellor Bland's decision in connection with the extracts we have made from the act of 1798, we think there can be no doubt that after the debts of an intestate have been paid, the orphans court have authority to make distribution in kind of the surplus of personal estate remaining in the hands of the administrator, consisting of chattels real, as fully as they have to make such distribution of other chattels or personal property. And their authority thus to distribute is 

 [*290]  no where limited or restricted, because infants are parties interested.
Not only has the legislature conferred upon the court power to divide the surplus [**16]  of the estate specifically, but, according to the doctrine announced in Evans vs. Iglehart, 6 G. & J. 171, it is the policy of our system to require such a division to be made, instead of converting the property into money; unless a sale is necessary for making a satisfactory distribution. Whether such necessity exists or not, is, of course, for the court to decide in view of the circumstances.
Where such power is expressly given, and that without limitation or restriction on account of infancy, should it be conceded, (without so deciding,) that the orphans court cannot appoint a guardian ad litem, still, the absence of such power of appointment will not render nugatory and void, the authority to make distribution expressly given to a tribunal, the name of which, and the nature and character of its jurisdiction, clearly indicating that the judges thereof are required to guard and to take special care of the rights of infants, in all cases coming before them involving such rights. The quotation taken from the 1st section of sub-ch. 14, shows, that "superintending the distribution of the estates of intestates," and "securing the rights of orphans," are duties [**17]  assigned to the orphans court.
It appears, that in the present case, a majority of the parties interested, in point of value, were before the court, and that a majority in value did not object to a partition. Under such circumstances the application of the appellants was refused by the court; not, however, because they deemed a sale more advantageous, but they directed a sale for the purpose of distributing the proceeds, in consequence of believing they had "no power to divide specifically, or by partition, leasehold estate." In making such a decision we think the court committed an error.
In the course of the argument it was made a question, whether the report of the 30th of August 1855, of the partition, made by the persons appointed for that purpose, in the proceeding subsequently annulled, could be used as evidence before the court below, in the present case. On this subject we 

 [*291]  deem it sufficient to say, that to the extent to which written memoranda, made by witnesses, may be used by them for the purpose of refreshing their memories, so far was it proper to use the instrument in dispute, so as to enable the witnesses who made it, to refresh their recollections. But [**18]  it was not evidence before the court to show the correctness of the partition therein set forth.
In relation to this branch of the case it is deemed proper to remark, that, in our opinion, as the act of 1810, ch. 34, is a remedial and very beneficial statute, it is perfectly proper, under the rule requiring a liberal construction of such statutes, to hold, that whenever the orphans courts are called upon to make distribution of specific personal property, whether of chattels real or personal, this act confers upon the courts, power, if they think proper so to do, to appoint two disinterested persons, not in any way related to the parties concerned, to make such distribution among the persons entitled, according to the provisions of the law.
In consequence of a portion of the argument, we will say, that in making partition by the orphans court, it is not absolutely necessary, in every case, that the portion of specific property, allotted to each party, should be equal in value. The inequality may be remedied by payment of the difference in money; the court having ample power to sell a portion of the estate so as to provide for such payments when necessary.
The decree will be reversed [**19]  and the cause remanded for further proceedings. The costs are to be paid out of the estate.
Decree reversed and cause remanded. 

37 of 187 DOCUMENTS 

TABITHA A. WATERS, et al., vs. SAMUEL O. TAZEWELL, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 Md. 291; 1856 Md. LEXIS 23 

DECEMBER, 1856, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court of Baltimore city.

This appeal was taken from a pro forma order of the court below, (KREBS J.,) dissolving an injunction which had been granted upon a bill filed by the appellants. The only questions arising in the case relate to the construction of the two deeds, and marriage articles set out in the opinion of this court, in which, also, all the facts of the case are fully stated.  

DISPOSITION:
Order affirmed and cause remanded.  

HEADNOTES:

A deed of trust conveyed leasehold property for the "sole and separate use, benefit and behoof," of a feme sole "her executors, administrators and assigns," so that she might "either receive and take the clear rents, issues and income, or proceeds in case of sale," and apply them as she thought proper, "so that neither the trust estate and property, nor the rents, issues, income or proceeds thereof, should at any time be subject to the power, disposal or control of the present or any future husband," or be subject to his debts; and in case of her death without a will, to such persons as would "take an estate in fee-simple by descent from her." HELD:

That this deed carried the title to the property beyond the period of the wife's death, whether the last limitation be valid or void, and excludes the surviving husband from all claim thereto.

Under the limitation in a deed of trust of personalty for the benefit of a feme covert, in case of intestacy, "to such person or persons as would, by the existing laws of Maryland, take an estate in fee-simple by descent from her," the surviving husband has no claim.

An ultimate limitation either in favor of next of kin or heirs at law does not include a husband, unless there be some manifestation of an intention to include him.

A deed made by a feme sole in contemplation of marriage, securing her property to her separate use, is valid, when free from the imputation of fraud or concealment.

Such a deed followed by marriage, with previous knowledge on the part of the husband of its existence, will secure to the wife a separate estate in the property and bar the marital rights of the husband.

A deed conveying leasehold property in trust for the sole and separate use of a feme covert, contained a provision, that in case the husband should survive the wife, he and his assigns should have the rents, issues and profits, "during his natural life only, to and for his own use and benefit, provided he should continue unmarried after the death of his wife then living, and from and immediately after his decease" then over. HELD:

That this proviso being a general restraint upon marriage by means of a condition subsequent, was void, and the husband's life-estate was not terminated by a second marriage.

Unqualified restrictions on marriage are discouraged on grounds of public policy, and instead of being aided by a liberal construction, they should be construed strictly, so as to favor those on whom the restraints are laid.

Uses in personalty are not executed under the statute of uses, but remain subject to the common law doctrine in regard to uses.  

COUNSEL:
Wm. B. Perine and John Nelson for the appellants, stated that the questions in this case are confined to the two deeds, the one from Baker and McDonald, and the other from Powell and the marriage contract, and then argued.

1st. As to the Baker and McDonald deed. The rule of construction in cases of trusts created by deeds is the same as that adopted in cases of devises, and the intention of the donor is to govern if designated with sufficient certainty. That intent is to be ascertained, and when ascertained, enforced, unless it violate some rule or policy of the law. The whole context is to be regarded, and the general intent will override the particular intent where they are diverse, (9 G. & J., 77, Hope vs. Hutchins. 11 Do.  [**2]  , 206, Chase vs. Lockerman. 3 Md. Rep., 553, Ware vs. Richardson. 4 Do., 536, Holmes vs. Mitchell. 7 Do., 22, Douglas vs. Blackford.) To ascertain and accomplish the intent words will be added, transposed or substracted. (1 Fearne 6, note 1. 1 Jarman on Wills, 731. 7 G. & J., 248, Creswell vs. Lawson. 1 Md. Rep., 168, Chew vs. Chew. 2 Do., 88, Linstead vs. Green.) Even the rule in Shelley's case is not inflexible: for wherever an intent to the contrary is shown upon the face of the instrument, the rule will give way. (9 Gill, 432, Chelton vs. Henderson.) With these principles in view let us look at the deed in question. It is executed by the party herself, who is the beneficiary under the trust, and creates no property in her which she had not before. It was all her own estate, and the only provisions in the deed which effect any change in the property are those which protect her rights as against her husband, and that which provides how the property shall go in default of appointment. Her design and purpose in executing this deed was, unquestionably, to secure the property to herself against any claim of her husband; the intent to exclude the husband is clear. (2 Mylne & Keene, 90,  [**3]  Briden vs. Hewlett. 3 Ves., 486, Long vs. Blackall.) The question then recurs, can this be done? And upon this point the authorities are decisive. Technical trusts are not executed by the statute of uses, as technical uses are, but the legal estate is vested in the trustee in order to effectuate the donor's intention, and where property is conveyed to trustees for the separate use of a married woman, a court of equity will enforce the performance of the trust and protect it against the legal rights of the husband. (16 Pick., 330, Ayer vs. Ayer. 3 Md. Rep., 547, Ware vs. Richardson.) Where a term has been settled to the separate use of the wife, or where before marriage the husband has consented to the settlement of his or her term, he cannot dispose of it. (2 Bright on Hus. & Wife, 99.) The fact that this deed conveys personal property or chattels real, and contains a limitation over, after an absolute or life estate in the wife, is said to render the limitation void. But though the law does not allow limitations of personal estate by way of remainder, in the proper use of that term, yet, by executory bequest or trust, interests in the nature of remainders may be created by will or [**4]  deed, and it is now clear, that there may be a limitation over of personal property after a life estate. (6 Pet., 68, Smith vs. Bell. 6 G. & J., 232, Biscoe vs. Biscoe. 3 Gill, 92, Clagett vs. Worthington. 4 Md. Rep., 535, Holmes vs. Mitchell. 6 Do., 151, Woodland & Wife, vs. Wallis.) But the husband has here renounced all his marital rights to the property in dispute, and he is estopped by the marriage articles from setting up any claim to it. This marriage covenant being his deed, and derogating from his rights as husband, is to be construed, as that of any other grantor, most strongly against him, and he can take no other interest than that expressly given by the deed. (1 Fearne, 90. 2 Bright, 200. 23 Eng, Law & Eq. Rep., 595, Trusts of Mary Daniel's Will. 6 G. & J., 356, Ward vs. Thompson. 5 Md. Rep., 326, Maurer vs. Naill. 3 Ves., 244, Watt vs. Watt. 6 Munf., 132, Bray vs. Dudgeon.) The marriage articles here refer to and embrace the terms of the deed, and were executed to effectuate the purposes of the settlement contained in the deed. By them the husband, in terms as broad and comprehensive as they can be made, relinquishes all claims he may have in the whole estate of his intended [**5]  wife.

2nd. As to the Powell deed: By the terms of this deed, the husband is, after his subsequent marriage, unquestionably excluded from all right in the property conveyed by it; and the same argument in regard to its construction is applicable to this as well as the preceding deed. It is also effected by the marriage articles, which contain a clause expressly applying to future acquisitions from the proceeds of the property.

3rd. But it is said, the surviving husband comes within the terms of the clauses in one or both of these deeds, limiting the property over in default of appointment by the wife. By the first deed the property is to go, in default of appointment, "to such persons as would, by the existing laws of Maryland, take an estate in fee simple by descent from her;" by the second, "to such persons as should be the legal heirs of the said Charlotte," and it is supposed the husband takes under one or both of these clauses. The terms "heir," "right heir," "heir at law" and "legal heirs" are identical and of the same meaning. A legal heir is one who is of the same blood of the deceased. (1 Bouv. Dic., 582. 4 Kent's Com., 537, note.) "Heir at law," when applied to personal [**6]  estate, means the heir to the fee or "next of kin." The term "next of kin," in such cases, never means the "husband," who does not take under the statute of distribution, as distributee, but superior to the statute jure mariti. 5 Ves., 399, Holloway vs. Holloway. 1 Jac. & Walk., 388, Vaux vs. Henderson. 6 Simons, 47, Robinson vs. Smith. 2 Myl. & Keene, 69, Gittings vs. McDermott. 4 Russell, 384, Mounsey vs. Blamire. 7 Law J., 300, Newenham vs. Pittan. 1 Hoff. Ch. Rep., 212, Wright vs. Trustees of Methodist Church. 2 Gill, 237, Mitchell vs. Mitchell. 3 Ves., 244, Watt vs. Watt.

Wm. H. G. Dorsey and Thomas S. Alexander for the appellees, argued:

1st. That the surviving husband is entitled beneficially to the premises conveyed by the Baker and McDonald deed. Deeds must be construed by the language used in them, and the intention and circumstances of the parties. Other deeds, conveying other parcels of property, cannot be resorted to for the purpose of proving the intent with which the particular deed in question was executed. The husband, at common law, has all the personal property of the wife jure mariti, and the onus is, therefore, on the other parties, to show that there [**7]  is something in this deed which restricts this marital of the husband. We insist, that the first limitation in this deed vested the entire interest in Mrs. Crow; and that there is no other limitation to be found in it, which restrains or lessens the effect of the first limitation to the prejudice of the rights of the surviving husband. It gives to her an absolute estate in this property; she had the power to dispose of it at pleasure. In all such cases the ulterior limitations are void. (3 Ves., 7, Pushman vs. Filliter. 2 Coxe, 349, Bland vs. Bland. 11 Ves., 205, Wilson vs. Major. 1 Jac. & Walk., 154, Ross vs. Ross. 1 Merivale, 314, Bull vs. Kingston. 8 Simons, 22, Simmons vs. Simmons. 10 Eng. Ch. Rep., 518, Phillips vs. Eastwood. 10 Johns., 19, Jackson vs. Bull. 16 Do., 588, Jackson vs. Robins. 62 Law Lib., 1. 2 Ves., Jr., 532, Malim vs. Keighley.) The wife thus having the absolute interest in the property and the limitation over being void, the marital rights of the husband attached upon the decease of the wife. The marriage articles do not disturb this settlement, but refer to and purport to confirm it, and they, with the deed, only secure to the wife the sole and separate use of [**8]  the property during her life. The marriage articles are to be construed strictly and as not taking from the husband more than he expressly stipulates to surrender, and here he only agrees to give up to the heirs of the wife such rights as they might have under the deed.

2nd. That the husband is entitled, beneficially, to the entire interest in the premises conveyed by the Powell deed, by force of the last limitation, to be found in it, being, in contemtemplation of law, heir to his deceased wife's leasehold estate. 14 Ves., 478, Carr vs. Lord Erroll. 4 Russel, 384, Mounsey vs. Blamire. 2 Myl. & Keene, 69, Gittings vs. M'Dermott. 1 Ves., Jr., 48, Fettiplace vs. Gorges. 2 Strange, 1111, Rex vs. Bettesworth. The husband takes as next of kin, in the sense of being the party upon whom the law casts the succession. The phrase means next of blood inheritable, in reference to the statute of distributions, and not next of blood in the sense of consanguinity.

3rd. But, in the alternative, the husband is entitled to an estate for life, in the premises last mentioned, by force of the express limitation thereof, to him for the term of his life. The condition in reference to a future marriage [**9]  is in restraint of marriage, and is to be enforced only in favor of the person claiming under the subsequent limitation, which is not to be extended or enlarged by equitable construction. As then the limitation is to take effect by the express letter, only after the death of the appellee, the condition during his life is inoperative. (1 Story's Eq., sec. 257, and cases there cited.) The condition, that his interest shall become void on his subsequent marriage, being succeeded by a limitation, which is to take effect only after his death, there remains, in the event which has happened, an interest undisposed of, which is in the nature of a resulting trust, and devolved on him as surviving husband.  

JUDGES:
The cause was argued before LE GRAND; C. J., ECCLESTON, TUCK and MASON, J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*297]  ECCLESTON, J., delivered the opinion of this court.
The bill in this case speaks of several parcels of property, the controversy in regard to which has been settled by agreement between the parties. And the only property now in dispute is mentioned in the two deeds to Denison, in trust, one from Baker and McDonald, dated the 22nd of April 1839, and the other from Powell, dated the [**10]  13th of August 1841.
The bill was filed by the appellants against the appellees. On the 23rd of February 1855, by consent, a decree was passed, which disposed of sundry matters set forth in the bill as grounds of claim. On the 28th of May 1855, a pro forma order was passed, dissolving an injunction which had been issued for the purpose of enjoining Tazewell from conveying, assigning, or in any manner alienating the property now in controversy. From which order this appeal has been taken, for the purpose of obtaining the decision of this court as to the rights of the respective parties, in relation to the property mentioned in the two deeds which have been referred to.

 [*298]  Charlotte A. Crow, a widow, being possessed of certain real and personal property, on the 11th of July 1837, conveyed the same to Marcus Denison, his heirs, executors, administrators and assigns, to the use of the said Marcus Denison, his heirs, executors, administrators and assigns, forever, in trust and confidence for such uses, intents and purposes, as most undoubtedly gave to the said Charlotte, at all events, whilst a feme sole, full power and authority to sell, dispose of and convey the said [**11]  property, or any part thereof, and the rents, issues, income and profits of the same, as she might deem proper.
Out of the issues and profits of the property included in the deed last mentioned, Charlotte A. Crow purchased, on the 22nd of April 1839, the leasehold lot of ground on Pitt street in Baltimore, which is described in the deed from Baker and McDonald, and which, by the directions of Charlotte, was conveyed by that deed to M. Denison, his executors, administrators and assigns, "in trust for the sole and separate use, benefit and behoof of the above named Charlotte A. Crow, her executors, administrators and assigns, so that she be suffered and permitted either to receive and take the clear rents, issues and income, or proceeds in case of sale, as aforesaid, to apply to such uses and purposes as she should think proper, in the same manner as if she were a feme sole, so that neither the said trust estate and property, nor the rents, issues, income or proceeds thereof should at any time be subject to the power, disposal or control of the present or any future husband of the said Charlotte A. Crow, or be in any manner liable or bound for or by his debts, contracts or engagements.  [**12]  And from and immediately after the decease of the said Charlotte A. Crow, in case no sale or disposition shall have been made by her of said ground and premises by deed or contract, then in trust for such person or persons, or for such uses and purposes as she by her last will and testament, executed in the presence of and attested by three credible witnesses, should name, limit or appoint; and in default of such nomination, limitation and appointment, then for the use and benefit of such person or persons as would, by the now (then) existing laws of the 

 [*299]  State of Maryland, take an estate in fee-simple by descent from her, and to, for and upon no other use, trust, intent or purpose whatsoever."
In contemplation of an intended marriage between Mrs. Crow and Tazewell, (the appellee,) he executed a marriage covenant on the 1st of March 1841, which, after referring to the intended marriage, recited, that although the estate, real and personal, of the said Charlotte A. Crow had been conveyed to trustees for her sole use and benefit, still it seemed agreeable and proper that the covenants thereinafter expressed should be made, "in order to satisfy all parties, and to secure the [**13]  property to which the said Charlotte A. Crow is in any way entitled, from the control or interference of the said Samuel Oliver Tazewell," And in consideration of the premises, and for other considerations, the said Tazewell covenanted, granted, promised and agreed, that Mrs. Crow should and might, "at all times thereafter, have, hold, occupy, enjoy, use and dispose of, peaceably and quietly, in such manner as she might think fit, all rents and profits, use, service and income, arising, or to arise, out of land, negroes, bank stock, or any other property, real, personal or mixed," to which she was then in any manner entitled, "free from the let, suit, hindrance, trouble, denial, expulsion, interruption or interference of the said Samuel Oliver Tazewell, without being interrupted in the enjoyment thereof by any act, means, consent, privity, default or procurement of his, and freed from any right, title or interest therein, which he, the said Oliver Tazewell, might otherwise have therein by virtue of the said marriage then about to be solemnized; and further, that no part of the said estate of the said Charlotte Augusta should thereafter become liable for any debt or obligation of the [**14]  said Samuel Oliver Tazewell, whether the same be debts contracted before or after the marriage; and particularly, and lastly, that he, the said Samuel Oliver Tazewell, would never interfere in any way in selling, or otherwise disposing of, any slave or slaves of the said Charlotte Augusta Crow, without her express desire, and without her free and entire consent."
Shortly after the execution of the marriage covenant the 

 [*300]  marriage took place; and subsequently thereto, on the 13th of August 1841, Charlotte purchased a leasehold lot of ground from Samuel A. Powell, for $ 1200, with funds belonging to her for her sole and separate use; which property, by her directions, and with the knowledge and assent of her husband, was conveyed to Denison, his executors, administrators and assigns, "in trust that he, the said Denison, permit and suffer the said Charlotte Augusta Tazewell, and her assigns, to have and receive the rents, issues and profits of the said premises, free from all control whatever from her said husband, or any future husband, for and during so many of the term of ninety-nine years then to come and unexpired, as she should happen to live;" and if she should wish [**15]  and consent to assign the premises, "then in trust that he, the said Marcus Denison, his executors, administrators or assigns, should assign and transfer the said premises," in such manner as she might direct or authorise; and if the said premises should not be sold during the lifetime of the said Charlotte, then, after her death, the said leasehold property should "be in such person or persons, and upon such conditions, manner and form as the said Charlotte A. Tazewell should, whether covert or discovert, by any writing purporting to be her last will and testament, duly executed and testified in the presence of two credible witnesses, give, limit, dispose, direct and appoint;" and in default of any such gift, limitation, disposition, direction or appointment, "then in trust that the said Marcus Denison, his executors, administrators or assigns, in case Oliver Tazewell, the husband, should survive his wife, should pay, or else permit the said Oliver Tazewell and his assigns to receive, the rents, issues and profits of the said leasehold premises during his natural life only, to and for his own use and benefit, provided the said Oliver Tazewell should continue unmarried after the death [**16]  of his wife then living, and from and immediately after his decease, then to go, and be transferred and assigned to such person or persons as should be the legal heirs of the said Charlotte A. Tazewell, for and during so many years of the said term of ninety-nine years as should be then unexpired."

 [*301]  In April 1853, Mrs. Tazewell died, having made no will, leaving no child or descendant of a child, and without having disposed of, or made any appointment in regard to, any of the property mentioned in the deed from Baker and McDonald, or in that from Powell. She was the sister of the complainants, who, at the time of her death, were, and still are, her only heirs at law and next of kin.
Tazewell, the surviving husband, married again in April 1854.
The appellants contend, that the pro forma order dissolving the injunction should be reversed. They claim, that as next of kin to Charlotte A. Tazewell, upon the true construction of the deed from Baker and McDonald, the marriage covenant and the deed from Powell, they are entitled to the leasehold property mentioned in those two deeds; insisting, that whatever estate in the property included in the Powell deed Samuel O. Tazewell [**17]  had, at any time, was terminated by his second marriage.
It will be seen that this controversy is in reference to personal property, and is, therefore, subject to the common law doctrine in regard to uses, as uses in personalty are not executed under the statute of 27th Hen. 8, ch. 10. We make this remark to avoid misapprehensions which might arise from decisions made under the statute.
As the decision we are about to make has been very much influenced by that of the Supreme Court of the United States, in Marshall vs. Beall, 6 How., 70, it will be proper to state the circumstances of that case.
The matter there in dispute was a judgment for $ 1500, the question being, whether the surviving husband or the next of kin of the deceased wife were entitled to the money?
In contemplation of a marriage between Robert Marshall and Ann Berry, they entered into a written agreement, that Ann should "hold in herself all her right, title and interest" to certain "funds of her own." After the marriage, on the 1st of May 1824, the husband and wife executed a deed of trust to S. G. Beall, referring to the former agreement, and reciting, that when made the said Robert [**18]  agreed to make any 

 [*302]  other or further instrument of conveyance, which might be considered necessary fully to assure and convey the stock and debts to the sole and separate use of the said Ann, her heirs and assigns, free and clear from any debts, control, demands or incumbrances of the said Robert; and also reciting, that the husband and wife had agreed to dispose of and settle two judgments, (one for $ 2000, and the other for $ 1500,) and a tract of land, "by a more full, complete and formal instrument of writing than the marriage agreement," before mentioned, "according to the terms, stipulations and conditions" of the instrument then being executed. By which deed the parcel of land and the two judgments were conveyed and assigned to S. G. Beall, her heirs, executors, administrators and assigns; the land to be held in trust for the use of the husband and wife during their joint lives, and to the use of the husband for his life, if he should be the survivor;--the further trust being, that the husband should have and receive the judgment for $ 2000, with interest and costs, "to his sole and separate use, free and clear of the marriage contract before mentioned, and of [**19]  all separate claim of the said Ann Marshall;" "and in further trust that the said Susan G. Beall should hold the said judgment of fifteen hundred dollars, with interest and costs, for the sole and separate use of the said Ann Marshall, her executors, administrators and assigns, free and clear from any control or demand of the said Robert Marshall, or of his creditors, debts or engagements; and upon the payment of the said judgment, or any part thereof, to invest the said money in stock, or to loan the same on interest, with the approbation of the said Ann Marshall, for the like sole and separate use of the said Ann Marshall; and in further trust, that the said Ann Marshall, during the life of her husband, may dispose of said judgment or the proceeds thereof, and of her right, interest and estate in the said tract of land, after the death of the said Robert Marshall, either by her last will and testament, or by any instrument of writing, under her hand and seal, in the presence of two witnesses, during her coverture, in the same manner as if she were single."
The wife died without making any disposition of this judgment, 

 [*303]  and the surviving husband claimed it,  [**20]  but he was defeated.
In delivering the opinion of the court, Mr. Justice Catron says: "The question presented for our decision is, whether the husband only made a temporary surrender of his marital rights during the coverture, or whether he abandoned them altogether? This depends on the intention of the parties, as expressed in the marriage articles." By "marriage articles," it is evident he alludes to the two instruments we have spoken of. He speaks of the first agreement as being vague, rendering it doubtful whether the marital rights of the husband would not attach, although the court did not doubt the wife desired, and really intended, to retain her property as if she was a feme sole, notwithstanding the marriage. Reference is then made to what is called "the article of 1834." This is erroneous in point of date. The instrument alluded to is, manifestly, the trust deed dated the 1st of May 1824. In relation to this the court say: "We think that the terms of the agreement of 1834 sufficiently show, that the intention of the parties was, to carry the title of the fund beyond the period of the wife's death, and to exclude the husband. And in this conclusion we are supported by [**21]  the opinion of the Court of Appeals of Maryland, in the case of Ward vs. Thompson, 6 Gill & Johns., 349, and in the soundness of which opinion we fully concur."
In Ward, et ux., vs. Thompson, 6 G. & J., 349, the antenuptial settlement between Robert Thompson and Ann W. Menger, provided, that the real and personal property of Ann should be held in trust, "to and for the use and benefit of the said Ann W. Menger, her heirs and assigns, forever, without impeachment of, or for any manner of waste, all of which property to be under and subject to, the exclusive and entire management and control of the said Ann W. Menger, her heirs, executors, administrators or assigns, without the interference in any manner of the said Robert Thompson. And the said Ann W. Menger, her heirs, executors, administrators or assigns, to receive and enjoy the rents, issues and profits thereof; and the said Ann W. Menger to have full power and authority to make such disposition of all, or any part of said 

 [*304]  property, as she at any time might think proper and advisable, and to dispose of the same by last will and testament, in as full, free and ample manner as [**22]  if she were not a married woman, but a feme sole." Under which settlement the court held, that the husband had not made a temporary surrender of his marital rights over the estate, "but had abandoned them forever," and they directed a revocation of the letters of administration which had been granted to him, upon the personal estate of his deceased wife.
There being some difference in the language of the two deeds, under which the present controversy arises, we will first confine ourselves to the one from Baker and McDonald: The property mentioned in this is claimed by Tazewell under one or the other of two views. First, that the provision in reference to who should take in case of no will is void, and no one can claim title under it, because the previous provisions gave the entire and complete equitable estate to Mrs. Crow, without limit or restriction, so that any disposition of it, which she might make, would not take effect as under a mere power, but by virtue of her proprietary right. And with such an estate in her, the marital rights of the husband attached upon the decease of the wife, if not before; the deed itself, or that, with the aid of the marriage covenant, only [**23]  having the effect of securing to her the sole and separate use of the property during her life. But supposing this position to be erroneous, then it is said, if the use provided for, in case of intestacy, is valid, the husband is not excluded, but, under the correct interpretation of that provision, he is entitled to claim.
This latter view will be first disposed of.
We need not decide whether, "such person or persons, as would, by the now existing laws of Maryland, take an estate in fee-simple by descent from her," means next of kin, (as personal property is intended to be conveyed,) or heirs at law, technically such. The appellants are admitted to be the next of kin and heirs at law, and, therefore, are capable of taking, whether they must claim in the one character or the other; whilst, in our opinion, the appellee, Tazewell, cannot claim under either.

 [*305]  In 2 Bright on Husband & Wife, 203, it is said to have been decided, "that the husband took no beneficial interest under an ultimate limitation in a settlement to the right heir or heirs of the wife." For this decision the author refers to Newenham vs. Pittan, (should be Pittar,) 7 Law J., N. S.  [**24]   300. The report of that case shows, that by a marriage settlement designed to aid in making provision for the wife, and issue, if any, of the contemplated marriage, certain personal property of the intended wife was assigned to trustees, in trust for her, her heirs, executors, administrators and assigns, until the marriage, and then in trust, "to pay the annual income to her, or as she should appoint, for her life, and after her death to pay them to her husband for life, and after the decease of both of them, in case there should be no children of the marriage," then in trust to convey, assign and assure the property "to the right heir or heirs" of the wife forever. The wife died without issue, and the surviving husband took out letters of administration on her estate. In the bill filed by him, he claimed to be absolutely entitled to the whole of the property against the trustees of the settlement, the heirs at law, and the next of kin of the deceased wife.
In the opinion given, in 1838, by Lord Langdale, as Master of the Rolls, he says, "Is the husband the right heir of his wife? Does he come under that description? I think it is admitted, that he does not come under the literal [**25]  meaning of the term. But it was said, that the right heir might mean such person as should become by law entitled to succeed to the property; that the husband is the personal representative of the wife, and, therefore, although he is not entitled to this property without letters of administration, yet he is entitled to it with the aid of these letters. Can that be the meaning of this sentence? The words here cannot be considered as idly or carelessly used in the different parts of this settlement. We find a limitation in trust for the intended wife, 'her heirs, executors, administrators and assigns,' until the marriage; and in default of issue there is a trust for the right heirs or heir of the wife. Having regard to the whole instrument, I cannot doubt that I must attribute to this settlement an intention 

 [*306]  to exclude the husband. If it had been intended that the husband should have been a trustee for the next of kin, very different words would have been used. The words 'heirs and heir of the wife' being used, and the husband not coming under these words, and there being nothing in the settlement to alter their meaning, the effect of them is to exclude the husband."
The [**26]  court declined deciding "the question, who was entitled after the husband was excluded;" not deeming it the proper time for such a decision, inasmuch as under the ultimate limitation, the property was not to be enjoyed until after the decease of the surviving husband.
The counsel for Tazewell have not said that he can claim as heir at law, but they contend, that as the property disposed of is personalty, the expression, "Such person or person as would, by the now existing laws of Maryland, take an estate in fee-simple by descent from her," must be considered as meaning next of kin; in which character the husband may take. To this we cannot assent. On the contrary, a careful examination of the authorities has convinced us, that an ultimate limitation, either in favor of next of kin or of heirs at law, does not include a husband, unless there be some manifestation of an intention to include him; and here we find no evidence of such intention.  6 How., 70, Marshall vs. Beall, and cases there referred to. 1 Pow. on Dev., 290, (by Jarman,) in 21 Law Lib. 170. 2 Roper on Husb. & Wife, 63, in 32 Law Lib. 41, 42.  Stewart vs. Stewart, 7 John. Ch. Rep. 246 & 247. [**27]  Wright & Others vs. Trustees of Meth. Epis. Church, 1 Hoffman's Ch. Rep., 213, 214. 2 Jarman on Wills, (Ed. of 1855,) marg. p. 37, (and note 2,) also marg. p. 49, (and note 1,) and Newenham vs. Pittar.
The husband, as such, cannot, with any propriety, be said to take property, by descent, from the wife. His marital rights attach by or during the coverture. By contract they may be temporarily suspended or permanently abandoned. In Ward, et ux., vs. Thompson, Judge Dorsey says: "The marital rights of the husband having been suspended only during the life of the wife, after her death they are as effectually revived, 

 [*307]  as regards the future, as if no such suspension had ever taken place."
The husband, in our opinion, is excluded from any right to the property, under the provision in favor of those who would "take an estate in fee-simple by descent," if that is not a void but a valid provision. If, however, it is void, so as to pass no estate, still it may be used in connection with the other portions of the deed, as evidence of an intention to bar the marital rights of the husband beyond the life of the wife.
If the provision is [**28]  a valid one the husband has no claim, but the appellants have. Whether valid or void, however, will make no difference in the result, for if void, still the deed will bar the rights of the husband and establish those of the appellants. This must be so, if we are to respect the ruling of the courts in Marshall vs. Beall, and Ward, et ux., vs. Thompson. We have seen that the trust is "for the sole and separate use, benefit and behoof" of Mrs. Crow, "her executors, administrators and assigns," so that she might "either receive and take the clear rents, issues and income, or proceeds, in case of sale," and apply them "as if she were a feme sole, so that neither the said trust estate and property, nor the rents, issues, income or proceeds thereof, should, at any time, be subject to the power, disposal or control" of her husband, or be subject to his debts. And then follows the provision in favor of those who would "take an estate in fee-simple by descent," in the event of no will being made.
If the language of the agreements, in the two cases which have been noticed, and especially the one in 6 How., was sufficient to show, that the parties intended [**29]  "to carry the title of the property beyond the period of the wife's death, and to exclude the husband," we think the terms of the deed before us may be justly considered as having a like effect.
The agreements, referred to in those cases, were ante-nup tial contracts, made and signed by both parties, in contemplation of a speedy marriage. The present is a deed conveying property in trust for the sole and separate use of a feme sole, with a view to protect it from the marital rights of any future husband, but without reference to a marriage then in contemplation. 

 [*308]  At one time the validity of such instruments was questioned, but they are now admitted to have the effect of securing to the feme the separate use of her property, after marriage, according to the provisions contained in them, when free from any imputation of fraud or concealment. There can be no such imputation in the present instance, because before the marriage Mr. Tazewell had knowledge of the deed, as may be seen by the marriage covenant. The subsequent marriage, therefore, in connection with this covenant, may be regarded as a virtual adoption of the provisions of the deed by the husband. And that [**30]  such a deed, followed by marriage, with previous knowledge on the part of the husband, as to its existence, will secure to the wife a separate estate in the property, and bar the marital rights of the husband, may be seen by reference to the following authorities: 2 Bright on Husb. & Wife, 205. 2 Kent's Com., 164 & 165, marg. pages, and the notes, (7th Ed.) 2 Story's Eq., sec. 1384, and notes, (5th Ed.) 1 Jarman on Wills, 835, marg. p., (Ed. of 1855.)
Believing, as we do, that under the provisions of the deed the husband is excluded, we have not considered it necessary to ascertain, whether the counsel for the appellants are right in contending that his marital rights are barred forever, by the covenants contained in the marriage agreement; or whether the counsel for the appellees have given the correct construction to that instrument, in supposing it only covenants for securing to the wife, the sole and separate use of her property for life.
The appellants claim the property mentioned in the Powell deed, because, according to the terms of that instrument, Tazewell's interest in the premises ceased upon his second marriage. The portion of the deed [**31]  which relates particularly to this question, provides, that in case the husband should survive his wife, he and his assigns should have the rents, issues and profits, "during his natural life only, to and for his own use and benefit, provided he should continue unmarried after the death of his wife, then living, and from and immediately after his decease, then to go and be transferred," &c.

 [*309]  Although the use to the husband for life is followed by a proviso or condition, that he should remain unmarried, yet the gift over is not upon his marriage, but "from and immediately after his decease." It is not, in terms, a gift over, based upon the event of a second marriage. If allowed to limit or reduce the life estate it will be giving effect to a provision, in reference to personal property, imposing, not a partial, but a general restraint upon marriage, by means, not of a precedent, but of a subsequent condition, in the absence of any limitation over, on a failure to comply with the condition. Unqualified restrictions on marriage are discouraged on grounds of public policy, and instead of aiding them by applying liberal rules of construction, the courts have been disposed to [**32]  construe them strictly, in such manner as will favor the persons on whom the restraints are laid. We, therefore, cannot adopt the views of the appellants' counsel, so as to consider the gift over, after the husband's decease, as taking effect upon his second marriage; or that his life estate terminated upon the occurrence of that event. 1 Story's Eq., secs. 279, 280, 283, 286 to 290, and notes, (last Ed.) 1 Jarman on Wills, 841, 842 & 843, marg. paging, (Ed. of 1855.) Binnerman vs. Weaver, et al., 8 Md. Rep., 517.
By reference to Chitt. on Cont., sec. 671, (6th Am. Ed.,) and Story on Cont., sec., 557, it may be seen in what an unfavorable light general restraints upon marriage are regarded, when attempted to be effected by means of express contracts.
In our opinion, the appellants are entitled to the property mentioned in the deed from Baker and McDonald, but they have no right to demand possession of that which is described in the deed from Powell.
The order dissolving the injunction will be affirmed, and the cause remanded for further proceedings, in accordance with the principles announced in this opinion.
Order affirmed  [**33]   and cause remanded. 

38 of 187 DOCUMENTS 

NIMROD BUCKINGHAM vs. GEORGE H. DAVIS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 Md. 324; 1856 Md. LEXIS 26 

DECEMBER, 1856, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Carroll county.

Trespass q. c. f., by the appellant against the appellee. Plea, non cul. and defence on warrant.

At the trial of this case, before THOMAS DONALDSON, ESQ., as special judge, four exceptions, raising the same question, were taken by the plaintiff to the rulings of the court, which, with all the facts of the case, are fully stated in the opinion of this court. The verdict and judgment were in favor of the defendant, and the plaintiff appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

The 22nd sec., art. 4, of the constitution, which provides, that no judge "shall sit" in any cause in which he is interested, or related to the parties, or shall have been counsel, and that a special judge shall be appointed "to try the said cause," absolutely and unconditionally prohibits the disqualified judge from trying the case, but not necessarily from authorising mere matters of form, tending only to prepare the case for trial.

The circumstances of each case must determine whether the judge should act in any degree or not; where a continuance, or filing, receiving or amending pleadings, would prejudice one of the parties, and objection is made, the judge cannot act.

But in the absence of all objection the judge may act in all such instances, and in all other mere matters of course, which decide no question of right, but simply assist both parties to the trial of the case.

In interpreting the constitution the first thing to be attained is the purpose of its framers, and where this has not been clearly expressed, the necessity and nature of the thing provided for or against must be regarded.

The sole object of the 22nd sec., art. 4, of the constitution, is the impartial administration of justice; the thing to be secured is fairness and impartiality, that to be guarded against, bias and prejudice.  

COUNSEL:
James Raymond for the appellant, argued: That under the 22nd section of the 4th art. of the constitution, there was no court in existence for any purpose for this case after the county court was abolished, until the special judge qualified, and, of necessity, there could be no proceedings which that judge could recognise as proceedings in the case. This section declares, that "no judge shall sit in any case" wherein he may be interested or connected with either of the parties, within such degrees as may be prescribed by law. The acts of 1852, ch. 68, and 1853, chaps. 209 and 425, passed to carry into effect this provision of the constitution, use the same language,  [**2]  that no judge "shall sit in any case" in which he may be disqualified as provided in those acts. The people thought that by this provision in their organic law they had cut off the disqualified judge from any participation in the cause whatever. This, to my mind, is the clear meaning of this clause of the constitution, and if it be so, the judge of the circuit court had no authority to order or direct any of the proceedings in the case whatever, and hence the ruling of the special judge, in recognising the validity of such proceedings, was erroneous.

Joseph M. Palmer and Wm. P. Maulsby for the appellee, argued: That the decision of this court upon the several bills of exception in this case, must depend entirely upon the true construction and meaning of the 22nd sec. of the 4th art. of the constitution, and the act of 1852, ch. 68, passed to carry into effect this constitutional provision. Now we insist, that the authorising the clerk, by the circuit judge, to issue a warrant of resurvey, and granting leave to amend plats, certificates, pleadings, &c., no objection being made by the opposite party, is not "sitting to try the cause" within the meaning of the constitution and act [**3]  of Assembly. All instruments, whether constitutions, laws or contracts, are to be construed according to the true intent of their makers. The constitution in this particular clause provides nothing new. At common law no judge could sit in his own case. "Sitting in a case" means, sitting to try the case where the rights of the parties are to be affected, not the doing of mere ministerial acts necessary to place the cause in readiness for trial on its merits. If the argument on the other side be correct, a special judge must be appointed in every such case as soon as the writ is returned, and every continuance, the filing of every plea, the entry of every motion, the issuing of every commission to take testimony, and the passage of every mere ministerial order, as matter of course and without dispute, must be made and done by and before the special judge, for which he is to charge ten cents per mile for travelling expenses and $ 10 per day for his services. If suit be brought by any relation of the judge within the prohibited degrees, and there is no dispute in it, there must be a special judge to take the judgment. A construction involving such inconvenience, difficulties and expense,  [**4]  cannot be correct. Again, before the announcement of the disqualification is made by the judge there can be no appointment of a special judge. Whether or not he is related to the parties, or interested, or has been counsel in the cause, are matters left by the constitution and laws to be decided by the judge himself. We therefore insist, that the constitution and act in question only disqualify a circuit judge from sitting to try cases on the merits, where the rights of the parties are to be settled, and whenever the circuit judge in any case makes the announcement that he is disqualified from sitting to try the case, a special judge is to be appointed, and not before. The result of this interpretation is, that the acts of the circuit judge complained of in this case were legal acts and not void, and the judgment must be affirmed.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and MASON, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*326]  LE GRAND, C. J., delivered the opinion of this court.
Nimrod Buckingham, the plaintiff below, on the 3rd day of December 1849, instituted in Carroll county court an action of trespass q. c. f., against the defendant, now appellee. The 

 [*327]   [**5]  defendant appeared in the court below, by his counsel, and pleaded not guilty, and took defence on warrant. The case then was continued from term to term, until the first Monday of April 1852, at which term of the court the Hon. Madison Nelson presided as circuit judge, under the provisions of the present constitution; at which term of said court the defendant, by his counsel, moved the court that a warrant of resurvey issue in this case, the plaintiff having neglected to cause one to be issued, and a warrant of resurvey was issued accordingly. The sheriff and surveyor executed said warrant, and made return thereof to the circuit court, at the April term 1853, with plots, certificates and depositions. The plaintiff in the court below then appeared, and prayed to amend the plots and certificates so returned, and to add thereto, if necessary, by the first Monday of the next September term, which prayer was granted by the court. At this state of the case the circuit judge announced to the clerk, and parties, that he considered himself disqualified from sitting to try the cause, by reason of having been of counsel in the case; whereupon the clerk of the said court, on the 3rd [**6]  day of June 1854, gave notice to the Hon. Nicholas Brewer, judge of the circuit court for the second judicial circuit of this State, that the Hon. Madison Nelson was disqualified from sitting to try said cause, and, on the 28th day of August 1854, the Hon. Judge Brewer, in due form of law, nominated and appointed Thomas Donaldson, Esq., a special judge to try said case, who accepted the appointment, and qualified according to law. At April term 1855 of the said circuit court, the case came on for trial before the special judge, and the verdict of the jury was for the defendant. At the trial, the plaintiff, by his counsel, moved the court to strike out of the record, and consider as a nullity, all proceedings in the case which had been had in the case since the April term of 1852, inclusive of that term and previous to the September term 1854, upon the ground that such proceedings were a nullity, for want of jurisdiction in the court, under the clause of the constitution, which provides, that a judge of the circuit shall not sit in a cause in which he had acted as counsel. The court refused the motion and the plaintiff 

 [*328]  excepted. This constituted the first bill [**7]  of exceptions of the plaintiff. He took three others, but they embrace precisely the same question, and nothing more, than that contained in the first.
The only question involved in the case grows out of the interpretation which the 22nd section of the 4th article of the constitution ought to receive. It provides that:
"No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him by affinity, or consanguinity, within such degrees as may be prescribed by law, or where he shall have been of counsel in the case; and whenever any of the judges of the circuit courts, or of the courts of Baltimore city, shall be thus disqualified, or whenever, by reason of sickness, or any other cause, the said judges, or any of them, may be unable to sit in any cause, the parties may, by consent, appoint a proper person to try the said cause, or the judges, or any of them, shall do so when directed by law."
It will be observed, that the first part of the section forbids a judge included in the specified category from sitting in the case, whilst the latter part only provides for the appointment of another judge "to try the said  [**8]   cause." These expressions, to be found in the same section, are not of the same signification, one being much more comprehensive in its interdiction than the other. To reconcile the whole section with all its parts, the two members of it to which we refer must be construed together.
In interpreting the constitution the first thing to be got at is, what was the purpose of its framers? Where this has not been clearly expressed, we must look to the necessity and nature of the thing provided for, or against, as the case may be. With this guide we can experience but slight, if any difficulty, in ascertaining the meaning of the language used in the section quoted.
Its primary, indeed its sole object, was to secure the impartial administration of justice, and, hence, it was held, that one who had been of counsel for either of the parties might be prejudiced in favor of his former client, and therefore, and for that reason, not above suspicion.

 [*329]  The thing to be secured was fairness and impartiality; that to be guarded against, bias and prejudice. We take it, that whatever interpretation of the section in question will best fulfil these purposes, is the correct one. And this [**9]  being so, we are of the opinion, that the true meaning of the section is, that a judge who has been of counsel for either of the parties shall be, and is, by it, absolutely and unconditionally, prohibited from trying the cause; but not necessarily from authorising mere matters of form, tending only to the preparation of the cause for trial, such as the issue of commissions and the like. We say, not necessarily, meaning thereby, that the circumstances of each particular case must determine whether, or not, the judge should act in any manner or degree. A continuance of a cause, for example, may work prejudice to one of the parties, so the filing of a plea, the refusal to receive one, or an amendment, may work mischief and jeopard the interests of the litigants. In all such and similar instances, if objected to, the judge ought to abstain from a decision and leave it to the special judge to be appointed. But surely it never could have been intended by the framers of the constitution, that the regular judge should be prohibited, in the absence of all objection, from expediting the progress of the case by a mere acquiescence in mere matters of course. In [**10]  such a state of things he cannot be said, properly speaking, "to try the cause." He decides no question compromising the rights of either party; he merely assists both on their way to trial. If the view of the counsel for the appellant is to be taken as the inexorable rule under all circumstances, then the constitution, in most cases, would work an absolute denial of justice; or if not productive of such calamitous consequences, it would, inevitably, devolve upon the State treasury a burden intolerable. Such an interpretation would require a special judge to be in attendance at the filing of every plea, at every continuance, the filing of every motion, and at every preliminary step in the progress of the cause. We cannot bring ourselves to believe this to be the true interpretation of the constitution. In the rule which we have laid down, we think the design and purpose of the constitutional provision is properly 

 [*330]  defined, and therefore concur with the ruling of the special judge in this case.
Judgment affirmed. 

39 of 187 DOCUMENTS 

GEORGE W. ZEIGLER vs. PATRICK H. KING, Trustee in insolvency of EDWARD WOOLS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 Md. 330; 1856 Md. LEXIS 27 

DECEMBER, 1856, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Baltimore city.

This appeal was taken from an order of the court below, (KREBS, J.,) setting down for hearing, on a named day, the petition of the appellee, and directing the appellant, its trustee, under a decree for the sale of the mortgaged property, to suspend further proceedings in relation to the sale, and withdraw his advertisement of sale until the further order of the court. The facts of the case are fully stated in the opinion of this court.

The appellee moved to dismiss the appeal for the reason stated in the argument.  

DISPOSITION:
Order affirmed and cause remanded.  

HEADNOTES:

The trustee in insolvency, under the new insolvent act of 1854, ch. 193, has the same exclusive power to sell the whole estate of the insolvent, as under the old system, unless property conveyed in trust before the petition, in the manner allowed by the 13th section of that act, be regarded as an exception.

Where a decree for the sale of mortgaged property, under the act of 1833, ch. 181, has been passed, and after the trustee had advertised the property for sale, the mortgagor applies for the benefit of the insolvent laws, and his trustee in insolvency is appointed and gives bond, the latter, and not the trustee under the decree, is entitled to make the sale.

The fact that the trustee in insolvency filed his petition in the mortgage case, denying the right of the trustee under the decree to sell, and asking that the sale may be stopped, on the ground that he alone had the right to sell, is not a submission to the jurisdiction of the court passing the decree, to such an extent as to estop him from successfully resisting the sale.  

COUNSEL:
Chas. H. Pitts and Geo. H. Williams for the appellant, argued.

1st. As to the motion to dismiss. The order appealed from was an injunction both in form and effect, and no more interlocutory than every injunction is before being made perpetual, and an appeal therefrom is justified by the acts of 1835, ch. 346, secs. 2 and 3, and ch. 380, sec. 3. By these acts the granting of an injunction upon the case made to the court by the bill, was made a matter of appeal without waiting for the settlement of a right. 6 Gill, 97, Wagner vs. Cohen. 7 Md. Rep., 402, Guyton vs. Flack.  [**2]  And it is submitted, that the cases of Welch vs. Davis, 7 Gill, 366, and Cain vs. Warford, 7 Md. Rep., 286, have no relation to a case like the present.

2nd. If then the appellant be entitled to an appeal, it is submitted, there is now no law of this State which gives the sale of property exclusively to a trustee in insolvency. The cases of Alexander vs. Ghiselin, 5 Gill, 180; Carter vs. Dennison, 7 Gill, 170; Waters vs. Dashiell, 1 Md. Rep., 471; Manahan vs. Sammon, 3 Md. Rep., 471, and Eschbach vs. Pitts, 6 Md. Rep., 75; were decided under the act of 1805, ch. 110, sec. 7, which act has been expressly repealed by the act of 1854, ch. 193; and the Legislature, in re-enacting a new system of insolvency, especially excluded the provision of the 7th sec. of the act of 1805, ch. 110, and did not design a continuation but a repeal of the system arising from this section, as is manifest not only from such exclusion, but from the whole tenor of the new law, and especially by its 13th section. But, even under the old system, it has never been decided, that the trustee's power sufficed to set aside a decree in rem of a court of equity; such decree is not only an incumbrance and a lien,  [**3]  but something more. The act of 1785, ch. 72, sec. 3, provides for a foreclosure, or a sale, as a mode of foreclosure, and after a decree for either, the mortgagor can, by no act of his, disturb or avoid the decree. The case of Wilson vs. Turpin, 5 Gill, 59, cited by the appellee, applies to and arose out of the bankrupt law of the United States, and that case also limits the power of the assignee in bankruptcy to cases "where the jurisdiction of the State court had not attached." By analogy, therefore, where the jurisdiction of the circuit court for Baltimore city has first attached, a trustee has no right to interpose.

3rd. It is also submitted, that the petition here shows no case for an injunction. The proper course was, to stand off, or to except to the ratification of the sale when made. By filing the petition in this case, to proceedings which were ex parte, the appellee has made himself a party and submitted to the jurisdiction of the court. Hunter vs. Hatton, 4 Gill, 124.

E. Cummiskey and T. P. Scott, for the appellee, moved to dismiss the appeal, because the order appealed from was only interlocutory and not final; and was not an injunction within the meaning of [**4]  the acts of 1832, ch. 197. 1835, ch. 346 and ch. 380. 7 Gill, 366, Welch vs. Davis. 7 Md. Rep., 286, Cain vs. Warford.

But if the court should be of opinion that the appeal will lie, then the appellee will contend that the order was right and must be affirmed, because the law gives the sale of the property to the trustee in insolvency, and the trustee under the decree could not sell after the application of Wools for the benefit of the insolvent laws. See Wilson vs. Turpin, 5 Gill, 58, and Glenn vs. Boston and Sandwich Glass Co., 7 Md. Rep., 294, in addition to the cases referred to under the second point of the appellant.  

JUDGES:
The cause was argued before ECCLESTON, TUCK and MASON, J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*332]  ECCLESTON, J., delivered the opinion of this court.
Inasmuch as we think there was no error in the action of the court below, from which this appeal was taken, we need not decide whether the appellee's motion to dismiss should be sustained or not.
G. W. Zeigler, (the appellant,) on the 2nd of May 1856, under the act of 1833, ch. 181, obtained a decree for the sale of a house and lot in Baltimore, upon a mortgage over-due and unpaid, executed by a certain Edward C.  [**5]  Wools.
In conformity with the decree the property was advertised to be sold on the 28th of May 1856.
On the 10th day of the same month, and after the advertisement, 

 [*333]  Wools applied for the benefit of the insolvent law, and the appellee, (P. H. King,) was appointed his trustee. Thirteen days after, the appellee filed a petition asking the circuit court to restrain its trustee under the decree from proceeding to sell; and the court passed an order setting this petition down for hearing on the 10th of June, and directing its trustee not to sell until further order of the court.
From this order the appeal was taken, the appellant having first filed his answer to the appellee's petition.
Supposing that the order of the court is based upon the doctrine that a trustee in insolvency has the exclusive right to make sale of the insolvent's property, it is insisted, by the appellant's counsel, that such is not now the law in Maryland, whatever it may have been formerly. Their argument is, that the exclusive authority of such trustee to sell, which has been recognized in Alexander vs. Ghiselin, 5 Gill 138, and in other subsequent decisions of like character,  [**6]  was based upon the act of 1805, ch. 110, and more especially the 7th sec. of it: which act has been repealed by that of 1854, ch. 193, creating a new system of insolvency. That the latter act did not re-enact the 7th section of the former law, and by thus excluding its provisions, the Legislature manifested a design, not to continue but to repeal the system arising from that section. Which design, it is said, is not only manifest "from such exclusion, but from the whole tenor of the new law, and expressly by the 13th section thereof."
Admitting that the 7th section of 1805 has not, in terms, been re-enacted, still it does not necessarily follow that the provisions of the late act do not, under the circumstances of this case, confer upon the insolvent's trustee the exclusive right of selling the mortgaged premises.
The 2nd section of the new law provides that a trustee shall be appointed, who is to give bond with surety for the faithful performance of his trust; that a conveyance shall be made to the trustee by the insolvent, of "all his property and estate of every description." And it is evident, from the 1st, 2nd and 15th sections, that upon the approval of the bond, "all the property,  [**7]  of every description, rights and claims of the insolvent," 

 [*334]  whether mentioned in the schedule or not, will vest in the trustee, except the necessary wearing apparel and bedding of the insolvent and his family, and such property as may by law be exempted from execution.
By the 10th section, it is enacted, "That the estates of insolvents shall be distributed under the orders of the court, according to the principles of equity."
For the purpose of carrying this provision into effect, where there is specific property, a sale is essentially necessary, for it cannot be supposed the Legislature contemplated a distribution of the property, in kind, among the creditors. And directing the estate to be distributed under the orders of the court, necessarily includes authority in the court to order a sale, by the trustee, who represents the creditors, and holds the property for their use. It was, evidently, the design of the Legislature to have the estate converted into money, and the distribution then made under the orders of the court.
The 15th section shows the Legislature were so careful of the rights of the trustee, even in regard to property not mentioned in the schedule, as [**8]  to prevent his authority and control over it from being interfered with to any further extent than to permit a creditor to secure a lien upon it by fieri facias or attachment, after the petition has been filed.
And although the section was introduced for the express purpose of allowing a creditor to obtain such a lien, the proviso declares, "that nothing in this section shall be construed to impair the right and title of the trustee to such property or claims, as provided by the second section, but shall only operate to give the judgment creditor, who shall discover such property or claims, a priority to be paid out of the proceeds thereof." It cannot well be doubted, that the proviso was designed to prohibit the creditor from having the property sold under his process, but to allow him the privilege of claiming a priority to be paid out of the proceeds of a sale to be made by the trustee. If not so, why say the right and title of the trustee shall not be impaired, and the creditor, notwithstanding he is permitted to levy upon the property, shall only be entitled to a priority when the proceeds are distributed?

 [*335]  The 1st, 2nd, and 15th sections are careful to [**9]  vest the estate, generally, in the trustee, and the latter section cautiously protects his rights from being impaired, even by liens created under its sanction, except so far as to give them preference or priority in payment. In addition to which, whilst the law, in broad terms, provides, "that the estates of insolvents shall be distributed under the orders of the court;" property covered by liens or incumbrances are not excepted, unless property conveyed in trust, before the petition, in the manner allowed by the 13th section, can, notwithstanding such conveyance, be considered, after the petition, as part of the insolvent's estate, subject to a lien or incumbrance, and his trustee as having no authority to make sale of the same, for the purpose of bringing the proceeds into court for distribution. And conceding such to be the case, (without deciding whether it is so or not,) even then, upon the principle that "exceptions tend to prove the rule," such a construction of this section would have the effect of sustaining, instead, as has been suggested, of militating against the general authority of an insolvent's trustee to sell the whole estate, notwithstanding liens [**10]  or incumbrances, with the single exception just referred to.
If the system is not so interpreted as to allow the trustee such a general right of selling, it will be difficult to perceive how the estate can be effectually distributed according to principles of equity, under the orders of the court." And that it should be so done is the design of the law, there cannot be a shade of doubt.
The advantage resulting from our interpretation of the new system, may be very well illustrated by quoting a part of the opinion of the court in deciding the case of Alexander, et al., vs. Ghiselin, et al., 5 Gill 138, under the old law, where it is said: "The leading and general design of all bankrupt and insolvent laws, is, to insure a prompt and complete settlement of all the affairs of the party, and an early distribution amongst the creditors, as nearly in equal proportions as a regard to positive and acknowledged preferences will admit. To facilitate these objects, our law has wisely given to the trustee, to be appointed by the court, the entire management of the estate, 

 [*336]  subject, of course, to the control of the court by whom he is appointed, charging [**11]  him with the duty of paying off liens and incumbrances to which the estate might be subject. His duty requires him to make the earliest disposition and settlement, regarding the interests of all the creditors, the particular lien creditor included, and brings all the claimants before one tribunal, whereas, by allowing sheriffs and mortgagees to participate in the administration of the trust, adverse interests are created, delays endangered, if not insured, and probably different, and possibly conflicting tribunals consulted."
In the case of Hurt vs. Stull, 4 Md. Ch. Dec., 391, a bill was filed for the purpose of enforcing a vendor's lien. A decree directing a sale and appointing a trustee to sell was passed, which, upon appeal, was affirmed. Subsequently to the decree, but before a sale, the vendee applied for the benefit of the insolvent laws, under the old system, and his trustee in insolvency was duly appointed, who, upon the ground that the exclusive right of selling the property was vested in him, applied to the chancellor to stay the execution of the decree. The late learned chancellor, however, dismissed the petition, entertaining the opinion, that the [**12]  trustee, under the decree, had authority to make the sale, notwithstanding the proceedings in insolvency.
With all due respect for the learning of the chancellor, we cannot help thinking, his decision, in that case, is in conflict with the principles announced in Alexander vs. Ghiselin.
The petition of the appellee, asking that the trustee, under the mortgage, might be restrained from selling, the counsel for the appellant contend, is making the appellee a party to the proceedings, and is a submission to the jurisdiction of the circuit court, in the premises, to such an extent as will prevent him from successfully resisting the right of the appellant to sell. In support of which position, reference has been made to Hunter vs. Hatton & Kendrick, 4 Gill 115. But that is a very different case from this. There, it appears from the opinion of the court, that after the first decree, a petition was filed, which "recognized, ratified and confirmed, what had been done," and asking that the purchaser, under the decree, 

 [*337]  might be required to bring the purchase money into court, or that a re-sale of the property might be made. Then it is said: "After such [**13]  a proceeding, and a ratification of the sale, and payment to him of the whole purchase money, and a conveyance of the land by the trustee to the purchaser, does it lie in the mouth of Henry D. Hatton to say, that the whole proceedings are null and void, because, at their incipiency, Mary E. Hatton was not summoned and made to appear, as directed by the act of 1816? By his petition to the court and receipt of the purchase money, he waived all objection to the irregularity of which he now complains, and should be estopped from asserting it, either at law or in equity." In a suit at law Hatton was attempting to treat as void, for irregularity, the decree, which, by his own petition in equity, he had recognized as correct, and under which he had actually received the whole proceeds of a sale made by virtue of the authority of that decree.
In the present case the authority of the court to pass the decree has not been disputed. But the ground taken by the appellee is, that by virtue of the subsequent proceedings in insolvency, the authority of the trustee to sell, under the decree, was superseded, and became vested in him. His petition, certainly, is not an express recognition or ratification, [**14]  nor can it be regarded as an implied acknowledgment of any authority to sell, then existing, except his own. It asserts his right, and denies, in very explicit terms, any such authority on the part of the trustee under the decree. Nor has the appellee taken or received any benefit or advantage based upon or growing out of the proceedings in the mortgage case, which can be construed as a recognition of the appellant's authority to sell. See McCarty vs. Gibson, 5 Grattan's Rep., 307.  Norton vs. Cook, 9 Conn. 314; and Phillips vs. Allan, 8 Barn. & Cres. 477.
The position taken by the appellee has not been overruled, but sustained by the court, temporarily at least. The question now presented, therefore, is, whether the action of the court, not in opposition to, but sustaining the prayer of the petition, should be reversed, when such action is consistent 

 [*338]  with a principle, correct in itself, if considered independently of any supposed applicability of the doctrine of estoppel, arising from the appellant's petition. To which question we feel constrained to answer in the negative, because we do not think the filing of such a petition [**15]  is a sufficient ground for reversing the order appealed from, and therefore it will be affirmed, and the cause remanded without costs.
Order affirmed and cause remanded. 

40 of 187 DOCUMENTS 

GREENBURY B. WILSON vs. THOMAS B. WATTS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 Md. 356; 1856 Md. LEXIS 31 

DECEMBER, 1856, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Baltimore city.

Watts, the appellee, on the 21st of October 1843, mortgaged a tract of land in Baltimore county, called "The Bare Hill Farm," containing about ninety-three acres, to Johnzee Hook, to secure a debt of $ 1657.67. The mortgage was executed under the act of 1826, ch. 192, under the provisions of which the mortgagee gave a power of attorney, to sell the property, to Samuel H. Taggart, Esq., who filed his bond in Baltimore county court, sitting in equity, which was duly approved by that court, and advertised the property for sale on the 23rd of April 1846, but afterwards withdrew it. On the 27th of April 1846, Watts filed a petition in that court, stating, that he "had contracted to sell the said mortgaged property unto Greenbury B. Wilson, of the city of Baltimore, for the sum of $ 2100, payable in cash on the day of sale;" that he had requested Taggart to report this sale, but the latter had refused to do so; and praying for an order directing the sale to be reported. This petition was signed by Watts and filed by T. P. Scott as his solicitor. Annexed to it was an admission of the facts therein stated, so far as he was concerned, signed [**2]  by Wilson. Objections were made to this order by Taggart and Isaac Tyson, Jr., the latter of whom claimed an interest in the property and mortgage. Subsequently, on the 17th of November 1849, these objections were withdrawn, the cause submitted without argument, by Scott as solicitor for Watts and Wilson, and by Taggart as trustee and solicitor for Hook, the order to report the sale passed, the sale reported, a written assent to its immediate ratification signed by Wilson and Watts filed, and the sale finally ratified by order of court passed the 20th of November 1849, on which day Taggart executed a deed to Wilson for the whole mortgaged property, the purchase money ($ 2100) having been paid by him. The auditor subsequently stated an account, distributing the proceeds to the payment of the mortgage debt, interest, costs and commissions, and the balance ($ 15.66) to Watts, which was finally ratified by the court.

The object of the present suit, instituted by Watts, is to obtain relief against the contract set forth in the above petition, and the proceedings consequent thereon, and against the deed from Taggart to Wilson.

The original bill, filed on the 14th of November 1853,  [**3]  after referring to this mortgage, alleges, that in 1838 or 1840, a valuable copper mine was discovered on the property, and leased first to one Petherick, and subsequently to Samuel Davis, for five years, from June 1845, paying a rent to complainant of $ 2 per ton for the ore dug therefrom; that this discovery becoming public, Wilson came out from Baltimore, called upon complainant, became known to him, and desired to obtain, by some means, an interest in the mine, and requested complainant to get Davis to alter his lease, and that he would join in partnership with Davis and complainant, furnish the money and divide the profits, but Davis refused, and afterwards sold one-half his leasehold interest to Tyson; that the mortgage debt being now due, complainant being poor, had frequent interviews with Tyson for the sale of his interest in the property to pay the debt, during which interviews Wilson frequently came to him and dissuaded him from making a bargain with Tyson; that Taggart had now advertised the property, the day of sale was fast approaching, complainant greatly distressed, and Wilson, by frequent interviews and conversations, had acquired great influence over his mind, and [**4]  complainant consequently placed great confidence in Wilson, and believed him to be his best and only friend; that in consequence thereof complainant agreed with Wilson, that if he would pay the mortgage complainant would give him one-half interest in the mineral interest of the mine; that Wilson then called upon Taggart and offered to pay the debt by giving his note, which Taggart declined to accept, or to stop the sale; that Wilson then confidentially agreed with complainant to buy in the property on the day of sale, but Tyson hearing of Wilson's intention to buy, induced Taggart to stop the sale; that Tyson had paid a large portion of the mortgage, received an assignment of it from Hook, and was anxious to get possession of the mine, but Wilson was anxious to prevent him, and for this purpose, and to carry out the private agreement between Wilson and complainant, and to give him the mortgage debt only, complainant signed the petition above referred to for this purpose only, and not to give Wilson any greater estate in the property than the mortgage debt, until other conveyances were made accurately defining and limiting his right and interest in the mine, which petition was drawn [**5]  by T. P. Scott, who was Wilson's counsel at the time, and paid by him; that complainant had been offered, by various persons, much more for one-half his interest in the mine than Wilson had agreed to pay the mortgage for, but reposing great confidence in Wilson's friendship and advice, he had refused the same; that complainant now became involved in a law suit with Tyson in reference to the property, and was very much distressed by it and his embarrassed circumstances; that Wilson, about this time, said he would defend that suit and must appear as owner, and complainant gave him, at his request, all papers relating to the suit and muniments of title relating to the property; that Wilson then said complainant must give him an assignment of the mortgage and he would then settle with Taggart forthwith, and complainant must then give him a deed for one-half the mineral right of the mine; that Wilson engaged T. P. Scott to defend the suit, and complainant, at Scott's office, executed what he supposed was an assignment of the mortgage debt according to this agreement, which Wilson subsequently said must be kept secret, and the written agreement would be, and was finally, destroyed; that [**6]  complainant received from Wilson during these events frequent letters, expressing deep interest in the result of the law-suit and in complainant's distressed condition, and inspired complainant thereby with great hope and trust in Wilson's friendship; that after the arrangement for destroying the above agreement had been made, Wilson said that agreement did not suit him, and before he could pay the mortgage complainant must give him another agreement; that still reposing great confidence in Wilson complainant signed another agreement, marked J, dated 15th of February 1849, drawn by Wilson, as follows:

"Thos. B. Watts and his wife, Mary Ann Watts, has sold to Greenbury B. Wilson one-half of the farm he now occupies on Bare Hill, call'd Bare Hill, cont'g 93 1/3 acres, more or less, together with the entire controul and privilege of mining for copper and other minerals, and carrying away on the whole tract, forever, with the understanding that one-half of the nett proceeds of all minerals are to be paid over to said Thos. B. Watts, and his heirs and assigns; the said Thos. B. Watts, his heirs and assigns, to have the exclusive benefit of all crops rais'd by him on said farm.

Baltimore,  [**7]  15th Feb'y 1849.

(Signed,)   THOS. B. WATTS,

G. B. WILSON.

In the event that G. B. Wilson raises a stock company, or can sell the whole tract for a handsome remuneration, to the mutual benefit and advantage of both parties equally concerned, then the parties hereto are respectively bound to such an arrangement, their heirs and assigns.

Witness this 15th February 1849.

A. CLIFTON."

That Wilson did not pay the mortgage debt until sometime subsequent to this agreement, and in consequence thereof the property was again advertised for sale about the month of November 1849, very much to complainant's surprise and disappointment; that in that month complainant received a letter from Wilson, dated 22nd of November 1849, (letter K,) stating that "the business of the mortgage has been settled and paid off to-day"--"we expect you will be in to-morrow morning, as it will be necessary for you to deed one-half of Bare Hill to me, according to our agreement." That complainant then came to town and told Wilson his wife was sick and could not come, but if Wilson would draw up a deed his wife would sign it in the country, to which Wilson assented, but no deed was ever [**8]  sent out by him; that Wilson subsequently told complainant that he had determined to charter the mine, and he and complainant could settle then; that though subscriptions for a stock company were obtained Wilson refused to form it, and did not accordingly settle with complainant.

The bill further alleges, that previous to June 1850, Wilson purchased out the leasehold interest of Davis and Tyson, (which interest expired at that date,) and took possession of the mine under agreement J, and has taken all the profits of it to his own use, the complainant remaining, however, in possession and tillage of the soil under said agreement; that complainant, according to this contract, was entitled to one-half the net profits of the mine, and was thereby made a partner with Wilson in its productions, but Wilson has rendered complainant no account of the same in any way whatever; that no deed to him has ever been made by complainant and wife, and that complainant, by no act or arrangement whatsoever, in law or fact, ever intended to give him the legal title to and control of the mine except by deed, in accordance with agreement J; that all petitions, confessions and admissions in the mortgage [**9]  case of Hook vs. Watts, were filed and made with the only design, expressed and understood between Wilson and complainant, of carrying out said contract, paying the mortgage debt, assigning the same only to Wilson, and of removing objections made thereto by Tyson; that Wilson, in a letter to complainant, dated November 7th, 1849, stated that he would not pay the mortgage debt till the "Lion's paws" (meaning Tyson) "are entirely clear of the transaction;" that the property was not bought by Wilson at public sale according to the act of 1826, ch. 192, but the sale from Taggart to him was made by virtue of a private agreement between Wilson and complainant, and for the purpose above mentioned simply; that Wilson, pending these proceedings in the mortgage case, and subsequently thereto, did not claim an entire legal title in the mine, and has, in letters and conversations, admitted an interest in complainant; that any such claim, by virtue of the deed from Taggart, would be contrary to agreement J, and that Wilson has received from the proceeds of the mine more than enough to pay the mortgage debt, interest and costs.

The bill then prays for an account of the net profits of the mine,  [**10]  and after deducting the money paid Taggart, and reasonable costs and charges, that Wilson may be required to deed back to complainant the property, or such an interest therein as, by agreement J, complainant is justly entitled to, and for general relief.

The contents of the letters from Wilson to Watts, dated at various periods between the 22nd of October 1846, and the 15th of January 1852, referred to in the bill and filed as exhibits with it, are sufficiently stated in the opinion of the court below and of ECCLESTON, J. Letter K, dated 22nd of November 1849, is in Wilson's handwriting, but is not signed by him.

The answer avers, that defendant's knowledge of the mine was chiefly obtained through the representations of Watts, who first used it as an inducement to persuade respondent to buy the Bare Hill farm, representing the mine to him in a favorable light and soliciting him to buy the premises; denies that respondent requested Watts to get Davis to alter his lease, and offered to enter into partnership as stated in the bill; admits that Davis sold one-half his leasehold interest to Tyson, but knows nothing of any interviews of Watts with Tyson for a sale of the property;  [**11]  admits, that in consequence of the frequent importunities of Watts, he agreed to give his notes for the mortgage debt due to Hook, who had become dissatisfied with the security afforded by the property, which notes Taggart declined and advertised the property for sale; that respondent is not aware he had any influence over the mind of Watts, and solemnly denies that he used, or attempted to use, any fraudulent or improper means to acquire any influence or control over him in any matter; denies that he ever agreed to pay the mortgage debt for one half interest in the property, and avers, that at the time he agreed to purchase the farm, there was an unexpired lease to Davis of the mineral portion of it, and a suit was about to be instituted, or was pending, in chancery, in regard to Petherick's lease; admits that Hook assigned part of the mortgage to Tyson, but does not know that Tyson was, at this time, anxious to get possession of the property, but was subsequently informed by Tyson, that when he worked the mines with Davis he lost money by the operation; denies that he ever interfered with the sale of the property, except as particularly requested by Watts, and in accordance with [**12]  his directions; and denies, emphatically, that any such private agreement was ever made between him and Watts, as alleged in the bill, or that he ever agreed to purchase the mortgage debt only; nor does he understand how Watts, the mortgagor, could have assigned the mortgage debt; denies that any such written agreement between him and Watts ever existed, or was destroyed, as alleged in the bill, and that the only written agreement between them, in relation to the purchase of the property, which has been mutilated or destroyed by having the name of Watts cut or torn therefrom, is the following, marked No. 1:

"It is hereby agreed and bargained, this 25th day of April 1846, between Thomas B. Watts and Greenbury B. Wilson, that the said Thomas B. Watts sells to the said G. B. Wilson all those tracts of land bordering on Bare Hills, under the order of Balto. county court surveyed and laid out for ninety-three acres, with all the improvements, rights and privileges of mining for any kinds of ore or minerals, with the right of his mother's life estate therein, also to be conveyed to said Wilson, to have and to hold to the said Greenbury B. Wilson, his heirs and assigns, in fee, forever;  [**13]  the said Thomas B. Watts binding himself and his heirs and assigns, to carry out and execute any deed or deeds, or instrument of writing, to the said Wilson, his heirs and assigns, in fee, and clear of all incumbrances, on the payment of the sum of money due under mortgage to Johnzee Hook, and on payment of said mortgage and a full and clear title of said lands to the said G. B. Wilson, his heirs and assigns.

(Mutilated.)

Witness:--Luther Wilson."

That this paper states, fully and truly, the agreement between them, was fairly made and executed, and was finally consummated by the deed from Taggart; that Watts agreed to sell him the property upon the terms set out in the petition filed in the mortgage case of Hook vs. Watts; admits that Scott acted as his attorney at that time, and was paid by him, but denies that he or his attorney practiced any fraud or imposition upon Watts in the matter of this petition, and respondent refers to the same and all the proceedings in the mortgage case, and to the deed from Taggart, to vindicate his title to the property, and relies upon and pleads the same in bar to the relief sought by the bill; denies that he ever entered into any agreement [**14]  with Watts by which he was not to have any more or greater estate in the property than the mortgage debt only, until other conveyances were made, defining and limiting his rights in the mine; that he is not aware that Watts was offered, before respondent's purchase, a sum sufficient to pay off the mortgage, for up to the time of his purchase a great deal of litigation had been pending in regard to the property: the lease to Petherick had been the source of protracted contention, the life estate of Watts' mother had been an incumbrance, the lease to Davis, and his assignment of half to Tyson, had not expired, the fact publicly alleged by Tyson, that he had lost money in his mining operations with Davis, and the sterility of the land for agricultural purposes, had operated to make a sale of it for enough to pay the mortgage a matter of uncertainty at the time respondent purchased; admits the authenticity of the letters filed with the bill, but submits that they evidence no such private contract or secret agreement, as is alleged in the bill; denies that agreement J ever went into effect, because from its date to that of Taggart's deed, Davis held possession of the property, so far as [**15]  related to the mine, against respondent and his own release; no nett profits, therefore, could be realized under agreement J, and no work was done in the mine under it, but considerable expenses were paid by respondent for counsel fees and legal proceedings against Davis, which finally resulted in securing respondent in lawful possession of the property in July 1850, after the date of Taggart's deed, in which he submits agreement J was merged and determined; and respondent, by way of answer, relies and insists upon the statute of frauds and perjuries as a bar to the relief sought by the bill, and as an answer to any alleged agreement or contract touching this land: admits that he has rendered no account to Watts of the profits or expenses of his mining operations since he became the absolute purchaser of the property, and it was not until respondent, relying upon his title, had expended large sums in preparing the mine for work, that the unfounded pretentions of Watts were made known; denies there was any secret agreement between him and Watts in regard to the mortgage deed, and avers, that the petition and proceedings in the mortgage suit contain a true statement of the facts and [**16]  circumstances attending the purchase, all which proceedings were duly considered and the sale finally ratified by the court; denies any partnership or joint ownership, but admits that Watts has remained on the land, by his consent, for tillage and farming, and has boarded some of his miners at various times, for which he has individually received compensation from respondent, according to their mutual agreement, together with the use of the farm as aforesaid; admits that at one time he did propose to raise a company to work the mine, but after many months the person employed being unable to raise the necessary amount of subscriptions he withdrew his offer; insists that Watts cannot ask the court to set aside respondent's title upon the hypothesis that he and his wife agreed to give an additional deed for one-half of the property, which they never executed; that nothing in the letters, or any other exhibits filed with the bill, can impair his title; that the purchase was fairly made, fully assented to by Watts, executed bona fide by Taggart, and finally ratified by the court; that confiding in his title thus solemnly authenticated, he has expended a vast amount of labor, skill, and [**17]  capital at his own risk, with a view to his own advantage if he should make a profitable discovery, and to his own loss if he did not, and he, therefore, submits, that the unfounded pretensions of the complainant cannot prevail.

The proof in the case taken under the commission consists of various written exhibits including those filed with the bill and answer, and the oral testimony of witnesses. Among the exhibits filed by the defendant is the following, marked P, dated June 1st 1849.

"All my right, title and interest in the Bare Hill copper mines, and the houses and improvements appertenant thereto, during the term of five years from the tenth day of July 1845, with right of reversion and possession thereof, as secured to me, I hereby assign and transfer to G. B. Wilson for value received.

THOS. B. WATTS,   (Seal.)"

This paper was admitted to be in the handwriting of Watts, both the body and signature, and is identical with complainant's exhibit AWB, also signed by Watts, but the body of which is in the handwriting of Wilson.

After these papers were filed under the commission, the complainant filed a bill of discovery, alleging: that paper P was obtained [**18]  from him merely for the purpose of being used by Wilson in a suit then pending between Wilson and Davis, relative to the possession of the mine, and also with the express promise that he wanted and would use it for no other purpose, and that it was given simply to aid him in getting possession of the mine from Davis by purchase of the unexpired term of Davis' lease: that the petition in the mortgage case referred to, and made part of his answer, Wilson obtained from him, with the express promise and understanding that it was necessary to enable him (Wilson) to defend complainant against the claims of Tyson, and that Wilson also stated to complainant's wife and to him, that this petition was intended merely as a matter of form. The bill then prays for an answer, under oath, to the following specific interrogatories:

1st. Did you not bring out and present to Watts, at his house on Bare Hill farm, paper AWB, and ask him to sign it?

2nd. Did you not then say to him, after he signed it, that he had better write a paper in his own handwriting like said paper, and did not Watts accordingly write for you paper P?

3rd. Did you not state to Watts at the signing and writing of [**19]  paper P, that you wanted it at the trial then coming on between you and Davis, and for no other purpose, or words to that effect?

4th. Did not Watts sign paper P, a few days before the trial came on between you and Davis, at the Bare Hill copper mines?

5th. Did you give Watts any money or other consideration for these papers at the signing thereof, if so how much and what, and did you take from him any receipt therefor?

6th. Did not E. J. Kilbourn, as your counsel, present said paper at the subsequent trial between you and Davis?

7th. Did you ever have any conversation with the wife of Watts about the petition filed against Taggart, referred to in your answer?

8th. Did you ever say to her that you heard she was dissatisfied about said petition, and that she need not be uneasy, that it was a mere matter of form, and was necessary to enable you to defend her husband against Tyson; but if she was dissatisfied you would throw it up and let Tyson take it, and that you expected to make a little money for yourself and a great deal for Watts, or any words to that effect?

9th. Did you not State to Watts at the signing of said petition, that it was a matter of form [**20]  only, and that you wanted it merely to carry on the suit with Tyson?

Wilson, in his answer to this bill, denies that paper P was obtained merely for the purpose alleged in the bill, or that he ever made any express promise that he would use it for no other purpose: denies, moreover, that it was given simply to aid him in getting possession of the mine from Davis, as alleged in the bill, but avers that it was duly executed for the purpose of giving him evidence of the absolute purchase, which he had before that date made in good faith of the Bare Hill farm and copper mine of Watts, which evidence he truly stated to Watts he wanted to use at a trial then about to take place between him and Davis in regard to the possession of the mine, because his deed thereto was not then executed by Taggart. He denies that there was any other understanding or promise by him in regard to the petition in the mortgage case than that which appears from its terms. He then answers the specific interrogatories as follows:

To the 1st, that he did present to Watts paper AWB, and asked him to sign it as evidence of his sale to respondent of the farm and mine, so that he might use it at the approaching [**21]  trial between himself and Davis, because the deed from Taggart was not then executed.

To the 2nd, that he never saw Watts sign said paper, nor did he know, until very recently, that his name was attached to it, but that Watts some time after the request made by respondent, as above stated, delivered to him paper P, which he stated was in own handwriting, signature and seal.

To the 3rd, that he did state to Watts before he wrote and signed paper P, that he wanted to use it at the trial then coming on between him and Davis, but never said he wanted it for no other purpose, nor did he use words to that effect.

To the 4th, that he believes Watts did write and execute paper P, a few days before the trial between himself and Davis at the mine.

To the 5th, that he paid no money consideration at the time of signing paper P, as the greater part of the consideration or purchase money for the farm and mine had been stipulated by Watts and respondent to be paid to Taggart, which respondent did subsequently pay in good faith according to his agreement.

To the 6th, that Kilbourn, his counsel, did present paper P, at the trial between himself and Davis, and used the same [**22]  in presence of Watts as evidence in the case.

To the 7th and 8th, that he never did converse with Watts' wife about the petition in any respect.

To the 9th, that he never did state to Watts at the time of signing the petition, that it was a matter of form only, and that he wanted it merely to carry on the suit with Tyson, a matter he never would have entered into if he had not purchased the property.

Oral testimony was then taken, in substance as follows: Samuel Davis testified that he rented the mines from Watts for five years, and was to pay $ 2 per ton for the ore raised by him; that he worked the mine jointly with Tyson for three years and a half, and took out in that time between six and seven hundred tons of ore which yielded on the average $ 54 per ton; that the gross amount of sales was, to the best of his recollection, $ 21,000 or $ 22,000; that he met with Wilson, who proposed to witness to carry on the mine jointly, each to have an equal share of the profits and to bear equally the expenses, and said if witness would accede to this proposition Watts would extend his lease; that Watts' means were limited in April 1846, that he stood in need of money and that [**23]  his property was offered for sale in the papers by Taggart, to satisfy a mortgage, as witness heard; that Wilson represented himself to witness as the friend of Watts, this was about April 1846, that Wilson said he felt a disposition to befriend Watts to prevent him from being cheated or defrauded by Tyson; witness does not recollect that he said anything more on that occasion; that Wilson stated to witness that he had offered to pay a certain sum or sums of money due Hook by Watts, this was in the year 1846, but he does not recollect the month; that he sold one-half his lease to Tyson in Sept. 1845, and received $ 1000 in cash, and was to receive, in addition, $ 4000, if it could be got out of the mines clear of expenses, that he did not receive the whole $ 4000, sometimes the mines were paying and sometimes not; that Tyson evinced a desire to become the owner of the mines or to purchase them; that Wilson and witness had frequent conversations in reference to Tyson's wishing to become the owner of the mines, and that Wilson said Tyson was endeavoring to wrong Watts and to get the mines for less than their value, calling Tyson sometimes rather opprobrious names; that he is familiar [**24]  with the value of copper mines, and that in April 1846 these mines were worth $ 6000, and witness thinks would have brought that sum at public auction; that in the Spring of 1850, the mines were not in working order having considerable water in them, which witness thinks could have been taken out for $ 200 with the use of the machinery that was there.

On cross-examination this witness proved, that an injunction was issued against him at suit of Wilson to restrain him from working these mines, and that he was arrested for contempt of this process in the fall of 1849, as he thinks; that he received somewhere about $ 1200 net profits from working these mines; that he worked them on his own account from the 10th of July to the 18th of Sept. 1845, and from that time jointly with Tyson, till early in 1849, and then undertook to work them about a month and ceased, and that he was not able to pay his debts at the close of his lease; that Watts, as a justice of the peace of Baltimore county, issued a warrant against him at the suit of Wilson, in a plea of trespass for entering upon the premises where the mines are situated and hindering his hands in the performance of their labor; that [**25]  he always understood that Tyson sold to Wilson his interest in the mines.

Johnzee Hook testified that he loaned Watts the sum of money mentioned in the mortgage to him, that he always considered the farm security enough for it, and was not dissatisfied therewith but wanted the interest of his money to use; that while Watts occupied the farm it was twice offered for sale by Taggart, as trustee, under this mortgage, but it was not sold at public auction; that in 1846, he believes, witness saw Wilson at his, deponent's brother's house, and took him to be the friend of Watts, that Wilson wanted to take up the claim against Watts' property and of course witness took him to be the friend of Watts; that Watts was poor at that time as far as witness knew; that Wilson offered to take up the mortgage by giving his notes; that since February 1849, Watts has worked the farm, lived on it, and still lives there; that in April 1846, the farm was worth a good deal more than the mortgage debt, and he would have been willing to give more for it, and that it was much more valuable in 1849; that he knows of no other support that Watts has for himself and family except this farm; that he thought Watts [**26]  had a good deal of confidence in Wilson as a friend, that is he heard so; and witness took Wilson to be his friend when he came over to deponent's brother's house, and from what he saw on that day, he thought Watts placed confidence in him; the way deponent took him to be Watts' friend was, that Wilson was to take the debt of Watts on himself; that the soil of the farm is poor, but he thinks part of it is tolerably easy of improvement.

On cross-examination he proved, that he agreed to take Wilson's notes for the mortgage, but they were not given because his counsel Taggart would not accept them; that Watts has made very small crops on the farm but he does not know the value of them; that Watts has boarded a few hands working at the mines, how many he does not know, sometimes more sometimes less.

Thomas Mitchell, who had worked at the mines, testified, that in June 1849, to the best of his knowledge, he had a conversation with Wilson in the presence and hearing of Watts in relation to deponent's employment at the mines, in which Wilson proposed that deponent should go there to take charge of the mine under Watts and himself, for he said they intended to work it systematically,  [**27]  and to make captain of deponent; that deponent never did anything else, as a business, but work at copper mines, and he ought to be acquainted with their value, and that these mines in the fall and summer of 1849 ought to have brought, at public auction, $ 10,000 at the least calculation.

Samuel H. Taggart, in whose hands Hook placed the mortgage for foreclosure, testified, that he twice advertised the property for sale; that as well as he can recollect, after the first or second advertisement, Wilson called at deponent's office, as he understood, as the friend of Watts, and stated that he had not the money, but offered his notes for the whole amount of the debt, which deponent declined taking; that Tyson paid deponent about $ 800 on the mortgage after the property was advertised, which fact was known to Wilson; that when called on to make a deed to Wilson for the farm he refused to do so without the order of the court, being a trustee and being under the impression that had he executed the deed he would not have been protected against Watts and his wife; that he had not seen Watts on the subject and does not know whether Watts knew that this deed was to operate as a mortgage [**28]  or as an absolute conveyance, neither did he see Wilson about the deed, but whatever was said to witness was through Mr. Scott, Wilson's counsel, who paid witness the whole amount of the mortgage debt, and that Watts was not present when the deed was executed. On cross-examination he stated, that he reported the sale to Wilson because there was a petition filed by some one, but whom he cannot recollect, and an order of court requiring him to do so, and that Tyson interposed a claim which was a matter of controversy in court a considerable time.

Isaac Tyson, Jr., bought from Davis one half-interest in a lease from Watts of the mine for five years, upon the terms stated in the testimony of Davis; that he worked the mine with Davis for upwards of three years, and raised 445 tons of ore which brought $ 20,000; but he never considered the mines well worked; that Watts and Wilson called together at witness's counting room, as well as his recollection serves him, and Wilson appeared to be the friend and counsellor of Watts, witness so considered him at the time; when they came they offered the mines to witness and wanted to know what he would give for them; the property offered was that [**29]  part of the farm where the mines were which had been leased to Davis: witness does not recollect whether they made any distinct offer to him or whether he made them an offer; that about the same time witness learnt that $ 3000 would be taken for the mines, and that part of the land leased to Davis, sixteen acres; that he sent out Farquharson to negotiate the matter and authorised him to give the $ 3000 for the mines, and even to go higher for them; that while interested in the mine witness bought of Buchanan some adjoining land which he considered necessary should he acquire a permanent interest in the mine, and for which he paid $ 6000, and when he sold to Wilson, he sold this land with his interest for the unexpired term of the lease, about one year, for $ 8000; that at this time witness believes the farm in fee would have commanded very readily $ 10,000. On cross-examination he stated he did not know the expense of raising the ore, but the upshot of the business was that the expenses eat up all that was received from the sale of the ore, and there was no profit at all made, but he always supposed the loss was owing to the imperfect mode of working the mines.

James Farquharson [**30]  was employed in 1846, he thinks, by Davis and Tyson, to negotiate the purchase of the mines from Watts, and his mother who had a life estate in them; that he went out to the mines, and had three or four interviews with Watts endeavoring to get him to name a low price for them; that Watts said he would take $ 3000 for the mineral right reserving to himself one fifteenth of the ore raised, and the dwelling house and a few acres of land attached to it were not to be included; that witness advised Tyson to accept this offer but he declined, saying Watts would be forced to take less; that a few days afterwards Tyson came to witness much excited and told him to go at once to Watts and offer an advance of, he thinks, $ 1000 on Watts' proposition, and if these figures failed, to see what the property could be had for; that witness went forthwith to Watts but found him indisposed to talk; that he made Watts the offer authorised but he declined every thing, saying, it was too late, that he had made other arrangements; this was in the spring or summer of 1846, and that Tyson was exceedingly anxious to get hold of the property.

Lydia T. Watts, a daughter of the complainant, testified that [**31]  in the spring of 1846, she was present at a conversation between Wilson and Mrs. Watts, her mother, in which Wilson said that he had heard that Mrs. Watts was dissatisfied; he said if she was not satisfied he would throw up the law suit, give it back to the lawyer's hands, and let Tyson take it, if she was satisfied he would do a good part by her as he expected to make a good deal of money for Watts and some for himself; that Wilson was frequently at the house of Watts, two or three times a week, and every Sunday; that Watts placed confidence in Wilson at the time, as his friend.

David Stewart testified, that Tyson desired deponent to ascertain from Watts his disposition as to the sale of the mineral land of Bare Hill; that Tyson stated there was a suit then pending, and that he had been informed that deponent had a friendly influence over Watts, and he thought that through deponent's agency some arrangement might be made for their mutual benefit; the result of the interview with Tyson was, that deponent addressed Watts a letter, dated February 7th, 1846, but which he believes was written and sent in February 1847, in which belief he is confirmed by date of the second letter,  [**32]  July 9th, 1847. Deponent has a recollection that it all occurred in 1847. (These letters express the writer's wish to see Watts in regard to the mineral lands of Bare Hill;) deponent did not hear from Watts, either verbally or in writing, in response to either of these letters, but after the first or second letter, and he believes after the second, but cannot affirm this positively, Wilson came to deponent's office and represented that he had come, at the request of Watts, and in consequence of deponent's having written to him, (Watts,) and requested to know the object of the proposed interview with Watts. Deponent told him he was a friend of Watts, and desired, if he could, to promote some satisfactory arrangement between Tyson and Watts, in regard to the mineral lands of Bare Hill; Wilson said that no such arrangement could be made with Tyson, that Tyson wanted to take advantage of Watts, and that he intended to protect Watts, so far as he could, from imposition; Wilson spoke of said mineral land as being very valuable, and said they were important to Watts as his main dependence, and that Watts should not sacrifice them; that there was no chance of his agreeing with Tyson for them [**33]  at anything like a fair value; deponent stated to Wilson, that his agency was a friendly and not a professional one, and there the interview closed.

John T. Watts, a son of the complainant, testified, that as well as he can remember, about sixteen months ago, Wilson spoke to deponent about leaving home, (it was soon after deponent had left home,) and said deponent was doing very wrong in leaving his father as he had done, that the business was then about to be settled between Tyson, Davis, himself (Wilson) and deponent's father, and he thought then they would be able to realize something right handsome from the copper mines, and said he saw no necessity at all for deponent's leaving home; that Wilson was very often at the house of Watts in the spring of 1846, and after that time; that in the spring of 1846, his father was very scarce of money indeed, and also after that time; that the little money his father got was from the produce of the farm and from the mines; the money from the mines was paid to him by Wilson:

Michael O'Donnell, a laborer who had worked at the mines, testified, that in the spring of 1850, Wilson asked him if Mrs. Watts was not dissatisfied? deponent [**34]  told him he did not know; he then said she had some advisers who had advised her not to sign over her right and title to the place to him, and he told deponent to tell her not to be dissatisfied, that he would make a little money for himself and her too, and if that would not satisfy her, as to the writing that was between him and her husband, it was not of much consequence, for when the law suit between him and Tyson was over, he would give them up again, and if that would not satisfy her he would throw the law suit up to the counsel and let Tyson take the place to himself.

Ferdinand Welsh testified, that he always considered Watts a poor man; that he cannot refer particularly to the spring of 1846, but always regarded him as a working man for his living.

Robert Wilson proved, that he met Wilson at the house of Watts frequently from 1846 to 1850; that in 1846 or 1847, Wilson stated to deponent, in the presence of Watts, that he was the friend of Watts, and that he would merely undertake this thing to get him out of the clutches of Tyson and Davis; he said they were both trying to rob him (Watts) out of his house and home; that deponent had similar conversations with Wilson,  [**35]  at his (Wilson's) office, at the farm and at the mine; that Wilson said to deponent, in the presence and hearing of Watts, that the mine was invaluable, and there was no telling the amount of money it was worth, and that he would not take any amount of money for it if he was Watts, that it would turn out to be a fortune to him; he also said, if he was Watts he would not let Tyson have it for any consideration; this conversation occurred in 1846 or 1847, and before the law suit between Watts and Tyson was commenced; that Wilson told deponent, that when Watts gained the law suit against Tyson, it was his (Wilson's) intention to put it into a stock company, putting the capital stock up to about $ 100,000, and that they (Watts and Wilson) would retain either $ 15,000 or $ 25,000 a piece, so as to have the greater portion of the controlling power of the working of the mines, or words to that effect, or this was what deponent implied from his conversation--that was what he said; this conversation occurred between 1846 and 1847; that Watts was quite poor in April 1846, and has been so ever since.

George W. Waters and David Keener proved the amount of ore sold by Wilson to the companies [**36]  of which they were clerks and agents, since June 1850; the gross amount of sales was upwards of $ 25,000.

Christian Keener was employed by Wilson for the purpose of raising subscriptions for a stock company to work these mines; the subscribers agreed to pay Wilson, the present proprietor of the property, $ 20,000 in money and $ 25,000 in stock of the company when organized. Subscriptions were obtained to the amount of $ 60,000; a charter was obtained from the Legislature, and among the names of the corporators are those of Wilson and Watts; that the mines would have sold at auction at any time since deponent's knowledge of them, at from $ 10,000 to $ 20,000, to the best of his judgment; that he understood, in a conversation with Wilson, that Watts had an interest in the mines; that in the month of October or November, 1851, deponent met Wilson and conversed with him about the formation of the company and deponent's commission, and then said to him, "You don't own all the Bare Hill mines, Watts has an interest of one-half," to which Wilson replied, "He has just such an interest as I please to let him have;" deponent replied, "Not so, I have seen your written agreement as the purchaser [**37]  of one-half only." This was all the conversation he had in reference to Watts' interest; that deponent went to search the records for a deed to Wilson, and met Watts outside, and told him he could find no deed to Wilson; this was in August 1851. That he knows the handwriting of Luther Wilson and has seen him write, and the signature to exhibit No. 1 he thinks is not in the writing of said Luther Wilson, and he bases his belief from the opportunities he has had of knowing his handwriting, and from a comparison of this signature with the signature by Luther Wilson to two receipts which are filed in the case: (these receipts were to bills made out against the witness Keener and signed by Luther Wilson.)

George W. McConkey had been intimately acquainted with Watts for about thirty years, and on being asked, whether he was a man of business or business habits? said, that it depends on the kind of business; deponent would say, if you include business of importance, that Watts is not a man of business habits, if there is any financiering in the business Watts is not a man calculated to transact business of that kind.

On cross-examination he said, Watts had acted as a justice of [**38]  the peace of Baltimore county for several years, he thinks he was re-appointed, but whether he swore in deponent does not know.

Edward Rider has known Watts for many years, and really thinks he is not a man of business and business habits; that Watts' means, since April 1846, and at that time, have been and are very limited. On cross-examination he proved, that Watts can read and write, and he has seen some of his official acts as a magistrate, but he doubts whether he understood what he has written; he has written pieces which deponent thinks he did not understand, he copied them without understanding them; he does not think Watts is a man of ordinary understanding, competent to make contracts; deponent would not trust him to make a contract for him; that Watts has acted as a justice of the peace for Baltimore county, but he does not know how long, and he never thought him fit; he does not know whether he ever acted as a judge of the magistrates' court; he cannot tell exactly the time he acted as a justice, but he saw some of his judgments two or three years ago; he writes a pretty fair hand; does not know whether he is in the habit of doing all his own business or not; thinks [**39]  Watts is in possession of his usual mental faculties; does not know of his ever having been deprived of his mental faculties; he does not know much of Watts' transactions, his buying and selling has been in a very limited way since he has been in deponent's neighborhood; he is a man who is compos mentis, but his business habits are very limited; he does not know, but should judge Watts conducted his business himself.

Richard Hook testified, that in August or September 1849, he had a conversation with Wilson on the subject of the Bare Hill mines, the substance of which was, that Wilson was acting as the friend of Watts; deponent understood him to say, he was the friend of Watts and intended working the mines jointly with him when they got rid of the difficulties then hanging over their heads, referring, as deponent understood, to the suit then pending between Wilson and Davis in reference to the possession of the mines; this is the substance of the conversation as deponent recollects it, the words he does not remember; that he has known Watts some twenty years, and should not judge that he was a man of business and business habits. On cross-examination he said, that Watts was one [**40]  of the associate justices of the district court for the 3rd election district of Baltimore county for a short time; deponent was a justice of the same court, at the same time; Watts sat at said court two or three times, but took no active part in the business of the court; this was in the latter part of 1850 and in 1851; he believes Watts does transact his own business, and should judge he was a man of common sense; deponent never had much business with him; that he writes well and reads, but deponent is not able to say whether he understands what he reads and writes.

George W. White, the only witness examined on the part of the defendant, proves, that he first became acquainted with the mines in May 1850, when he was employed by Wilson to take charge of them; when he came to the mines they were partly filled with water, and it was at least seven months before they were cleared; that Wilson's working the mines, at the time he commenced to do so, was a mere experiment, without any visible evidence that they would become profitable; that before the monthly yield was sufficient to pay the monthly expenses Wilson must have been out of pocket at least $ 10,000 for expenses in clearing [**41]  the water out, machinery and other incidental and necessary expenses in working them, and in sinking shafts and driving cross-cuts through ground in which there was little or no ore; that he repeatedly conversed with Davis about the value and working of these mines, and Davis said, that he did not believe that any man could make the mines meet expenses, that they had beggared him, and that he had lost some $ 1200 which he had brought there with him; that he knows Michael O'Donnell, and from his knowledge of his character for veracity, would not believe him on his oath.

On cross-examination he proved, that he called on Wilson for what was wanting at the mines, and Wilson furnished it; and that he called on Watts for nothing; that the real value of the mines, at the time he came, was not one dollar, in his opinion, and that he has stated, a short time since, that he was willing to swear they were not worth $ 5 at the time he went there to work; that he believes Wilson has derived profits from the mines, but he does not know how much.

After the testimony was taken, an amended and supplemental bill was filed, alleging, that agreement J, except the signature of Watts, is all in [**42]  the handwriting of Wilson; that in November 1849, Wilson paid the mortgage debt according to said agreement, and on the same day wrote complainant letter K; that agreement J was wholly drawn by Wilson, and was inequitably drawn by him for the purpose of setting it up or renouncing it, as might be most conducive to the fraudulent and dishonest purpose of cheating and defrauding complainant out of the mine and farm, which are the only means of subsistence to him, now experiencing the infirmities of age, and no longer able, by his personal exertions, to make a living for himself and family; that letter K was written by Wilson for the purpose of deceiving complainant, whom he knew to be easily deceived, and making him believe that no deed had been taken for the farm; that complainant subsequently discovered that Wilson had taken a deed from Taggart in entire fraud of this agreement, and of the confidence and trust reposed in him; that Wilson never told complainant that he had a deed for the farm, but, on the contrary, led him to suppose, by letter K, that no deed had been taken, and kept the same concealed from complainant, who never knew it till informed by his counsel; that at the time [**43]  the mortgage debt of about $ 2100 was paid by Wilson, the mine and farm were worth at least $ 10,000, and at that time nearly $ 20,000 worth of ore had been sold from the mine by Tyson and Davis under their lease; that the mine and farm was not sold at public auction, according to the act of 1826, ch. 192, nor was there any advertisement made of the sale by the trustee according to that act; that reposing great confidence in Wilson, complainant signed the petition in the mortgage case, without benefit of counsel, or reading or knowing its contents or nature; that complainant is not a man of business or business habits, nor is he capable of understanding a paper of that description without the special aid of counsel, which, confiding in Wilson, he deemed unnecessary, nor had he the means of obtaining the same; that in signing that petition, and all other papers referred to by Wilson, and used in any way as exhibits, complainant had not counsel; that Wilson gave him no consideration whatever for signing paper P, nor for any other referred to by Wilson; that during the pendency of the suit between complainant and Tyson, and his other difficulties arising from his extreme poverty, Wilson [**44]  pretended to be acting only as his friend, in saving him from Tyson and his pecuniary troubles, and so stated to various persons; that Wilson has sold more than $ 25,000 of ore from the mines, and has, according to his own statement, made large profits out of the same, infinitely more than enough to pay said mortgage debt, interests and costs, and has refused to account. (The allegations of the bill of discovery are repeated in this amended bill.) The prayer of this bill is for an account under the direction of the court, and for an injunction against Wilson at the final hearing.

The answer to this bill admits, that agreement J is in Wilson's handwriting, but solemnly denies that he wrote it with a view to accomplish any fraudulent purpose upon the complainant, or any other person; denies that this agreement was ever fully executed by the parties named in it, the wife of Watts, one of the parties thereto, never signed or acknowledged it, besides respondent did not get possession of the mine and farm for a year from the date of this paper, and the agreement suggested by it was therefore never completed or executed, and therefore evidences no legal agreement between the parties [**45]  named therein; that whatever legal effect this agreement might have had if the subsequent agreement P had not been executed, yet its force and effect, if any, are entirely merged in agreement P, executed more than three months afterwards, which agreement P, embodying the substance of the original mutilated paper No. 1, was ultimately perfected by the deed from Taggart; that about the 20th of November 1849, he paid the consideration before stipulated to be paid by him as the consideration or purchase money for the property, part of which was applied, as respondent was informed and believes, to the discharge of the mortgage debt, by the direction and request of Watts; that the deed from Taggart was executed in pursuance of the petition of Watts, and in conformity with the final contract stated in paper P; that Watts had able counsel, who filed his petition and acted for him as well as for respondent in the procurement of the deed, according to Watts' directions and authority; that Watts had ample time and opportunity to understand and fully comprehend the transactions by which he passed, and intended to pass, the title of the farm and mine to respondent, upon payment of the purchase [**46]  money as aforesaid; he utterly denies that in the procurement of this title he used or practiced any fraud whatever upon Watts, or made any misrepresentations whatever, and alleges that the purchase was made fairly and bona fide for what was then, in his opinion, a full consideration; that although propositions were made by respondent and Watts in regard to the purchase and working of the mines, yet none has been reduced to a contract except that set forth in Watts' petition, which was affirmed by paper P and evidenced by the deed from Taggart; he avers that no interference in the mines was ever made by Watts, nor any expenditure for working them charged to him, since respondent became the purchaser thereof as aforesaid, nor did Watts make any complaint in regard to this purchase until respondent, by the expenditure of a vast amount of capital at his own risk, brought them to a source of some profit, when he set up a false claim, alleging that he had been defrauded by respondent, which is utterly untrue; he again solemnly denies all fraudulent design, combination, misrepresentation or act in his purchase of this property, and avers that Watts often solicited him to purchase the same [**47]  before he consented so to do; that his solicitor, Scott, filed his petition and acted in good faith in conformity with Watts' agreement with respondent; denies that he wrote letter K for the purpose of deceiving Watts or making him believe that no deed had been taken for the farm, and that he ever intended to deceive him, or that Watts is easily deceived in matters pertaining to his own business or rights, or that he was ignorant of the contents or meaning of the petition in the mortgage case, or that he was incapable of understanding the same, or destitute of counsel to aid him in comprehending it; he denies also the allegations that Watts is not a man of business or business habits, and avers that he has been a long time a justice of the peace of Baltimore county, and has discharged the active duties of that office, and has also been a judge of the district court of the 3rd election district of that county and performed the duties thereof; he avers that paper P was a confirmation of the original agreement between them, which was fully set forth in the petition, to which they are both bound by their consent filed in the mortgage case, but as respondent, at the date of said paper,  [**48]  had not received his deed from Taggart, he asked for and obtained that written evidence from Watts of his title to the farm, to be used at the trial between himself and Davis, and for any other fair and honest purpose, and submits that it does not now lie in the mouth of Watts to repudiate the obligation of an instrument which he says he executed only to be used in a trial against another; denies that he has made large profits from the mine, but admits that he refuses to account to Watts in respect to his mining operations, because Watts has no right or interest, and has never invested a dollar in them; he relies upon the statute of frauds as a bar to the relief sought by this amended bill, and as an answer to any alleged agreement or contract touching said land. He also denies the allegations contained in the bill of discovery, and refers to his answer to the same, which was filed at the same time with his answer to this amended bill.

It was agreed, that the evidence taken under the original bill and answer, might be used at the hearing under the amended or supplemental bill and answer, subject to all legal exceptions. The proceedings which were commenced in the Superior Court [**49]  were then, by consent, transferred to the Circuit Court of Baltimore city.

Exceptions were then filed to the sufficiency of the averments of the bills, original and amended, in substance as follows:

1st. For that whereas the bill, among other things, prays that defendant may be required to deed back to Watts the mine and farm, or such interest therein as by agreement J he should appear to be entitled to, yet that agreement does not show that Wilson entered into any contract with Watts to deed back the mine and farm, or any interest in either of them, either upon the hypothesis that Wilson had, or in the event he should thereafter, become the owner of the entire property by purchase or otherwise.

2nd. For that whilst Watts admits that he made the declarations and admissions, to be found in the record, of the mortgage case of Hook vs. Watts, and does not pretend that he did not knowingly make the same, yet he seeks in pleading by averments to contradict the same, to ascribe to them meanings and effects contrary to their plain meaning and operation, and in fact to vary them by averment of agreements or assurances made, or understandings, or confidences, or trusts, or intentions,  [**50]  or purposes of a directly contrary import. The defendant therefore excepts to these averments:--1st. Because the complainant is not at liberty to give to said admissions and declarations, meanings and effects contrary to their true meaning and effect. 2nd. Because no averment can be made by complainant to contradict said record. 3rd. Because if these admissions and declarations were untrue in fact, the same were a fraud upon the court in which they were made, and on all persons whose rights were, or were liable to be, affected thereby, and that complainant is estopped to aver the contrary thereof.

3rd. For that whilst complainant pretends that other conveyances were intended to be made between him and Wilson, he does not set forth and show what such conveyances were, nor whether such intention was based on any and what agreement, or whether such conveyances were to be as qualifications or as modifications to any and what particular conveyance.

4th. That Watts, in now seeking to destroy and impair, or otherwise affect the deed from Taggart, really affirms and shows, that he was guilty of gross fraud upon others in the various transactions which he pretends to have taken place,  [**51]  and thus, by his own showing, has no standing for relief in this court.

5th. That the bills are very vague, indefinite and uncertain, in their statements and averments.

6th. That whilst the complainant is seeking the specific performance of an illegal, executory, parol, contract, denied by the answers, he does not set forth and show with any certainty what the precise contract is, nor aver and show any acts of part performance, nor does he tender performance.

7th. That whilst complainant charges fraud in no sparing terms, yet at the same time he admits that the contracts entered into by him were knowingly made and entered into, and precisely import what they were intended to import, so that the imputations of fraud are to the effect that the same are used in fraud of some conventional agreement, which it is the object of the bill to enforce a specific performance of, yet such agreement is not set forth and stated in pleading.

The defendant also excepted to the testimony, as follows:

1st. To all parol testimony tending to contradict, add to or vary the written evidence of the contracts and agreements, made between the parties in relation to the property mentioned [**52]  in the bill.

2nd. To all testimony which tends to show a state of case different from, or inconsistent with, the state of case presented to the court by the record of the mortgage case of Hook vs. Watts.

3rd. To all testimony which relates to matters not within the scope of the bills, nor warranted by their statements and averments.

4th. To all testimony which relates to any matters not pertinent to the case as made in pleading by the bills.

5th. To all testimony tending to prove by parol any conventional trust, or to connect by parol any written papers in the cause for the purpose of establishing any trust, confidence or agreement, by such papers so connected.

6th. To all testimony tending to show a fraudulent use by defendant of any agreement, deed, or other document.

7th. To all testimony tending to contradict or impair the efficacy of the order of Baltimore county court, passed the 20th of November 1849, as shown by the record of the case of Hook vs. Watts.

8th. To the admission in evidence of letter K, and especially to its admission as any evidence of any trust as respects the deed from Taggart, or as respects the title acquired under the contract [**53]  evidenced by the petition, and the agreement for the ratification of the sale in said case of Hook vs. Watts.

It was agreed that these exceptions should have the same effect as if the testimony excepted to was particularly set forth in them, and the cause was then argued and submitted for decision.

The court (KREBS, J.) delivered a lengthy and elaborate opinion in the case, in which--after stating the allegations of the bills and answers, and referring to the proceedings and decree of the court in the case of Hook vs. Watts, and stating that they bind Watts so as to transfer the title of the property, unless their validity is impaired by some of those influences operating upon him from the party who seeks to avail himself of their benefit, or circumstances of weakness of mind and inadequacy of consideration, which courts of equity have declared destroy the effect of the most solem acts of parties, and judgments and decrees of courts--proceeds:

"It is the peculiar duty of a court of equity to protect the rights and interests of persons of weak understanding and feeble judgment, and who are disabled by distress of mind, arising from pecuniary troubles, or overwhelming [**54]  calamities, from properly managing and disposing of their property. And among the numerous classes of cases in which they afford relief are those in which unconscientious advantages or bargains have been obtained from persons disqualified by weakness, infirmity, age or other incapacity, from taking due care of or protecting their own rights or interests. 1 Story's Eq., sec. 221. And this is upon the theory of the law, that there must be a free and full consent of parties to the acts and contracts affecting their property and rights, to make such acts and contracts binding. Consent is an act of reason accompanied with deliberation, the mind weighing the good and evil on each side. And hence it is, that if consent is obtained by surprize or undue influence, it is not the deliberate and free act of the mind. Secs. 221, 222. Weakness of understanding constitutes a most material ingredient in the inquiry, whether a contract or deed has been obtained by any imposition or undue influence, 'for although if these be made by a man of sound mind and fair understanding, they may not be set aside merely from being rash, improvident, or a hard bargain, yet if they be made with a person of weak understanding,  [**55]  there does arise a natural inference that they were obtained by circumvention or undue influence.' Sec. 235. And the same learned judge says, 'if a person is of feeble understanding, and the bargain is unconscionable, what better proof can one wish of its having been obtained by fraud or imposition, or undue influence, or by the power of the strong over the weak? Sec. 236, and the authorities there cited. By this weakness of intellect, the learned author does not mean that imbecility of mind which would justify the court's protecting power under a commission of lunacy, for in sec. 237, he quotes the language of the Lord Chancellor, in the case of Blackford vs. Christian, 1 Knapp, 78, 'a degree of weakness far below that which would justify such a proceeding, coupled with other circumstances, to show that the weakness, such as it was, has been taken advantage of, will be sufficient to set aside any important deeds.'

"And he further says, 'that the doctrine may be laid down as generally true, that the acts and contracts of persons who are of weak understandings, and are thereby liable to imposition, will be held void in courts of equity, if the nature of the act or contract justify [**56]  the conclusion, that the party has not exercised a deliberate judgment, but that he has been imposed upon, circumvented, or overcome by cunning or artifice, or undue influence.' Sec. 238.  2 H. & J., 285, Brogden vs. Walker.

"Another class of inequitable and unconscientious bargains, are those described by Lord Hardwicke in Chesterfield vs. Jaussen, 2 Ves., Sen., 155, in which he says, 'courts of equity have an undoubted jurisdiction to relieve where the unfairness is apparent from the intrinsic nature and subject of the bargain itself, such as no man in his senses and not under delusion would make.'

"There is also another class of cases in which relief is constantly granted, in which, to inadequacy of price or inequality in the bargain, is superadded other circumstances of a suspicious nature. Story's Eq., secs. 244, 246. As for example, to use the language of the Chancellor in Copis vs. Middleton, 2 Madd. Ch. Rep., 568, 'where the transaction is such as to be inconsistent with the sober manner of a man's transacting his affairs,' there, he says, 'inadequacy of price is strong evidence of fraud.' By inadequacy of price in this passage he does not mean 'gross inadequacy, which [**57]  shocks the conscience,' for he had already declared, in the preceding part of his decision, that it alone, without superadded circumstances, would invalidate the transaction. And it is perfectly well settled, that the weakness of mind in the party to the transaction, that influences the courts in their decisions in the foregoing classes of cases, is not that which arises only from general mental imbecility, the natural incapacity of infancy, or the infirmity of old age, but it is immaterial whether it proceed from such causes, or 'from those accidental depressions which result from sudden fear or constitutional despondency, or overwhelming calamities,' (1 Story's Eq., sec. 234,) 'from extreme necessity or distress,' sec. 239, or such like causes, that 'harass and perplex the intellect and render a man uneasy at the time,' so that 'it cannot be supposed that he had a mind adequate to the business which he was about.' Sec. 234.  5 Blackf., 530.

"There is also that extensive class of cases in which courts of equity are accustomed to exercise a most plenary jurisdiction for relief, denominated constructive frauds, by which are meant such acts or contracts as, although not originating [**58]  in any design to perpetrate a positive fraud, yet by their tendency to deceive or mislead others, or to violate confidence reposed, are deemed equally reprehensible, and are prohibited by law as within the same reason and mischief. Some of the cases under this head grow out of special, confidential, or fiduciary relations between all the parties, or between some of them, which are watched with especial jealousy and solicitude, because they afford the power and means of taking undue advantage, or of exercising undue influence over others. Courts of equity therefore interfere in such cases, where but for such a peculiar relation they would either abstain wholly from granting relief, or would grant it in a very modified and abstemious manner. And they act upon the principle which is sometimes called a 'technical morality.' If confidence is 'reposed, it must be faithfully acted on and preserved from any intermixture of imposition. If influence is acquired, it must be kept free from the taint of selfish interests and cunning over-reaching bargains. If the means of personal control are given, they must always be restrained to purposes of good faith and personal good. 1 Story's Eq., sec.  [**59]  308. Courts of equity will not set aside a contract merely because a man of a high sense of honor would not have entered into it; but some relation between the parties must exist, which compels the one to abstain from 'all selfish projects.' They will not suffer one party standing in a situation of which he can avail himself against the other, to derive advantage from that circumstance. 'The general principle which governs in all cases of this sort is, that if confidence is reposed, and that confidence is abused, they will grant relief.' Sec. 308. The familiar relations to which these principles have been invariably applied, are those of attorney, or solicitor and client, principal and agent, &c., &c.; but the courts have long since extended them beyond these technical relations to apply to "cases of persons standing in the situation of confidential advisers,' sec. 319; or confidentially entrusted with the management of the concerns of another, in whom he reposed a very 'special confidence,' Hunter vs. Atkins, 3 Mylne & Keene, 113; and to all cases where confidence is reposed, and one party has it in his power, for his own advantage, to sacrifice those interests which he is, in conscience,  [**60]  bound to support.' 1 Jeremy's Eq., 396. The law upon this point, as now adopted and constantly acted on by the courts of England and this country, together with the authorities to sustain it, is fully set forth by the court in the case of McCormick vs. Malin, 5 Blackf., 509. In that case the court says, 'there was no formal relation between the parties of principal and agent at the time of the sale, but the one reposed a confidence in the other as undoubting, and was liable to an influence as powerful, as if that relation had subsisted; the rule in equity applicable to all such cases where confidence on the one hand and influence on the other exist, from whatever cause they may spring, requires of the party, in whom the trust is reposed, the highest degree of good faith. On him rests the duty of proving that the contract is in every respect equal, fair and equitable; if he fails in this, it is a case of constructive fraud and avoids the contract,' page 523, and the authorities there cited, also page 527. Lord Eldon in Gibson vs. Jeyes, 6 Ves. 277, in reference to the principle of the rule, that in transactions and dealings between attorney and client, in regard to the property of the [**61]  latter, the onus lies upon the attorney of showing that no undue advantage has been taken, says, 'that it is found in that great rule of the court, that he who bargains in a matter of advantage with a person placing confidence in him, is bound to show that a reasonable use has been made of that confidence, a rule applicable to trustees, attorneys, or any one else;' a rule as Story says, 'applying to all persons standing in confidential relations with each other;' and which he says is this, viz., 'it is not necessary to establish that there has been fraud or imposition upon the client, but the burthen of establishing the perfect fairness, adequacy and equity' of the transaction or bargain 'is thrown upon the attorney.' 1 Story's Eq., sec. 311.

"From the foregoing we deduce the positions: 1st, that courts of equity will set aside deeds or contracts of a man of weak understanding, not equal to the task of attending to his own interests with deliberate judgment, where the bargain on which it is founded is hard and unreasonable, and the consideration inadequate. 2nd. Of a man of good understanding, and under ordinary circumstances competent to manage his affairs with a due regard to [**62]  his interest, where the deed, contract or bargain is between himself and another, in whom he places confidence and relies on to guard and protect his interest, and where the consideration is not perfectly fair, adequate and equitable; and a fortiori will such deed or contract be set aside, where the circumstances of weakness of judgment, inadequacy of consideration, and confidential relation, combine to impeach the transaction.

"Before examining the evidence to ascertain how far these principles apply to the facts in the case, let us glance at the species of property involved in this controversy. We find it was a tract of land in Baltimore county, not far from the city, which, not so valuable as many other lands for agricultural purposes, yet concealed, under its less favored soil, rich stores of mineral wealth, undeveloped treasures of copper ore;--that kind of treasure which, as we are told by high authority, when a man discovers that it is to be found in his neighbor's field, he goes and sells all that he has that he may make himself the owner of it; that description of property to which a man clings with the tenacity of forlorn hope, and which, of course, Watts was very desirous [**63]  to retain in his possession. With all this Mr. Wilson was perfectly well acquainted; and he knew further, that Watts was poor, and that this property was 'his main dependence.'

"It cannot be doubted, from the direct testimony of the witnesses examined upon that point, that Watts was a man of very feeble capacity for business and pecuniary transactions. McConkey says, that 'Watts is not a man of business habits,' that he is not 'calculated to transact business in which there is any financiering.' Rider says, that 'he really thinks that Watts is not a man of business;' and to the defendant's cross-interrogatory the witness replies, 'that he does not think Watts is a man of ordinary understanding, competent to make contracts, and that he would not trust him to make a contract for him.' The former of these witnesses speaks from a knowledge of Watts for thirty, and the latter for many years. Hook, who says that he has known him for twenty years, testified to the same effect. There is nothing brought out on the cross-examination of these witnesses, that shows that they speak from prejudice or ill-will against him, or that impairs their testimony, and the defendant has not produced a [**64]  single witness to rebut what they have stated upon this point. All that he has relied upon, by way of answer to these charges, to weakness of mind and incompetency, is what he alleges in his answer, and what is stated by Watts' own witnesses upon the defendant's cross-examination, viz., that Watts has acted as a county justice of the peace, and that he was one of the associate justices of the 3rd election district of Baltimore county. But Rider and Hook, upon whom the defendant relies for the proof of these facts, say, the former, that he never thought him fit 'to be a justice of the peace,' that 'he had seen some of his official acts, he doubted whether he understood what he had written, he has written pieces which deponent thinks he, Watts, did not understand;' and the latter, 'that Watts was one of the associate justices with him of the said district court, that he sat at said court two or three times, but took no active part in its business;' and that he is not able to say, 'whether he, (Watts,) understands what he reads and writes.'

"This very fact of Watts' deficiency as a man of business, and incompetency to contract with skill and judgment, was put prominently in issue [**65]  in the pleadings, and the defendant has not met it by such evidence as satisfies the court, in view of what the complainant's witnesses testify, that Watts was not a very simple-minded man, of feeble intellect, of limited capacity for business, and not possessed of sufficient ability to qualify him to bargain and contract, with reference to the property in question, with that degree of judgment and deliberation which courts of equity deem necessary to render such transactions valid. And this seems to be the estimate that Wilson himself formed of Watts' qualifications to manage his business affairs, and to deal with this property; for giving the former credit for sincerity in the sympathy that he manifested for Watts, and the reason he assigned for his willingness to befriend him, he certainly did not believe him competent to protect himself from being cheated and defrauded out of this property, for Davis, one of the witnesses for the complainant, says, that Wilson told him that 'he felt a disposition to befriend Watts, to prevent him from being cheated and defrauded by Isaac Tyson,' who was supposed by Wilson to have some designs upon these copper mines, and who he said 'was endeavoring [**66]  to wrong Watts and to get the mines for less than their value.' And when Watts went to Tyson's counting-room to offer these mines to him, Wilson came with him as his 'counsellor' and friend, apparently not willing to trust him to negotiate, without his aid, with Tyson; and he appears to have gone in the same character to the office of Stewart, who had written two notes to Watts, requesting an interview with him in regard to these mines, and who, instead of calling himself, is represented by Wilson. And when Stewart says that he is a friend of Watts, and wished to promote some satisfactory arrangement with Tyson, Wilson's reply proves clearly, that he did not regard Watts as equal to the task of taking care of his own interests and protecting himself from imposition. He says, 'No such arrangement could be made, .... Tyson wanted to take advantage of Watts, and that he intended to protect Watts from imposition, and that he should not sacrifice' these mines; language highly creditable to his friendly and sympathetic feelings for Watts, but still the language of the stronger towards the weaker; the language of one who is confident of his powers to protect and defend the interests of another,  [**67]  who is not competent to guard and preserve them himself. The letters addressed, from time to time, by Wilson to Watts, and filed with the evidence, contain cautions and charges to Watts to 'keep cool, not to brag or talk too much,' to be on his guard 'how he talked and who he talked to,' and encouragements 'not to be frightened and afraid,' all in regard to this property, which, if they mean anything, show conclusively, that Wilson regarded Watts as a weak and incompetent man, to be addressed and cautioned almost like a child, and altogether unfit, without assistance, to manage and transact his business affairs. If he was not the man of inferiority of intellect, feebleness of mind, and unfitness for his business, that all the circumstances of this case, and the testimony of these witnesses, who have known him for so many years, prove that he was, why has not the defendant produced other persons, who have known him equally well, to prove that he was a sound-minded, shrewd man, skilful and expert in matters of business, and perfectly competent to attend to and take care of his own interest? It certainly was not enough, in answer to the evidence in the cause, upon this point, to rely [**68]  upon the simple fact that he had acted as a justice of the peace in the county or in the district court, especially when the witnesses who proved these facts, rebut the inferences therefrom, of capacity and qualification, by saying, that he was, in their opinion, not fit for the office.

"And again, at the times of these transactions between Watts and Wilson, beginning with the earliest, the contract of April 25th, 1846, Watts was poor and in great pecuniary distress; this Bare Hill farm and mine, his only meas of support for himself and family, had been advertised for sale to pay Hook's mortgage claim, and he was evidently in that state of uneasiness of mind, perplexity and embarrassment, which the courts, in the language of the authorities referred to, regard as 'overwhelming calamities' that 'harass and perplex the intellect, and render a man uneasy at the time, ....so that it cannot be supposed that he had a mind adequate to the business that he was about.'

"Such being the character of his mind, both from natural and accidental causes, what does he do? He encounters, in a business transaction of the deepest moment to himself, a gentleman whose keenness, shrewdness, and [**69]  business qualifications and capacity, no one who knows him will question. That transaction was an agreement to sell on the part of Watts, and to purchase on the part of Wilson, the Bare Hill farm and copper mine. Wilson disavows any other view of it than this; the contract, he alleges, is set out by Watts in his petition, in the case of Hook vs. Watts, filed on the 27th of April 1846. He also alleges, that exhibit No. 1, filed with his answer, dated the 25th of April 1846, evidences this contract. What was the consideration to be paid by him for this property? Exhibit No. 1 says, that it was 'the payment of the sum of money due under mortgage to Hook.' The petition says it was $ 2100, which Wilson, in his answer, says, was more than sufficient to pay the mortgage, interest and costs; and which, by the auditor's account, it did exceed by the sum of $ 15.66. Was not this contract with this man, such as he seems to have been from the evidence, of such a character as courts of equity discountenance and set aside as being hard, unconscionable, unreasonable, and not founded on a fair, adequate and equitable consideration? Was not Watts 'sacrificed' by this sale? To show that he was, it is [**70]  not necessary to refer to the testimony of the different witnesses in regard to the value of this property, because Wilson's letter to Watts, of the 9th of April 1846, is sufficient for the purpose. That letter was written after the property had been first advertised under the mortgage by Taggart, and before the day of sale had arrived, and it appears from it, that Wilson had called on Taggart and 'handed him a note, signed by Hook, to stop the advertisement,' which he declined doing before he saw Hook. Wilson then says in this letter, 'from what I saw of Mr. Hook I don't think he is disposed to injure you further than to secure his money.... If he, (Hook,) will come in with you on Saturday, I will go with him and you to Taggart and save you from sacrifice.' What is meant here by Watts being 'injured' and 'sacrificed?' Certainly nothing else but having this property sold to pay this mortgage debt. It was then advertised for sale, and it was the sale that was to 'injure' and 'sacrifice' him, and why? because it was all his living, and he would be left destitute without it, and it was evidently supposed to be worth much more than the mortgage claim. If Watts would have been 'injured'  [**71]  and 'sacrificed' if his property had been sold to any one else for this mortgage debt, does he not suffer as much if it is sold to Wilson for the same consideration? Does he 'save Watts from sacrifice,' as he kindly offered to do, by taking this same property on these terms?--and that too after he had interfered and stopped the public sale--which no doubt would have brought its fair value--and purchasing it at private sale?

"Mr. Stewart, in his testimony, says, 'that Wilson spoke of the said mineral lands as being very valuable; ....that they were Watts' main dependence, and that there was no chance of his arranging with Tyson for them, for anything like a fair value.' This took place, as Stewart says, in 1847, but there is nothing in the evidence to show that anything had been done to render the mines more valuable then than they were in 1846, at the time when Wilson alleges he made the purchase. And it appears from the evidence of the agent of Tyson, (Farquharson,) that in the spring or summer of 1846, he offered Watts $ 4000 for the mineral right of this property, he reserving to himself one-fifteenth of the ore, which he refused, replying that he had made other arrangements.  [**72]  There can be no doubt, from all the circumstances of the case, that Wilson knew of this offer at the time he had the conversation with Stewart above mentioned; and if 'there was no chance of arranging for anything like a fair value,' with a person who had made such an offer for this property, as Wilson said there was not, he certainly meant, at that time, to intimate that it was worth a great deal more than that amount. In addition to the evidence of the value of this property, furnished by the declarations and statements of Wilson, there is a great preponderance of testimony in favor of the conclusion, that it was of great value, and that the consideration mentioned in the said agreement, was by no means fair and adequate.

"But there is, superadded to the foregoing view, the relation of friendly agency and proffered aid, and kindly intercession and interference, to protect and relieve Watts in his difficulties and embarrassment in regard to this property, and to save it from sale and sacrifice, and from being obtained from him by cheating and defrauding him, which Wilson had established between Watts and himself, and which disables him from purchasing this property unless for [**73]  a fair, adequate and equitable consideration, and throws the whole burden of proving that the consideration was of this character upon him. The court is of opinion, that all the principles that govern courts of equity in their decisions in cases of bargains, transactions of buying and selling, &c., between persons standing in fiduciary and confidential relations to each other, apply to this case. It differs very little, if at all, from the case of attorney and client. Wilson chose to place himself in the position of attorney in regard to this matter of the advertisement and sale of Watts' property under Hook's mortgage. It was a business requiring the services of an attorney or some such agent, and Wilson proffers these services. We do not find from the evidence that Watts ever consulted or employed a lawyer in reference to this matter, or that Wilson advised him to do so, or called in the aid of one until the proceedings were commenced to consummate his alleged purchase, by procuring a deed for him from Taggart, and then Wilson's attorney is employed for that purpose.

"This Bare Hill property was advertised on the 31st of March 1846, by the attorney of Hook, for sale on the 23rd [**74]  of April ensuing, upon the ex parte proceeding authorised by the mortgage act of 1826. It does not appear in the case that Watts had any attorney at this time representing his interest in connection with this property- If he had wished to delay the sale or make other arrangements in reference to the case, his first step would have been to employ counsel. At this stage of the matter we first find Wilson connected with it as the friend, counsellor and protector of Watts, performing those very acts that his attorney and most generous friend would have done to prevent the property from being sold and sacrificed. From Wilson's letter of the 9th of April 1846, when the advertisement of the sale was in the papers, which is the earliest definite date in regard to his connection with this matter, we find that on Sunday previous Hook had agreed to an arrangement, 'under which (as Wilson says) he will be double safe,' which was doubtless his offer mentioned by Hook in his testimony, 'to take up the mortgage and give his, Wilson's, notes, at one, two and three years, for the amount.' That in consequence of this arrangement Hook had signed 'a note to Taggart to stop the advertisement,' which was [**75]  delivered to Wilson, and by him handed to Taggart, who refused to discontinue the advertisement; Wilson, in his letter, then says, that he did not think that Hook was disposed to injure Watts, and that if Hook would come in with Watts and call at his, 'Wilson's, store, he would satisfy Hook about Watts' security, and go with Hook and Watts to Taggart and save Watts from sacrifice.' Hook, in his testimony, says, that Wilson came over where he was, at his brother's, and offered to take up the claim against Watts' property by giving his own notes for the amount, that he took him to be Watts' friend in the interview, because he made the above offer and was willing 'to take the debt of Watts on himself.' Wilson, in his answer, admits, that he did agree to give his notes for that purpose, but that they were ultimately declined, 'and the property was advertised for sale.' Taggart says, that Wilson called at his office, as he understood, as the 'friend of Watts,' and offered his, Wilson's, notes for the whole amount of the mortgage debt, which he, Taggart, declined. Tyson says, that Watts and Wilson 'called together at the counting house of the former, Wilson appeared to be the counsellor [**76]  and friend of Watts, he, (Tyson,) so considered him at the time. They called to know what he would give for that part of the Bare Hill farm where the mines were and which had been leased to Davis.'

"It is to be observed, that all this occurred before the alleged contract of sale exhibit No. 1, dated 25th of April 1846, and before Watts' petition stating the contract, dated the 27th of the same month, and that there is no intimation from Wilson in anything said or done by him up to the former date, nor any circumstance from which it can be inferred that he was himself in treaty for the purchase of the property, or looked to becoming the owner of it. What he had offered to do was to save it 'from sacrifice,' to protect Watts from injury, to assist him in keeping his property, which Wilson said to Stewart 'was his main dependence,' even offering his own notes, (not 'having the money,' as he stated to Taggart,) for the whole mortgage debt, to stop the advertisement and prevent the sale. At this time Watts could have regarded him in no other character than that of his best friend, his counsellor, his confidential adviser, his agent, apparently ready and willing to do anything in his [**77]  power to befriend and assist him in his distressed condition, and to save his property from sale and sacrifice. This being the relation in which these parties stood to each other, Watts must have placed the utmost confidence in Wilson, and he must have had unbounded influence over him. No stronger proof of such confidence and influence could be adduced than the fact that Watts, (as alleged by Wilson,) signed the contract of sale of the 25th of April 1846, written by him without any legal adviser, to Watts, a circumstance always regarded as suspicious, in which, for the consideration of the mortgage debt only, to be paid by Wilson, he agrees to sell to Wilson the whole of this Bare Hill property, 'with the right of his mother's life estate, also to be conveyed to said Wilson.' Now this life estate was not embraced in the mortgage to Hook of course; without it he says he 'was satisfied' with the property 'as security,' and 'that in April 1846, it was worth a good deal more than the amount of this mortgage debt,' whilst other witnesses speak of it as being of very great value. From the foregoing facts it is not unreasonable to conclude, that Wilson's influence over Watts was such that [**78]  he would have signed almost any paper, in reference to this property, that Wilson might have written and offered to him; and that under this influence and with unquestioning confidence in him, he, Watts, signed the petition prepared by Wilson's solicitor, which he no doubt understood to be intended for the mere purpose of procuring the title for Wilson, in pursuance of this alleged contract of sale, in regard to the consideration for which he would have made no more inquiries than he would, if he had been called upon to prepare a deed of it for these parties. In fact he had nothing to do with the negotiations or arrangements that led to this alleged contract, and cannot be supposed to have known what was in the mind of the parties in regard to it. The testimony of another witness, not yet referred to, is very strong to show the relation of friendly agency and protecting care that Wilson had assumed towards Watts, and the opinion that Wilson entertained of the great value of this property. I have looked carefully through the whole evidence and find no attempt made to impeach the testimony of this witness. He states that Wilson stated to him, 'that he was the friend of Watts, and that [**79]  he merely would undertake this thing to get him out of the clutches of Tyson and of Davis, who were both, as Wilson said, trying to rob Watts out of his house and home; that the mine was invaluable, there was no telling the amount of money it was worth; that he would not take any amount of money for it if he was Watts; that it would turn out to be a fortune for him; that if he was Watts he would not let Tyson have it for any consideration, and this was said in the presence and hearing of Watts.' All this is inconsistent with the fact that the property then belonged to Wilson, of which he says he became the owner by the contract with Watts of April 25th, 1846, and the contract set forth in his petition of the 27th of the same month, before mentioned, and of course these statements and declarations were made by Wilson before that time, and they define, in his own language, the relation he had assumed in reference to Watts over this property, and show that he had determined to use his influence with Watts to prevent Tyson from becoming the purchaser for any price, and sustain Watts' allegation in the bill, which Wilson does not deny in his answer, 'that he frequently dissuaded him (Watts)  [**80]  from making a bargain with Tyson,' and this is especially important in view of the facts in proof, that he was exceedingly anxious to get the property, and had actually offered $ 4000 for it, which Watts declined, because he had made other arrangements. Conceding that it was difficult, from the nature of this property, to say what it was worth, with much precision, at the time Wilson alleges Watts contracted to sell it to him, or what might have been obtained for it at private sale, we find a definite offer of $ 4000 made for it--the opinion of many persons, competent to judge, that it was of great value--Wilson's statements that it was very valuable--and Watts deprived of the benefit of that great test of the fair value of his property, a sale at public auction, where Tyson, who Wilson says, ought not to have had it for any consideration, would have been a competitor for it with others. And we find such a sale actually advertised, stopped by the agency of Wilson, 'to save,' as he says, 'Watts from sacrifice,' and Wilson, as he alleges, becoming the purchaser at private sale for about $ 16 more than the mortgage debt, interests and costs, $ 2100, when no public sale was threatened,  [**81]  as the evidence of Taggart shows. If the inadequacy of this consideration is not, in the language of some of the decisions, 'sufficient to shock the conscience,' the whole circumstances of the transaction certainly produce that effect, and the court is constrained to say that it cannot sustain this contract with Watts, and regard it as any foundation for a valid title to this property in Wilson.

"It will be found from a review of the authorities, that upon the objections of incompetency and inadequacy of consideration, the proofs in this case are much stronger than the rule established by those authorities requires. In Gibson vs. Jeyes, 6 Ves., 272, in which the two objections just mentioned, coupled with the relation of the parties, were urged against the contract, Lord Eldon says, looking to the third ground, the relation of the parties, 'there is enough in this case to authorise the court to say, there is probable evidence of incompetency, and evidence of some degree of insufficiency of consideration that can be felt as extremely material evidence, when it is to be connected with the third ground.' In McCormick vs. Malin, 5 Blackf., 531, the court, after considering the several [**82]  grounds for setting aside the contract in that case, that have been relied upon in this, closes its examination in the following language, precisely applicable to the case before this court: 'If it could be doubted whether any of the views that we have taken, separately considered, is sufficient to entitle the complainant to the relief he prays, that doubt must vanish before their combined force. A treaty respecting an important interest, entered into between two persons of very unequal powers, one with a naturally unsound judgment, the other enterprizing, keen and sagacious in business, the weaker mind trusting in the stronger, that influence increased by pecuniary distress on the one side and pecuniary power on the other, and resulting in a contract exhibiting great inadequacy of consideration:--A treaty thus characterised, presents claims to relief which a court of equity cannot withstand.'

"If this case then stood upon the contract of sale alone, as alleged by defendant in his exhibit No. 1, or as set forth in Watts' petition, the court would have no difficulty in relieving against it. But the defendant relies in vindication of his title, not only upon this contract of sale,  [**83]  but also 'upon the orders of Baltimore county court, in the said case, ratifying and confirming said sale, and upon the deed from Taggart in pursuance thereof,' which, deriving its effect solely from the validity of said order or decree, as it has been termed in the argument of counsel, must stand or fall with the said decree.

"This order was passed by the court on the 20th of November 1849, more than three years after the alleged contracts of sale; and was passed with the written consent of Watts filed in the case, without which, for several reasons, it would have been a nullity. The defendant claims for this decree a very impregnable character, and insists that Watts cannot gainsay it, or aver anything against it. Now it is perfectly certain, from all the authorities, that all the facts, circumstances and reasons that have been previously considered, and which it is unnecessary to recapitulate here as objections to the validity of the said contract of sale, can be relied upon against the validity of this decree. It is assailable upon the same grounds and for the same reasons. If a decree has been improperly obtained it can be impeached, Mitford's Ch. Plead., by Jeremy, 112;  [**84]  and when made by consent, and the consent has been fraudulently obtained. Ibid., 114. 1 Story's Eq., sec. 252. 2 Do., sec. 1522. Bradish vs. Gee, Amb., 229.  Monell vs. Lawrence, 12 Johns. Rep., 521. But for the opposition of Tyson to Watts' petition, as shown in the proceedings in the said case of Hook vs. Watts, the record of which is one of the exhibits in this case, this decree would no doubt have promptly followed the petition, and having been in company with it would have shared its fate, so far as that fate is determined by the views and reasonings hereinbefore expressed and urged, upon the law and facts in this case; but does the circumstance of Watts having assented to this decree, and its having been passed by the court so long subsequently to the contract of sale, give to the decree any force, effect or validity, which the contract does not possess? It certainly does not, because all the evidence in the cause shows, that the previous condition of Watts, and the relation of Wilson to him, was unchanged at the time of the decree; nay, that the circumstances of their relative position were such at that time, as to make the objections to the validity of this decree, for the reasons [**85]  heretofore stated, stronger than those that could be urged for setting aside the contract of sale. Whilst there is much in the testimony of the witnesses in this case to maintain this position, there is quite enough, for that purpose, to be culled from Wilson's letters to Watts, written during the interval between the contract and the decree. They are expressed in language of the warmest apparent friendship, manifesting the deepest concern for his interest in connection with this property--show that he seemed to be acting for him, and his interests, in reference to pending law suits with Tyson--congratulate him on successful results of this litigation, both in the court of chancery and in the appellate court--address him now in terms of admonition, 'not to brag too much, .... not to talk too much, .... be cautious who you talk to;'--and then, in terms of encouragement, exciting his hopes of great gain and benefit to be derived from these mines, in words such as these, 'plenty of money ahead, only have patience, .... only keep cool and look sharp, the money will come sooner or later in no small sums,'--all showing that Watts still had the strongest reasons for regarding him [**86]  as his best friend--his confidential adviser, employing his agency in every way to promote Watts' interests in connection with this property, and excluding any doubt of his enjoying the entire confidence of Watts and having the strongest influence over him, and there is nothing in the case to furnish any reason for believing that Watts was at that time more competent to attend to his interest in this business than he was when he signed the contract of sale, and nothing having been added to the price of the property, it was quite as inadequate as a fair and equitable consideration. The question, as to the effect of subsequent acts and deeds of parties in ratifying and confirming contracts liable to be impeached on the grounds alleged against his contract, has been fully considered in the elaborate opinion of the court, in the case of Butler et al. vs. Haskell, 4 Desauss. Eq. Rep., 651, 709, in which the judge, delivering the opinion, says: 'I understand the doctrine, as to confirmations, to be quite settled, that the party who gives them must be shown to be no longer under those circumstances of necessity, or of overbearing influence or blind confidence which led into the first agreement,  [**87]  and that he is aware that he is not bound by the original contract, but may be released from it; but nevertheless he choses deliberately and without imposition to confirm what he had first done. To this may be added, that in many cases, particularly of great abuses of confidence, confirmations are not allowed to have any effect;' and on page 715: 'The few cases in which confirmations have been allowed to prevail, have been cases of great fairness and deliberation, where very intelligent men, fully aware of their rights and of their title to relief, have nevertheless thought proper to confirm contracts impeachable in their character; and this, after the necessity which led to the first bad bargain had ceased.' In Purcell vs. McNamara, 14 Ves., 91, it was decided by Lord Eldon, and afterwards by Lord Chancellor Erskine, that 'several deeds executed at large intervals should not prevail as confirmations, the other party being throughout under the same influence, control and ignorance of their rights, and every instrument signed under the same blind confidence.' The case above cited, of Butler vs. Haskell, was similar to the case before the court, in respect to the reasons urged against [**88]  the validity of the deed in that case sought to be vacated; they were inadequacy of price, the weakness and necessities of the sellers, and the relation of confidence between them and the purchaser; upon which grounds the deeds were all set aside, as well the original as the confirmatory, and it is a strong authority upon all these points. I am constrained therefore to say, that I regard this order of court, or decree, and the deed made in pursuance of it, as having no more validity or effect than the contract of sale.

"It appearing then to the court, from all the evidence in the case, that this order or decree which the defendant alleges is in pursuance of and carries out this contract, is impeachable, and liable to be set aside and vacated for the various reasons above stated, we are brought to the question: Whether the complainant in his pleadings has set forth a case to which this state of facts will adapt itself?

"It is an elementary rule of pleading that a complainant's relief must be according to his allegations, and that where he seeks relief against a decree upon such grounds as would constrain a court of equity to vacate it, he must sufficiently allege these grounds,  [**89]  and must also bring to the view of the court in his bill of complaint the particular decree or proceedings that he seeks to impeach, and it is not enough for him to take up the decree when pleaded or relied upon by the defendant, object to it, and ask to be relieved against it, he must make it the substantive matter of impeachment in his bill of complaint. Story, in his Equity Pleading, after stating that there is no doubt of the jurisdiction of courts of equity to grant relief against a decree where it has been obtained by fraud and imposition, which infect judgments at law and decrees of all courts and annul the whole in the consideration of courts of equity, prescribes the frame of a bill to set aside a decree upon the above grounds in these words: 'A bill to set aside a decree for fraud must state the decree and the proceedings which led to it, with the circumstances of fraud or whatever may be the ground on which it is impeached,' sec. 428.

"The original and amended bill filed in this cause, although not drawn very skilfully, yet are very full in the statements and repetition of the matter on which the complainant relies for relief. They set forth this petition, proceedings,  [**90]  and order, or decree of the court, with the various grounds of objection that the evidence shows in the opinion of the court he is entitled to urge against them, viz: his ignorance, unfitness for business and incompetency--the inadequacy of the consideration, and the relation which the defendant had assumed and stood towards the complainant; the unlimited trust and confidence that he reposed in the former, and the influence that he acquired and exercised over the complainant; and concludes with an alternative prayer for relief, looking to a favorable view of the case by the court in this aspect of it. The court must therefore declare its conviction, that the facts and circumstances averred in the bills of complaint are sufficient to entitle the complainant to relief upon the grounds heretofore considered in this opinion. The court has given much examination, thought and reflection, to the principles, authorities and reasonings that have brought it to the judgment already declared upon this transaction between the complainant and defendant, regarded as a purchase, because the defendant has thought proper to rest his defence exclusively upon that view of the case, and it is constrained [**91]  to say that regarding it in that character, it cannot, consistent with the well settled principles that regulate courts of equity in like cases, regard this transaction in any or all of its parts as giving a fair, valid and honest title to the defendant.

"Having considered this case in the aspect of it presented by the defendant in his answers, I will proceed to examine it in another view, presented by the complainant in his original bill, in which he alleges that the agreement set forth in the petition filed in the case of Hook vs. Watts, and the confessions made by him in that case, and to be found in the chancery record referred to, were not made for the purpose of conveying the absolute legal title in the Bare Hill mines and property to the said Wilson, but only for the purpose of making him safe in the payment of the mortgage debt, until other conveyances were made between him and Wilson, accurately defining and limiting his right and interest in the mine. The court will then enquire:

"1. Whether it appears from evidence that it was the intention and understanding of Watts and Wilson that this agreement, proceedings and deed, should not convey the absolute title and [**92]  ownership in this property to Wilson?

"2. Whether it sufficiently appears from the evidence, what interest and estate they were to have in the said property under the agreement and proceedings?

"3. Whether the rules of law and decisions of the court of equity prevent this court from carrying out the intention of the parties in reference to such interest and estate, as it may be disclosed by the evidence?

"It may be premised upon the first question, that a sale of this property to any one was the very thing that Watts was struggling to avoid, and the calamity that Wilson seemed desirous to avert, because it was Watts' 'main dependence' and he did not wish 'to be sacrificed.' Again, if the transactions between Watts and Wilson were designed to make the latter the owner of this property; if he was to become the purchaser under a sale from Watts, is it not marvellous that not a single witness is produced who heard, at any time during the long interval between its commencement and consummation, one word between these parties in regard to the sale or purchase of this property, and that not a single line is exhibited in evidence written by Watts to Wilson, nor one from the [**93]  latter to the former, in the course of the correspondence that is proved to have passed during this interval, in which the subject of a sale is mentioned or referred to, or from which any inference can be drawn to prove that Watts regarded Wilson as the owner of this property? And further, Watts had, just before the alleged agreement to sell to Wilson for $ 2100, refused Tyson's offer of $ 4000 for this property; no doubt, from the evidence, acting with the knowledge and advice of Wilson himself, and there was no pressing necessity at that time for a sale of these mines. Though Watts had failed to make, through Wilson, the arrangement proposed and assented to by Hook for time, in the payment of the mortgage debt, yet Taggart had discontinued the advertisement of the property and had abandoned the sale for the time being. In his answer, filed on the 4th of May 1846, to Watts' petition, of 27th of April preceding, setting forth, as alleged, this contract of sale, which answer is a part of the record in the case of Hook vs. Watts, made evidence by the defendant, he, (Taggart,) says, 'that he has no intention at this time to foreclose the said mortgage by a sale of the said property; that [**94]  he had no instructions to do so from the mortgagee and assignee, or either of them, and he denies that the petitioner has any right to insist that the mortgagee shall proceed under the mortgage, or to ask the order for a sale, prayed by him.' Is it not most surprising that Watts, under these circumstances, should at that time have entertained the idea of selling this property to Wilson, and for the price which he alleges was paid by him for it? If he meant to give up his title to it absolutely by this seeming contract of sale, his act is scarcely consistent with sanity. It appears to the court that the mystery in which this part of the case is veiled, is at once removed by correctly understanding the real position of Tyson and Wilson to this property at this time. It is perfectly manifest that there was a struggle between them in regard to it. Watts, in his bill, alleges, 'that Wilson was anxious to prevent Tyson from obtaining it.' Wilson does not deny this in his answer, and the evidence shows that the allegation is true. Hook, as early as 1843, had lent Watts $ 1657 on a mortgage of this property--he had paid no interest on it. Hook says he was satisfied with the security--the property [**95]  was worth a 'good deal' more than the amount of the mortgage debt, but that 'he wanted the interest of his money so that he could make use of it.' And some time before the 6th of October 1853, had placed the claim in the hands of his attorney, Taggart, with authority to him to sue for it; for we find that on that day Taggart, as attorney for Hook, agreed to assign to Tyson the whole of the said mortgage claim absolutely, upon the payment by him within two years of the whole sum due and owing by Watts, with interest and commissions, after the payment of $ 700, on that day paid by Tyson, who purchased the mortgage debt to protect his interest in the mortgaged property, which being created subsequently to the date of the mortgage, he was advised was liable to be destroyed by a foreclosure of the mortgage. Notwithstanding this money was paid to Hook, who says he 'wanted the interest' only, and Tyson had two years to pay the balance, and therefore had control of the mortgage claim and proceedings to foreclosure during that period, we nevertheless find the property advertised for sale the 31st of March ensuing, by Taggart, to satisfy this mortgage debt, which suggests the natural inference [**96]  that Tyson's plan of protecting his interests looked to a sale of the property--a purpose which Wilson seemed to have suspected when he wrote his letter to Watts of the 9th of April 1846, to which he adds, by way of postscript, 'our arrangement with Hook, (which was to give Wilson's notes, &c.,) may not suit other parties who have had arrangement with Taggart.' Taggart refused to stop the advertisement, as we have already seen. Watts, in his bill of complaint, alleges, that Wilson then agreed with him to buy in the property on the day of sale and intimated it to Davis, who informed Tyson, and he induced Taggart to stop the sale. This statement is not denied by Wilson in his answer, and I find strong circumstances in the case to prove that this must have been so. It is certain that the sale at auction was stopped, and that both Taggart and Tyson resisted the private sale to Wilson--Tyson protesting, in his answer to Watts' petition, that it was an attempt to give Wilson the advantage of a purchaser under the mortgage, and to give him a preference over the respondent, (Tyson.) It seems to me perfectly manifest, that these parties were striving, each to prevent the other from getting [**97]  this property, and that the grand object that Watts and Wilson had in view was, by address and management, to defeat Tyson in his plans for acquiring it. This was, no doubt, the purpose of the petition, &c., not to settle the terms of an absolute sale by Watts to Wilson. For though the arrangement took the form of a sale to him for a consideration that paid more than the mortgage debt, as Wilson says, yet it was conceded in the argument that the surplus had never yet been paid to Watts. But looking to the conduct and admissions of Wilson in reference to this property, it appears to the court, that if human acts and language mean what they plainly import, he could not have regarded himself as the owner of this property to the exclusion of any interest, joint or otherwise, with Watts, as he now asserts. His letters to Watts, filed by him as exhibits, beginning from the earliest in date, 9th of April 1846, to the time when the deed from Taggart was executed, contain language and expressions, some of which have been already quoted, and others that will be discovered by a mere glance at the correspondence, which are utterly inconsistent with the theory, that Watts had no interest in the [**98]  mines; such as no man ever wrote to another about property that did not belong to him in any sense, and all this after, as he, Wilson, says, he had purchased it from Watts, long before these letters were written. But this is the tone and language not only of Wilson's letters to Watts, before he signed exhibit P, on which the defendant relies with so much assurance to prove his ownership of the property, and before the execution of the deed from Taggart, but after the date of both these instruments, his written communication shows more definitely than any former one that the writings previously executed did not secure to him the title to this property, according to their agreement. In that letter, dated on the day on which he paid the mortgage debt, when the deed was executed, November 22nd, 1849, he says, 'the business of the mortgage has been settled and paid off to-day,'--strange language to be used by one who had paid the purchase money for property which he had bought and which had just been conveyed to him;--'we expect you will be in to-morrow morning, as it will be necessary for you to deed one-half of Bare Hill to me, according to our agreement.' The defendant admits in his [**99]  answer that this letter, which is filed as exhibit K, is in his handwriting. The allegations in the bill in regard to it are, 'that in the month of November 1849, your orator received a letter from said Wilson, marked as above mentioned, stating that said mortgage had been paid and settled, and that your orator must come to town and give him a deed for one-half of Bare Hill, according to agreement. That your orator then came to town and told said Wilson that your orator's wife was sick and could not come to town, but that if said Wilson would draw up a deed your orator should sign it in the country, and said Wilson assented thereto, but no deed was ever sent out by said Wilson; that said Wilson subsequently stated to your orator, that he had determined to charter said mine and your orator and he could settle then,' but that no company was formed and he never settled with him.

"All that the defendant says in his answer to the allegations in the foregoing extract is, that these letters, filed as exhibits with the bill, evidence no such private contract or secret agreement as is alleged by the complainant, and that nothing contained in letter K, or any other exhibit filed in the [**100]  cause, can impair his title to Bare Hill farm; he takes no further notice of this very important document; he gives no explanation of its meaning, notwithstanding it mentions an agreement; he does not say that there was not any agreement whatever in existence to which it referred, he only states that it, with the other exhibits, evidence no such private contract or secret agreement, as the complainant alleged: but though it evidenced no such agreements as these, it might have evidenced or referred to an agreement of another character--a subsisting written agreement, for instance, between these parties. It is to be observed, that in immediate connection with the foregoing allegations in the bill, and preceding them in the statement, is the allegation that said Wilson signed another agreement drawn in his handwriting, exhibit J, and which is the contract for the sale of one-half of Bare Hill farm to Wilson. Now the complainant evidently means, though he does not so state expressly, that this was the agreement to which this letter referred, and though this letter mentions an agreement, and the complainant sets forth and insists upon this agreement J as a subsisting agreement, the defendant [**101]  does not deny that 'this is the agreement to which this letter refers.' This letter certainly proves two facts:--1st. That the deed from Taggart, executed the day before the date of the letter, the alleged basis of the defendant's right to this property, did not settle the title to it between these parties, but that Watts and wife were to give Wilson a deed of one-half of it, according to agreement. 2nd. That there was at the time this letter was written a subsisting, unexecuted agreement on the part of Watts and wife to convey one-half of it to Wilson.

"But, independently of the admissions and statements in these letters from Watts, both before and after the deed from Taggart, to prove that these previous transactions were not meant to convey this title absolutely to Wilson, we have the unanswered and uncontradicted statement in Watts' bill, that in consequence of this letter he came to town, and told Wilson that his (Watts') wife was sick and could not come to town, but that if Wilson would draw up a deed they would sign it in the country, and that Wilson assented to this arrangement. Now here is the distinct allegation, that Wilson agreed to have a deed for one-half of Bare [**102]  Hill farm drawn and send it to the country to be executed by Watts and wife; a careful perusal of the defendant's answers shows, that he has not answered these important averments, either by admission or denial. There is no doubt that it is the privilege of the defendant to refuse to answer any important allegation in the complainant's bill, and that such refusal does not dispense with the necessity of proving the fact alleged, but it raises a suspicion against him and has some influence upon the decision of the cause.  McDowell vs. Goldsmith, 2 Md. Ch. Dec., 387. Joice vs. Taylor, 6 G. & J., 54. It appears therefore to the court incontrovertible, that it was the understanding of these parties that these transactions between them in regard to this property did not vest the absolute title to it in Wilson.

"What interest and estate then were they to have in this property? Watts alleges that Wilson was to hold it as security for the mortgage debt, which he agreed to pay, until other conveyances were made between them, accurately defining and limiting the right and interest of Wilson; this is denied by him. But we find that as late as the 15th of February 1849, after Wilson had purchased,  [**103]  as he says, which was in April 1846, he writes the paper J, which sets forth that Watts and wife had sold the one-half of it only to Wilson. Which paper contains this significant clause, 'in the event that G. B. Wilson raises a stock company, or can sell the whole tract for a handsome remuneration, to mutual advantage and benefit of both parties equally concerned, then the parties hereto are respectively bound to such an arrangement, their heirs and assigns;' this paper is signed by Watts and Wilson.

"It is to be specially noted here, that Watts' petition, stating the sale to Wilson, on which he relies as the origin of his title, was filed on the 27th of April 1846; the agreement J, above mentioned, was drawn by him and signed by himself and Watts, on the 15th of February 1849, nearly three years after the date of the former. There was no act or proceedings on the part of either of them, in the case of Hook vs. Watts, nor does the evidence show that any other agreement between them, in regard to this property, was executed in the interval.

"So that in the progress of their transaction, they seemed to have abandoned the contract of April 1846, for a sale of the whole to Wilson,  [**104]  and adopted one altogether different--a contract for the sale of half to him; or rather, is not this instrument of writing, of February 1849, in the handwriting of Wilson himself, irresistible proof, that at the time it was executed there was truth in the allegation of the bill, that the proceedings in the said case were not intended to vest any absolute title in Wilson, but that their interest was to be defined by subsequent writings, and that this was the writing by which they then thought proper to define it? I can see no other conceivable theory with which this act can be reconciled. If this position be established, the case is relieved of all difficulty growing out of the fact that Watts may have subsequently executed or assented to writings or acts designed to place the legal title in Wilson, and especially out of the fact that he assented to the subsequent ratification of the sale in the course of said proceedings, for this was only carrying out the original design of the parties and the apparent purpose for which these proceedings were instituted, viz., to convey the title to Wilson, which Taggart had refused to do without an order of court.

"It is very important to keep [**105]  this agreement J steadily in view, and to watch the progress of events between these parties, to ascertain whether it has been annulled by any subsequent agreement, or is inoperative for any other reason. That it existed in full force and showed the mind of the parties, on the 15th of February 1849, cannot be questioned. The defendant's answer in regard to this agreement is, that it never went into effect, because from the day of its date to that of the deed from Taggart, Davis held possession of the property, so far as related to the copper mine, against him, (Wilson,) and against his own release and assignment thereof to him. The court is at a loss to discover any force in this reason, or to understand how the fact, that Davis, who had assigned all the interest he had in this property to Wilson, and refused to deliver possession to him, could affect Watts' rights under this agreement. At the time it was drawn by Wilson and executed by Watts and him, he knew that Davis was in possession, and, according to Davis' testimony, he and Wilson worked it together for about a month, early in the year 1849--this agreement being executed about that time. It was in fact subject to whatever interest [**106]  Davis had in the premises, and Wilson undertook to procure that interest by assignment from him; and we find nothing in the evidence showing that Wilson made any complaint about this state of things. In his answer to the supplemental bill, he adds some further reason for regarding this agreement as inoperative. He says it was never fully executed by the parties thereto--'the wife of Watts, one of the parties, never signed or acknowledged it;' and further answering he maintains, 'that whatever legal effect it might have been entitled to, yet the force and effect thereof are entirely merged in defendant's exhibit P, filed with the testimony.' Now in regard to these additional reasons, though not in form of, they are in fact amendments to, the answer to the original bill, and suggesting as they do new matter of defence in the knowledge and possession of the defendant when that answer was framed, if they had any intrinsic force it would be very much weakened by that circumstance. Courts of equity are exceedingly slow and reluctant in allowing a defendant to amend an answer in material facts or to change essentially the grounds taken in the original answer, and this reluctance is only overcome [**107]  by very cogent circumstances, and such as repel the notion that the party is attempting to evade the justice of the case or to set up new and ingeniously contrived defences or subterfuges.  Smith vs. Babcock, 3 Sumner, 583. If paper J had anything very serious to apprehend from paper P, the objections just mentioned could be urged against it with great force. Paper P, first introduced into the case as a document filed by the defendant under the commission to take testimony, and which he insists merges agreement J, was executed by Watts on the 1st of June 1849, more than three months, as the defendant alleges, after the date of the former. The original writing from which it was copied by Watts, exhibit AWB, was like all the other agreements in the cause signed by Watts, prepared by Wilson in his own handwriting--a circumstance relied upon in the adjudged cases as convincing proof of overpowering influence and implicit confidence. Wilson, to show the nature and effect of this exhibit, says, that it 'embodies the substance of the original mutilated writing, exhibit No. 1' that the deed 'from Taggart was executed in conformity with the final contract stated in exhibit No. 1. That 'the contract [**108]  of purchase set forth in Watts' petition was affirmed by paper P, and was a confirmation of that original agreement.' Now it is manifest, that paper P does not embody the substance of this mutilated writing, for that was a contract for the sale of 'the whole of Bare Hills, laid out for 90 acres,' and also the 'life-estate of Watts' mother.' Whilst paper P only professes to transfer all Watts' interest in the 'Bare Hill copper mines and the houses and improvements appurtenant thereto, with the reversion thereof as secured' to him. And for the same reason it cannot be pretended, that the deed from Taggart was executed in conformity with paper P, or that it was a confirmation of the original agreement set out in Watts' petition, or that it affirmed that agreement, for they also embraced the whole of the property and not the copper mines only. This character and effect being ascribed to it by way of answer to Watts' allegation, that it was signed by him, at the request of Wilson, and for the sole purpose of being used by him in a trial which was approaching between him and Davis, as he says, in regard 'to the possession of the Bare Hill copper mines;' and it being evident, upon carefully [**109]  considering it, that it is entitled to no such character and effect, is not the conviction forced upon the mind, that it was signed by Watts for the purpose alleged by him, and with the same blind confidence in his supposed friend that he has evinced throughout the whole of these transactions, and that it could not have been intended to rescind agreement J, executed so short a time before, or to affect or impair the arrangement between him and Wilson, as settled by that paper? It does not speak of that paper or profess to touch it in any degree, and as to merging it, it certainly has not the capacity to merge the whole of it. It being then a fact that this trial was pending, and Wilson, for certain purposes known to himself or to his counsel, wanting it to be used at the trial, as he admits he did, and so stated to Watts when he desired him to sign it--is not the true history of it this? viz., that this trial gave it existence, especially when we find the author of it, Wilson, driven, as we have seen above, to such inconsistencies and far-fetched reasons to account for its existence in any other way. He did not want it as evidence of his purchase, for which purpose he says he procured [**110]  it, because he had that, as he insists over and again in his answers, in Watts' petition, which, as he alleges, sets it forth fully. I think then it is perfectly manifest, that paper P was not designed to interfere with agreement J in any manner, much less to supersede or merge it. And have we not the written proof furnished at a subsequent date in Wilson's letter to Watts, on the 22nd of November following, nearly six months after that, agreement J was still in existence, not merged or cancelled by any thing that had been done by these parties? We search in vain amongst the facts in the case for any other agreement to which it can be understood to refer. It mentions an agreement, according to which Watts and wife were to convey one-half of Bare Hill to him, Wilson. This agreement provides for that very conveyance. It has been most earnestly urged by the solicitors for the defendant, that this letter K cannot be relied upon by the complainant to prove any contract in reference to this land to bind the former. It certainly cannot be used to prove what that contract was. But it may be resorted to for the purpose of proving that a contract, such as it mentions, was then subsisting, just [**111]  as their oral admissions might have been adduced for that purpose. But this would not have availed the complainant unless he could have gone further and traced out and produced the very contract or instrument of writing to which the defendant, in his letter, referred, and it appears to the court that this is beyond doubt the contract or agreement to which he had reference in that letter. In setting up paper P against this agreement J to merge and destroy it, the defendant insists, that the complainant is precluded from denying its efficacy as a transfer of the interest it describes and professes to convey, because he alleges that he gave it to Wilson for the sole purpose of being used by him in the trial with Davis; in other words, that Watts was giving Wilson the title for the temporary purposes of the trial, whilst, as the former asserts, the title was really in him, and thus he was joining with him in committing a fraud upon a court of justice, and therefore he cannot set it aside as inoperative and void. Now in reply to this objection it may be said, that according to Watts' theory, Wilson was to have the title to the property until conveyances were drawn defining and limiting [**112]  distinctly their respective interest, and therefore, in signing this writing P, he was doing no more than conforming to the understanding between them, and he no doubt signed it the more readily when informed by Wilson that he wanted it to use it at this trial, presuming therefrom, and that very naturally, that as it was desired for that purpose it would not be used to interfere with agreement J, executed so short a time before by them.

"This court cannot view the conduct of Watts in this transaction in such a light as to insist upon the consequences of a deliberate and premeditated fraud upon the administration of justice, especially, when the party who asks for this sentence, is the individual who planned the fraud and led him into it, if it really be such. Wilson appears, undoubtedly, from what has heretofore been brought to view in this opinion, to have exercised such a degree of influence over him, and to have had his confidence so completely, that he would, in all probability, have signed any paper that he might have presented to him. When this relation and state of things exist between parties, who are even particeps criminis, the law does not refuse to assist and relieve [**113]  the party who has yielded to such influence. Story in 1 Eq. Jur., sec. 300, says, 'where both parties are in delicto, concurring in an illegal act, it does not always follow that they stand in pari delicto, for there may be and often are, very different degrees in their guilt, one party may act under circumstances of oppression, hardship, undue influence, or great inequality of condition or age, so that his guilt may be far less in degree than that of his associate in guilt;' and he illustrates the distinction by reference to the case of usurious contracts, where the court will give no assistance to the lender, but do not hesitate to relieve the borrower against the usurious contract, although they are both in delicto.

"The objection just considered was attempted to be sustained by the solicitor of the defendant, by reference to the case of The Phil., Wil. & Balto. Rail Road Co. vs. Howard, 13 How., 307. The question there was, whether a party defendant in a cause could repudiate an instrument of writing which he himself had set up in a former cause? The appeal to the Supreme Court of the United States was from the circuit court of Maryland. That court had instructed the jury [**114]  in the case, 'that if the instrument of writing, the validity of the sealing of which the defendant denied, was produced in court and relied upon by it in an action brought against it by a certain party, and that said suit was decided against the plaintiff, upon the ground that this instrument was duly sealed by the said corporation as its deed, then the defendant in this case cannot be permitted to deny the validity of the said sealing, because such a defence would impute to the present defendant itself, a fraud upon the administration of justice.' The Supreme Court in deciding upon this point, say nothing in regard to the question whether this was a fraud or not, but use this language: 'Evidence that the corporation, through its counsel, had treated the instrument as bearing the corporate seal, was undoubtedly admissible, it tends to prove an admission by the corporation, that the instrument was sealed with its seal.' This court cannot say that any fraudulent use was made of this paper, in the trial between Wilson and Davis, much less can it say that the suit was decided against him upon the ground that Wilson held this writing executed by Watts. There is no allegation in the pleadings [**115]  that this was so, nor any evidence on these points, and it therefore does not regard this exhibit as more of an estoppel against Watts than any writing in the cause executed by him. I am therefore satisfied that the interest and estate that these parties were to have in this property, does sufficiently appear from the evidence, and in fact that it is defined by the agreement J.

"Is there then any rule of law, or settled principle of equity, that prevents this court from settling and confirming, in these parties, the title to this property, such as it appears they were respectively to have in it? The solicitors for the defendant insist that there is. They aver that Wilson has the absolute title to it as purchaser, by virtue of the deed from Taggart and the proceedings that led thereto. They plant themselves upon this deed and rely upon it solely in vindication of their title, and have examined but one witness, and him chiefly in regard to his estimate of the value of these mines, in regard to which, his admissions have been so contradictory and inconsistent, that what he has stated in his testimony is entitled to no weight in a court of justice. They have not attempted to rebut [**116]  or explain, by any testimony on the part of the defendant, the powerful and sometimes palpable deductions in opposition to their defence, arising from the varied testimony, written and oral, produced by the complainant. And this seems to be the position assumed by Wilson, himself, with this deed in his pocket when he told Keener, 'Watts has just such an interest as I please to let him have:' this, be it observed, was in reply to the most explicit assertion by Keener of Watts' interest in the property; and Keener's answer to this reply was, 'Not so, I have seen your written agreement as the purchaser of one-half only;' to which, it seems, Wilson made no answer.

"In a court of equity, however, the legal title--the title absolute on the face of the deed and seemingly that of a purchaser--is not always conclusive proof of ownership. It may be, and often is, the mere foundation of trusts, which, whether they appear in the deed or not, may be shown to come within the class called constructive, resulting, or implied trusts, and which are deducible from the nature of the transaction as matter of clear intention, although not found in the words of the parties. 1 Story's Eq., sec. 980.  [**117]  And in regard to the doctrines and distinctions that have been adopted in considering these cases of trust, there are many of them, as this learned author says, sec. 982, 'the creations of courts of equity acting upon the enlarged principles of social justice, ex aequo et bono, rather than express trusts created by the acts of the parties, or an exposition of their declared intentions.'

"The court does not hesitate to declare its firm conviction, that in this class is the case before the court to be found. The evidence impresses upon the transactions between the parties in reference to this property, impliedly, constructively, and as necessarily resulting from them, the character of a trust. And that evidence is deemed altogether sufficient to meet the requirements of the statute of frauds, which has been relied upon by the defendant, in opposition to proof of any trust. For though it requires writing as evidence of the trust, yet, as Story says, sec. 972, 'it does not prescribe any particular form or solemnity in writing, nor that it should be under seal. Hence, any writing sufficiently evincive of a trust, as a letter, or any language in writing, clearly expressive of a trust,  [**118]  will create a trust by implication.' After a careful examination of the authorities, for the purpose of ascertaining the true rule of evidence adopted by courts of equity in such cases, I think I am not mistaken when I say it is this: wherever written evidence can be produced which is inconsistent with the fact, that the party who has obtained the absolute deed is the actual purchaser, further evidence is admissible to prove the truth of the transaction.

"In the case of Leman vs. Whitley, 4 Russ., 423, the court treats this rule as well settled, and quotes Lord Eldon's language in Cripps vs. Jee, 4 Brown's Ch. Rep., 472. 'This written evidence being inconsistent with the fact, that the Rogers were the actual purchasers of the equity of redemption, further evidence was admissible to prove the truth of the transaction.' The court there remarks, 'unfortunately there is here no evidence in writing, which is inconsistent with the fact, that the father was the actual purchaser of the estate.' 2 Story's Eq., sec. 1199, note 1. The chancellor, in the case of Davis vs. Banks, 3 Md. Ch. Dec., 139, shows his estimate of circumstances inconsistent with the idea of a purchase, where the grantee [**119]  relies upon his absolute deed. He says, 'there are circumstances in the case which repel the idea of a sale, and there is, besides, direct evidence of a character so strong, that, in my judgment, no reasonable doubt can be entertained upon the subject.' In the case before the court there are circumstances almost infinitely varied, and the strongest direct evidence in writing, under the hand of the defendant, utterly inconsistent with the fact of a sale to him, and that altogether repel the idea, that he was the purchaser and absolute owner of this property. In this case the complainant has produced abundant evidence in writing, under the hand of Wilson, to prove the facts upon which he relies. But if the testimony were not so full in this respect, he might, under the rule above referred to, having shown in writing that the transaction was not a purchase, resort to all the other evidence in the cause, oral or otherwise, to show precisely what it was intended to be. In Cripps vs. Jee, above referred to, the court says, 'it is clear from the written evidence, that the agreement really made between the parties was not that stated by the deed; will not that be sufficient to let in the parol [**120]  evidence? Here is evidence from the parties themselves, that the transaction was not what the deed purports it to be; this introduces Hunt's evidence,' which was oral; this oral evidence is the further evidence referred to in the above case of Leman vs. Whitley. And this rule seems to have been so understood by the Court of Appeals of this State, in Watkins vs. Stockett, 6 H. & J., 444, where the court says: 'Parol evidence is inadmissible to contradict a written instrument: except where fraud is charged, or in cases of trust, where, in order to get at the real intention of a trust, for the sake of justice and equity, an enquiry will be permitted into the real merits of the case.' The views above expressed show, that the court is not embarrassed by the defendant's objections to the admissibility of the complainant's evidence, in opposition to the title or claim set up in contradiction of the terms of the deed from Taggart, nor by the exceptions taken to the frame and averments of the bill, in that, as the defendant avers, it seeks the specific performance of a contract which it does not set out. The court, in view of the magnitude of the interests involved in this controversy, the [**121]  elaborate manner in which the case has been argued by the solicitors of the respective parties, the perplexing, intricate and involved character of the transactions between the parties, and the many very interesting and important questions of law and fact arising in the case, has given to it much patient investigation and deliberate reflection; in all which it has been actuated by a sincere desire to arrive at the justice and equity of the case, and to decide accordingly between the parties. If it had stood solely upon the ground assumed by the defendant, that he was the purchaser under the deed, entertaining the views expressed in a former part of this opinion, the court would not have hesitated to declare the deed, for such purpose, void; but, inasmuch as the case made by the complainant in the proceedings, shows a case, as this court believes, to which the rule, that 'he who asks equity must do equity,' applies, I shall therefore pass a decree directing the execution of such conveyances as may be necessary to settle the title to this property in these parties, upon the basis of agreement J, and refer the papers to the auditor, with instructions to the auditor to state an account [**122]  of the net profits of the mine since Wilson has had possession of it, subsequently to the date of letter K, (out of which, however, I do not consider him entitled to be reimbursed his payments on account of the mortgage debt,) and the surplus equally divided; and pass such orders as may be necessary to do complete justice between these parties, upon the principles and views indicated in this opinion."

A decree was then passed, adjudging that Wilson held one-half the lands conveyed by the deed from Taggart in trust, attaching simultaneously with the deed, to convey the same to Watts, in fee, with the right to all the crops to be raised on the whole of the lands by Watts, and directing him to make such conveyance forthwith; and further decreeing that Watts is entitled to one-half the net proceeds of all the minerals obtained by Wilson from these lands, since the date of said deed, and directing the auditor to state an account thereof. An injunction was also granted restraining Wilson from selling or carrying away any copper ore heretofore mined by him, or which may now be on said lands, or may be hereafter mined thereon, until the further order of the court.

From this decree [**123]  the defendant appealed.  

DISPOSITION:
Decree reversed and bill dismissed.  

HEADNOTES:

The complainant, who was the mortgagor of certain real estate which had been authorised to be sold by a trustee to pay the mortgage debt, filed a petition in the case, stating that he had sold the same to the defendant, and the terms of sale, and asking that the trustee might be ordered to report the sale, which was done, and both the complainant and defendant filed a written assent to its immediate ratification. The sale was ratified by order of court, and the trustee executed a deed conveying the mortgaged property to the defendant. HELD:

Per LE GRAND, C. J.: That the complainant being compos mentis, and knowing what he was doing at the time, cannot have relief in equity against these proceedings, upon the ground that the transaction was fraudulent, and that it was never the intention of the parties that the defendant should thus acquire a title to the whole property, but only to a part of it under a secret unwritten agreement between them, because, by his own showing, he united with the defendant in the practice of a fraud upon a court of justice.

Per MASON, J.: That on failure of proof that the defendant practiced a fraud upon the complainant in inducing him to sign the application to the court to have the sale reported and ratified, the latter cannot set up in a court of equity a secret or private understanding between them, that defendant was eventually to have but a part of the property, in opposition to the statute of frauds pleaded and relied on by the defendant.

Where it cannot be shown that the contract had its inception in the fraud of the party against whom the relief is sought, but that he is merely making a fraudulent use of the statute to keep an advantage, obtained through the reliance of the opposite party on his good faith and fair dealing, no relief can be granted. Per MASON, J.

As a general rule, fraud vitiates all things in a court of equity, but when both parties to the suit have knowingly participated in the fraud, all relief as between them will be denied, and the maxim, in pari delicto potior est conditio defendentis, must prevail.

Where a party asking relief does not pretend ignorance of the character of the paper which he signed, and there is no fraud or mistake, a court of equity will not give a different meaning to the paper from that which its language imports.

In the absence of all fraud and imposition, equity will not set aside a bond for the weakness of the obligor alone, if he be compos mentis, there being no such thing as an equitable incapacity where there is a legal capacity.

Where a mortgage is executed under the act of 1826, ch. 296, the authority to sell is derived from the bond of the trustee and the power of attorney executed to him by the mortgagee, and not, primarily, under a decree of a court of equity as in other cases.

But where the sale is reported by the trustee, the jurisdiction of the court becomes complete, and equitable principles, such as are applicable to sales under decrees in other cases, prevail, and a sale without public notice may, therefore, upon consent of the parties in interest, be ratified. 

COUNSEL:
E. G. Kilbourn and Wm. Schley for the appellant, argued:

1st. That the appellee cannot deny the title of the appellant to any portion of the estate purchased by him, under the sale ratified by the order or decree of the court in the case of Hook vs. Watts, because he is estopped by his petition signed and filed in that case, his written consent to the ratification of the sale, and the decree thereon, and no parol or written evidence can have the effect of adding to, altering or varying that decree. The proceedings in that case are conclusive, (2 H. & G., 42, Raborg vs. Hammond; 5 Gill, 277, Tomlinson vs. McKaig; 2 How., 58, Shriver vs. Lynn; 10 Pet., 470, Voorhees vs. Bank of the U. S.,) and the appellee cannot be heard to make any averment against the record in that suit. Watts went into court and averred that he had sold this mortgaged property to Wilson for $ 2100; the sale was reported upon his petition; its ratification was assented to by him, and the order ratifying it was passed in consequence of this assent. Can he then be heard to make any averment against the status shown by that record? His bill does [**124]  not attempt to do so, and it cannot be done. 44 Law Lib., 430, 435, 440, Doe vs. Oliver. 3 East, 346, Outram vs. Morewood. Wilson would clearly be estopped by these proceedings from saying that he did not buy the property, and is not Watts equally estopped from saying he had not sold it? Again, Watts is estopped upon grounds of public policy. He comes into court and defeats Tyson and Davis by giving Wilson a title paramount to theirs, and now says that these proceedings were all fraudulent, that what he stated in his petition was all false and asks relief against his own acts, in which, if there was any fraud, he was clearly particeps criminis. Can he commit such a fraud as this upon the administration of public justice and then ask relief from its consequences? The case of the Phil., Wil. & Balto. Rail Road Co. vs. Howard, 13 Pet., 324, 337, presents the very point in this case. If the claim now set up be valid, the act of Watts was a fraud upon Tyson, upon Davis, and upon the administration of justice. If Wilson be guilty, Watts is particeps criminis. Nemo allegans suam turpitudinem est audiendus, and it will not do to say that Wilson is equally guilty, for then the maxim, in pari [**125]  delicto potior est conditio defendentis, prevails. 6 Gill, 28, Freeman vs. Sedwick. Again, he is estopped by his acts and declarations in pais, inconsistent with the title now asserted by him, and inconsistent with the dictates of common honesty. 1 Smith's Lead. Cases, 446. He has acknowledged that the whole premises belong to Wilson, by issuing his warrant as justice of the peace against Davis, in which the premises are described as the property of Wilson, and by sitting in judgment in that very case as magistrate.

2nd. That a party voluntarily choosing to express himself in the language contained in a deed, or other written instrument, must be bound by it; and the proof in this case shows, that the petition and consent, above referred to, were voluntarily signed by Watts with a knowledge of their contents, and he cannot, therefore, be permitted to prove a different intent from that plainly declared in those instruments. 2 Md. Rep., 25, McElderry vs. Shipley. 2 H. & G., 34, Lowry vs. Tiernan. That Watts was competent to execute these papers, is proved by the very witnesses introduced to show his want of capacity and feebleness of intellect.

3rd. That paper P, the consent [**126]  to the ratification of the sale, and the decree upon it, merged all previous negotiations, including paper J, and, therefore, neither agreement J or any prior transactions can have an injurious influence upon Wilson's title under the sale by Taggart as trustee, and the deed from him in pursuance thereof.

4th. The above points, if decided in our favor, dispose of the case, but we have excepted to the sufficiency of the averments of the bill and the admissibility of the evidence, and now insist, that though the decree establishes, as against Wilson, a trust attaching simultaneously with the deed from Taggart, yet no such trust is averred in pleading or sustained by any competent evidence in the case. Agreement J does not prove any such trust. It obliges Watts and wife to convey one-half the farm to Wilson, and certainly does not look to the acquisition by Wilson of the title to the entirety of the farm, and a subsequent conveyance of one-half to Watts; its plain meaning cannot be added to or varied by parol, nor can any parol contract be set up in opposition to the statute of frauds. 1 Gill, 383, Hall vs. Hall. 7 Ves., 211, Woollam vs. Hearn. 71 Law Lib., 558, 574. 2 Mylne & Keene,  [**127]  251, Croome vs. Lediard. 6 H. & J., 252, Lamborn vs. Watson. Ibid., 422, Lamborn vs. Moore. Letter K not being signed by Wilson, the party to be charged cannot be used as evidence of the alleged trust so as to control the deed from Taggart, and there is no such proof as will connect this letter with agreement J. 11 G. & J., 314, Moale vs. Buchanan. 7 G. & J., 157, Maccubbin vs. Cromwell. Willis on Trustees, 44. Whilst paper J proves, undoubtedly, a sale by Watts and wife to Wilson of only one-half of the farm, at that time, it certainly does not preclude the possibility of showing the acquisition by Wilson to the other half between its date and that of the deed from Taggart, and we insist, that the ownership of the entirety by Wilson is conclusively established by the acts and declarations of Watts, detailed in the evidence, and by paper P, and is not disproved by letter K, or any other competent evidence in the case. Again, the bill seeks specific performance, and in such case the terms of the agreement sought to be enforced must be set out with certainty, (3 Ves., 420, Walpole vs. Orford; 2 Md. Rep., 375, Faringer vs. Ramsay; 3 Do., 490, Ches. & Ohio Canal Co. vs. Young; 2 Story's [**128]  Eq., secs. 764, 767,) and where specific performance is sought of a particular contract, (agreement J for instance,) no other contract not identical can be enforced. 1 Johns. Ch. Rep., 132, Phillips vs. Thompson.

5th. But, apart from other considerations, the decree is erroneous in many particulars:--1st. Even if the alleged trust can be established, the decree is erroneous in not providing for the repayment by Watts to Wilson of the whole, or at least one-half, the amount paid in satisfaction of the mortgage. In the opinion of the court below the right to reimbursement is expressly denied. Now paper J certainly does not prove that the agreement to convey the one-half to Wilson was dependent on the future payment by him of the mortgage debt, costs, &c., and there is no proof to justify the conclusion, that the consideration for the sale of the one-half mentioned in paper J was the payment of the mortgage debt and costs. Even if Wilson is to be deemed as a purchaser of one-half, subject to existing incumbrances, the parties ought to contribute pari passu in discharging the incumbrances. 2nd. If Wilson's title is to be regarded as derived solely by contract with Watts, for one-half,  [**129]  and he acted merely as agent or in trust for Watts in obtaining the deed from Taggart, then, even as to one-half, Wilson is not owner as purchaser under the mortgage, and as between him and Mrs. Watts his half is liable to her potential right of dower. The decree, therefore, ought to have provided, as a condition to the relief granted, that whilst the interest of Wilson was reduced to a moiety in pursuance of agreement J, that the husband should procure the concurrence of the wife in conveying to him such half as expressly provided by that agreement. 3rd. The decree requires Wilson to account for all the net profits of the mines since the date of the deed from Taggart, (20th of November 1849,) whereas it is conceded that he acquired from Davis and Tyson the right to work the mines up to the 10th of July 1850, and the bill shows that he did work them before that time. The decree in this respect, therefore, is clearly erroneous.

6th. As to the other objections: that in regard to fraud has been already answered,--the fraud is not sustained by the proof, and if there was any in the transactions Watts was particeps criminis. As to the inadequacy of price: there is, we insist, no proof [**130]  of such inadequacy as to warrant the court to set aside the sale for this reason alone--the mines were not as valuable as supposed--Davis was completely ruined by working them--Tyson could have bought the whole at the time of the sale to Wilson for $ 3000, and would not give it. But it is said, that as the sale was a private one the court had no jurisdiction to pass the order ratifying it, as it did in the case of Hook vs. Watts; that the proceedings in that case were not in conformity with the act of 1826, and therefore the decree ratifying the sale was coram non, and is of no effect. To this we reply, that a decree of a court of equity can be impeached for fraud, but not collaterally. 2 Md. Ch. Dec., 370, McDowell vs. Goldsmith. That if there are any irregularities they cannot affect the title under the decree; all that is necessary is, that the court passing it should have jurisdiction of the subject matter, (10 G. & J., 183, Comegys vs. The State; 5 Gill, 275, 277, Tomlinson vs. McKaig,) and this they had in the present case, at least as soon as the sale was reported by the trustee, and when so reported, even though a private sale, the court had the power to ratify it upon consent [**131]  of the parties in interest.

John C. King and J. M. Campbell for the appellee, argued:

1st. That the proceedings in the case of Hook vs. Watts, and the deed from Taggart, constitute no estoppel to the relief asked in this case. The answer of Wilson inflicts a fatal blow to his title under the act of 1826, for he says the sale was not made by the trustee as a sale under the decree and act of 1826, and that the deed was not executed as a deed by the trustee under the decree, but that the sale was made by Watts in pursuance of an agreement between the parties, and that the deed was executed under the same agreement, so that if there be no valid agreement there is no valid deed. The answer, therefore, tenders an issue upon matters outside of the record in that case, and this is fatal to the plea of estoppel. The deed professes to be given according to the act of 1826, when, in reality, it was given in direct opposition to the terms of that act, which requires a public sale. "A sale of property in any other manner that that prescribed by law vests no title in the vendee." 4 Dana, 179, Campbell vs. Johnston. "A power of sale will be declared void for the slightest unfairness, or [**132]  anything that prevents competition." 3 Gilman, 42, Longwith vs. Butler. The act of 1826 being special, any title claimed by virtue of the act must be in strict conformity with its provisions.

2nd. The answer having thus presented an issue outside of the record in the case of Hook vs. Watts, the title of Wilson must depend upon the contract set up in his answer, and if that is struck down by fraud, the deed made in pursuance of this contract must fall with it. The answer places the defendant's title upon his exhibit No. 1, which he alleges was consummated in the deed. The first inquiry then is, whether there ever was such a contract as this paper purports to set forth? The answer swears to it, but there is no signature, and Wilson says, in his answer, that Watts' name, not his signature, has been torn or cut from it. Who tore or cut it out? and for what purpose was it done? and when? The attesting witness is not called, and his name is proved by Keener not to be in his handwriting. It was a very easy thing to have proved his signature if it was genuine. The paper itself is wholly wanting in all the requisites of a valid contract. It is produced by the party pleading it, it is in [**133]  his own handwriting, mutilated, and without any explanation for its absence. And this is the paper which is to sweep from Watts the entire fee-simple estate in his whole property, leaving not a vestige of interest in him--a paper mutilated, with the signature of the attesting witness forged upon it; nay more, a paper which Wilson himself, by his numerous letters running through the period of three years from its date, repudiates and ignores, if there be in human language any meaning whatsoever. Each one of the ten letters from Wilson to Watts, all dated subsequent to this pretended contract, gives the lie to its existence and stamps the answer with falsehood.

3rd. But suppose this paper once had an existence and the form of a legal contract, has it any validity? We say none whatever. It is in the first place void of mutuality--Watts agrees to sell but Wilson does not agree to pay. But this contract is destroyed by the confidential relation between the parties. Before the court can examine any contract between them it must look to the relation in which they stood to each other, and this is the controlling question in this cause. Before examining the evidence let us see what the [**134]  law is on this point. The general principle which governs all cases is, if confidence is reposed and that confidence is abused, equity will grant relief, (1 Story's Eq., secs. 221 to 236, 308, 319; 3 Mylne & Keene, 113, Hunter vs. Atkins; 5 Blackf., 509, McCormick vs. Malin; 6 Ves., 267, Gibson vs. Jeyes,) and it is not necessary to show fraud where confidence is reposed, (2 Brown P. C., 183, Stanhope vs. Toppe; 2 Gill, 83, Brooke vs. Berry,) nor is it necessary that the relation should be a formal one, as that of attorney and client, guardian and ward, or trustee and cestui que trust. Now what was the relation of these parties at the time this alleged contract was entered into in 1846? The evidence clearly shows that Watts was poor and in very distressed circumstances; his property was mortgaged and about to be offered for sale to satisfy the debt; his whole means of subsistence was about to be taken from him; he was unaccustomed to business, his mind was weak and easily influenced. Under these circumstances he meets with Wilson, who came forward and proffered his assistance to save his property from sacrifice; he offered to take up the mortgage and went to Taggart to stop the sale;  [**135]  he openly acted and proclaimed himself the counsellor and friend of Watts, and avowed his determination to protect him. By these acts and proffers of friendly assistance he gained the confidence of Watts, who trusted him as his only and best friend. By these means he acquired an influence over the mind and will of this weak-minded, distressed man, such as the strong possess over the weak, the wealthy over the poor. Watts trusted him and believed that through his assistance he should be saved from ruin, and his property redeemed from sacrifice. Who can believe that under such circumstances a contract was deliberately made between these parties, by which the property of Watts was not only not prevented from being sacrificed, but was sold to Wilson for but a few dollars more than the mortgage debt? And if it was made, what court of equity would sustain and uphold it? If this contract be valid, then the very thing Watts was endeavoring to prevent, and which Wilson promised his aid in accomplishing, was effected. So far from escaping a sacrifice, he was both sacrificed and duped. Against such an abuse of confidence the law has wisely provided a remedy. If a person is of feeble understanding [**136]  and the bargain is unconscionable, what better proof can one wish of its having been obtained by fraud or undue influence, or by the power of the strong over the weak. 1 Story's Eq., secs. 221, 222, 235, 236. This weakness need not amount to such as to require a commission of lunacy; a degree of weakness far below that, coupled with other circumstances, to show that the weakness, such as it was, was taken advantage of, will be sufficient to set aside any important deed. 1 Story's Eq., sec. 237. 1 Knapp, 78, Blackford vs. Christian. 5 Blackf., 530. 4 Dessau. Eq. Rep., 651, Butler vs. Haskell. Parol proof may always be introduced to prove fraud, and this need not be done by direct proof, but it will be inferred from all the facts and circumstances of the case. 2 H. & J., 288, Brogden vs. Walker. 2 Gill, 122, Jones vs. Belt. Ib., 98, Brooke vs. Berry. The whole evidence in the case shows that there was this confidential relation between the parties, which Wilson has fraudulently availed himself of for his own advantage.

4th. Another ground on which this alleged contract is impeached, is the unfairness of the transaction or the inadequacy of price. This contract, if it ever existed,  [**137]  is the most barefaced and unqualified robbery that was ever perpetrated since the beginning of time. These mines were worth, in the opinions of the witnesses, from $ 6000 to $ 20,000. Tyson offered $ 4000 for sixteen acres of the land, exclusive of one-fifteenth of the ore raised from the mines. Wilson himself represents them in the hearing and presence of Watts as invaluable, says there is no knowing what they are worth, that they would be a fortune to Watts, and that they should not be sacrificed. The actual sales from the mines for two years exceeded $ 25,000, yet Wilson now says he purchased the whole property for $ 2100, a sum but little exceeding one-half what Tyson offered for sixteen acres of the land. Is this a contract that a prudent man would make? is it fair, just and reasonable? Where the transaction is such as to be inconsistent with the sober manner of a man's transacting his affairs, inadequacy of price is strong evidence of fraud. 1 Story's Eq., secs. 244, 246. 2 Madd. Ch. Rep., 568, Copis vs. Middleton. This is especially the case where one of the parties is laboring under distress. 1 Story's Eq., secs. 234, 239. If it could be doubted whether any of the views taken,  [**138]  separately considered, is sufficient to entitle the complainant to the relief he prays, that doubt must vanish before this combined force. A treaty respecting an important interest, entered into between persons of very unequal powers, one with a naturally unsound judgment, the other enterprising, keen and sagacious in business, the weaker mind trusting in the stronger, that influence increased by pecuniary distress on the one side and pecuniary power on the other, and resulting in a contract exhibiting great inadequacy of consideration; a treaty thus characterised presents claims to relief which a court of equity cannot withstand. 5 Blackf., 530; and to the same effect, 1 Munf., 557, Whitehorn vs. Hines. 6 H. & J., 445, Watkins vs. Stockett. 11 G. & J., 1, Glenn vs. Clapp. 7 G. & J., 157, Macubbin vs. Cromwell.

5th. But it is insisted, that paper P confirms and supports the title of Wilson under paper No. 1 and his deed. Wilson says it embodies the substance of the original mutilated agreement No. 1. But the truth is it does no such thing. Paper No. 1 was a contract for the sale of the whole property, including the life-estate of Watts' mother, whilst paper P only professes to [**139]  convey Watts' interest in the property. But what is this paper P, and what effect is it to have? Though in Wilson's possession, it was not mentioned or relied on in his answer to the original bill. Every circumstance connected with it only makes the fraud more glaring. No consideration was given for it. If Wilson had paper No. 1 in 1846, where was the necessity of executing another in 1849, to do exactly the same thing in a less effective mode? It is in Wilson's handwriting, brought by him to Watts, who merely acted as Wilson's amanuensis in copying it, and is tainted with the same defect as all other contracts between these parties.

6th. The contract, moreover, is in no way confirmed by the decree or order of the court in the case of Hook vs. Watts, ratifying the sale passed three years after the alleged contract of sale:--1st. Because all the facts and circumstances urged against the validity of the contract can be relied upon against the decree, and equity grants relief not only against deeds, writings and solemn assurances, but against judgments and decrees obtained by fraud and imposition;--a decree based upon a fraudulent contract is no better than the contract. 2 Johns.  [**140]  Ch. Rep., 252, Reigal vs. Wood. Mitf. Ch. Pl., 112, 114. 1 Story's Eq., sec. 252. 2 Do., sec. 1522. Amb., 229, Bradish vs. Gee. 2nd. The same influence prevailed over Watts' mind at the passing of the decree as at the time of the contract. Several deeds executed at large intervals should not prevail as confirmations, the party being throughout under the same influence, control and ignorance of his rights, and every instrument signed under the same blind confidence. 14 Ves., 91, Purcell vs. McNamara. 4 Dessau., 651. 2 Gill, 107.

7th. We come then to consider what was the true agreement between these parties. This, we insist, was agreement J, which is conclusively affirmed by the letter of the 22nd of November 1849, from Wilson to Watts, written on the very day of the date of the deed from Taggart. It requests Watts to come in and deed to Wilson one-half of the Bare Hill farm according to agreement. This letter shows, that paper J was the true and real agreement between the parties, and is the basis of the relief which we ask and which was granted by the court below. It is true the letter of November 22nd, 1849, was not signed by Wilson, but it is admitted to be in his handwriting,  [**141]  and if not evidence of a trust, is still written evidence of what the contract between him and Watts was. We therefore submit, that the decree granting relief upon the basis of paper J should be affirmed.

The judges delivered separate opinions, CHIEF JUSTICE LE GRAND and JUSTICE MASON concurring in a reversal of the decree, and JUSTICE ECCLESTON dissenting.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and MASON, J.  

OPINIONBY:
LE GRAND; MASON 

OPINION:

 [*454contd]  

[EDITOR'S NOTE: The page numbers of this document may appear to be out of sequence; however, this pagination accurately reflects the pagination of the original published documents.] 

LE GRAND, C. J.
I dissent from the conclusions arrived at by my brother ECCLESTON, in the very full and elaborate opinion he has given in this case. But few words will be necessary to point out the grounds on which rest that difference, In my opinion, on legal principles, there ought not to be the slightest difficulty in reversing the decree of the circuit court. And all that can arise, in any aspect of the case, grows out of an association with it of matters which have, according to well known and universally acknowledged [**142]  decisions, nothing whatever to do with the questions involved.
What is the case? The complainant alleges, in substance, 

 [*455]  that a fraud has been practiced upon him by the appellant; and in this: That the defendant induced him to consent to the purchase, by the defendant, of certain property belonging to him, and which had been authorised to be sold by a trustee to secure the payment of a mortgage debt with which it was encumbered; that in pursuance of this inducement, he did consent, and, accordingly, as is shown by the record of proceedings in the cause, he, by petition, asked the court to ratify the report of the trustee setting forth such sale--which was done, and in conformity therewith, a deed for the property was made by the trustee to the defendant. The complainant alleges this was a fraudulent transaction, and that it was never the intention of the parties, the defendant should thus acquire a title to the whole property. The bill asks that the decree of Baltimore county court, ratifying the sale to the defendant, may be annulled and the deed of the trustee declared void, and for an account of the profits, &c.
The complainant does not pretend he did not know,  [**143]  when he signed the petition to the county court, what he was doing.
The case now sought to be made for him is, that the defendant being of superior mind, and exercising great control over him, because of his supposed friendly feeling, induced him (intending to defraud him) to consent to the report of sale, and its ratification by the court.
There is no direct proof whatever, of any secret understanding between the parties, that the transaction should not be what it appeared on its face to be; and the existence of any such is positively and unequivocally denied by the defendant, as is also all contrivance, &c., to defraud the complainant.
Now it is conceded (and it could not be well denied) by my learned brother, that no relief would be granted to a complainant so situated; unless the transaction be tainted with fraud.
The general principle being admitted, the only inquiry remaining is: Is there such fraud, if any, in this case, as will take it out of the unquestioned and undeniable general principle?

 [*456]  As a general rule, fraud vitiates all things in a court of equity. But this rule has its limitations. It is the wisdom and the policy of the law, to protect [**144]  the innocent and helpless from the bad practices of the evil and fraudulently minded; and whenever a proper case presents itself, relief is never withheld.
One of the exceptions to the general rule, (and the one which in my judgment governs this case,) is, that where both parties to the suit have knowingly participated in the fraud, all relief, as between them, will be denied. The maxim, in pari delicto potior est conditio defendentis, is everywhere acknowledged and enforced.
If this rule be applied, how stands this case? Thus: The complainant, according to the facts alleged by himself in his bill, unites with the defendant in the practice of a fraud on a court of justice, and now asks that a court of equity--the fraud having been consummated--will remit him to rights which he claims were by force of a secret, unwritten agreement, reserved to him. It cannot be done, unless every decision heretofore made on analogous cases be set aside or overruled. It may be safely averred there cannot be found, save one--and that was by a divided court--a decision, either in England or in this country, in which relief was granted in a case similar to this. The fact is, the whole [**145]  matter has been most completely and decisively settled by the adjudications of the highest tribunals of this State.
In the case of Freeman and Sedwick vs. Sedwick, 6 Gill, 28, one infinitely stronger than that now before us, the court recognize and adopt the rule, that relief will never be granted where the parties are in pari delicto. That was the case of one brother conveying his property to another, to keep it out of the reach of the creditors of the grantor, accompanied by another agreement in writing, although to be considered secret, obliging the grantee to reconvey in a certain contingency. What said the court, when asked to enforce by decree the agreement to reconvey? It refused to do so, and on the obvious ground of public policy, that those who enter into fraudulent contracts, so far as they are concerned must abide 

 [*457]  the consequences. In the case to which I refer, the principal authorities in England and this country are reviewed, and all shown to inculcate and establish the doctrine I have already indicated. It is not necessary to re-state them here. They will be found fully and accurately set out in the volume of Reports to which [**146]  reference has been given.
As had been stated, the complainant does not pretend ignorance of the character of the paper which he signed. The case of McElderry vs. Shipley, et al., 2 Md. Rep., 25, shows, that in such a case a court of equity will not give a different meaning to the paper from that which its language imports; so that, were it competent by parol to show the parties intended something other than that expressed, the instrument would not be reformed. Of course I allude to a case in which there was an absence of mistake or fraud.
These views, in my judgment, fully dispose of this case. But it is said, the complainant at the time of the transactions was of a weak mind, liable to be easily imposed upon by the cunning and knavish, and because of this mental imbecility, readily became the dupe and victim of the defendant.
In what this imbecility consisted does not appear. While it can be clearly deduced from the evidence in the cause, that some of the witnesses entertained no very high opinion of his "financiering" abilities, it is also clearly shown by the proof, that he was not non compos mentis, and that, he transacted his own business, gave [**147]  deeds and leases, and mortgages, and acted for years as one of the judges of the district courts of his county. The language of Judge Archer, in the case of Watkins vs. Stockett, 6 H. & J. 435, is very pertinent to this branch of the case:--He says: "It was observed by a distinguished jurist, Sir Joseph Jekyll, that where a weak man gives a bond, if there be no fraud nor breach of trust in its obtention, equity will not set aside the bond, for the weakness of the obligor alone, if he be compos mentis. Nor will a court of equity measure the size of men's understanding and capacity, there being no such thing as an equitable incapacity where there is a legal capacity. This is undoubtedly the 

 [*458]  safest doctrine, where there is a total absence of all fraud and imposition."
It must be borne in mind that this is a case between the parties, and only the parties, to the alleged fraud. Were it a case between the creditors of the complainant and the defendant, a different class of principles would be applicable. In the latter case, the creditors would not be estopped by any fraudulent act of either the complainant or defendant, but would be at full liberty to inquire [**148]  into the whole transaction.
For wise purposes--and the experience of centuries has demonstrated the wisdom--the law has established certain, fixed, and inexorable principles for the administration of justice, for the protection of the rights of property, and for the ascertainment of truth. These are not lightly to be departed from. If they are to be disregarded in one instance, why not in all?
The indulgence of mere sympathetic feeling, however honorable to the instincts of human nature, furnishes no excuse for such judicial partiality. There is no canon of the law of more universality than, omnis innovatio plus novitate perturbat quam utilitate prodest; and, in a commentary on it, a very learned writer very properly remarks: "It is an established rule to abide by former precedents, stare decisis, where the same points come again in litigation, as well to keep the scale of justice even and steady, and not liable to waver with every new judge's opinion, as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter [**149]  or vary from according to his private sentiments." And again, "If, as has been observed, there is a general hardship affecting a general class of cases, it is a consideration for the Legislature, not for a court of justice. If there is a particular hardship from the particular circumstances of the case, nothing can be more dangerous or mischievous than, upon those particular circumstances, to deviate from a general rule of law."
In the case before us the party complaining knew what he was doing; he does not even pretend ignorance. To him should be applied the language of Lord Chief Baron Richards, 

 [*459]  in Roberts vs. Roberts, 4 Eng. Exchq. 448. That was a case in which a bill was filed for the purpose of setting aside a voluntary demise of certain hereditaments for a term of years, executed by the testator, in his lifetime, to the defendant, to kill game. In his opinion the judge said: "I do not think the plaintiffs are entitled to a reconveyance; the deed was executed maturely; the grantor knew the effect of it. There was no fraud, at the time, between the brothers; with respect to them the transaction was perfectly fair. But it appears by the evidence that the object [**150]  of the deed was to give the defendant the appearance of a qualification, and that it was executed for no other purpose; that was a fraud on the law, and I cannot perceive what right that gives the plaintiffs to come into a court of equity to call for a reconveyance."
It was suggested, in the course of argument at the bar, that the county court had, under the circumstances of the case, no jurisdiction under the provisions of the act of 1826, chapter 296. In this opinion I cannot concur. Although under that act the authority to sell is derived from the bond of the trustee, and the power of attorney, executed by the mortgagee, and not, primarily, under a decree of a court of equity, as in other cases, yet the jurisdiction of the court becomes complete on the report of the sale. When this is once made, the equitable cognizance of the court obtains, and thereafter equitable principles, such as are applicable to sales under decrees in chancery, control the disposition of the case; and, according to these, it is the well established practice for courts of equity to ratify sales, made without public notice, whenever the parties in interest shall signify, in writing, their assent [**151]  to such a purpose. The case of Andrews vs. Scotton, 2 Bland, 629, is sufficient authority for this doctrine.
For the reasons given, I am of opinion, the decree of the circuit court ought to be reversed and the bill dismissed.
MASON, J.:
I frankly confess I have had great difficulty in coming to a conclusion in this case, and I would be the better satisfied if the result to which I have at last arrived, was as firmly sanctioned 

 [*460]  by my own mind, as my conclusions usually are. The difficulty with me grows out of the circumstance, that the proper application of the statute of frauds, which Chief Justice Buchanan has said, "probably generates as many frauds as it prevents," leads to results, in this particular case, which are repugnant to sound morals and fair dealing.
The evidence has failed to satisfy my judgment, that the defendant, Wilson, practiced a fraud upon the complainant, in inducing him to make the application to the court to have the sale of the trustee reported and ratified in the proceedings upon Hook's mortgage; in other words, that Watts was induced to do one thing in that matter, under the influence of Wilson's deceptions, while he supposed [**152]  he was doing another. While I am satisfied that the ratification of the sale to Wilson was made with the full understanding and knowledge of Watts as to the nature of the transaction, yet I am equally clear that there was a secret or private understanding between them, that Wilson was eventually to have but one-half of the property and Watts the other, an understanding which Wilson, in bad faith, now refuses to recognise.
While Watts has been, in this particular, made the victim of misplaced confidence in Wilson, there is no power in this court to grant him relief. If I am correct in the conclusions to which I have come in regard to the facts of this case, the law regulating such a state of case is plain and well settled. Where it cannot be shown that the contract had its inception in the fraud of the party against whom the relief is sought, but that he is merely making a fraudulent use of the statute, to keep an advantage obtained through the reliance of the opposite party on his good faith and fair dealing, no relief can be granted. The principle is broadly sanctioned by Chief Justice Buchanan, in delivering the opinion of this court in Lamborn vs. Watson, 6 Har. & John. [**153]  252. He there says: "The action is not founded on deceit, &c., practiced by the defendant, by which the plaintiff was tricked into a false confidence, and seduced into a contract by which he has lost his property; but on a verbal agreement respecting the sale of lands, not sought for, or moving from the defendant, but procured by 

 [*461]  the plaintiff himself for his own purposes, on which, without overturning the statute of frauds, an action at law will not lie." And again he says: "But they cannot entertain actions upon verbal contracts within the statute, on the ground of fraud, in refusing to perform them; if they could, it would be to permit a plaintiff, in the shape of an action on the contract, to recover in damages, not for the breach of the contract as such, but for a fraud subsequently conceived, and on which the action was not founded, as is attempted in this case, which would be to amend the statute in relation to such contract."
The same doctrine was held in Lamborn vs. Moore, 6 H & J., 422. Our brother ECCLESTON, in his opinion in this appeal, also sets out the same principle correctly, not agreeing however in its application to this case. See also the notes [**154]  to the case of Wollam vs. Hearn, (White & Tudor's Eq. Cases, 355,) 71 Law Lib. 540. The same principle is recognised in Wesley vs. Thomas, 6 Har. & John. 24, and McElderry vs. Shipley, 2 Md. Rep., 25, where this court announce broadly that parties must be bound by the language with which they may think proper to express themselves, in a deed or other instrument.
The statute of frauds is as binding in equity as it is at law, and therefore the fact that the relief is sought in this case in a court of equity does not vary the principle.
If the views I have taken in regard to the facts of this case be correct, the defendant, Wilson, has very justly made himself liable to the severe animadversions directed by Judge Buchanan, in Lamborn vs. Watson, against the defendants in that case, as well as those of our brother ECCLESTON in his opinion in this case against the present defendant, but as we cannot grant the complainant the relief he seeks, a moral castigation upon the defendant would do but little to heal the wounds which he has sustained in his property and rights.
Notwithstanding it might have been understood between these parties, that [**155]  while Wilson was to appear from the proceedings to have purchased the entire estate, he nevertheless, by a secret agreement, was only to have one-half, I do not think that such an understanding would amount to such a fraud upon the court as to place the parties in pari delicto. 

 [*462]  The only parties interested in the proceedings to foreclose the mortgage were the creditor and the mortgagor. The power of the chancery court was invoked only to enforce the payment of the mortgage debt, and to protect at the same time the rights of the debtor. Any arrangement, therefore, which would produce these two results, though in a way somewhat different from that employed by the court in its usual course of proceeding, could hardly be deemed a fraud upon the court, or upon any party having an interest in the matter. Watts, himself, could not be said to be defrauded, if he participated in the arrangement, knowing what he was doing; nor was the creditor, because, by it, he obtained his money; nor was the court, because its powers and functions were not perverted from their legitimate purposes, but were permitted to perform their office in securing to the creditor the fruits of his debt.  [**156]  
Concurring with the Chief Justice in the conclusions to which he has arrived, but not in all the reasons he assigns, the decree must be reversed and the bill dismissed. Under the peculiar circumstances however of this case, and as the subject of costs is under the unrestricted discretion of the court, I think the appellant should pay all costs in both courts.
Decree reversed and bill dismissed. 

DISSENTBY:
ECCLESTON 

DISSENT:

 [*432contd]  
[EDITOR'S NOTE: The page numbers of this document may appear to be out of sequence; however, this pagination accurately reflects the pagination of the original published documents.] 
ECCLESTON, J.:
Before looking into the evidence in this case, I will examine the principles, chiefly relied upon by the appellant, as grounds of objection to the correctness of the relief granted to the appellee by the decree appealed from.
1st. It is said the appellee cannot deny the title of the appellant to any portion of the estate purchased by him, under the sale ratified by the order or decree of the court, in the case of Hook against Watts, (the appellee,) because his petition, signed and filed in that case, his written consent to the ratification of the [**157]  sale, and the decree thereon, will estop him. And no parol or written evidence can have the effect of adding to, altering or varying that decree.
2nd. That a party voluntarily choosing to express himself in the language contained in a deed, or other written instrument, must be bound by it. And the proof in this case shows, that the petition and consent above referred to were voluntarily signed by Watts with a knowledge of their contents. He therefore cannot be permitted to prove a different intent from that plainly declared in those instruments.
3rd. That the paper marked P, the consent to the ratification of the sale, and the decree upon it, merged all previous negotiations, including paper J. And therefore, neither agreement J or any prior transactions can have an injurious influence upon the appellant's title under the sale by Taggart, the trustee.
In the absence of fraud and mistake, these three positions contain sound legal principles; but no matter how closely the door may be shut and supposed to be securely locked for concealing fraudulent transactions, it may, nevertheless, be opened by the magic key of a court of equity, for the purpose of exposing to examination the illegal [**158]  and inequitable instruments and acts intended to have been concealed.

 [*433]  A judgment or decree, based upon fraud or imposition, is no less subject to the control of a court of equity than a deed or other contract.
In Hall & Wife, vs. Hall, et al. 1 Gill 383, Judge Dorsey says, "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.'" See also page 387.
In Pickett vs. Loggon, 14 Ves. 234, Lord Chancellor Eldon says: "As to the fine it has long been settled, that if a conveyance by lease and release, or bargain and sale, has been obtained by means which in this court have the character of imposition, fraud, oppression, or undue advantage, a fine constituting part of that assurance, which is so affected, whatever may be the effect at law, is no bar to relief in equity. The person deriving a title under it is a trustee, and the species of relief is by directing a reconveyance." See also Bowles vs. Orr, 1 Young & Coll. 473, (Exchequer in Equity.) [**159]  1 Madd. Ch., 300, and 5 Gill 277, Tomlinson, et al., vs. McKaig, et al.
The appellant's counsel have relied, with much confidence, upon the second principle above stated, and seem to think it must entitle them to claim a reversal upon the authority of Wesley vs. Thomas, 6 H. & J., 24, and McElderry vs. Shipley, et al., 2 Md. Rep., 25. In each of those cases, however, when the court announce that a party is to be bound by the language in which he voluntarily chooses to express himself in a deed, they mean, of course, such voluntary choice as the law considers a sufficiently free exercise of will to constitute the deed a valid instrument, in the absence of fraud; but they surely had no reference to a contract executed under an undue or fraudulent influence. An act done under an influence arising from misplaced confidence, will not, in a court of equity, be considered a voluntary act resulting from choice. 1 Story's Eq., secs. 221, 222.
In the first case, at page 27, the court say: "It is most true that the court of chancery in the exercise of its moral jurisdiction, 

 [*434]  as it has been emphatically termed, will upon the [**160]  proof of fraud, mistake, or surprise, raise an equity, by which the agreement of the parties shall be rectified." The decision was made in 1823, and the complainant could have no relief on the ground of fraud, because the bill contained no allegation of fraud.
In McElderry vs. Shipley, et al., the bill did not charge fraud previous to, or in the agreement; but that, since its execution, there was a fraudulent attempt to deprive the complainant of the benefit which it was the object of the agreement to secure. At page 35, the court say, "that parol evidence is inadmissible in a case like the present, to contradict, add to, or vary the terms of a written instrument; and although a court of chancery will, upon proof of fraud, mistake or surprise, raise an equity by which the agreement will be rectified according to the intent of the parties, it will not interfere where the instrument is such as the parties themselves designed it to be. For if they voluntarily choose to express themselves in the language of the deed, they must be bound by it." In support of which Wesley vs. Thomas, and other cases, are referred to.
An effort was made in Watkins vs. Stockett, 6 H. & J.,  [**161]   435, to convert a deed, absolute on its face, into a mortgage. It appeared that, either by the grantor himself, or, in his presence, the conveyancer was particularly instructed to pass an absolute estate, and the court remark: "No room is left for the inference of circumvention or fraud. He transferred his estate with his eyes acknowledgedly open to the nature and quality of the estate which was transferred, and was intended to be transferred." Again, on page 445, it is said: "Indeed where fraud is charged, and the evidence establishes it, it has been remarked, that the statute of frauds may very properly be put out of the way, since the object of such evidence is not properly to contradict the instrument, but to raise an equity de hors the instrument, in contradiction of an intent which no law or statute will be suffered to assist or protect."
There no fraud was alleged, and consequently none could be proved, according to the determination in Wesley vs. Thomas.

 [*435]  It must be evident, that in the cases which have been noticed, when speaking of the binding effect of language in which a party "voluntarily chooses to express himself," in a deed, the courts had no [**162]  intention to deny, or even to restrain in any degree, the well established authority of a court of equity to grant relief against a deed or other instrument obtained by fraud or circumvention.
The doctrine of merger, relied upon as the appellant's third ground of objection to the appellee's claim for relief, cannot be sustained, if paper P, the consent to the ratification of the sale, and the decree based upon it, can be shown to have been obtained by fraud or imposition. Any other theory would exclude, in many cases, the best evidence of fraud. The last written agreement made between parties, will, in the absence of fraud, mistake or surprise, merge all prior negotiations, so that by them its terms cannot be contradicted, added to or varied. But such prior negotiations will be admitted as evidence of fraud, mistake or surprise, when they tend to sustain an allegation of either. In Davis vs. Calvert, et al., 5 G. & J. 269, upon issues sent from the orphans court, Ch. J. Buchanan said: "Fraud vitiates every thing with which it is connected. A will or testament therefore, which is obtained by fraud, is void; and though fraud is never to be presumed, yet it is [**163]  not necessary to prove it by positive and direct testimony. But being usually wrapt up in mystery, if well concerted, it is generally by circumstances only, by inductions of particulars, some of them often apparently trivial, that it can be brought to light and defeated. And in a question of fraud, any fact, no matter how slight, bearing at all on the point at issue, and not wholly irrelevant, may be admitted." See also 1 Knapp. 81.
In Jones vs. Hardesty, et al., 10 G. & J. 416, the appellant objected to oral evidence of an agreement, because there was a written contract, and the court say: "If the oral contract referred to had been reduced to writing by the parties, or if it was intended that the assignment should be such written contract of the parties, then might it be contended, in the absence of all proof of fraud, surprise or mistake, that the oral 

 [*436]  evidence offered by the appellee was inadmissible." The appellant's objection was not sustained, because the court did not consider that the parties had reduced their agreement to writing. And it is a necessary inference, from the language just quoted, that even if the agreement had been reduced [**164]  to writing, the parol evidence would not have been excluded, if it tended to prove an allegation of fraud, surprise or mistake. This principle is most explicitly announced in Henderson vs. Mayhew, et al., 2 Gill 393. "Parol evidence," it is there said, "is inadmissible to change or contradict the terms of a written instrument. Strangers to the instrument, when authorized to impeach or contradict it, may offer parol testimony for that purpose; and so a grantor may, in a controversy with the grantee, if he charges the same to have been obtained by fraud or mistake." Here is a statement of the general rule which forbids the use of parol evidence for the purpose of contradicting or changing a written contract, but exceptions to the rule are also stated, one of which admits even a party to the instrument to impeach it by parol proof where fraud or mistake is alleged by him.
When there is a written contract in relation to land, and some of the terms or provisions in the verbal agreement of the parties are not included in the writing, but omitted by design, even on the express understanding that such provisions should be carried into effect in the same manner as if they [**165]  had constituted part of the written instrument, if there is no fraud, undue influence, surprise or mistake, either in the making of such contract or in reducing it to writing, parol evidence, alone, will not be admitted to enforce the omitted provisions, or for the purpose of contradicting, adding to or varying the written instrument; although subsequently to its execution one of the parties has fraudulently refused to comply with the omitted provisions, and in open violation of good faith and fair dealing, insists upon his right, under the statute of frauds, to have the contract, as written, carried into effect. Such I understand to be the law of Maryland.
But I have seen no case, in which it has been held that a court of equity will refuse relief to a party of weak mind--even 

 [*437]  though the weakness is not very great--harrassed with debt, having good reason to apprehend that nearly, if not quite, all the property he has, is about to be sold under a mortgage, without any means of his own to liquidate the debt, and who, thus situated, placing confidence in the ability, willingness and intention of a person offering his friendly assistance to prevent the property from being [**166]  sacrificed, is, after placing such confidence in these professions of friendly aid, and through the influence of the person making them, induced to enter into a written contract or conveyance, which, in terms, professes to convey or transfer an absolute title to the whole property, for a sum far less than its actual value; when it appears by written and parol evidence combined, that notwithstanding the absolute character of the written contract, the vendor was led to believe he was nevertheless to be entitled to a part of the property, or to some interest therein; and yet subsequently to the written instrument the vendee fraudulently claims the whole title absolutely. In my opinion a court of equity is bound to grant relief to a confiding and deceived party, even against an absolute conveyance, when his grounds for relief are sustained by written and parol evidence combined, against the unrighteous demands of one, who, for the sake of gain, has abused the confidence produced by his professions of friendship towards a man in distress.
Whenever parties stand in a confidential relation towards each other, and any advantage is taken of that confidence, relief in equity will be administered [**167]  with as much promptness as upon any other ground whatever. In Billing vs. Southee, 10 Eng. Law & Eq. Rep. 39, 40, the Vice Chancellor says: "There is no part of the jurisdiction of this court more useful or more well founded than that which assumes the control over all transactions between persons occupying confidential relations towards each other. This jurisdiction ought to be exercised, whatever be the circumstances and position of the parties between whom the confidential relation exists, whether attorney and client, guardian and ward, or surgeon and patient." The latter relation was the one then under consideration. Other cases recognize the rule as applicable to 

 [*438]  other instances than those here enumerated--such as trustee and cestui que trust, principal and agent, a clergyman and one of his flock. The instances mentioned by the Vice Chancellor, were therefore intended only as examples in illustration of the rule, and not as restricting the general proposition previously stated by him, to the enumerated cases. And why should not the rule apply to all, as well as to particular cases of confidential relations, which afford a favorable opportunity of obtaining [**168]  an unfair advantage, or of exercising an improper influence? And it may be correctly said, there are few of such relations, which will enable a party more easily, or more effectually to obtain an advantage, or to exert an undue influence than when he has created a confident belief that he is acting the part of a friend, for the purpose of relieving a man of weak mind in distress, expecting to be deprived of his property by a pressing creditor, and that property constituting nearly, if not quite all the means which he has for the support of himself and family.
Speaking of the extent of the rule, in Gibson vs. Jeyes, 6 Ves. 276, where a contract had been made between a client and his attorney, Lord Eldon uses the following language, in regard to the onus of proving the correctness of the transaction: "It is necessary to say broadly, that those who meddle with such transactions, take upon themselves the whole proof, that the thing is righteous." And on page 278, he says: "It is asked, where is that rule to be found? I answer in that great rule of the court, that he who bargains in matter of advantage with a person placing confidence in him, is bound to show,  [**169]  that a reasonable use has been made of that confidence; a rule applying to trustee, attorneys, or any one else." When used in such connection, "any one else," of course includes any party standing in a confidential relation, where the propriety of his contract is called in question.
In Brooke, et al., vs. Berry, 2 Gill 102, the court say: "It can hardly be insisted that the appellee has not, in a contract with his principal, obtained a conveyance of his lands at a price greatly below their value, which of itself would induce a court of equity, (apart from the mental incapacity of the 

 [*439]  principal,) to set aside the contract, unless it were shown, by competent testimony, that the contract was entered into in a way and under circumstances, which made it apparent that there had been no abuse of confidence, no undue influence, no imposition or material concealments practiced by the agent upon the principal, which could cast a shade of doubt as to the fairness and honesty of the transaction." Here, because of the relation of principal and agent, inadequacy of price alone was deemed sufficient to require satisfactory proof from the latter that the contract [**170]  was fairly and honestly made.
In addition to the authorities I have referred to, see also those cited by the judge below, in regard to fraud arising from undue influence in cases of confidential relations between the parties.
In view of the authorities, I think there can be no doubt that when fraud is charged, parol evidence, especially when aided by written proof on the subject, may be admitted for the purpose of impeaching a written contract, whenever such evidence tends to show the existence of a confidential relation between the parties, that the contract is very disadvantageous to the vendor, who is a man of weak mind and much embarrassed in his affairs; and such evidence has a tendency to establish facts from which the inference may be drawn, that there has been improper influence exercised, or imposition practiced upon the vendor by the vendee, for the purpose of securing to himself an unfair advantage in the contract.
A conveyance cannot be successfully impeached for imbecility or feebleness of intellect alone, unless it be such as would justify the jury, under a commission of lunacy, in putting his property and person under the care of the Chancellor. But weakness, far [**171]  short of that in degree, if coupled with other circumstances showing that such lesser weakness has been taken advantage of, will be sufficient to set aside a deed. 1 Knapp. 78. 1 Story's Eq., sec. 237.
The weakness of mind in the present case is not such as, of itself, could justify setting aside a conveyance.
G. W. McConkey, in testifying with regard to Watts' intellect, says: "If you include business of importance, Watts is 

 [*440]  not a man of business habits. If there is any financiering in the business, Watts is not a man calculated to transact business of that kind." He acted as a justice of the peace for several years. He was reappointed, but the witness does not know whether he swore in or not.
Edward Riley says: "He really thinks Watts is not a man of business and of business habits." He does not think "Watts is a man of ordinary understanding, competent to make contracts, and would not trust him to make a contract for him." He thinks "Watts is in his usual mental faculties;" does not know that "he ever was deprived of his mental faculties." The witness does not know much of Watts' transactions. His buying and selling has been in a very limited way since he [**172]  has been in the deponent's neighborhood. He is a man who is compos mentis, but his business habits are very limited. The witness does not know, but should judge that Watts conducted his business himself.
R. Hook says: "He should not judge that Watts was a man of business and of business habits." This witness was a judge of the magistrates' court, and for a short time Watts was also one of the judges, and sat in the court two or three times, but took no active part in the business of the court. He believes Watts does transact his own business, and should judge he was a man of common sense. The witness never had much business with him.
This testimony is not very strong proof of imbecility, but, connecting it with the circumstances of the transaction, I regard him so far below mediocrity as to allow his weakness of mind to be treated as worthy of consideration in the inquiry, whether he has been overreached through the instrumentality of abused confidence.
On the 27th of April 1846, Watts filed in Baltimore county court a petition in relation to the claim under the mortgage given by him to Hook. The petition states, that S. H. Taggart, as trustee under the mortgage, had, during [**173]  the same month, advertised the mortgaged property for sale, but postponed the sale. That Watts had contracted to sell the property to Wilson for the sum of two thousand one hundred 

 [*441]  dollars, being more than sufficient to pay the debt, including interest and costs. That the petitioner had notified the trustee of said sale, and had requested him to report it, but he refused to do so, and intended again to advertise the property. The object in filing the petition was, to obtain from the court an order directing the trustee to report the said sale. Watts signed the petition, and annexed to it is the following admission: "I admit the facts above stated, so far as I am concerned. --G. B. Wilson."
This is written evidence of an agreement for a sale of the entire mortgaged property, the title to which should be passed under the mortgage, through the instrumentality of a sale to be reported by the trustee.
The trustee and Isaac Tyson, Jr., (who had become assignee of the mortgage,) filed answers to the petition, objecting to a report being made as prayed for. But, on the 17th of November 1849, the objections of Tyson were withdrawn, and the cause submitted, without argument, by [**174]  a solicitor for Watts and Wilson, and by Mr. Taggart, as trustee and solicitor for Hook:--whereupon the court passed an order, directing "the trustee to report the sale proposed by the parties, and set forth in the said petition. On the 20th of November 1849, the trustee, in obedience to the court's order, reported "the sale of the mortgaged premises in the proceedings mentioned unto the said Greenbury B. Wilson, for the sum of twenty-one hundred dollars, cash, to be paid on the ratification of the sale, with interest from the 27th April 1846, the day of sale." The same day on which the report was made Wilson and Watts filed their written consent to the immediate ratification of the sale as reported, and on that day the court passed an order of final ratification. The same day the trustee executed a deed to Wilson for the mortgaged premises, and two days after it was put upon record.
The proof shows, beyond dispute, that in April 1846, Watts was poor, and had good reason to fear he was about to lose his real estate on which he lived, and on which he relied for support.
A letter, dated the 9th of April 1846, to Watts from Wilson, 

 [*442]  shows that he had been engaged in endeavoring [**175]  to effect such an arrangement with the mortgagee and his trustee, or attorney, (Mr. Taggart,) as would stop the sale under the mortgage. After proposing that Watts, and Hook the mortgagee, should call on Saturday following, the letter concludes: "I can satisfy him about your security, and will go with him and you to Taggart's and save you from sacrifice."
The witness, Davis, says, that about April 1846, Wilson represented himself as the friend of Watts; and that Wilson said he felt a disposition to befriend Watts, to prevent him from being cheated or defrauded by Isaac Tyson, Jr. Davis also says, he and Wilson had frequent conversations, and the latter said that Tyson was endeavoring to wrong Watts and to get the mines for less than their value, calling Tyson sometimes rather opprobrious names.
J. Hook, the original mortgagee, being examined as a witness, testifies, that he believes he saw Wilson in 1846, and took him to be a friend of Watts; that Wilson wished to take up the claim against Watts' property, and, of course, the witness took him to be a friend of Watts. And from what he saw he thought Watts placed confidence in Wilson.
Mr. Taggart says, as well as he can recollect,  [**176]  either after the first or second advertisement of the farm for sale, by him, as trustee, according to his understanding of the matter, Wilson, as the friend of Watts, called at the office of the witness, and stated that he had not the money, but offered his notes for the whole mortgage debt, which the witness declined taking.
Tyson testifies, that, as well as his recollection serves him, Watts and Wilson, together, called at his counting-room, and Wilson appeared to be the friend and counsellor of Watts. The witness so considered him at the time. They offered him the Bare Hill mines, and wanted to know what he would give for them. The property offered was that part of the farm which had been leased to Samuel Davis, being sixteen acres.
L. T. Watts, the daughter of the appellee, says, Wilson was at her father's house two or three times a week, and every Sunday; that her father placed confidence in Wilson, at the time, as his friend.

 [*443]  D. Stewart, Esq., speaks of a conversation between himself and Wilson, either in 1846 or 1847. He is rather doubtful which, but is disposed to think it was the latter year. Wilson represented that he had called at the request of Watts, and [**177]  in consequence of the witness having written to Watts, the object of the proposed interview with whom Wilson wished to know. Mr. Stewart told him that he was a friend of Watts, and desired, if he could, to promote some satisfactory arrangement between Isaac Tyson and Watts in regard to the mineral lands of Bare Hill. Wilson said that no such arrangement could be made with Tyson; that Tyson wanted to take the advantage of Watts, and that he intended to protect Watts, so far as he could, from imposition. Wilson spoke of the said mineral land as being very valuable, and said they were important to Watts as his main dependence, and that Watts should not sacrifice them; that there was no chance of his arranging with Tyson for them at anything like a fair value.
Robert Wilson says, that Wilson, the appellant, stated to the witness, in the presence of Watts, "that he was the friend of Watts, and that he merely would undertake this thing to get him out of the clutches of Isaac Tyson, Jr., and Mr. Davis. He said that they were both trying to rob him (Watts) out of his house and home." This conversation occurred in 1846 or 1847. The witness had similar conversations with the appellant at his [**178]  office, at the farm, and at the mine.
The appellant also said to this witness, in the presence and hearing of Watts, "that the mine was invaluable, and there was no telling the amount of money it was worth, and that he would not take any amount of money for it if he was Mr. Watts; that it would turn out to be a fortune for him. He also said, that if he was Mr. Watts he would not let Isaac Tyson, Jr., have it for any consideration." The same witness says: "Wilson told him that when Watts gained the law-suit between him (Watts) and Isaac Tyson, Jr., that it was his (Wilson's) intention to put it," (of course meaning the mine,) "into a stock company--putting the stock up to about one hundred thousand dollars--and that they, (Mr. Watts and himself, Wilson,) would retain either fifteen or twenty-five 

 [*444]  thousand dollars apiece, so as to have the greater portion of the controlling power of the working of the mines, or words to that effect."
R. Hook, referring to a conversation between him and Wilson, in 1849, says, the substance of it was, that Wilson was acting as the friend of Watts. The witness "cannot tell the conversation, but it was on the subject of the Bare Hill mines.  [**179]  " On a subsequent examination this witness says, he understood Wilson to say that he was the friend of Watts, and intended working the mine jointly with him when they got rid of the difficulties then hanging over their heads.
T. Mitchell states, that to the best of his recollection, in June 1849, he conversed with Wilson in the presence and hearing of Watts, when Wilson proposed that the witness should go and take charge of the Bare Hill copper mine under Watts and himself, Wilson saying "they intended to work it systematically, and they intended to make captain of deponent."
In regard to the value of the property Samuel Davis says, that, in his opinion, the copper mines were worth $ 6000 in April 1846. "He does not know what other people would have thought about the price they would bring at public auction at that time, but he thinks they would have brought six thousand dollars." This witness professes to be familiar with the character and value of copper mines generally, and he had a lease for five years on those mines, commencing in 1845. At the close of his lease, however, he was not able to pay his debts, as appears by his answer to the fifth cross-interrogatory.
J. Hook, (the [**180]  mortgagee,) supposes the farm in April 1846 "was worth a good deal more than the amount of the mortgage debt. He does not know what it was worth, but he would have been willing to give more for it than his mortgage debt."
T. Mitchell thinks it hard to tell what the mines were worth in the summer and fall of 1849, but that if they had been for sale at public auction, they would have brought "ten thousand dollars at the least calculation." He worked in those mines in 1849, and never did anything in his life, as a business, but work at copper mines.

 [*445]  According to the testimony of James Farquharson, he, either as agent for Davis and Tyson, or for Tyson alone, made Watts an offer of four thousand dollars for the property, Watts reserving to himself one-fifteenth of the ore, also the dwelling-house and a few acres of land attached; which offer was rejected. This occurred, the witness thinks, in the spring or summer of 1846; and Tyson was exceedingly anxious to get the property.
G. W. White, the defendant's only witness, says, when he first became acquainted with the mines, about the 4th of May 1850, they were not worth five dollars. They were partly filled with water, to remove [**181]  which would probably cost from four to five thousand dollars, and take at least seven months to do the work. He likewise says: "Before the monthly yield of the mines in ore was sufficient to meet the monthly expenses of working them, said Wilson must have been out of pocket at least ten thousand dollars, for moneys paid in cleaning the water out, for machinery, and other incidental and necessary expenses in working them, and for digging and breaking ground, and clearing it out, and in sinking shafts and driving cross-cuts through ground in which there was little or no ore found or obtained."
From estimates differing so widely, were it necessary to do so, it might not be a very easy task to ascertain the true value of the property; but no such necessity exists.
From Wilson's own declarations, it appears that, in 1846 and afterwards, he considered the mines to be of great value; certainly, valuable enough to render a sale of them for the amount of the mortgage claim a sacrifice; which claim, it seems from the auditor's report of the 27th November 1849, with interest and costs added, the interest being calculated to the 27th April 1846, amounted to only $ 15.66 less than $ 2100.  [**182]  Still Wilson insists that for $ 2100 he purchased the whole estate, absolutely, in April 1846. And this he does, although his own declarations, viewed in connection with the other proof in regard to value, must warrant the conclusion, that from 1846 to the fall of 1849, at least, the property was worth $ 4000, if not considerably more.
Wilson says to Watts, in a letter dated the 22nd of October 

 [*446]  1846, "as respects the weighing of the ore, I suggested to Davis the propriety of getting you to see it weighed, as you were interested." And again, "if any one of those hands who are experienced in mining would call and see me, I might propose something to induce him or them to search out another spot where ore could be found, either on your place or ours, by promising a fee."
In a letter, dated the 8th of April 1847, Watts is informed of the abundant supply of copper ore upon the premises, and of its very rich quality, as ascertained by analyzing a portion of it. And then, in reference to the suit pending between Tyson and Watts under a lease to Petherick, it is said, "Tyson's lawyer says he expects they will appeal, but he has not done it yet; whether he does or does [**183]  not, is of but little consequence to us. I think matters look bright now, but you must be cautious how you talk and who you talk to; plenty of money ahead--only have patience."
The 20th of May 1847, is the date of a letter which contains the following language, "Well, the more mines that are found and worked the better for us; and if the ore is found on Buchanan it must still run back on your ground, so let them go ahead.... Only keep cool and look sharp, the money will come, sooner or later, in no small sums." The italics in the quotations from these letters are my own.
If, as Wilson now contends, he had purchased the entire estate in April 1846, how was Watts so interested in the ore as to make it proper in October following, that he should see it weighed? Or why say, "either on your place or ours," speaking of searching for another spot where ore might be found; when it was known that Watts had not owned any other real estate except the mortgaged premises? And if the whole property had been sold for the sum of $ 2100, why, in the following year, should Watts be informed of the quantity and richness of the ore? Why told, "plenty of money a-head, only [**184]  have patience?" having reference to finding ore on "Buchanan,"--which adjoins the property in dispute:--why say to Watts "it must still run back on your ground?" And why tell him, "only keep cool and look sharp, the money will 

 [*447]  come, sooner or later, in no small sums?" If he had sold the entire estate for a specified sum he could not be entitled to any thing more, and therefore, so far as he was concerned, it was a matter of no importance whether there was "plenty of money a-head" or not--whether he had patience or not--whether he did or did not keep cool and look sharp--or whether or not "the money would come, sooner or later, in no small sums."
Although the petition of 1846, and the proceedings consequent upon it, would, of themselves, seem to indicate, that for the consideration of $ 2100 Wilson should have a title to the whole property, yet his acts, his declarations, and his letters, must have been designed, or, at all events, were amply sufficient, to induce a confident belief on the part of Watts, that under the title thus to be transferred he was not to part with his entire estate. Wilson had declared his intention to save the property from being sacrificed [**185]  by a sale under the mortgage. Now, if a sale for the mortgage claim would have been a sacrifice, so would an absolute sale for $ 2100. Watts therefore could not have imagined his professed friend was engaged in doing the very thing he had censured others for designing to do; and which he had said it was his intention to prevent. As a friend, Wilson had interceded with the mortgagee and his trustee to prevent a public sale under the mortgage, and had offered to give his own notes for the whole claim. He had declared, both in and out of Watts' presence, that he was acting as his friend in the matter; spoke of the great value of the property, especially to Watts, as being his main dependence for support; of the intention of others to take advantage of him, and to rob him of his house and home; and avowed his determination to protect him from imposition, and to save his property from being sacrificed.
Such proof as is set forth in the previous part of this opinion can scarcely leave a doubt, that Watts was thereby led to believe he was dealing with a friend, whose purpose was not to acquire a title to the estate for his exclusive use, but to preserve for Watts, at least a portion of the [**186]  property or some interest in it. But if, after an examination of this proof, there 

 [*448]  should be any doubt on the subject, that doubt must be removed when such proof is considered in connection with the paper marked J; which is in the following language:
"Thomas B. Watts, and his wife Mary Ann Watts, has sold to Greenbury B. Wilson one-half of the farm he now occupies on Bare Hill, call'd Bare Hill, cont'g 93 1/2 acres, more or less, together with the entire control and privilege of mining for copper and other minerals, and carrying away on the whole tract forever, with the understanding that one-half of the nett proceeds of all minerals are to be paid over to said Thomas B. Watts, and his heirs and assigns. The said Thomas B. Watts, his heirs and assigns, to have the exclusive benefit of all crops rais'd by him on said farm.
Baltimore, 15th Feb'y 1849.
THOS. B. WATTS,
G. B. WILSON.
In the event that G. B. Wilson raises a stock company, or can sell the whole tract for a handsome remuneration, to the mutual advantage and benefit of both parties equally concerned, then the parties hereto are respectively bound to such an arrangement, their heirs and assigns.
Witness,  [**187]  this 15th February 1849.
A. CLIFTON."
This agreement is not only signed by the appellant but he admits it to have been written by him.
But the appellant says, admitting that paper J proves a sale of only one-half of the farm, at that time, it does not preclude the possibility of showing the acquisition by Wilson of a title to the other half, between the date of that agreement and the perfection of the title by the deed from Taggart as trustee. And it is insisted that the ownership of the entirety by Wilson, is conclusively established by the acts and declarations of the complainant, and by the paper marked P, dated the 1st of June 1849, which is as follows:
"All my right, title and interest in the Bare Hill copper mines, and the houses and improvements appertenant thereto, during the term of five years, from the tenth day of July 1845, with the right of reversion and possession, as secured to me, I hereby assigne and transfer to G. B. Wilson, for value received.
THO. B. WATTS,   (Seal.)"

 [*449]  Wilson admits that he wrote the exhibit AWB, and requested Watts to sign it. P, it appears, is in the handwriting of Watts and is an exact copy of AWB.
Although this paper [**188]  professes to have been executed for the purpose of assigning and transferring the property "for value received," yet, from the appellant's admissions, it is evident he did not pay anything as consideration, or purchase money, for the estate, until after the sale was ratified by the court; and his admissions also show clearly, that paper P was not based upon any other consideration than that mentioned in the petition and in the trustee's report of sale.
Prior to the execution of this paper, (P,) the petition stated a sale had been made at the price of $ 2100. The oral declarations and letters of the appellant, in connection with paper J, show, that for the $ 2100 not more than one-half of the estate had been sold. And yet, without any obligation on Wilson, to pay one cent of additional consideration, at his request, Watts executed paper P, which professes to assign and transfer all his right, title and interest in the mines. These circumstances, viewed in connection with the nature and terms of the application of the appellant to the appellee, to execute this instrument, furnish satisfactory evidence, that it was not to be a new contract, in regard to any other sale between the parties,  [**189]  than the one previously made, and which was to be consummated under the petition and the proceedings upon it, and consequently, in a court of equity, should be subject to all the qualifying terms connected with that original contract.
Wilson says: "That he did present to Thomas B. Watts the complainant's exhibit, marked AWB, admitted to be in this respondent's handwriting, and requested him to sign it as evidence of his, the complainant's, sale to this respondent of the Bare Hill farm and copper mine, so that said respondent could use it at the approaching trial between himself and said Davis, because this respondent's deed from said Taggart to this respondent was not then executed." Thus the request was not for evidence of a new, but of the old sale. And if Wilson intended, by this instrument, without any additional or new consideration, to secure to himself any larger portion 

 [*450]  of the estate than he was entitled to, under the existing contract, it was imposition, practiced by him, upon the party whose confidence he had gained by his professions of intended friendly assistance.
It may well be doubted, whether P was not intended merely for the purpose of enabling Wilson [**190]  to use it in a controversy between him and Davis, and not designed to have any effect as between the present parties. No use was made of it in the mortgage case. The day of sale, as there reported, was the date of the petition, from which date interest was to be charged. And although paper J was made an exhibit in the original bill, the answer to it contains not the slightest allusion to P. It was first brought into the cause by the defendant, under the commission to take testimony.
The inference, that this paper was only designed to be used on the trial between Wilson and Davis, is aided by the fact, that it does not profess to include the whole mortgage property, as mentioned in the petition, and the sale as ratified, but relates only to the "Bare Hill copper mines and the houses and improvements appurtenant thereto, during the term of five years from the tenth day of July 1845, with the right of reversion and possession thereof." And the lease to Davis bears date the 10th of July 1845, is for five years, and includes only sixteen acres of land, within which are the mines and the improvements attached to them.
This paper is dated the 1st of June 1849, and yet, during that month,  [**191]  in a conversation between the witness Mitchell and the appellant, in the presence of the appellee, in relation to the Bare Hill mine, it was proposed by Wilson, that the witness should take charge of the mine under Watts and Wilson, the latter saying, "they intended to work it systematically, and they intended to make captain of deponent."
From the testimony of J. T. Watts it will be seen, that after the year 1849, and shortly after he had left his father, (the appellee,) Wilson said to the witness "he was doing very wrong in leaving his father as he had done, that the business was then about to be settled between Tyson, Davis, himself, (Wilson,) and deponent's father, and he thought then that 

 [*451]  they would be able to realize something right handsome from the copper mines, and he said he saw no necessity at all for deponent's leaving home."
R. Hook likewise had two or three conversations with Wilson, in which he was understood to say: "That he was the friend of Mr. Watts and intended working the mine jointly with him when they got rid of the difficulties then hanging over their heads."
Even so late as the 22nd of November 1849, (the very day on which the trustee's deed [**192]  was put upon record, and two days after the date of the final ratification of the sale and date of the deed,) Wilson wrote to Watts a letter, in which it is said:
"Richard Hook saw Johnzee and will have the money taken out of Taggart's hands; nothing done in the other matter, but we expect you will be in to-morrow morning, as it will be necessary for you to deed one-half of Bare Hill to me, according to our agreement."
This letter is admitted to be in the handwriting of Wilson, but in consequence of not being signed by him, it is objected to as inadmissible evidence. For want of the signature it could not be used to establish an express trust, for a writing not signed will not transfer an interest in land or create a trust. But such a letter or writing as this will be admitted as evidence in support of a charge of fraud or imposition, in the same manner that parol proof will be allowed for such a purpose.
With such proof before me, I cannot believe that paper P was designed to be evidence between the parties of a full claim in Wilson, either to the whole of the mortgage premises, or to the mines with their appurtenances.
After a very laborious and thorough examination of the case,  [**193]  I am brought to the conclusion, that the parties stood in a confidential relation toward each other, the appellee having great confidence in the appellant, and the latter having much influence over the former. This was the consequence of poverty, great embarrassment, and some degree of mental weakness on one side, with a voluntary offer of assistance and relief on the 

 [*452]  other, accompanied with acts indicating the sincerity of such an offer. Under these circumstances the parties entered into a contract, which, according to the terms set forth in the petition, would seem to be an absolute sale of the whole mortgage premises at $ 2100. A price greatly below the full value of the property. The proof, however, makes it perfectly evident, that Watts was led to believe he had actually sold but a part of his estate. And to the influence of Wilson, resulting from Watts' confidence in him, may be ascribed, not only the terms of the contract, as stated in the petition, but also the consent to the ratification of the sale, the latter believing himself safe in the hands of a man who came forward to relieve him in time of need, with the avowed purpose of saving his property from being [**194]  sacrificed.
How could he imagine that the man who was promising to do this was then actually engaged in making a contract, by which he was securing to himself the entire property forever, for a mere trifle above the amount due upon the mortgage, a sacrifice for which claim the professed friend had repeatedly promised to prevent?
Whenever a title, although absolute on its face, has been acquired at a price much below the real value, by a vendee standing in a confidential relation to his vendor, if from written and parol evidence combined, it appears satisfactorily that the former has led the latter to believe he is, nevertheless, to continue the real owner of part of the property, the vendee should not be permitted to keep the whole. And such title having been acquired, through the instrumentality of a decree, will not prevent the title from being impeached, if the influence arising from such a relation continues to exist at the time of the decree. A party claiming the whole title, under the circumstances stated, would be committing fraud of such a character as the morals of a court of equity should never permit to be successfully carried into effect. And applying this doctrine to [**195]  the present case, I think the evidence, fully entitles the complainant to relief.
I agree with the judge below in that portion of his opinion in which he argues, that the decree in the mortgage case is 

 [*453]  liable to be impeached upon the ground of fraud or undue influence: and that the consent of Watts to the ratification of the sale is not a sufficient confirmation of the original contract to remove all objection to the validity of the decree. He very correctly holds, that subsequent acts will not amount to confirmations of previous contracts, which are liable to be impeached for undue influence, unless it appears that the influence has ceased to exist when the subsequent acts occur. And I also agree with him in believing, that in this case the evidence is quite the reverse of tending to show that the influence which the appellant had acquired, at the time of the original contract, did not exist when Watts consented to the ratification.
Another ground in opposition to the relief claimed by the complainant is, that if the transaction between the parties is a fraud, it is such upon the rights of third persons. And under the rule, in pari delicto potior est conditio defendentis,  [**196]   the complainant will not be permitted to allege his own fraud to invalidate his own contract.
The object of the rule was to discourage fraud by preventing the accomplishment of its design. But to apply the rule as now insisted upon, instead of operating as discouragement, would really be giving a premium for fraud. It would inflict punishment upon a party, who, in consequence of misplaced confidence, under circumstances of distress, had become the dupe of undue influence, and would reward, not merely a participant in the fraud, but the chief actor in its concoction, he being the only party who, at the time of filing this bill, and ever since, could be injuriously affected by granting the relief sought by the complainant.
Particular reference is made, in this opinion, to such evidence as I rely upon in support of the views expressed; it is, therefore, unnecessary to say, whether the evidence not used is admissible or should be rejected under the appellant's exceptions.
Upon the ground of fraud and imposition, I think the averments contained in the original and amended bills, and the proof in the cause, entitle the complainant to relief. And the title of the parties to the property [**197]  should, in my opinion, be 

 [*454]  settled upon the basis of exhibit J. I have arrived at this conclusion in consequence of being fully satisfied, that whilst the parties stood in a confidential relation, Wilson acquired great influence over Watts, which influence was unfairly exercised, for the purpose of securing to the former a title to the whole estate, by inducing the latter to believe the title was, in reality, only to be such as that described in the exhibit J.
We have seen, that in Wesley vs. Thomas, it is said, a court of chancery, in the exercise of its moral jurisdiction, "will, upon the proof of fraud, mistake or surprise, raise an equity by which the agreement of the parties shall be rectified." And in McElderry vs. Shipley, et al., it is likewise said, "A court of chancery will, upon proof of fraud, mistake or surprise, raise an equity by which the agreement will be rectified according to the intent of the parties."
From what has been said, it will be seen, that I do not concur with my brethren in holding that the decree below should be reversed and the bill dismissed.
In my opinion the cause should be remanded, under the act of 1832, ch. 302, without [**198]  reversing or affirming the decree, for the purpose of correcting, what I consider, a mistake of the judge, in regard to the net profits of the mines. But as the majority of this court think the bill should be dismissed, and as this opinion is already long enough, I shall not undertake to point out the mistake to which allusion has been made.  

41 of 187 DOCUMENTS 

J. DIXON ROMAN, and others, vs. HENRY STRAUSS, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 89; 1856 Md. LEXIS 53 

DECEMBER, 1856, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Baltimore city.

This was an appeal, taken by the appellants after filing their answers, from an order of the court below, (KREBS, J.,) granting an injunction upon a bill filed by the appellees, the allegations of which are sufficiently stated in the opinion of this court.  

DISPOSITION:
Order affirmed and cause remanded.  

HEADNOTES:

Upon an appeal from an order granting an injunction, the propriety of the order is to be determined by the bill alone, without looking to the answer subsequently filed.

A party entitled to a right of way over a street or a road, may be protected in the enjoyment thereof by an injunction restraining the erection of obstructions thereon.

But in a bill for such an injunction, the mere allegation of irreparable mischief from the acts complained of, is not sufficient; the facts must be stated, to show that the apprehension of injury is well founded.

A bill, alleging that an alley, over which the complainants are entitled to a right of way, is the only reasonably convenient mode of reaching their property and place of business, the streets binding thereon being already rendered nearly impassable by the rail road tracks laid upon them, and that the defendants are about to obstruct this alley by laying a rail road track across it, by which the complainants will be subjected to daily irremediable damage, is sufficient to warrant the granting of an injunction to prevent such obstruction. 

COUNSEL:
Cornelius McLean, for the appellants:

The bill does not make any case for an injunction. It does not show any public street or alley. The only right the complainants have, is, that an alley shall at some time or other be laid out, and the deed to them from the Ellicotts, under whom both parties claim, calling for an alley. In point of fact none has as yet been laid out, and by an examination of a plat of Baltimore, the court will see, and the contrary is not alleged, in the bill, that there is no public alley in the place designated. The bill alleges that the appellants own the property west of the complainants. They, therefore, are the sole owners of all the rest of the alley; no person being interested but themselves and the complainants. They, therefore, have the same right to use the alley that the complainants have. By reference [**2]  to the map of the city of Baltimore, and the state of trade at Locust Point, both matters of public notoriety and general concern, which the court will take notice of, it will be found that to the north of the alley claimed are extensive wharves for shipping coal, admitted by the bill to be owned by the appellants. Can the court see how crossing it by rail road cars will interfere with the complainants' use of the alley? for the fee-simple is admitted by the bill to be in the appellants, and, therefore, putting the track across the alley cannot be considered a pragmatic interruption of the complainants' right. They have, therefore, only exercised their right to use the alley, as they have a right to use it in any way they please, provided they do not interfere with the use of it by the complainants.

If the complaint had been that the track was being made along the alley, only fifteen feet wide, there might be a prima facie case under the oath of the complainants; but the complaint is, that the rail road only crosses an alley in which the appellants have the same right of use which the complainants have, and the fee-simple in addition. It is not alleged in the bill, and it is not [**3]  a fact, that the track is or was designed to cross the alley at a different level or grade from the alley itself, so as to cause an embankment or deep cut; or if it was to be raised above or run under the grade of the alley, that it was designed to block up the way, by not allowing a passage under, in the one case, or over the track in the other. In all these respects the bill is defective in not showing the court the nature of the injury intended to be complained of. If I grant a right of way through my field, may I not cross it? If I grant the use of an alley to a third party, may I not use it according to the necessities of my adjoining property? The other party has no right to complain of my use, unless he is injured by it, and the onus is on him to show not only that he is or will be injured, but how he will be injured. The bill does not allege that locomotives are intended to be used in crossing the alley. The track is being made by a private individual, a mere switch to connect his property lying on the water with his property lying on the rail road, and how that can be any more injurious than if the crossing were without a rail road, is beyond my imagination to conceive.

But [**4]  how can it be an irreparable injury, as the complainants have sworn? How can this alley have been the only outlet to their property, as they have sworn? They say the place is one of great business. So it is. How came it a place of great business? By means of the rail road bringing produce of different kinds to Locust Point. Property is valuable at Locust Point by reason of its connection with the rail road. But here is an attempt by an injunction and most grave swearing, to stop the appellants from connecting their property on the water with the rail road that gives to all the property at Locust Point its value, by preventing him from making use of his own property; and without an attempt in the bill to show how the injury is to be done at all, especially without showing that it is irremediable. Rail roads traverse various streets in Baltimore, New York, and other cities. Have they prevented access to property on each side, so as to make a rear alley the only access to a lot cornering on two streets. No injunction has ever before been granted in Maryland in such a case, and injunctions have gone further in this State than any where else. The case of Shipley vs. Ritter, 7 Md. Rep.,  [**5]  415, has gone the farthest in favor of injunctions; but even there, there was no claim of right, or no admitted right, as there is in this case. There a change was to be produced in the enjoyment of the estate, and it abundantly appeared by the bill that the injury was of a character to change the enjoyment of the property of the owner. In White vs. Flannigain, 1 Md. Rep., 545, it is said, that the nature and character of the property must always be looked to, in order to ascertain whether a court of equity would interfere by an injunction or not.

Apply the principles of these cases to this, and we shall find not a shadow of right in the court below to interfere in this case. This is an alley, it is true, but it is not a public street or alley, and the persons complained of have the fee-simple and the joint use, and contemplate crossing from the rail road to the water. By this means important commercial effects can be produced, and their property brought into active employment. The injury to them must, therefore, from the showing of the bill, be great, if they are impeded or arrested by the interference of a court of equity. What can be the injury to the complainants? They swear [**6]  it will be great, and that it will be irreparable. But the court can see that the crossing will do them no injury. If the appellants had no right whatever to the use of the alley, if they were mere trespassers, the court would assume that some injury would be done. But they have a right. They have all that is not needed for the use, by the complainants, of the alley, and it is, therefore, incumbent on the complainants to show to the court how the crossing will injure the use of the alley, even as a means of approach to their property. They do not, and cannot claim the exclusive use of the alley, nor the fee-simple. It is in a commercial part of the town, where drays and wagons are, and will be used by the owners of the adjoining property, and they might as well ask for an injunction against that use of the alley.

In my opinion, this is a mere attempt to impose upon the court, by making it stretch out its arm to arrest necessary improvements until the complainants can, in their own time and in their own way, force the appellants to buy them out. It is impossible that any reasonable man owning property at Locust Point, whose value must depend on the rail road, can believe that his [**7]  property will be injured by the crossing of a rear alley in such a way as to get the benefit of the commerce, upon which the value of his and all the adjoining property depends. It is a monstrous infatuation, to say the least of the pretension, to which the court ought not to make itself a party. The bill is very defective in not showing how the road is to be made, unless, which is a fact, it was being made on a proper level, so as to preclude any allegation of the contrary. If any injury ever arises from the cars crossing the alley, it will be by their being left there. This may or will happen from wagons, carts or other vehicles. The remedy is an easy one. It would be a temporary obstruction, for which the appellants would be responsible, not because they were making an improper use of the alley, but because they were negligently using it, and subjected the other party to injury. But this does not necessarily happen. The bill does not allege that such a course will be taken, that negligence will be committed; and an injunction to prevent future negligence would be a novelty. Yet such would be the effect of this injunction. It appears to me, therefore, that the injunction ought to [**8]  be dissolved, and that an attentive examination of the bill, as to what it contains, and more especially as to what it does not contain, will bring the court to the same conclusion.

Orville Horwitz for the appellees:

The only question in this case is, whether the facts alleged in the bill are sufficient to entitle the appellees to the remedy by injunction. 6 Gill, 101, Wagner & Marshall vs. Cohen. 5 Md. Rep., 477, Alexander vs. Worthington. It is believed that this case comes, in all respects, within the principles decided in the case of White vs. Flannigain, 1 Md. Rep., 539. The appellants seem to think that in order to sustain the bill, it is necessary to show that the obstruction complained of is to a public alley, already laid out or opened. The bill shows that the appellees are using this alley, and the plat accompanying the same shows that the alley is laid out and open, and beyond the bill, according to the decisions above cited, this court cannot look; nor is the allegation in the bill and the plat inconsistent with the fact that this alley does not appear on the map of the city of Baltimore. But neither requisite is necessary; for "we hold," say the court in White [**9]  vs. Flannigain, "that where a party sells property lying within the limits of a city, and in the conveyance bounds such property by streets designated as such in the conveyance, &c., such sale implies, &c." "When a sale is made in conformity with such plan, the vendor and all claiming under him, should be bound by the lines and designations by which the property has been sold." And in the next sentence the proposition is approved, that it is immaterial whether the street is opened or not, under the authority of the corporation. In this case it appears that both the appellants and appellees claim title to adjoining property under the same parties, the appellees holding the older title. It is not admitted in the bill, as stated in the appellants' argument, that the property to the north of the alley belongs to the appellants, but it is alleged that the property to the west of the appellees' property belongs to the appellants. Nor can it be seen how it thence follows that the appellants are the sole owners of the rest of the alley, or that they own it in fee, as stated in the argument.

It would seem, then, that by the terms of the deed from the Ellicotts, and the authority relied [**10]  on, there is an implied covenant on the part of the appellants, that the appellees shall have the undisturbed use of an alley fifteen feet wide, extending from Towson to Cooksie streets, throughout its entire length, and to the "full extent of its dimensions." The allegations of the bill show that the property of the appellees is useful to them for business purposes; that there is no reasonable access to it except by the alley named, because of the rail road tracks already laid down, as shown on the plat filed; and that the proposed track will cause irreparable injury, and render their property valueless, for the reasons stated. It is easy to see how the streets binding on the appellees' lot may be so covered by a net work of rail road tracks as to render their property inaccessible over these streets; the bill alleges the fact to be so. This court will not undertake to decide that fact, sworn to, against the appellees in the present state of the case. It is easy to see, moreover, that the condition of the streets binding on the corner lot, may have been the reason why the appellees obtained the covenant for an alley from Towson to Cooksie streets. It is equally easy for the court [**11]  to see how placing a track across the alley, not only in itself, but by its ordinary and daily use, in interrupting the passage of drays and other vehicles along the alley, may entirely interfere with the enjoyment by the appellees of their easement. Is not this just such a case as would call for the interposition of equity by injunction?

This case seems to warrant an injunction on all the grounds approved in White vs. Flannigain, and in Shipley vs. Ritter. The injury is irreparable; full and adequate relief cannot be granted at law; the trespass goes to the destruction of the property as it has been held and enjoyed; and it is necessary to prevent multiplicity of suits. In White vs. Flannigain, it is said, that if in the case of Amelung vs. Seekamp, the complainant "had set out that he had no other reasonably convenient outlet, the injunction ought to have issued." This allegation is made in this case, and is shown as a necessary consequence, from the position and condition of the property. In addition, it is alleged that the property of the appellees "is used for business purposes." The court below could not have done otherwise, on the allegations contained in the bill, than [**12]  grant the injunction, and the appeal ought, therefore, to be dismissed.

There are, in the argument of the appellants, statements of facts not to be found any where in the case. It is unnecessary to comment upon them. The appellants' counsel has seen fit to attribute improper motives to the appellees. There is nothing in the case, as it now presents itself, to justify the harsh language he has used. If this argument had been made to a jury, it might be my duty to reply to this portion of it, but before this tribunal it can only be necessary to meet the legal positions he has assumed, and that, it is submitted, has already been done.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and TUCK, J.  

OPINIONBY:
TUCK 

OPINION:

 [*96]  TUCK, J., delivered the opinion of this court.
This appeal is taken from an order of Baltimore city circuit court, granting an injunction on the bill of the appellees, and the propriety of that order is to be determined by the bill alone, without reference to the answer of the appellants, subsequently filed.  Wagner vs. Cohen, 6 Gill 97.
The bill alleges that the complainants are the owners of a lot on the north-west corner of Nicholson [**13]  and Towson streets, Locust Point, in the city of Baltimore, fronting on Nicholson street, and running back for the depth of ninety feet, to an alley fifteen feet wide, from Towson street to Cooksie street; that they are entitled to a right of way over, and to the use of, the alley; that the defendants, now appellants, claim title to the adjoining property on the west, by conveyances from Ellicott, under whom the complainants also claim, which refer to and reserve all the rights of the appellees, by virtue of their deed; that the whole of the property is situated near the water; that Nicholson and Cooksie streets, which bind on the appellees' property, are interlaid with rail road tracks, and rendered almost impassable for drays and wagons, so that the only reasonable and convenient access to their property for drays and wagons, is through the said alley by way of Cooksie street; and that the property is used for purposes of business, and as such is of great value to them, provided they are left in the free enjoyment of the easement or alley. The bill then charges that the defendants, through their agents, in violation of the rights of the complaints, and to their irreparable injury,  [**14]  are causing a rail way or rail road track to be laid directly across the alley, and nearly adjoining the property of the complainants; that thereby they will be prevented from enjoying their easement, and will be subjected to daily irremediable damage; that except through the alley, there is no reasonably convenient access to their property, and that blocking up or impeding the 

 [*97]  same, by said track and by the uses thereof, will almost destroy the value of their property; and they pray that these grievances may be prevented by an injunction.
We do not perceive how the court below could have refused the injunction. The case made by the bill is embraced by the principles established in Amelung vs. Seekamp, 9 G. & J. 468, and White vs. Flannigain, 1 Md. 525. The latter decided that a party entitled to a right of way over a street, may be protected in the enjoyment thereof by restraining the erection of obstructions thereon; and the former established the same doctrine as to roads. In both cases, however, the mere allegation of irremediable mischief from the acts complained of, is insufficient: "To satisfy the conscience of the court,  [**15]  the facts must be stated, to show that the apprehension of injury is well founded." 9 G. & J. 474. The defect imputed to the bill in that case, was that it was not charged that the complainant had no other reasonably convenient outlet from his mills; that by the obstruction a valuable portion of his customers would be driven from them. We think the facts stated in this bill sufficiently show the character of the obstruction and its consequences. If, as we must assume, the streets binding on this property are already rendered nearly impassable by the rail road tracks laid upon them, leaving the alley as the only reasonably convenient mode of reaching the property and place of business of the complainants, and if, by the rail road track which the appellants are causing to be laid across the alley, and the uses thereof, the complainants will be prevented from enjoying their easement--that is, from using the alley--which they aver to be their only reasonable and convenient outlet, thereby nearly destroying the value of their property, the objection taken to Seekamp's bill cannot be sustained as to that before us.
We cannot notice the improvements and increasing value [**16]  of the property at Locust Point, by reason of the coal trade, and the necessity for laying these tracks, as urged in the appellants' argument. This may all be so. But we are not aware that such a state of things confers on the owners of property the right to make such roads, to the prejudice of their neighbors. 

 [*98]  Courts may be supposed to possess knowledge enough of the uses of a rail road to determine that trains of cars, whether drawn by horses or steam, may have a very injurious effect on the trade and business, and on the value of property, on streets across which they may pass, though they may also be productive of much advantage; and when the irreparable damage is shown, as it is here, relief must be granted in the first instance, leaving the facts of the case to be inquired into afterwards.
The order granting the injunction will be affirmed, and the cause remanded.
Order affirmed and cause remanded. 

42 of 187 DOCUMENTS 

WILLIAM BOYD vs. DANIEL MCCANN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 118; 1856 Md. LEXIS 56 

DECEMBER, 1856, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Court of Common Pleas for Baltimore city.

Assumpsit brought by the appellee against the appellant and William Rogers, partners under the name of "Rogers & Boyd," upon a promissory note for $ 152.59, dated the 19th of January 1852, payable originally to blank order, four months after date, and signed with the firm name. Rogers failed to appear, and a judgment was rendered against him by default. Boyd appeared and plead non assumpsit.

Exception. The proof in the case is fully stated in the opinion of this court. The prayers asked by the plaintiff were:

1st. That if the jury shall find from all the evidence in the case, that the plaintiff received the note sued on from Wylie & Wilson, or from Ijams, their agent, and that Wylie & Wilson held the note bona fide and for valuable consideration, and without notice of any improper practice on the part of said Rogers, and without notice of a dissolution of said partnership, then the plaintiff is entitled to recover, though the jury may also find that the plaintiff had notice of the dissolution of the said partnership prior to his purchase of the note.

2nd. That if the jury find, from the evidence, that the [**2]  name of "Rogers & Boyd" remained over the door of the establishment of the late firm of "Rogers & Boyd," after the publication of the notice of dissolution of said partnership, then the plaintiff is, nevertheless, entitled to recover.

The prayers asked by the defendant were:

1st. That if the jury believe, from the testimony, that the plaintiff came into possession of the note in controversy after notice that the firm of "Rogers & Boyd" had been dissolved, was published in the newspapers in Baltimore, he is not entitled to recover.

2nd. That the plaintiff having declared, on the note as being made in his favor by Rogers & Boyd, any testimony on his part to show that the note was not made in his favor, but in favor of another party, from whom he purchased it, is inadmissible.

3rd. That if the jury believe, from the testimony in the case, that the plaintiff purchased the note under such circumstances as were calculated to raise a suspicion in his mind of its validity, and were calculated to put him on inquiry, then he is not entitled to recover as against Boyd.

The court (MARSHALL, J.,) granted the first prayer of the plaintiff, and rejected all the others on [**3]  both sides. The record shows that several exceptions to each of the adverse rulings of the court were noted by each party in the course of the trial, and but one signature and seal of the judge at the conclusion, which is as follows:

"And the counsel for the plaintiff and defendant prayed the court to sign and seal their several bills of exceptions, as set forth in the foregoing bill, as they appear on either side respectively; which is hereby signed and sealed this 22nd day of February 1853."

The verdict and judgment were in favor of the plaintiff, and the defendant, Boyd, appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

A notice of the dissolution of a partnership, published in a newspaper, though not, per se, sufficient to show either that the dissolution took place on a certain day prior to the publication, or that parties dealing with the firm, and others, had notice of the dissolution on that day, is yet admissible in evidence as a circumstance tending to show these facts.

A prayer that if the jury find that the plaintiff "received the note" from a bona fide holder, "without notice of the dissolution of said partnership," &c., is defective in assuming the making of the note, and the existence of the partnership.

It is no defence or bar to the title of the holder of a negotiable promissory note, that he was aware of some infirmity in the paper, provided he received it, at or before maturity, from a prior bona fide holder, for value; the right of the party so acquiring it, is the right of him from whom it was obtained.

The mere certificate of the editors of a newspaper, that notice of the dissolution of a partnership had been published in it, without any proof that the party sought to be affected with such notice, took or read the paper, is not sufficient to affect such party with notice.

The fact that a promissory note is payable to blank order, authorises the holder to fill it up, at any time, with his own name as payee.

The fact that the firm name was kept over the door of the place of business after dissolution of the partnership, is not, of itself, sufficient to authorise the holder of a note signed in the firm name to recover upon it.  

COUNSEL:
E. R. Sprague for the appellant, argued:

1st. That the court below properly overruled the plaintiff's objection to the certificate of the editors of the "American" newspaper, and the notice of dissolution of the partnership appended thereto. The objection is to the admissibility of this evidence, upon the ground "that the right to recover upon the note was not affected by this notice, the plaintiff having received the note from a bona fide holder, without notice, for value." It was certainly competent for us to prove that Wylie & Wilson, the [**4]  parties from whom the plaintiff purchased the note, had knowledge of the fact of the dissolution of the partnership when they received the note, and the evidence objected to was clearly one step in the order of such proof, a circumstance tending to show that fact, and was therefore admissible. 7 Md. Rep., 582, Pegg vs. Warford.

2nd. That the court erred in admitting the testimony of Wilson, and that offered by the defendant, to show that the note was given for a fraudulent purpose, or for the private benefit of Rogers, and also in its rulings upon the several prayers: 1st, because the notice of the dissolution of the copartnership, published in the newspaper on the 23rd of January 1852, was a sufficient notice to bind the plaintiff; 2nd, because the plaintiff having purchased the note after he had notice that the co-partnership of Rogers & Boyd had been dissolved before the note was made, is not entitled to recover thereon as against Boyd; and 3rd, because the plaintiff's first prayer, which was granted by the court, is defective in form. It assumes the due execution of the note, and the existence of the partnership of Rogers & Boyd at the date of the note, which were facts to [**5]  be found by the jury. 2 Gill, 426, Charleston Ins. Co. vs. Corner. 2 Md. Rep., 75, Brown vs. Ellicott. 11 G. & J., 479, Ragan vs. Gaither.

James Malcolm for the appellee, argued, that the court below was right in granting the first prayer of the plaintiff, and in rejecting those of the defendant, and erred in rejecting the second prayer of the plaintiff, and also in admitting the evidence of notice of dissolution:

1st. Because if the plaintiff received the note from Wylie & Wilson, and they were bona fide holders, without notice, for a valuable consideration, he held the note under their title, and if they were entitled to recover, so would the plaintiff be, even if he had notice of the object of Rogers in giving the note of the firm for his private purposes, of which there is no proof. Story on Prom. Notes, secs. 72, 191. Byles on Bills, 37. 6 Md. Rep., 9, Manning, Stimpson & Co., vs. Hays.

2nd. Because the note being attacked by the testimony on the part of the defendant, the plaintiff had a right to protect himself under the title of a bona fide holder without notice, and, therefore, the testimony of Wilson was admissible; and, besides, there is no testimony to show [**6]  that the plaintiff had any notice of the dissolution, and because there was no evidence tending to show suspicious circumstances surrounding the note, or to put the party upon inquiry, the note being dated prior to the notice of dissolution having been published. Story on Prom. Notes, secs. 191 to 197. 3 G. & J., 369, Penn & Flack, vs. Cooley.

3rd. Because there was no legal evidence shown in the record of any notice ever having been published of the dissolution of the partnership. Story on Part., secs. 160 to 162. Byles on Bills, 38.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON, and TUCK, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*121]  LE GRAND, C. J., delivered the opinion of this court.
This action was brought by the appellee against the appellant and William Rogers, partners under the name of Rogers & Boyd, to recover the amount of a promissory note for $ 152.59, dated the 19th day of January 1852, payable four months after the date thereof. The plaintiff proved the signature to be in the hand-writing of Rogers, one of the partners, and that William Rogers and William Boyd were partners, and that the names of both were, at the date of the note, and still are, over the door [**7]  of the place of business of the late firm, on Baltimore street. He further proved, that the note was sold to the 

 [*122]  plaintiff by W. H. Ijams, a note broker, and that the note was in blank (as to the payee's name) at the time of the sale, and that he sold it as the agent of Wylie & Wilson, a house doing business in the city of Baltimore. It was sold to the appellee on the 11th day of February 1852, for some "seventy odd dollars," and his name inserted as payee.
The defendant offered to prove, by an advertisement, dated the 1st day of January 1852, but which was not published until the 23rd day of the same month, that the firm had been dissolved upon the first day of it. To this the plaintiff objected, but the court overruled the objection, and in doing so, we think, acted correctly. Although, as will be seen hereafter, the advertisement, per se, was not sufficient to show either that the dissolution took place on the first day of the month, or that either Wylie & Wilson, or McCann, had knowledge of the fact, yet it was a circumstance tending in that direction, and which, if it had been followed up with other evidence, might have been sufficient to bring notice home [**8]  to the plaintiff.
The plaintiff then offered to prove, by Wilson, one of the firm of Wylie & Wilson, that he had received the note sued on from Rogers, of the firm of Rogers & Boyd, upon the day of its date, in renewal of one which was due from Rogers & Boyd, and that he had no knowledge of the dissolution of the co-partnership, nor of anything affecting the note, or that it was to be applied to Rogers' private purposes. The defendant then offered to prove that it was given for the private purposes of Rogers, but without bringing the knowledge home to either the plaintiff or to Wylie & Wilson, from whom he obtained it. The plaintiff objected to the proposed testimony, and the court sustained the objection. The propriety of this ruling will be seen where the law governing case is applied to the respective prayers offered by the plaintiff and defendant.
The plaintiff asked two instructions from the court, the first of which was granted, and the other rejected. The first prayer was defective in form, and, therefore, improperly granted. By assuming their existence, it took away from the jury the finding of the making of the note, and the existence of the partnership. Although [**9]  the proof was all one way, nevertheless 

 [*123]  it was for the jury to pass upon it. In the case of the Charleston Insurance & Trust Co. vs. Corner, 2 Gill 410, 427, the court say: "Doubtless the jury would have found these facts according to the testimony, but the sufficiency of evidence to satisfy a jury, or the circumstance that it is all on one side, does not authorize the court to direct the jury that it proves the fact. They have the power to refuse their credit, and no action of the court should control the exercise of their admitted right to weigh the credibility of evidence." On the same point see Brown vs. Ellicott, 2 Md. 75. Ragan vs. Gaither, 11 Gill & John. 472. Independently of the objection to which we have referred, the prayer stated the law correctly.
If the Messrs. Wylie & Wilson took a good title to the note, then it was competent to them to dispose of it to one who might be aware of some infirmity in the paper. The right of the party so acquiring it, is the right of those from whom it was obtained. If this were not so, the note would have been valueless in the hands of Wylie & Wilson, bona fide [**10]  holders without notice. Story, in section 191 of his work on Promissory Notes, thus states the rule: "The partial or total failure of consideration, or even fraud between the antecedent parties, will be no defence or bar to the title of a bona fide holder of the note, for a valuable consideration, at or before it becomes due, without notice of any infirmity therein. The same rule will apply, although the present holder has such notice, if he yet derives a title to the note from a prior bona fide holder for value. The doctrine, in both its parts, is indispensable to the security and circulation of negotiable instruments; and it is founded on the most comprehensive and liberal principles of public policy. No third person could otherwise safely purchase any negotiable instrument, for his title might be completely overturned by some latent defect of this sort, of which he could not have any adequate means of knowledge," &c., &c.
The doctrine was carried much farther, by the late Court of Appeals, in a case very fully discussed by counsel, and considered by the court, but which has not been reported.
In the case of the Merchants Bank of Baltimore, vs. The 

 [*124]    [**11]  President, Directors & Company of the Farmers Bank of Virginia, the facts were as follows: S. drew a check on the bank in Virginia, which was endorsed "good" by O., the teller of said bank, S. having no funds there to meet it. This was in June; in December following, S. passed it as security to the Merchants Bank for a loan. At this time the Merchants Bank had not any notice of any defect in the check, or its endorsement. In January S. failed; the check endorsed good, which he had deposited with the Merchants Bank, was for a larger sum than that which he had borrowed, but being indebted to Mr. Cochrane, of Washington, and urged by the latter to pay him, he proposed that if Cochrane would settle with the Merchants Bank the amount due to it by S., he would give an order for the check in favor of Cochrane, which was accordingly done. On the 25th of January, Sherrod, the cashier of the Virginia Bank, informed Sprigg, the cashier of the Merchants Bank, that Orrick had fraudulently endorsed the check "good," and that S. had no funds to meet it at the time it was so endorsed. The arrangement by which the debt of S. to the Merchants Bank was settled, was not consummated until the 28th day [**12]  of January; it, therefore, is apparent that the Merchants Bank had full notice of the fraudulent character of the transaction when it passed the check to Cochrane; the latter, however, had not when he acquired it. The Merchants Bank subsequently obtained possession of the check, and, on the strength of the title of Cochrane, notwithstanding its own knowledge, was held entitled to recover.
It is shown that Rogers & Boyd had had dealings with the Messrs. Wylie & Wilson prior to the date of the note sued on. There is no evidence they ever had any with McCann. The publication, in the newspapers, of the dissolution of the copartnership, was not until after the title of Wylie & Wilson was perfected. There was no notice, as shown by the testimony of Wilson, given to his firm of the dissolution, nor is there any evidence McCann had any. The latter is sought to be charged with notice because of the publication in the "Baltimore American" newspaper. This cannot be done, it not having been shown, except by the certificate of the publishers 

 [*125]  of that paper, that the notice of dissolution had appeared in it, nor that McCann took or read the paper. See Byles on Bills, edition of 1856,  [**13]  marginal pages, 35, 36 and 37, and the authorities there collected.
These views dispose of the prayers offered on the part of the defendant. They show that the title of Wylie & Wilson being good, McCann had the right to repose upon it. The fact that the note was in blank, authorized the plaintiff, at any time, to fill it up with his own name as payee. We think the court properly rejected the plaintiff's second prayer. It rests on the single fact, that if the jury should find the names of Rogers & Boyd were kept over the door after the dissolution of the copartnership, then the plaintiff was entitled to recover. This circumstance, apart from all others, manifestly was not sufficient to authorize the recovery of the plaintiff.
Judgment reversed and procedendo awarded. 

43 of 187 DOCUMENTS 

SAMUEL HESS, THOS. N. REID and others, vs. THOS. POULTNEY and DAVID U. BROWN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 257; 1856 Md. LEXIS 72 

DECEMBER, 1856, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

A scire facias, under the mechanics lien laws, was issued at the instance of the appellees, from the court below, on the 1st of June 1852, reciting that the appellees, trading under the firm and style of "Brown and Poultney," on the 15th of May 1852, filed in said court a claim against Samuel Hess, for the sum of $ 876.10, against a certain lot of ground, particularly described, on Portland street in the city of Baltimore, improved by the erection of nineteen houses thereon, for work and labor, and materials furnished in and upon said houses, as per statement filed, and that afterwards, on the 25th of May 1852, the claimants amended their original lien, making Thos. N. Reid, Henry S. Taylor and John D. Reid, defendants, having understood that they were owners or reputed owners of the lot and houses, upon each of which they claim a lien for work and labor done, and materials furnished to the amount of $ 46.12 1/2, respectively. The writ then commands the sheriff to make known to the said Samuel Hess, Thos. N. Reid, Henry S. Taylor and John D. Reid, and to all persons holding and occupying the buildings, to appear and show cause why [**2]  the said sum of $ 876.10, should not be levied of said buildings.

The sheriff returned the writ, "copies set up on the most conspicuous part of the premises, and made known to the defendants, and advertised according to law as per advertisement hereto annexed." All the defendants named in the writ appeared and filed a plea, denying that the plaintiffs furnished the materials as charged in their claim, upon which issue was joined.

Exception. The plaintiffs offered in evidence their original and amended claims for lien, filed at the respective dates mentioned in the writ. The original claim is entitled as against Samuel Hess, and states that the plaintiffs, "copartners, trading under the firm and style of Brown and Poultney, claim the sum of $ 876.10, against a certain lot of ground," (which is there particularly described as situated on Portland street,) "improved by the erection of nineteen houses," (whose dimensions are also particularly given,) "for work and labor and materials furnished in and upon said houses, as per statement filed as part of this lien," and directs the clerk "to file and record the above as a lien, as well against the houses and lot aforesaid, as against [**3]  Samuel Hess the owner or reputed owner thereof, according to the provisions of the act of Assembly in such case made and provided." The statement referred to in this claim, and annexed to it, is an account headed, "Mr. Samuel Hess to Brown and Poulthey Dr.," and consists of various charges for items of hardware, such as hinges, latches, locks, screws, nails, &c., commencing on the 2nd of January 1851, and ending on the 24th of April 1852, and amounting to $ 876.10. The amended claim is entitled as against Samuel Hess, Thos. N. Reid, Henry S. Taylor and John D. Reid, and after referring to the filing of the original lien, states that the plaintiffs have since understood "that Thos. N. Reid, Henry S. Taylor and John D. Reid, are also the owners or reputed owners of the said lots of ground and houses thereon erected, upon each of which said houses they claim a lien for work and labor, and materials furnished, to the amount of $ 46.12 1/2 respectively," and directs the clerk "to file and record the above, as well against the houses and lots aforesaid as against Thos. N. Reid, Henry S. Taylor and John D. Reid, the owners or reputed owners thereof, according to the provisions of the act [**4]  of Assembly in such case made and provided, as per statement filed as part of this lien." There was an entry of satisfaction on the lien docket as to the 11th house.

The plaintiffs then proved by their clerks, that the goods mentioned in the claim were sold by them to Samuel Hess, and were delivered at the times and periods named in said bill, some to Samuel Hess, some to his workmen, and that some were sent from the plaintiffs' store by drays, the draymen being directed to take them to houses on Portland street, and that it was the understanding between the plaintiff and Hess, that the goods so delivered were for the Portland street houses, named in the said lien. They further offered the letter dated May 15th 1852, and post-marked may 18th, and directed to "Henry S. Taylor firm of -----," which is set out in the opinion of this court.

The defendants then offered in evidence the book of original entries produced by the plaintiffs, in which the articles mentioned in the lien were charged. In the first item, of date January 2nd, 1852, are the words ("in Pratt above Green street,") this and all the other charges being against Samuel Hess alone. It was proved that the words [**5]  above quoted, were inserted by one of the plaintiffs' clerks by the direction of the other, as the place to which the items charged in the entry were to be delivered, because the houses in Portland street were not then in a condition to receive the goods. It was further proved, that these houses were not completed until the spring of 1852. The defendants further offered in evidence a contract for the building of these houses, between John D. Reid and Henry S. Taylor, of the one part, and Samuel Hess, as contractor, of the other part, dated the 28th of March 1851, and then asked the following instructions to the jury:

1st. That there is no sufficient evidence in the case, to establish such notice to the defendants, of the claim for lien set up by the plaintiffs, to enable them to recover in this action:--1st, because the notice was not directed to the reputed owners; 2nd, because it did not contain the statement of the kind of materials furnished, nor the amount claimed to be due; 3rd, because it referred to a claim, for a lien to have been filed at a period when no such lien had been left for record in the clerk's office; 4th, because it was not specific and definite as required [**6]  by the lien laws; and 5th, because the plaintiffs in said notice, did not state that they intended to claim the benefit of the lien given by the acts of Assembly.

2nd. That if the jury believe from the evidence, that the materials charged in the claim were furnished on the credit and individual liability of Hess, and not on the credit of the buildings, the plaintiffs are not entitled to recover.

3rd. If they believe from the evidence, there was no more than $ 25 to $ 30 worth of hardware, used or furnished in the erection or construction of the eighteen houses, the plaintiffs are not entitled to recover more than such amount upon each house.

4th. That there is no evidence in the case, upon which the plaintiffs can recover for the goods alleged to have been delivered prior to March 28th, 1851, the date of the contract between Hess and Reid and Taylor.

The plaintiffs then asked the following instructions:--1st, If the jury believe from the evidence, that the articles named in the bill attached to the lien filed in this case, were furnished to the houses and lots named in the lien, at the instance of Hess as contractor, that the lien was filed within six months of [**7]  the furnishing of the articles, for record in the proper office, that a notice of the same was properly served on the owner or reputed owners of the property, then the plaintiffs are entitled to recover, although the jury should also believe, that a part of the articles were furnished prior to the date of the contract of the 28th of March 1851.

2nd. If the jury find the facts stated in the first prayer, then the plaintiffs are entitled to recover, though the jury should also believe a part of the articles were furnished, prior to the date of the contract, of the 28th of March 1851, provided they find that this part was so furnished for said houses, Hess being at the time contractor.

3rd. If the jury believe from the evidence, that the articles named in the bill attached to the lien filed in this case, were furnished to the houses and lots named in the lien, at the instance of Hess as contractor, that the lien was filed for record in the proper office, on the 15th of May 1852, and that notice thereof was given to the owners or owner of the property, by letter postmarked the 18th of May 1852, as offered in evidence, then the plaintiffs are entitled to recover, for all the materials [**8]  furnished under such contract.

4th. If the jury believe from the evidence, that the articles named in the bill attached to the lien filed in this case, were furnished to the extent of $ 46.12 1/2, as stated in the lien to Hess, on the house situated on the corner of Portland and Emory streets, and that the lien was filed within six months from the delivery of the articles, then the plaintiffs are entitled to recover, to the extent of this sum on the said property embraced in the lien filed.

The court (FRICK J.) granted the defendants' second and third prayers, but refused their first and fourth, and granted all of the plaintiffs' prayers. To this refusal and the granting of the plaintiffs' prayers, the defendants excepted, and the verdict and judgment being against them appealed.  

DISPOSITION:
Judgment reversed and procedendo refused.  

HEADNOTES:

The notice from the material-man to the owner, under the mechanics lien law of 1845, ch. 176, sec. 1, must state, as the act requires, the claimant's "intention to claim the benefit of the lien," and the omission of this in the notice is a fatal defect.

Though the lien laws are to be construed independently of the rule requiring a strict interpretation of all acts in derogation of the common law, still the words of the law must be substantially complied with.  

COUNSEL:
William Pinkney White for the appellants, argued:

1st. That the defendants' first prayer ought to have been granted. While the act of 1845, ch. 287, requires the original lien law and its supplements to be construed as remedial laws, still no court has ever said that the requirements of these laws are to be dispensed with. The contrary is expressly [**9]  held in 5 Md. Rep. 422, Kees vs. Kerney. In this case the acts of 1838, ch. 205, and 1845, ch. 176, sec. 1, were not followed as far as the notice from the material-man to the owner is concerned:--1st, the notice was not directed to the "owner or owners," nor was it properly served. The rule of law in regard to notice to parties where they do not occupy the position of partners, is fully ssated in 1 Amer. Lead. Cases, 259, 327. In such cases notice to one is not notice to the other, and the service of notice on one is not presumed to be a service on the other. But even if Reid had heard there was a notice in the hands of his co-defendant Taylor, would this be sufficient to bind him, when the law requires that the notice shall be "in writing?" The notice given should be clear and explicit, stating the names of the owners, and should be directed to and served upon each owner. 2nd. It did not state as it should, the kind of materials furnished and the amount claimed to be due. The object of the Legislature was to advise the owner of claim for materials and the amount, that he may protect himself in settling with his contractor. That such is the meaning of the law, is clear from the 8th [**10]  section of the act of 1845, ch. 287, which empowers the owner who has received proper notice under the act of 1845, ch. 176, to retain from the cost of the building "the amount which he may ascertain to be due to the party giving such notice." How is he to ascertain the amount, unless it be specified in the notice? That I am right in this view of the law, is apparent from the act of 1846, ch. 290, extending the lien laws to Washington county, the 4th section of which requires the material-man to give notice to the owner, "of the amount due him, and whether for work done or materials furnished." 3rd. The letter which it is sought to metamorphose into a notice, instead of stating as required by law, that the plaintiffs intended to claim the benefit of the lien, actually waives the right to such lien. The act of 1845, ch. 176, sec. 1, not only requires the notice to be given in writing, but that it shall contain the declaration of the materialman, that he intends "to claim the benefit of the lien." In all notices regulated by statutory enactment, the provisions of the statute must be strictly complied with. 7 Md. Rep., 27, Rawlings vs. Adams, 4 Do., 304, Greenway vs. Turner.

2nd.  [**11]  The defendants' fourth prayer should also have been granted, because there was no evidence to show any contract between Hess as contractor, and Reid and Taylor as owners, prior to the 28th of March 1851. It was the duty of the plaintiffs to advise themselves of the contract between the parties. It was their business to know when an actual contract was made. 4 Md. Rep., 303, Greenway vs. Turner. The goods furnished prior to the date of this contract, were all furnished to Hess alone, and were not delivered at or near the buildings, but "in Pratt above Green street." The contract in writing was the proof in the case, showing the relation of contractor and owner. 11 Barbour, 13, McDermott vs. Palmer.

3rd. The plaintiffs' prayers ought not to have been granted, They conflicted with these already granted to the defendants, and contained instructions, to sustain which there was no proof. They ought not to recover under the decision in Phillips vs. Duncan, 3 Law Reg., 305, for any goods delivered more than six months prior to the filing of the lien. 1 Sergt. Lien Law, (2 Ed.,) 173, 174, 175. The case in 3 Md. Rep., 170, does not conflict with the decision in Phillips vs. Duncan. In that [**12]  case there was a special contract for all the lumber to be used in the buildings, and the question, whether, where lumber so furnished to several buildings, and used in all of them but one, more than six months before filing the lien, but used in the last within the six months, a lien could be sustained against all? But in this case eighteen of the buildings were owned by one person, and the nineteenth was owned by another, and there was no proof as to the house to which the hardware last furnished was delivered. If it was delivered to Hess' own house within six months, but not to any of the eighteen within that time, could the lien be sustained? And is it not incumbent on the plaintiffs to show, that within sixty days of the date of their notice, hardware had been delivered to some of the eighteen houses owned by Reid and Taylor? There is no such proof in the case. Their last prayer was clearly erroneous, for if one of the houses claimed in the joint lien to be covered by the lien, was owned by a different person than the owners of the eighteen houses, the plaintiffs could not recover under a joint claim, in which they had apportioned their whole bill. The law does not allow a joint [**13]  claim against property owned by separate and distinct parties. 6 Sergt. & Rawle, 521, George vs. Douglas. Sergt. Lien Law, (2 Ed.,) 249, 255. The act of 1838, ch. 205, sec. 12, only allows an apportionment where all the buildings are owned by the same person, and the act of 1845, ch. 287, allowing the docketing of several sci. fas., is a privilege granted to persons who become interested after the lien is laid, in accordance with the 12th section of the act of 1838, ch. 205, and is intended to apply to purchasers from owners.

I. N. Steele for the appellees, argued:

1st. That the notice to the owners offered in evidence by the plaintiffs was sufficient to sustain the lien. By the express terms of the act of 1845, ch. 287, sec. 1, these lien laws are to have the same effect as acts "which confer a general jurisdiction or are remedial in their nature." All that the law demands therefore is a substantial compliance with its requirements. Now, the objections urged against this notice are purely technical. 1st. It is objected first, that the notice was not properly directed and served. The law does not require the notice to be directed to any one. It says, notice shall be given [**14]  to the owners, and if the three owners were standing together, and notice not directed to any one, reached them all, or if there was evidence that it probably did reach them, it is enough. No personal service is required. The question then is, whether giving notice to one joint owner is evidence of notice to both? The word "owner," only is used in the act of 1838, and the word "owners" in the act of 1845, was put in ex abundanti cautela for the purpose of supplying a supposed casus omissus. It means the same thing: the "owner" is the party for whom the house is built, and is the correlative of contractor. 11 Barbour, 13. Now, we insist upon these two propositions. 1st. That where several joint-owners of real estate contract for the building of houses thereon, notice to one is notice to all under our lien laws. 2nd. That service upon one of such joint owners is evidence of notice to all until disproved. The defendants stand here as joint owners and contractors. Where parties have a joint interest an admission of one is the admission of both, and so the knowledge of one is the knowledge of both. 1 Greenlf. on Ev. sec., 174. The same principle applies to all cases where the parties have [**15]  this identity of interest. Notice to the party not sued will bind him who is sued, the contract being joint. 1 Wend., 50, Bartlett vs. Campbell. 15 Maine 9, Holbrook vs. Holbrook. Notice to quit, to one of two joint tenants is notice to both. Notice put in the hands of one of two joint contractors is evidence from which a jury could infer, that it reached the other. 7 East., 553, Doe vs. Watkins. Delivery of notice to a servant is strong presumptive evidence, that it reached the master, and leaving notice at the house is sufficient even where the Legislature has said, that before a party shall be affected, notice shall be given. 4 Term Rep., 465, Jones vs. Marsh. Notice to one of two tenants is sufficient even by parol, where they appear to hold the land jointly. 5 Esp., 197, Doe vs. Crick. We had abundant evidence to go to the jury to show, that the notice was given within the meaning of the act. It was required to be given in writing to avoid frauds and perjuries, and we gave it in writing. In the absence of evidence, that it did not reach the other party the evidence is conclusive that it did. The notice was produced at the trial by the defendants, that is by both of them. Again,  [**16]  the sci. fa. issued twenty-three days before the expiration of the time within which we could have given notice, and this was notice in the highest form, giving all the particulars. 2nd. It is next objected, that it does not state the kind of materials furnished and the amount claimed. The act of Assembly does not require a statement of the kind of materials or of the amount claimed to be in the notice. It says, that within sixty days after "doing the work or furnishing the materials," notice "of the same" shall be given, that is that the work is done or the materials are furnished to the building. It is only when the lien is filed, that the particulars of the claim must be stated. But in this case if Taylor, after receiving this letter, had gone to the clerk's office, he would have found the lien filed containing all the items of our claim. That which puts a party upon inquiry, is notice of that which he would learn upon inquiry. 1 Md. Rep., 403, Price vs. McDonald. But it is not necessary that this particularity should be observed. 6 Binney, 83, Litle vs. Toland. 3rd. Another objection is, that the notice does not state the intention to claim the benefit of the lien. But the lien [**17]  had been already filed, and the letter informs the owner of that fact, and it was of course useless to tell the owner that he intended to do what he had already done. The information that the lien was filed is certainly notice, that the party filing it intended to claim the benefit of it.

2nd. The defendants' fourth prayer asserts, that there is no evidence upon which the plaintiff's can recover for goods furnished prior to the 28th of March 1851. This is always a delicate question for an appellate court, and can only be solved by an examination of the record. The evidence here is the same that is always presented in such cases. Hess bought the materials for the houses, they went into the houses, and the houses were owned by the defendants. This is evidence from which the jury may infer, that the materials were furnished under a verbal contract, and that at the time he purchased them, Hess was the builder, and if so, there was a subsisting contract within the meaning of the decision in Greenway vs. Turner. This removes the objection to our first three prayers that there was no evidence that Hess was contractor. The case of Duncan vs. Phillips in regard to the limitations of six [**18]  months is not law in this State. The contrary is expressly decided in 3 Md. Rep., 176, Okisko Co. vs. Matthews. See also, 16 Missouri, 256, Carson et al. vs. Steamboat Daniel Hillman. 9 Do., 558, Stine vs. Austin. Any other construction requiring a separate lien to be filed in each case within six months would put it in the power of lienors to consume, by the costs of such liens, the entire value of the house.

3rd. Our fourth prayer was asked upon the supposition, that Hess was the owner of the particular house therein referred to. The objection now urged to this prayer was not made in the court below. They never called upon the court to have separate cases docketed, and it is too late now to set up such a defence.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON, TUCK and MASON, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*267]  LE GRAND, C. J., delivered the opinion of this court.
This is a proceeding under the lien law of 1838, chapter 205, and its various supplements. The facts may be thus stated. On the first day of June 1852, a scire facias was issued against nineteen houses erected in Baltimore city, on Portland street, and belonging to Henry S. Taylor and John O. Reid, for [**19]  materials alleged to have been furnished to the said houses, at the instance of Samuel Hess, the contractor. There were two liens laid, one of which was against Hess alone, and was left for record at the clerk's office on the 15th day of May 1852. The second claim for lien against Taylor and others, was filed on the 25th day of May 1852. The record shows, that a contract for the building of the houses was entered into between Taylor, Hess and Reid, on the 28th day of March 1851. The account for materials furnished commenced in January of the same year. On the 15th day of May 1852, S. H. Tagart, counsel of the plaintiffs, gave the following notice to Henry S. Taylor, one of the owners of the houses: "Dear sir:--On Saturday last, I laid a lien on a lot of ground on Portland street, on account of materials furnished in the erection of the houses on said lot, by Messrs. Brown and Poultney. I have learned since, that you had an interest in this property, and I shall not, of course, issue a sci. fa. until I see you upon the subject." This letter was post-marked the 18th of May 1852, and was evidently erroneously dated. It states, that the lien had been laid on the Saturday preceding,  [**20]   when in fact it was laid on the 15th day of May.
On this state of facts the defendant offered four prayers, the 

 [*268]  second and third of which were granted, and the first and fourth rejected. The plaintiff offered several prayers, all of which were granted.
We think the court erred in the rejection of the defendants' first prayer, which, in its nature, was conclusive of the case. We hold the notice to be insufficient under the first section of the act of 1845, chapter 176. That section requires not only that notice should be given of the claim, but also, "of his, her or their (claimants') intention to claim the benefit of the lien." Whatever else may be said of the notice the omission of this compliance with the requirements makes it insufficient.
Although the lien laws are to be construed independently of the rule of the common law which requires all acts in derogation of it to be interpreted strictly, nevertheless the words of the law must be substantially complied with, and in a case like this, where the precise words are furnished by the statute and are wholly omitted, the omission is fatal.
Judgment reversed and procedendo refused. 

44 of 187 DOCUMENTS 

WILLIAM RIDER and JONATHAN TROTTER vs. JOHN B. GRAY, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 282; 1856 Md. LEXIS 74 

DECEMBER, 1856, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Baltimore city.

The bill in this case was filed on the 15th of November 1851, by the appellants, having for its object the specific performance of the following agreement:

"Memorandum of an agreement made this 16th day of April 1850, by and between John B. Gray of Fredericksburg, State of Virginia, who represents himself to be the owner of the Abrego Cinnabar ore mine in California, of the first part, and William Rider and Jonathan Trotter, both of the city, county and State of New York, of the second part, witnesseth, that the said Gray, in consideration of $ 10.000, to him in hand paid by the said William Rider and Jonathan Trotter, the receipt whereof is hereby acknowledged, hath agreed to give, and doth hereby give said William Rider and Jonathan Trotter, full power and authority to take from said cinnabar mines, one thousand tons of cinnabar ore, of such quality as they or their agents shall select, and the same to smelt on the premises, or ship it away to any other place or places to be smelted, with their agreement to give me, the said Gray, thirty-three per cent. of said ore, I paying freight and expenses to the point of shipment,  [**2]  or if smelted on the ground, they are to give me thirty-three per cent of the nett proceeds of the quicksilver taken from it; and I further agree to give, and do hereby give said William Rider and Jonathan Trotter, full power and authority to occupy any land in and about said mine belonging to me, for the purpose of pasturage, or to locate smelting apparatus and dwellings upon for miners, agents, &c., as well as the privilege of taking such quantity of timber and wood from the premises as may be necessary to use for dwellings, furnaces and smelting purposes; and further, to do all other things that they may think necessary to be done, in order to enable them to mine said ore, and smelt or transfer the same, upon the condition that they give me their obligation to pay over to me thirty-three per cent. of the nett proceeds as aforesaid. Proper and legal papers to be drawn up as soon as may be, and signed by the parties hereto, when this is to be cancelled.

(Signed,)   J. B. GRAY.

Witness:--(J. B. Hubbard.")

The bill avers this to be a grant to the complainants of one thousand tons of ore, to be taken from the mine, with the privilege to take the same on the terms mentioned [**3]  in the agreement. It then states, that the complainants have not, as yet, to any extent, availed themselves of this grant, nor received any of the privileges thereof, having had faith in Gray, that he would, in no wise, at any time, do aught to frustrate the same, nor interpose any obstacle to their free access to the mine, for the use and fruits of the grant, whenever they might deem it expedient to avail themselves thereof. The bill then charges that Gray, designing to defraud the complainants of their right thus acquired and vested, has transferred the mine and mining privileges to certain persons, in trust for divers individuals and himself, constituting a joint stock association, styled the "Santa Clara Mining Association," whose stock capital, consisting of this mine and privileges, is established at $ 350.000, the members being bound to pay their subscriptions in various instalments; that the stockholders, other than Gray, have paid out a small proportion of their subscriptions; that Gray has reserved to himself a very large proportion of the stock which now remains vested in him undisposed of; that in the formation of this association, and creation of this stock-interest in [**4]  the mine, Gray has made no reservation of the rights of the complainants under their grant, in which respect he has been guilty of a fraudulent default to them, as this omission brings them into conflict and possible controversy with the stockholders of the association, a wrong of serious concern to the complainants, who value their interest under the grant, at not less than $ 200.000. The complainants then insist, that as these stockholders have not paid their subscriptions in full, and inasmuch as Gray holds an amount of reserved stock, and has in his agreement with the company, reserved a proportion of the ore or of the mines, they are entitled to have their grant carried into full effect according to its tenor, and enforced against any claims and antecedently to any interests of the stockholders and of Gray, and that the latter's alleged interest in the ore and in the mines, stands equally as any of his stock-interest, bound to make good the grant to the complainants.

The bill then makes Gray and the trustees, officers and stockholders of the "Santa Clara Mining Association," parties defendants, and prays, 1st, for a discovery of their respective interests in the stock of [**5]  the association, the number of shares they respectively hold, the amount they have actually paid and agreed to pay therefor, and of all transfers thereof; 2nd, for a specific performance of the contract as against all the defendants; 3rd, that the defendants may be enjoined from transferring any stock or other interest in the mine, until the complainants shall have received their one thousand tons of ore; and 4th, for general relief.

All the defendants united in a demurrer to the bill, upon the grounds:--1st. That it does not state a case, entitling the complainants to any such discovery or relief as is sought by it; and 2nd. That the remedy, if any, is at law and not in equity.

The court (KREBS, J.) delivered an opinion, in which, after deciding that none of the defendants were entitled to the defence of bona fide purchasers without notice, inasmuch as the facts necessary to constitute such a defence do not clearly appear on the face of the bill, which is admitted by the demurrer, the learned judge thus considers the question, whether the complainants are entitled to a specific execution of this contract?

"An application to a court of equity for specific performance,  [**6]  is addressed to its discretion, and does not rest upon any absolute right to have the prayer granted. This discretion, however, must not be arbitrary and capricious, but sound and reasonable, and governed by principles of justice. Story's Eq., sec. 742. 5 Mason, 255, McNeil vs. Magee. Some of the rules and principles adopted by courts of equity, to regulate their decisions in these cases, are the following, viz:

"That the contract, of which a court of equity will enforce the specific performance, must be mutually binding on each of the parties to it; each must have by its terms a right to compel the other to perform it, according to the advantage which it might be supposed they were to derive from it.  4 Gill, 476, Geiger vs. Green. 2 Barbour, 439, Woodward vs. Harris.

"It must be fair, just, certain and reasonable, in all its parts, and it must not appear doubtful from the circumstances, whether the party meant to contract to the extent to which he is sought to be charged.  4 Gill, 475. Story's Eq., sec. 751.  2 Sch. & Lef., 554, Harnett vs. Yielding.

"The party who asks specific performance must aver and show performance, or a readiness to perform on his part, every thing [**7]  required of him by the contract, (5 Mason, 255, 256; 2 Sumner, 296, Kendall vs. Almy; 11 G. & J., 446, Oliver vs. Palmer & Hamilton,) or a default on the other side which entirely excuses him. He must show himself, in the strong language of many of the decisions, ready, desirous, prompt and eager; nothing but strong controlling circumstances will excuse delay. 5 Mason, 263.

"If the plaintiff's case cannot stand the test of each of these principles, he must fail in securing the aid of a court of equity. That they are the principles which must control this court is certain, because the Court of Appeals of this State has regulated its decisions by them in several cases exceedingly analogous, and in one almost identical with it. In Geiger vs. Green, 4 Gill, 476, Mrs. Owings, by an indenture of writing signed by herself and Green, had granted to him the privilege of digging and mining the ore on a certain part of her place, at 25 cents per ton, for the privilege of ground and leave to build a house at his expense. The court say: 'There is no mutuality in this contract; it is not compulsory in its character; it grants to Green the privilege of digging ore to be exercised or not at his [**8]  pleasure, imposing no corresponding obligations which Owings had power to enforce in a court of equity. A contract so unequal in its stipulations and bearing, which binds one party while it leaves the other unfettered as it respects the observance of its terms, in which there are to be seen no mutual or reciprocal engagements, and which must be regarded, therefore, as unreasonable and inequitable, can never be enforced by a court of equity.' In Tyson vs. Watts, 7 Gill, 154, it appeared that Watts had copper ore and other minerals on his farm in Baltimore county, and being desirous to have them properly explored and worked, 'in consideration of one dollar paid to him by Petherick,' (who assigned to Tyson,) 'agreed to give to the said Petherick, his heirs and assigns, full power to make such explorations and works on the said farm, as he the said Petherick might think proper, for such purposes, and for the reduction and conversion of the minerals, and to carry away and dispose of the same subject to the following conditions, viz: That the said Watts reserved to himself a full fifteenth part of the minerals or metals, and that Petherick should on or before a day mentioned, commence proper [**9]  explorations for the purpose of ascertaining the mineral prospects on the said farm.' The court says, this case is concluded by Geiger vs. Green, above cited; that the contract has no mutuality, or reciprocal obligations in it; that it grants to Petherick in perpetuity, full power to make such explorations as he may think proper, for the reduction and conversion of the minerals, and yet when the conditions are examined, Petherick has only stipulated for the exploration, &c., on or before a certain time: but if Petherick in the exercise of the privileges granted by the agreement had refused to work the mine, it would be impossible for Watts, without the interpolation into the contract of new conditions and stipulations, to have coerced its execution by a court of equity.

"These decisions then, of our own court of last resort, establish:--1st. That a contract without mutuality and reciprocity, cannot be enforced in a court of equity. 2nd. That according to a proper construction of the contracts or grants set forth in the two cases above cited, they are deficient in these qualities.

"The only question left for this court to decide, in connection with this point is, whether the [**10]  contract or grant recited in the complainants' bill, and which they seek to have enforced, is similar to those mentioned in these cases? They differ in one particular, which however does not touch the question of mutuality. Those contracts grant the right or privilege to mine, to an unterminated extent, on the grantor's land:--this restricts the grantees to the mining of one thousand tons of ore only. But the question is, does it compel them to mine even that quantity?

"It may be remarked, that they have not as yet signed it. But as they come into court to enforce it, this objection perhaps would not weigh greatly, if the instrument contained apt words or terms by which they were bound to perform any acts on their part. This contract or grant is almost in the same words as those in which the instruments of writing in Geiger vs. Green, and in Tyson vs. Watts, are expressed. It gives Rider and Trotter full power to take from the cinnabar mines one thousand tons of ore, and do all other things that they may think necessary to be done, to enable them to mine said ore and smelt, or transfer the same, they agreeing to give Gray one-third of the ore or of the metal, and upon condition [**11]  that they give him their obligation to pay over the said one-third, but in precise resemblance to the contracts in those cases, it contains no agreement or obligation on their part, to take this ore, or to mine and smelt it, and fixes no time whatever when the mining is to be commenced. It acknowledges the receipt of a consideration, as did that between Watts and Petherick, and upon a careful comparison of these several contracts, I can discover no substantial difference between them. It cannot be doubted that in this case, as in the case of Watts and Petherick, the party owning the ore was desirous to have it mined, and must have looked to his receipts of metal from the mine, as a source of great revenue; for the complainants allege that their proportion of this ore would have been worth $ 200.000, and Gray, therefore, would have received $ 100.000, as his share. This large item in the consideration of the grant or contract, is left by its terms to depend altogether upon the will and pleasure of Rider and Trotter, who could not be compelled by any judicial power whatever to perform this part of the contract. I am constrained therefore, in view of the foregoing decisions, and the facts [**12]  on which they are founded, so closely resembling the facts in this case, to regard this grant or contract as altogether one, which this court cannot execute.

"But is this contract fair, just, certain and reasonable in all its parts, and is it not doubtful, from the circumstances, whether Gray meant to contract to the extent to which he is sought to be charged? According to their construction of it, as set forth in their bill, they insist, it secures to them free access to the mine, whenever they might deem it expedient to avail themselves of the grant, and reduce into their possession from the mine their one thousand tons of ore, and that Gray was in no wise, at any time, to interpose any obstacle to their free access to the mine for the purposes aforesaid. Is it not exceedingly doubtful from the circumstances, whether Gray meant to contract to this extent? Can it be conceived that he did mean to do so? to bind himself, for all time, to hold his mine to be entered upon and worked whenever they might deem it expedient to commence? No man at this day, when the enterprise of the world is so actively employed, in developing the mineral resources of the earth, and the spirit of speculation [**13]  is running from land to land in search of the hidden treasure, would knowingly so fetter and tie up his power to dispose of or deal with his mineral property. This grant, according to the complainants' interpretation of it, and that seems to be warranted by its terms, does not appear to me to be so fair, just, certain and reasonable, in all its parts, as to entitle it to the favor from this court that they bespeak for it. It is certainly liable equally with the contract in Tyson vs. Watts, to the objection of uncertainty, pointed out by Chancellor Johnson in that contract. He there says, "if this contract is to be enforced against the defendant, the complainant should surely be required to perform the agreement on his part. But what can he be required to do? and when shall he be required to do it? He tells you himself, that no time is fixed for working the mines; that is referred to his discretion." So in this case, no time is fixed for working this cinnabar mine, and taking the one thousand tons of ore. That is to be done, as the complainants say in their bill, when they may deem it expedient.

"Again, have the complainants averred performance, or a readiness to perform every [**14]  thing required of them by this contract, or stated any default on the other side which entirely excuses them? In Oliver vs. Palmer & Hamilton, the Court of Appeals say: 'It is 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 shall be excused from doing so.' In that case a party had directed another to pay to a creditor of the former a sum of money, and the written order giving this direction contained these words: 'On the payment of the above sum, P. & H. will deliver to you my two notes,' &c., 'and relinquish all claims against me.' The court says, this was 'a condition of concurrent performance,' the notes should have been produced, and the release signed, 'and the payment of the money and delivery of the release should have been simultaneous acts; to entitle the parties to demand payment of this order, they must not only be ready to execute the requisite relinquishment,' &c. 'This [**15]  they have nowhere either alleged or proved, that they ever have done.' Now the contract under consideration contains a condition, which, to say the least of it, is concurrent. The grant of this right to mine this one thousand tons of ore is made, 'upon the condition that they' (Rider and Trotter) 'give me' (Gray) 'their obligation to pay over to me thirty-three per cent of the nett proceeds as aforesaid.' Now the complainants have not alleged in their bill, as it was incumbent on them to do, that they ever gave, or tendered to Gray, this obligation. Nor have they alleged any sufficient reason, or any reason whatever, for this omission. It is true that they have, in argument, relied upon the fact, that Gray having transferred this mine to other parties, they, the complainants, were exempt from this condition, inasmuch as it would have been useless for them to tender their obligation to him after he had disabled himself from performing his part of the contract. But it is to be observed, that the time when this transfer was made is nowhere stated in the bill. The grant is dated the 16th of April 1850, and the bill is filed on the 15th of June 1851, more than eighteen months afterwards.  [**16]  The transfer may have been made, for aught that appears in the case, before the bill was filed, and not until long after this obligation should have been given or tendered.

"The mere fact of the transfer cannot excuse the complainants. If it had really been made so soon after the date of the contract, as not to have allowed Rider and Trotter reasonable time to give their obligation as required, and this had been alleged, it might, perhaps, have excused the non-performance of their part of this condition. The case set forth in the bill is not at all inconsistent with the theory, that Gray may have called upon them, time after time, during this interval, to give their obligation according to the condition of this grant. And there is a further stipulation in it, which it seems to me imposed an obligation on the complainants, which it is not alleged they performed or offered to perform. It says, 'proper and legal papers to be drawn up as soon as may be, and signed by the parties hereto, when this is to be cancelled.' The complainants do not show that these papers were drawn up as soon as might be, and tendered to Gray. They should have done this, or explained the reasons why it had [**17]  not been done, especially as they come into court asking for the specific performance of an agreement, which the parties to it did not regard as a permanent instrument that expressed with proper and legal accuracy their meaning, and contained such obligations as would bind them mutually and reciprocally to the performance of every thing that the 'memorandum of agreement' as they designated it, contemplated. It is perfectly manifest, that they never regarded this instrument of writing as the basis of a specific performance, and yet this is the very contract the complainants pray to have specifically executed by this court.

"But further, have the complainants shown themselves ready, desirous, prompt, and eager, in the strong language of the court? They say in their bill, that they have not availed themselves, to any extent, of the grant, nor exercised any of the privileges thereof. This was more than eighteen months after the grant. They do not allege that they had made any explorations or examinations of the mine, or any preparations whatever for taking or mining the ore; or that they or any agent of theirs had ever viewed or taken possession of it or of the premises, that they [**18]  had expended any money in preliminary preparations or arrangements for these purposes; or that they were, at the time of filing the bill, ready with their servants and agents, or with their funds, to proceed to mine this ore. Now, if the one-third of this ore formed any part of the inducement that moved Gray to make this grant or contract, if it was an item in the consideration for it, and who can doubt that it was the great benefit and advantage that he expected to derive from it, then Rider and Trotter have not been ready, desirous, prompt and eager, to make this mine yield to him his proportion of the ore to be derived from his share of the profit and advantage to accrue from the contract, as this court thinks they should have been to entitle them to its coercive interposition. If the contract should be executed according to their construction of it, it will depend altogether on their views of expediency whether he will ever derive any benefit under it, for they ask the court so to enforce it as that Gray, and all others under him, shall be compelled to stand off until they, Rider and Trotter, have taken their ore, which it is alleged by them they have a right to take whenever they [**19]  deem it expedient to do so. In the case of Crofton vs. Ormsby, 2 Sch. & Lef., 602, the court says: 'where the performance of the contract is sought by the defaulting party, he cannot enforce it against the person injured by his default.' This case further decides, that where the object of one of the parties would be defeated by delay in the execution of it, if the other party delay he shall not afterwards be allowed to insist on performance. Lord Chancellor Redesdale refers to many cases in support of this position, and says: 'I remember another case, of a different description, where the same thing was held,' and then mentions a case of the precise description of this. 'A contract was entered into by a Mr. Sparrow, with persons who were desirous to have their collieries worked and made productive.' Sparrow delayed for several years the performance of the contract, and when performance of the contract was afterwards insisted on, the Lord Chancellor says, the court declared in these words: 'You cannot have this contract performed, because the object of the parties was to have an immediate income from their collieries,' and then proceeds in his own language: 'in many other cases of this [**20]  description courts of equity ought to refuse specific performance where the delay would be very injurious to the party sought to be charged.'

"The court has examined this contract carefully, and finds it to be a mere memorandum, or preliminary agreement; evidently not containing the words of obligation designed to make it mutually binding upon the respective parties, upon its face providing for some other obligation to be given by Rider and Trotter, and stipulating for proper and legal papers to be drawn 'as soon as may be, and signed by the parties,' when it is to 'be cancelled.' For these reasons and those above set forth, this court cannot consistently with the principles and rules established by courts of equity, and the well settled decisions of our own courts, enforce this contract, and must therefore sustain the demurrer."

A decree was then passed, dismissing the bill so far as it seeks a specific performance of the contract; but retaining it so far as it alleges the payment of the money by the complainants to Gray, as the consideration of the contract, for the purpose of affording them such relief as they may be entitled to in reference to the money so alleged to [**21]  have been paid by them, by decree for its repayment, or of some part thereof, if it should appear that in equity the same or any part thereof should be decreed to be repaid, with liberty to Gray to answer the bill in reference to this allegation and make such defense as he may be advised to rely upon against such repayment: "Provided, that said bill shall be retained for the purpose of affording said relief to said Rider and Trotter, in reference to said money so alleged by them to have been paid, upon the condition, that said Rider and Trotter, within thirty days from the date of this decree, shall file in this court to be cancelled, the original agreement between them and said Gray, a copy of which is filed as an exhibit with the said bill; otherwise said bill to stand and be absolutely dismissed against all the defendants with costs."

The complainants then, within the prescribed time, filed the original agreement, with this endorsement thereon: "Original of the paper of which a copy is filed with the bill in this case; this original being required by the decree to be filed, and the complainants filing it now under protest, that this filing is in no wise to be regarded as an [**22]  acquiescence in said decree, on the part of the complainants, or as a waiver of any rights (on appeal or otherwise) belonging to the complainants in case of not filing this paper." The complainants then appealed from the decree.  

DISPOSITION:
Cause remanded.  

HEADNOTES:

A contract between G. and R. & T., provided, that "in consideration of $ 10.000, paid" by the latter to the former, G. agrees to give R. & T. "full power and authority to take from" his mine, "one thousand tons of cinnabar ore, of such quality as they or their agents shall select, and the same to smelt on the premises, or ship it away" for that purpose, "upon condition that they give" him "their obligation to pay over to" him one-third of the "net proceeds" of the ore if smelted on the ground, and one-third of the ore itself if shipped away, less expenses to the point of shipment which were in that case to be paid by him. It also provided, that "proper and legal papers" should "be drawn up as soon as may be, and signed by the parties," when this "memorandum of agreement" is to be cancelled. Upon demurrer to a bill by R. & T., for the specific execution of this contract: HELD,

1st. That it cannot be specifically executed, because it is not mutual, fair, just, certain and reasonable, in all its parts: the fact that a substantial consideration was paid, cannot vary the construction of the instrument, or supply essentials in which it is deficient.

2nd. But as the demurrer admits the allegations of the bill, that the complainants were deprived of the benefits of the agreement by the fraudulent contrivances of the defendant, he must be held to the confession and not allowed to answer, and compensation will be decreed by the court without an issue of quantum damnificatus, the measure of damages being the amount paid with interest from the date of the agreement.

Where a decree dismisses a bill so far as it seeks specific performance, but retains it for compensation, and the defendant does not appeal, he cannot, in the appellate court, complain of the provision in the decree for compensation; yet the complainants may so complain on their appeal, if being entitled to compensation, the decree does not go far enough in that behalf.

A decree dismissed the bill as to specific execution, but retained it for compensation, "upon condition" that the complainants, within a certain time, filed the original contract in court to be cancelled, "otherwise the bill to stand dismissed." HELD:

That this condition did not take from the complainants their right of appeal, and if they had filed the agreement without any protest, they might have appealed and claimed a reversal or modification of the decree to suit the equity of the case.  

COUNSEL:
Charles F. Mayer for the appellants, argued:

1st. That the appellants are entitled to the benefit of their agreement with Gray. It is founded on a consideration actually paid, and is, thus far, an interest equitably vested. In this respect it differs from the cases of Tyson vs. Watts, and Geiger vs. Green, where, by the vague agreements, the rights of the owners of the mines over the whole estate, for any benefit whatsoever, or any uses, were kept indefinitely suspended for a consideration that was to accrue, and to be meted out only at the caprice of the claimants of the mining rights, and at a pace as lagging as they might make it. Proper mutuality, which here was at the very formation of the contract complete on the part of the complainants, was adjudged to be wanting in those cases. Our side of the mutuality of this contract is the $ 10,000 in money paid. This, too, is a bill to allow, virtually, the complainants to take out [**23]  ore, which the introduction by the defendant of the antagonist claims of the company prevented or impeded. 1 G. & J., 227, Tiernan vs. Poor. 8 Gill, 261, Alexander vs. Walter. 4 Md. Rep., 331, Crane vs. Gough. 5 Do., 35, Stoddert vs. Bowie. 5 Mason, 255, McNeil vs. Magee. 6 Md. Rep., 430, Bowie vs. Stonestreet. 2 Story's Eq., secs. 796, 797, 798. 9 How., 390, Tayloe vs. Merchants' Fire Ins. Co.

2nd. If this be a case of specific performance merely, however, and the point of "mutuality or reasonableness" can at all arise, the answer, against all hazards of injustice and all possible complaint of unreasonableness, is, that the privilege of the complainants does not interfere with Gray's using the land and working the mines, and that if we fail to take out our one thousand tons, and all the ore shall have been exhausted by the intermediate mining of Gray or the company, the loss is ours, and to be borne as the forfeit of our negligence. 5 Coke, 25, Sir Thos. Palmer's case. 2 Roll. Abr., 64, 65. 4 Bac. Abr., 537, title "Grant."

3rd. There is no condition precedent that we shall give an obligation for a third of "the nett proceeds" to Gray--at furthest it is a condition subsequent--but [**24]  be it one or the other, our bill now asks to be allowed to give the obligation, if not expressly, as part of the very terms on which we seek relief, that all papers in legal form pass between us and Gray. The so called condition, however, refers only to the act and period of our choosing to smelt the ore and sell the product, in which event a specific obligation for Gray's third of the "nett proceeds" might be naturally required, and even then it is to be regarded as but a condition subsequent. 7 G. & J., 239, Creswell vs. Lawson.

4th. The equity is clear against Gray and the company to admit our mining privilege to intervene--certainly against the company, if the title to them has not been consummated by their payment of the purchase money to Gray--and, in any event, against Gray for his reserved rights in the sale to the company. 2 Atk., 630, Story vs. Lord Windsor. 3 Peere Wms., 307, Tourville vs. Naish. 2 Eq. Cases Abr., 685. 2 Younge & Col., 234, Titley vs. Davies. We are here upon demurrer to a bill charging a flagrant fraud upon the part of Gray, and this is an answer to all the charges of laches on our part. 3 Pet., 220, Boyce's Exc'rs vs. Grundy. Laches must appear, as [**25]  a matter of fact, affirmatively. 14 Pet., 174, Taylor vs. Longworth. They should have hastened us by request, or we have our lifetime to perform the contract in. Coke Litt., 208, (b,) 219, (b.) 2 Bac. Abr., 323, 325, title "Conditions." A license coupled with an interest is not revocable. 1 G. & J., 366, Hays vs. Richardson. That we had no remedy at law, see 1 Story's Eq., secs. 64 to 72, 80. 2 Do., sec. 718. 3 Pet., 215, Boyce vs. Grundy.

Charles Marshall and Grafton L. Dulany for the appellees, argued:

1st. That the contract in this case is not, nor was it intended to be, a mere grant of the ore to the appellants, but that it contemplates an undertaking on their part to work the mines and take the ore therefrom, partly for their own benefit and partly for the benefit of Gray, and that upon the face of the memorandum certain acts are required to be done by the appellants as conditions precedent to, or at least concurrent with, the enjoyment by them of any rights under the contract:--1st. They were to give Gray their obligation to pay him thirty-three per cent. of the ore. 2nd. Among the proper and legal papers required to be signed by the parties, was not only the above [**26]  obligation, but also some instrument binding them to work the mines and take the ore in a reasonable time, no such obligation being found in the memorandum itself, which binds Gray alone. 3rd. Conceding the above not to be requisite, still the nature of the contract required that the appellants should take the ore from the mines in a reasonable time, and they admit that they had done nothing from the date of the contract, 16th of April 1850, to the filing of the bill, 15th of November 1851. And we insist, that the appellants, not having alleged that they performed, or offered to perform, or were ready and willing to perform, their part of the contract, and having alleged no reason why they should be excused, or any justification for the default of which they appear from the bill to be guilty, are not entitled to the relief they ask. Story's Eq. Pl., secs. 255, 257. 2 Story's Eq., 771. 11 G. & J., 445, Oliver vs. Palmer & Hamilton. 5 Mason, 253, McNeil vs. Magee. 2 Sumner, 296, Kendall vs. Almy. 5 Ves., 720, (note,) Milward vs. Earl of Thanet. 13 Do., 225, Alley vs. Deschamps. 4 Dallas, 347, Hollingsworth vs. Fry. 1 Johns. Ch. Rep., 370, Benedict vs. Lynch. 5 Viner's Abr., 538. 4 Ves.  [**27]  , 687, Harrington vs. Wheeler. 4 Johns. Ch. Rep., 559, Hatch vs. Cobb.

2nd. Because this memorandum is not certain, fair and equal in all its parts, is not of mutual obligation, Gray alone being bound by it, and, for want of some obligation on the appellants, does not accomplish the objects Gray had in view in entering into it; and lastly, because it would now be impossible to award to Gray full and beneficial satisfaction in damages for the laches, whereof the appellants appear by their bill to have been guilty. 2 Story's Eq., secs. 750, 769, 776. 7 Gill, 131, Tyson vs. Watts. 4 Gill, 472, Geiger vs. Green. 1 Sch. & Lef., 21, Lawrenson vs. Butler. 3 Eng. Law & Eq. Rep., 425, Governor, &c., vs. Fox. 1 Johns. Ch. Rep., 372, Benedict vs. Lynch. 2 Sch. & Lef., 553, Harnett vs. Yielding. 2 Md. Ch. Dec., 404, Duvall vs. Myers. If the appellees had attempted to proceed against the complainants, what could they have recovered? They make no covenant, no stipulation, and do not even sign the contract. It is not a grant, but a mere revocable license. 13 Mees. & Wels., 847, Wood vs. Leadbitter. 10 Lib. Law & Eq., 102. 53 Law Lib., 3. 1 Chitty's Pr., 305. 5 Barn. & Cres., 221, Hewlins vs.  [**28]  Shippam. 1 G. & J., 382, Hays vs. Richardson. As a grant, it is void at common law, and courts of equity never will enforce a contract thus void unless there is part performance. There is no part performance here. The simple payment of money is never so regarded; for there is in such cases a full redress at law.

3rd. Because the appellees, other than Gray, appear from the bill to be bona fide purchasers, without notice, for value, (the bill not charging notice,) and even admitting they have paid but part of the consideration, nevertheless the contract cannot be specifically enforced against them without injury to their rights, nor is it any longer possible to enforce it against Gray, he having fairly parted with the control of the property, while the appellants were in default. Story's Eq. Pl., sec. 263. 2 Story's Eq., secs. 769, 776. 2 Sch. & Lef., 553, Harnett vs. Yielding. 1 G. & J., 227, Tiernan vs. Poor. 4 Johns. Ch. Rep., 559, Hatch vs. Cobb.

4th. Because the appellants, if entitled to any relief against the appellees, could have full, complete and adequate remedy by a suit at law, nor are they entitled to relief in equity as incident to the discovery they seek, nor,  [**29]  in fine, do they show by their bill any right to such discovery. 2 Story's Eq., secs. 718, 746, 1503. 1 Do., secs. 72, 74. 11 G. & J., 444, Oliver vs. Palmer & Hamilton.

5th. Because if a decree for specific performance be denied, the bill should not be retained for compensation, but the complainants should be remitted to their remedy at law. 2 Story's Eq., secs. 796, 797, 798. 4 Johns. Ch. Rep., 559, Hatch vs. Cobb. 1 Sch. & Lef., 25, Lawrenson vs. Butler. Again, the decree passed in this case was conditional. It dismissed the bill as against all the defendants except Gray, and retained it as to him, only upon condition that the original agreement was filed to be cancelled. This the complainants refused to do. They filed the agreement, but with a protest as to the effect of such filing. This was not an unconditional compliance with the condition upon which the bill was to be retained.  

JUDGES:
The cause was argued before ECCLESTON, TUCK and MASON, J.  

OPINIONBY:
TUCK 

OPINION:

 [*298]  TUCK, J., delivered the opinion of this court.
We have considered this case with every disposition to grant to the complainants the benefit of the agreement which they seek to have performed. Having, in good [**30]  faith, paid $ 10,000 in part execution on their side, it is reasonable and just that the other party should comply on his part, if such relief can be enforced consistently with established rules of equity. But we have not been able to discover such stipulations in the agreement as exempt it from the operation of the principles laid down in the cases of Geiger vs. Green, 4 Gill 472, and Tyson vs. Watts, 7 Gill 124. The chief difference between them is, that here there was a substantial price advanced by the complainants, whereas no such consideration was paid by the parties claiming execution of the contracts in the two cases referred to. That circumstance, however, cannot vary the construction of the instrument, or supply essentials in which it may be deficient, although it is entitled to weight in the final disposition of the case.
The learned judge below has very clearly shown the similarity between these cases, and indicated the particulars wherein the contract, now under consideration, is defective in qualities entitling the complainants to a specific performance. And, concurring with him, that it is not such an one as the parties can [**31]  call upon a court of equity to execute, we are relieved from the necessity of inquiring whether the bill was filed within a reasonable time, and contains a sufficient offer, by the appellants, to execute the contract on their part.
The appellees insist, that the decree is erroneous in so far 

 [*299]  as it makes provision for compensation to the complainants as to the amount paid by them to Gray; and that, if correct in this respect, the appellants did not comply with the condition of the decree by an unqualified submission to its terms. As to the first objection it may be observed, that the defendants have not appealed, and cannot complain here of this provision in the decree, yet the complainants may, if, being entitled to compensation, the decree does not go far enough in that behalf; and, as to the second, that the terms imposed on the complainants did not take away their right of appeal. The bill was dismissed as to the material relief sought, and under their appeal the complainants may claim a reversal or modification of the decree to suit the equity of the case, and if they had filed the original agreement, without any protest whatever, the appeal might have been prosecuted.  [**32]  This part of the decree, we suppose, was not designed to cut off the appeal, but merely to secure the defendant, Gray, against another litigation on the same cause of action, after the complainants had accepted compensation in this case.
We must remember that the record is before us on demurrer which admits the case made by the bill, averring that, though true, it constitutes no ground for relief.  Carroll vs. Waring, 3 G. & J. 491. 3 Bland, 135. If it be true, as we must assume, that these parties were prevented from availing of the profits of their agreement by the fraudulent contrivances of the defendant Gray, in transferring large portions or shares of this property to others, in the manner stated in the bill, it would be a great failure of justice to discharge him altogether from performing the contract, without any compensation to them for the large amount advanced; especially as he has not defended the case on the merits, and offered to show that the complainants have suffered, if at all, by their own unreasonable delay, which, we may remark, is the only default imputed to them. The decree allowed him the benefit of the demurrer, as well [**33]  as of an answer, to be filed, litigating the question of compensation. We think, in such a case, a party should be held to the confession made by his pleading, and that, having received the price agreed to be advanced on the contract, he should 

 [*300]  comply or refund the money. If, waiving special defences, the defendants had contested the bill on the merits, the case might have been governed by principles applicable to a state of facts, not appearing on this record, showing that the complainants were not entitled to any relief.
We are aware that the power to grant compensation is not exercised in all cases of bills for specific performance; but, that such jurisdiction exists, we have no doubt, though it should be exercised "under special circumstances, and upon peculiar equities; as, for instance, in cases of fraud; or where the party has disabled himself by matters ex post facto, from a specific performance; or where there is no adequate remedy at law." (2 Story's Eq., 796, 797, 798, 799,) and it has been granted in cases for the transfer of stock. ( Forrest vs. Elwes, 4 Ves. 493. Cud vs. Rutter, 1 Peere Wms. 572, 'notes,  [**34]  ') in which class of contracts specific performance is not generally decreed. The mode of ascertaining the compensation is not uniform. In some cases it has been by an issue quantum damnificatus; in others, by reference to the Master. But where, as here, the case is confessed, and no defence set up, we perceive no necessity for an inquiry on the point. The measure ought to be the amount paid with interest. This principle was acted upon in 1 Peere Wms. 572, note, and 4 Ves. 497. In the latter case it was said, by the Master of the Rolls, to be a moderate compensation for a breach of contract, by a party with his eyes open, to give back the money with interest; that a jury could not adopt a better rule. And in the case of Pratt vs. Law, 9 Cranch 456, the court said: "An issue quantum damnificatus is certainly competent to the court to order in this case; but it is not consistent with the equity practice to order it in any case in which the court can lay hold of a simple, equitable, and precise rule, to ascertain the amount which it ought to decree." Accordingly, the party was required to refund, with interest, at the [**35]  rate of the original purchase, for the quantity of land as to which performance could not be decreed. It is shown by the bill, that the defendants, other than Gray, have paid but a small, if any, portion, of the consideration agreed to be paid by them to Gray, and that he has still a large 

 [*301]  interest in the property, or in reserved stock of the company. Without deciding how far the interests of the other parties can, under the case made by the pleadings, be made answerable for the advance by the complainants to Gray, we are of opinion that his entire interest should be held as security for the repayment, with interest from the date of the agreement, and shall remand the cause under the act of 1832, ch. 302, sec. 6, that a decree may be passed accordingly: as to the specific performance the prayer of the bill will be denied.
Cause remanded. 

45 of 187 DOCUMENTS 

Negroes LOUISA BELL and others, vs. LUTHER D. JONES.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 322; 1856 Md. LEXIS 77 

DECEMBER, 1856, Decided 

PRIOR HISTORY:
 [**1]  APPEALS from the Circuit Court for Prince Georges county.

This was a petition for freedom, filed on the 11th of September 1854, in the Superior Court of Baltimore city, by the appellants against Campbell, who, on the 2nd of December of that year, came in and disclaimed title, and on the 9th of the same month, the appellee filed his petition claiming title to the petitioners, as administrator d. b. n., c. t. a., of Walter Chew, exhibited his letters of administration, and prayed a removal of the case to the circuit court for Prince Georges county, where he resided. On the 5th of January 1855, the court permitted the appellee to appear and defend the case, upon entering into the usual recognizance, and ordered the removal as prayed.

The case so removed came up for trial in the circuit court for Prince Georges county, on the 11th of June 1855, upon the issue of freedom vel non. A jury was empannelled to try the case, and the petitioners being called and not answering, the petition was dismissed by order of the court, and judgment rendered in favor of the defendant, for $ 11.98 1/3, "for his costs and charges here adjudged unto him, in and about his defence in this behalf laid [**2]  out and expended." On the same day the petitioners filed their second petition against the appellee, who at the same time made and filed in the case the affidavit as to his costs and expenses, which is set out in the opinion of this court, and on the same day the court, (CRAIN, J.,) passed an order, which is also set out in the opinion of this court, directing "a stay of all proceedings in this second petition, until the said costs and expenses shall be paid or secured to be paid." From this order the petitioners appealed.

A subpoena was issued, commanding the defendant to appear and answer this second petition, returnable on the 1st Monday in November 1855, on which day the appellee appeared and was ruled by the court to answer, or judgment by default would be rendered against him. The defendant then prayed leave to imparle until the 1st Monday in April 1856, which was granted, and at the April term 1856, he moved the court to dismiss this second petition, upon the ground, that the costs and expenses allowed by the order of the 11th of June 1855, had not been paid or secured to the defendant, and because by the 26th section of the act of 1796, ch. 67, it is provided, that such [**3]  non-payment of costs and expenses, authorises a dismissal of the petition. The court thereupon ordered the petition to be dismissed, and from this order the petitioners appealed. The record in the cause was not transmitted to the Court of Appeals, until the 8th of April 1856.  

DISPOSITION:
Reversed upon both orders appealed from and a procedendo awarded in regard to the second petition.  

HEADNOTES:

The act of 1796, ch. 67, sec. 27, provides, that where a petition for freedom is filed and dismissed, and a second petition filed by the same party, the court shall order a stay of all proceedings in the second case, "until the costs of the former petition, and all reasonable damages and expenses, sustained or incurred by" the master, "shall have been paid or secured to be paid:" HELD,

That counsel fees paid by the master for defending the first petition, are not included in the words, "all reasonable damages and expenses."

In construing a statute, the language employed must be considered with special reference to the subject matter legislated upon.

Where a law secures a valuable right, and contains qualifying or restricting provisions, which, from their language, are susceptible of a construction making them either moderately restrictive, or of a construction which would annul the right, or render it of no practical value, the latter construction should not prevail.

Where an order of court is within the limits of its discretion, it is final and no appeal lies, but where the order, upon its face, appears to be partly within and partly beyond the scope of the court's authority, it may be appealed from and reversed.

An order directing a stay of proceedings upon a second petition for freedom, until jail-fees and board, to the amount of "$ 250 or thereabouts," are paid, is defective for uncertainty: such an order is subject to the same rule, in regard to certainty, which is applicable to verdicts and judgments.  

COUNSEL:
Alex. B. Hagner and John M. S. Causin for the appellants, argued:

1st. That the 27th section of the act of 1796, ch. 67, did not contemplate counsel fees in the words, "costs of the former petition and all reasonable damages and expenses," but had reference solely to charges growing out of the petition, such as legal costs, jail fees, expenses in producing the negroes at court, and maintaining them during trial, costs of the recognizance, &c. Because, 1st. If counsel fees are contemplated, by whom are they to be paid? Certainly not by the petitioners. They remaining slaves, (the petition for freedom having been dismissed,) could have no rights or responsibilities of a civil character separate from their master, and could make no contracts either with third parties or even himself. 4 H. & J., 547, Wicks [**4]  vs. Chew. 5 Do., 191, Hall vs. Mullin. 9 G. & J., 27, Bland et al., vs. Negro Dowling. 2nd. The act could not contemplate that third parties, unconnected with the record, would pay such demands, for that would be encouraging maintenance, which is denounced by the law. 1 Bl. Com., 457. 3rd. The general scope of legal authorities is adverse to the inclusion of counsel fees, under the general terms, "costs and charges." 7 Md. Rep., 249, Wallis et al., vs. Dilley et al. They are not costs, Wright's Rep., 121, McDonald vs. Page. They are not "damages," 13 How., 369, Day vs. Woodworth. Sedwick on Damages, 99. Nor do they come under the word "expenses," as used in this act. The word "expenses" as here used, means just what "damages" means and nothing more, and the terms "damages and expenses," are to be read "damages or expenses." Smith's Com., 658, 731. Dwarris on Statutes, 74. 3 Gill, 496, Watkins & wife, vs. Sears. 19 Verm., 140, Barker vs. Esty. Again, this statute, in this respect, inasmuch as it is restrictive of the right of petition for freedom secured to negroes, is like a penal statute and must be strictly construed. Dwarris on Statutes, 68, 74, 78, 79, 711, 712, 772. 6 Md. Rep.  [**5]  , 400, Cochrane vs The State. An attorney's fee as established and regulated by the acts of 1715, ch. 48, and 1810, ch. 126, is the $ 3.33 1/3, which is part of the costs of the case, taxed by the clerk and collected by execution. This was the only counsel fee known to the legislation of that day. This is undoubtedly included in the words, "costs, damages and expenses," but whatever was paid by the client to his counsel, beyond this sum, as a fee or reward for his professional services and skill in giving advice, and opinions, in conducting, arguing and trying causes, was not a subject of legislative regulation; it was regarded as quiddam honorarium, given not as a salary or hire, but as a gratuity. The Legislature could not have intended to include such fees by the language used in this act, and if by construction they should be embraced, it would effectually put an end to every petition for freedom after the dismissal of a former one. It would put it in the power of masters to render the filing of a second petition, almost, if not absolutely, impossible.

2nd. That this order is wholly inoperative and void: 1st. It does not direct by whom these costs, damages and expenses, were [**6]  to be paid. 2nd. The court acted solely upon the exparte affidavit of the defendant, taken without notice to the petitioners or their counsel, and no opportunity was offered them to contest the account, either as to its items or the reasonableness of the damages and expenses, either as to counsel or jail fees. The words of the statute, "to be ascertained by the court," imply not an arbitrary discretion, but examination and judgment upon legal evidence. 2 Md. Rep., 334, Lambden vs. Bowie. 4 Md. Rep., 497, Ex-parte Shipley & wife. 1 Greenlf. on Ev., secs. 82, 83, 329, 348, 349, 364. 1 Bouv. Law Dic., 428. Act of 1809, ch. 153, sec. 1. 1 H. & G., 407, Union Bank vs. Ridgely. 66 Law Lib., 146. 3 Phillips on Ev., 5. The amount of these damages and expenses should have been ascertained by a jury trial, under the provision of the 4th section of the 10th article of the constitution. These authorities also answer the objection, that no appeal will lie from this order, because the ascertainment of these damages and expenses was left to the discretion of the court. If the court has not kept within the scope of the authority given to it by the statute, if it has allowed an item or charge which [**7]  the law does not contemplate should be allowed, and the order shows this upon its face, it is clearly subject to revision on appeal. 3rd. The order is also void for uncertainty. The affidavit, even, is not definite as to the expenses: it charges $ 250 for jail fees, or thereabouts. The order of the court is equally inexplicit; it does not specify the amount to be paid, but orders the payment of the expenses specified in the affidavit. What amount, under this order, was to be paid? $ 250, or an approximation thereto? if the latter, how near? The order, being a judgment, must be certain; it is subject to the same rule as to certainty, which is applicable to verdicts and judgments. For these reasons, we insist that the first order appealed from should be reversed.

3rd. That the order dismissing the second petition was erroneous: 1st. Because upon a strict construction of this act of 1796, ch. 67, its 25th and 26th sections apply exclusively to cases of petitions for freedom then pending, so far as they authorise the dismissal of a second petition after six months, upon failure to pay the costs of the first; and the 27th section, which, by its terms, applies to "petitions thereafter [**8]  to be filed," only authorises a stay of proceedings until payment, of reasonable damages and expenses, and not a dismissal of the petition after the lapse of six months. 2nd. Because the act contemplates a voluntary dismissal of the first petition by the parties petitioning, and does not apply to petitions dismissed by order of court, as was done in this case. 3rd. Because the order of the stay of proceedings was abrogated by the action of the court, in issuing a subpoena to the defendant to answer the second petition, and its order that the defendant should answer this petition or judgment by default would be rendered against him. 4th. Because his privileges under the order directing the stay of proceedings, were waived by the defendant with the sanction of the court, in this, that on the 5th of November 1855, the defendant prayed leave to imparle until the April term 1856, which prayer was granted by the court; all of which proceedings are utterly inconsistent with the order of the 11th of June 1855, directing the stay.

Thos. G. Pratt and John Nelson for the appellee, moved to dismiss the appeal from the order directing the stay of proceedings:--1st. Because the power to ascertain [**9]  the costs and expenses which the master had incurred by reason of the first petition, was a special power vested by the 27th sec. of the act of 1796, ch. 67, exclusively in the inferior court, and the exercise of which is placed exclusively in the discretion of that court, and consequently no appeal will lie from the exercise of that power. 2 H. & G., 79, Wall vs. Wall. 3 G. & J., 20, Wilson vs. Wilson. 7 Do., 109, Boteler, et al., vs. The State. 5 H. & J., 175, Anderson vs. The State. 6 Do., 151, Hawkins vs. Jackson. 7 Do., 454, Carroll vs. Barber. 10 G. & J., 283, Owings vs. Worthington. 1 Bland, 5, Ringgold's case. Smith's Com., 713. 26 Wend, 485, Lyon vs. Jerome. 2nd. Because the record was not transmitted to the Court of Appeals within the time required by law. They then argued, that if the appeal did lie and properly brought up for review both the orders appealed from:

1st. That the court below had authority to dismiss the second petition. The act of 1796, ch. 67, gives the right of jury trial in cases of petition for freedom, but, at the same time, limits and defines that right. The object of the law was to give the right of petition, and at the same time to protect the [**10]  master from vexatious proceedings in such cases. The 26th section authorises the court to dismiss the petition, unless the costs and damages are paid within six months. There is no assignable reason why this restriction should apply to cases then pending. The mischief is the same, the vexation just as great, in cases thereafter to be instituted as in those then pending. If the petition is to stand forever on the docket and can be revived by payment of costs at any time, then the master is entirely deprived of the power of alienation over such property. We insist, therefore, that the restriction as to time contained in the 26th section, will be applied to the cases provided for in the 27th section. In construing statutes we must look to the mischief to be redressed, and the remedy to be advanced in order to ascertain the intention of the makers. 1 Brock., 162, Strode vs. The Stafford Justices. Statutes are sometimes extended to cases not within the letter of them. 2 G. & J., 374, State vs. Boyd. And courts will apply, by analogy, the restrictions contained in express enactments on kindred subjects, to cases of similar character where no such express legislative restriction exists. 8 [**11]  Md. Rep., 387, Edwards vs. Bruce. But, independent of any statutory provision, the power to entertain jurisdiction of the case, and order a stay of proceedings until costs are paid, includes the power to limit the time within which such an order is to be complied with, and on failure to comply therewith to dismiss the petition.

2nd. That the order directing the stay of proceedings was in all respects legal and proper. The record does not show upon what evidence the court below acted. The judge was sitting in a court of law, where oral testimony is usually taken, and he certifies, in his order, that he was satisfied the defendant had sustained the damages specified in the order; and this court must presume, that he was so satisfied by legal evidence. But it is urged, that as the order provides for the payment of counsel fees it is erroneous. There is no pretence that these fees were not reasonable. The 27th section of this law of 1796, provides, in terms, that "the costs of the former petition, and all reasonable damages and expenses sustained or incurred" by the master, must be paid; that is, all reasonable damages, and all reasonable expenses. What are expenses? Prosecution of [**12]  the suit, and payment of counsel fees, are surely part of the expenses attendant upon, or sustained and incurred by, the defendant in every case of a petition for freedom. Full indemnity to the master for all such expenses was the object of the act. 9 Wheat., 362, The Appollon. Again, it is said the order is not in proper form, inasmuch as it fails to provide by whom these costs shall be paid. But it is in the very terms of the statute, and could not in its nature be made applicable to any particular person; nor could it be made obligatory upon any person whatever.  

JUDGES:
The cause was argued before ECCLESTON, TUCK and MASON, J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*328]  ECCLESTON, J., delivered the opinion of this court.
The 27th section of the act of 1796, ch. 67, enacts: "That if any petition, for freedom shall hereafter be filed in any court of law in this State, and dismissed, and a second petition filed at the suit of the same party, the court, in which such second petition may be filed, shall order a stay of all proceedings until the costs of the former petition, and all reasonable damages and expenses sustained or incurred by the defendant or defendants 

 [*329]  therein, to be ascertained [**13]  by the court, shall have been paid or secured to be paid."
In the proceedings before us, it appears the defendant made an affidavit, in which he says, that by virtue of the first petition for freedom, filed by the petitioners in the second case, he has sustained, and incurred the following expenses: for fees paid his two counsel, $ 250 each, making $ 500; "for jail fees and board of the petitioners" from the 13th of November 1854, to the 11th of June 1855, "at twenty five cents each per day, making $ 250 or thereabouts, in addition to the taxable costs in his cause."
The order of the court, after stating the dismissal of the first petition, then says: "The same parties having filed a second petition, which is now pending, and the defendant, Luther D. Jones, having satisfied the court that he has sustained and incurred, by reason of the said petition so dismissed as aforesaid, the expenses in his affidavit hereto attached specified, which are deemed by the court reasonable, it is thereupon on the application of the said Luther D. Jones, this 11th day of June 1855, ordered by this court, that there shall be a stay of all proceedings in the said second petition, until the said costs [**14]  and expenses shall be paid or secured to be paid."
This order contains the only ascertainment of damages or expenses by the court. And if it shows they have ascertained any amount of either, it is the amount of expenses specified in the affidavit of the defendant; for the order does not mention any sum to be paid or secured to be paid, except by reference to the affidavit, which is spoken of in the order as being thereto attached.
The appellants contend that this order is erroneous, because it allows counsel fees as expenses. Whether the allowance is proper or not, depends upon the interpretation of the act of 1796; and the words having an important bearing on that subject, are, "reasonable damages and expenses."
In construing a statute, the language employed must be considered with special reference to the subject matter legislated upon.

 [*330]  Should it be evident that a valuable right is intended to be secured, but there are provisions which qualify the right, or impose restrictions upon it, and those provisions contain language susceptible of such construction as may either be moderately restrictive, or so far in conflict with the right as to annul it altogether, or render [**15]  it of no practical value, then the enlarged construction of the qualifying provisions should not prevail. For it cannot be a reasonable supposition that the legislature designed the language should have an interpretation which would virtually repeal, or render exceedingly doubtful of any practical utility, the privilege evidently intended to be secured by the act.
It is perfectly manifest that, by the act of 1796, the Legislature intended to secure the right of filing a second petition for freedom after one has been dismissed; the petitioner, however, being required to comply with the terms prescribed by the statute.
The restrictions upon this right are relied on by the appellee, when he insists that the court committed no error in allowing him counsel fees, as expenses. But can it be imagined the Legislature contemplated such an allowance? So to imagine, would be equivalent to saying they had provided for a second petition, but had imposed upon it such clogs and restrictions as must render the beneficial exercises of the privilege, by those for whom it was designed, next to an impossibility. We cannot suppose the Legislature had any such design. They were aware that negroes, held [**16]  as slaves, could not have funds of their own, nor be expected to procure them from others, sufficient to pay the fees of counsel employed by their masters.
The laws of this State recognize negroes as slaves, and the courts are bound to protect and enforce the legitimate rights of masters. It is likewise the duty of our courts so to administer the laws as will secure to negroes the rights designed for them by law.
It is to be remembered, the law does not require payment of all, but of "reasonable damages and expenses." The meaning of reasonable, cannot be correctly understood without due consideration of the subject to which the word is applied. 

 [*331]  That which in one class of cases may be reasonable, might be quite the reverse in a different class.
After an examination of the authorities in regard to whether counsel fees are proper to be allowed as damages, we find the decisions on the subject, in our sister States, have not been uniform. In his work on damages, Mr. Sedgwick treats of this question at some length, commencing at page 99. He notices a variety of cases, without, however, coming to any definite conclusion as to the preponderance of authority.
In Wallis, et al., vs. Dilley, et al., 7 Md. 237, [**17]  it is held "to be well established, that in all matters arising ex contractu, the successful party is not entitled to recover the fees which he may have paid to his counsel." In Day vs. Woodworth, et al., 13 How. S. C. Rep. 363, the right to claim such fees as damages was denied. There the suit was trespass quare clausum fregit in which the defendants were charged with tearing down and destroying the plaintiff's mill dam.
Looking to the contradictory decisions on the subject, and allowing proper weight and influence to our own, and to that of the Supreme Court of the United States, when the very peculiar nature of such cases as the one before us is duly considered, we do not think the act of 1796 should be construed to include counsel fees, as "reasonable damages and expenses," or as either.
Should it be conceded, that, in providing for the ascertainment of the reasonable damages and expenses to be paid to the defendant, the 27th section of the act of 1796 gives to the court a right to exercise their discretion, still, when under-taking to make the ascertainment, if their order or judgment, upon its face, shows they have included in the amount an item or charge which [**18]  the Legislature never designed should be so included, such a decision may be revised on appeal. It may be true, that an act of the court which is within the limits of their exclusive discretion is final; but, nevertheless, if it appears to be partly within and partly beyond the scope of their authority, it may be appealed from and reversed.
Believing the Legislature did not intend counsel fees to be 

 [*332]  allowed as expenses, and seeing that the court have included them in their ascertainment of expenses, we think their order on the subject is erroneous.
The order is likewise defective for uncertainty. It refers to the defendant's affidavit for the amount of expenses, in which the jail fees and board of the petitioners are stated to be "$ 250 or thereabouts."
Such an order must be subject to the like rule, in regard to certainty, which is applicable to verdicts and judgments. That they are required to be certain, is a principle so well settled, we shall refer to but few authorities on the subject. 10 Bac. Abr., 346, title Verdict, letter Q, (Bouv. Ed.;) Hambleton vs. Veere, 3 Saund. Rep. 169, 171, (Ed. of 1846;) Miller vs. Hower, 2 Rawle's Rep., [**19]  55, 56; and Harman vs. Childress, 3 Yerger 327, where it is said,--"a judgment must express with certainty and precision, the determination of the court."
That the affidavit is rendered uncertain by the words, "or thereabouts," we suppose cannot be doubted. If so the order is equally uncertain. And we think the court committed an error in directing a stay of all proceedings, until the expenses should be paid or secured to be paid, whilst the amount was not ascertained with sufficient precision. On account of which error the order should be reversed, notwithstanding it may be conceded to have been passed by the court whilst exercising a discretionary authority; for even if they had a discretion in fixing the amount, still they were bound to state it with certainty.
A majority of the judges sitting in this cause, think, that counsel fees should not have been allowed as expenses; and it is the unanimous opinion of the court that, for want of sufficient certainty in the amount of expenses, the order which directed a stay of all proceedings in the second petition, until payment of the costs and expenses should be made or secured, was erroneous. Under such circumstances,  [**20]  we think the court below were wrong in dismissing the last petition; and this renders it unnecessary to decide some of the questions which have been argued with much ability.

 [*333]  From the views set forth in this opinion it will be seen, that we consider the appellants entitled to a reversal of each order appealed from.
Reversed upon both orders appealed from and a procedendo awarded in regard to the second petition. 

46 of 187 DOCUMENTS 

JOHN R. GILES vs. MARIA EBSWORTH and JOHN HAYS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 333; 1856 Md. LEXIS 78 

DECEMBER, 1856, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

Replevin, brought by the appellant against the appellees, for the recovery of certain goods. The defendants avowed the taking under a distress for two quarters' rent due Mrs. Ebsworth under a lease from her to one Joseph Tucker. The plaintiff pleaded that Tucker did not, during the time, possess and enjoy the premises under a lease from Mrs. Ebsworth; and there was an agreement to waive all errors in pleading, and that special matter might be given in evidence, under the above plea and avowry, as if pleaded.

1st Exception. The defendants, after having given sufficient notice to the plaintiff's counsel to produce the original lease referred to in the avowry, and it not being produced, proved, by John W. Mortimer, that he, as agent of the avowant, leased, by contract in writing, to Tucker, the store and dwelling known as No. 112 Baltimore street, for five years, commencing on the 1st of May 1849, at an annual rent of $ 700, payable quarterly, on the first of May, August, November and February, and that Tucker entered under this lease; that at the time of the levy of the distress rent was in arrear for the two quarters ending [**2]  on the 1st of August and November 1852; and then offered to prove by this witness the following authority to him, as agent, to make the distress:

"I hereby constitute and appoint John W. Mortimer, of the city of Baltimore, in the State of Maryland, my true and lawful agent, to rent out my house, No. 112, on the north side of Baltimore street in said city, and to collect and receive the rents for the same, and to use all lawful remedies, actions, distress, and other necessary proceedings for the recovery of the same, and to employ any and all manner of agents or bailiffs, in my name, and for me to make distress for, or otherwise recover said rents, and generally to do for me and in my name whatever he may deem necessary and proper for the securing and recovery of said rents, or any part thereof. Given under my hand and seal, this first day of December 1852.

MARIA EBSWORTH,   (Seal.)

To the admissibility of this evidence the plaintiff objected, upon the ground that this power of attorney was no authority to the witness to levy a distress for rent which had accrued prior to its execution. This objection the court, (FRICK, J.,) overruled, and admitted the evidence, and [**3]  the plaintiff excepted.

2nd Exception. It was then proved that Tucker made and delivered to Mortimer, on the 1st of June 1852, the day of its date, his promissory note for $ 175,87, at three months, payable to the order of Mortimer and Mowbray, for the quarter's rent to become due on the 1st of August 1852, Mortimer giving, as agent of Mrs. Ebsworth, the following receipt attached to a bill made out against Tucker for the rent and interest till the note would mature: "Rec'd note at three months from June 1st, 1852." This note the avowant produced at the trial, and offered to surrender it to the plaintiff. Mortimer also proved in relation to this note, that it was not taken in satisfaction of the rent, but given and received for Tucker's accommodation in the payment of that quarter's rent; that a few days after its receipt witness had it discounted by the Union Bank, and remitted a portion of the proceeds to the avowant, residing in New York; that whilst this note was running, Tucker told witness he had made an assignment to one Richardson; that the note was paid by witness on the day it became due, (it having been endorsed to the Bank, by the firm of Mortimer & Mowbray, of which [**4]  witness is a member,) and has remained in his possession up to the time of trial; that he never presented it for payment to Richardson trustee of Tucker; that some time in July 1852, the plaintiff called upon witness and said he was about to purchase from Tucker, his unexpired interest in the lease, and asked him how the rent stood, to which witness replied, that he held Tucker's note for the rent to the 1st of August 1852, but did not tell him that it had been discounted, or when it became due; that he has no recollection of saying to the plaintiff, at that time, that he had no apprehension the note would not be paid at maturity, nor that he would be happy to have the plaintiff as a tenant; that the plaintiff called on him to know whether he would give an extension of Tucker's lease, which witness declined to do until Tucker's time was out; that some time in August 1852, the plaintiff called on witness and said, the roof of the house was in a leaking condition, and asked witness for authority to repair it, which he at first refused to give, as it would be interfering with Tucker's lease, but finally gave him such authority: but he does not know whether the roof was ever repaired;  [**5]  that nothing was then said by either party, about the rent which had become due on the 1st of August; that on the 4th of September 1852, witness sent the plaintiff a note informing him that Tucker owed Mrs. Ebsworth one quarter's rent, and asking whether he had made any arrangement with the plaintiff for its payment; that on the 1st of November of that year, the plaintiff tendered witness the quarter's rent, due on that day, which he refused to take, unless all the rent in arrear was paid. This witness also proved, that he was now in advance to the avowant $ 200, on account of this rent.

It was further proved, that in July 1852, Tucker assigned his interest in the lease to the plaintiff for a bonus of $ 300, and gave him possession of the dwelling a short time before the 1st of August of that year, but that he did not get possession of the store until some time in September following, and that the plaintiff paid Tucker the rent for the dwelling until he got possession of the whole premises; that on the 15th of August 1852, Tucker made an assignment of all his property to Richardson, for the benefit of his creditors, and that the goods which he had, remained in the store until [**6]  some time in September, when they were sold by the trustee. It was also proved, that the plaintiff has paid to the attorney of Mrs. Ebsworth, all the rent which has accrued since the 1st of November 1852. The attorney for the plaintiff proved that he stated to the attorney of Mrs. Ebsworth, that the plaintiff, when he first employed witness in the matter, had told witness that Mortimer had said to him, that all the rent had been paid by note up to the 1st of August, and that he had no apprehension that the note would not be paid at its maturity; and also, further said to plaintiff, that he would be happy in having him for a tenant. The record then states, that the avowant offered in evidence the "following warrant to distrain," directed to John Hays, sheriff, and the proceedings under the same. (The warrant, dated December 7th, 1852, is signed by Mortimer, as agent for Mrs. Ebsworth, and directs the sheriff, in the usual form, to distrain the goods of the plaintiff in the house in question, "for $ 350, being two quarters' rent, due me for the same on the first day of November last." The record does not show that any account and affidavit were attached to the warrant.) It was proved [**7]  that the distress was levied, and all the proceedings under it conducted by a deputy sheriff, and that the sheriff never entered in person on the premises, and was not present at any time, when the distress was being made.

The plaintiff then offered in evidence a deed of the premises, dated the 17th of May 1839, from Mrs. Ebsworth to John W. Mortimer, by which the property was conveyed to the grantee in fee-simple in trust, to permit the grantor during her life to possess and enjoy the same, "and the rents, issues, income and profits thereof to receive, take and apply to her own use and benefit," and the receipts of the grantor "alone shall be good and effectual acquittances and discharges for such rents," &c., and after her death, the property "to descend and become the estate and property of her children." This deed was offered for the purpose of showing, that at the time of making said distress the avowant had not the legal title to the premises, and therefore could not distrain. To the admissibility of which evidence the avowant objected, the court sustained the objection, and the plaintiff excepted.

3rd Exception. The avowant then asked an instruction to the jury, that [**8]  if they find the lease from Mortimer, as agent for Mrs. Ebsworth, to Tucker, as stated in Mortimer's evidence, the sale of his unexpired term by Tucker to the plaintiff, and that two quarters' rent amounting to $ 350, was in arrear and unpaid, before the distress given in evidence was issued and levied, then the avowant is entitled to recover, notwithstanding her agent, Mortimer, took the note of Tucker for the quarter's rent due in August 1852, as stated in the evidence, unless the jury further find that this note has been paid. This prayer the court granted, and the plaintiff excepted.

4th Exception. The plaintiff then asked instructions to the jury, in substance as follows:

1st. This prayer asserts, that the distress was wrongful and the avowant could not justify under it, if the jury find that during the continuance of the lease to Tucker, the plaintiff, and Mortimer as agent of Mrs. Ebsworth, agreed that Tucker should be discharged and the plaintiff adopted as tenant, and that the plaintiff entered in pursuance of this agreement on or before the 1st of August 1852.

2nd. That if the jury find that Mortimer, as agent for the avowant, received from Tucker the note [**9]  offered in evidence, for the rent to become due on the 1st of August 1852, and gave the receipt therefor offered in evidence, and before its maturity passed the same to the Union Bank for discount, and its discount by the bank, and that he remitted the proceeds or any part thereof to the avowant before the distress was levied, then avowant cannot justify under the distress, though the jury may find the note was not paid by Tucker at maturity.

3rd. If the jury find from all the evidence, that this note was received by Mortimer, as agent, in full satisfaction and discharge of the quarter's rent due on the 1st of August 1852, the avowant is not entitled to justify under the distress, though they find the note was not paid at maturity.

4th. If the jury find from all the evidence, that all the amount of rent has been remitted by Mortimer, the agent, to Mrs. Ebsworth, including the two quarters' rent distrained for, then the avowant cannot justify under the distress offered in evidence.

5th. That the authority offered in evidence by the avowant, is insufficient to sustain the distress relied upon.

6th. This prayer asserts that the distress was wrongful, because it was [**10]  levied, and all the proceedings under it were executed, by a deputy sheriff; the warrant having been directed to the sheriff, who never entered upon the premises.

7th. This prayer denies the avowant's right to recover, if the jury find from all the evidence, that the plaintiff before entering as tenant, called on the agent of the avowant and inquired what rent was due, and that such agent stated that all the rent had been paid by note up to the 1st of August 1852, and that he had no apprehension that the note would not be paid at maturity, and did not disclose when the note became due, and that there was any misrepresentation or wilful silence on the agent's part, as to any fact relating to the rent, whereby the plaintiff was induced to become the tenant; and that such agent, by a fair and proper discharge of his duty to his principal, could have made the quarter's rent from the goods of Tucker on the premises.

8th. That if the jury find that the note in proof was received by Mortimer, on account of the quarter's rent due August 1st, 1852, and was in his possession at the time the distress was levied, then the distress was premature and illegal; unless the jury find that [**11]  notice was given to the tenant in possession, of the intention to levy the same by the avowant, or that the note was tendered to the plaintiff before the levy, provided they find that before the plaintiff took possession, Mortimer told him he held the note on account of the rent, which he had no doubt would be paid.

The court granted the first prayer and refused the others. To this refusal the plaintiff excepted, and the verdict and judgment being against him, appealed.

Upon motion of the appellees a writ of diminution was granted, to correct the omission of the account and affidavit attached to the warrant to distrain, contained in the second exception. Under this writ the defendants moved the court to amend the record, by ordering the clerk to insert in the second exception, immediately before, and as annexed to the warrant to distrain, the account and affidavit filed with the motion, and referred to in the deposition of the defendant's attorney, taken in support of the motion. This deposition is to the effect, that the account and affidavit were upon the same sheet of paper with the warrant, when it was offered in evidence at the trial, but that now this sheet, in its [**12]  entirety, cannot be found among the papers in the cause in the clerk's office, but only that half of the sheet containing the warrant to distrain; and that the account and affidavit proposed to be inserted in the exception, are copies as nearly as deponent can recollect of those upon the paper at the time of trial. The court, (LEE, J.,) passed an order directing the clerk to insert this account and affidavit in the second exception as indicated by the motion. To the passage of this order the plaintiff excepted, as also to the taking of depositions for the purpose of amending, altering or adding to the matter, form and substance of the said second exception, because the court has not, either under its practice, or under the writ of diminution, any warrant or authority in law so to do. But the court overruled these exceptions, and ordered the clerk to amend the second exception as directed by the former order, and these proceedings were, in pursuance of the command of the writ of diminution, certified to the appellate court.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

A power of attorney appointing an agent to rent out a house, "collect and receive the rents therefor," and to use all lawful remedies, actions, distress, and other necessary proceedings, and generally to do for and in the name of the party giving the power, whatever the agent "may deem necessary and proper for securing and recovering the same," authorises the agent to levy a distress for rent due before its execution.

In an avowry for rent the tenant cannot offer in evidence a deed dated prior to the lease, "for the purpose of showing that at the time of making the distress the avowant had not the legal title to the premises and therefore could not distrain;" a tenant cannot dispute his landlord's title, though he may show that it has expired.

Taking security for the rent does not forfeit the remedy by distress; and taking the tenant's note for the rent, without an agreement that it should operate as satisfaction therefor, can only suspend the remedy by distress until it becomes due, after which the landlord may distrain, even though he has negotiated the note, provided he takes it up at maturity.

A prayer, "that the authority offered in evidence by the avowant is insufficient to sustain the distress relied upon," is bad for uncertainty, it not clearly appearing, whether it relates to the warrant to distrain and the proceedings thereunder, or to the authority under which the avowant's agent acted, which was also given in evidence.

A warrant of distress may be directed to a sheriff, and he may execute it by one of his sworn deputies: since the act of 1834, ch. 192, a landlord cannot execute his own distress.

The landlord's remedy by distress is not confined to the goods of his tenant: he may take any goods on the premises which are not exempted by law,

The proceeding by distress, authorised by the act of 1834, ch. 192, are void, unless the provisions of the act are complied with, and in an avowry for rent, the warrant to distrain and the proceedings under it, are facts to be found by the jury, and they must appear to be correct.

A prayer, which does not leave it to the jury to find the warrant and the proceedings under it, but assumes every thing to have been done which the law requires, is erroneous.  

COUNSEL:
Edward Holloway and T. Yates Walsh for the appellants, argued:

1st. That the power of attorney given by the [**13]  avowant to Mortimer, dated the 1st of December 1852, was no authority to him to levy a distress for rent, which had accrued due prior to the time of its execution.

2nd. That the deed of trust from Mrs. Ebsworth to Mortimer, dated the 17th of May 1839, and offered in evidence by the appellant was admissible, for the purpose of showing that the avowant had not the legal title to the premises at the time the distress was levied, and clearly shows that such was the case. 32 Eng. C. L. Rep., 374, Pascoe vs. Pascoe. Bradby on Distress, 89, 96, 100. 58 Eng. C. L. Rep., 1033. Pollock vs. Stacy, 53 Law Lib., 116. 3 H. & McH., 1, Tschudy vs. The State. 7 Md. Rep., 346, Hintze vs. Thomas.

3rd. That the taking by Mortimer of the note of Tucker, for the rent to become due on the 1st of August 1852, and the subsequent discount of this note by the Union Bank, and the remittance of a portion of the proceeds thereof to the avowant, destroyed the right to distrain for that quarter's rent. 5 Term Rep., 513, Kearslake vs. Morgan. 5 Johns., 68, Tobey vs. Barber. 11 Do., 518, Witherby vs. Mann. 6 H. & J., 166, Patapsco Ins. Co., vs. Smith. 2 G. & J., 493, Glenn vs. Smith.

4th. That it was [**14]  a question for the jury, whether or not Mortimer took this note in payment and satisfaction for that quarter's rent, and the court therefore erred in refusing the appellant's third prayer and granting that of the avowant, which took that question from the jury. And the avowant's prayer is also bad, because, it took from the jury the question whether that portion of the proceeds of the discount of the note, admitted to have been remitted by Mortimer to the avowant, was a loan to the tenant or an advance to the landlord, and also because it assumes both the fact of the distress and the levy, and the regularity of both, and of every thing connected therewith. 3 Gill, 31, Bullitt vs. Musgrave. 4 Md. Rep., 242, Balto. & Susq. Rail Road Co., vs. Woodruff. 14 Eng. Law & Eq. Rep., 371, Parrott vs. Anderson. 5 Md. Rep., 389, Yates vs. Donaldson.

5th. That the warrant to distrain and the proceedings had under the same, and offered in evidence by the avowant, are not sufficient in law to justify the taking of the appellant's goods. The omission of the account and affidavit, required to be annexed to the warrant, is a fatal defect. Act of 1834, ch. 192. 5 Md. Rep., 195, Joynes vs. Wartman.  [**15]  This question arises under the appellant's fifth prayer, and also under the avowant's prayer, which asserts the right of the avowant, notwithstanding this omission.

6th. That the warrant to distrain being directed to the sheriff, did not authorise him to appoint a deputy to make the distress which was therefore wrongful. 35 Eng. C. L. Rep., 256, Toplis vs. Grane. 5 Denio., 545, Lord vs. Brown. 5 Barbour, 286, Moulton vs. Norton. It is no part of the official duty of a sheriff, to execute a distress. No such power is given to him in his official capacity by any act of Assembly. By the act of 1825, ch. 21, a constable is required to execute a distress warrant, but before that time he was not required to do it.

7th. That it was a question for the jury, whether or not the agent of the avowant had, by any fraud or misrepresentation, induced the appellant to become the tenant of the premises. 6 Md. Rep., 255, Mayor & C. C. of Balto., vs. Williams.

I. N. Steele for the appellees argued:

1st. That the power of attorney from Mrs. Ebsworth to Mortimer, authorised the collection by distress or otherwise, of all rent due and unpaid after its date.

2nd. That the deed of [**16]  trust offered in evidence by the appellant "for the purpose of showing that the avowant had not the legal title to the premises and therefore could not distrain," was properly excluded:--1st. Because upon its true construction and legal effect, which were questions for the court, it could not avail the appellant for the purpose for which he offered it. 3 Md. Rep., 548, Ware vs. Richardson. 14 Mees. & Wels., 172, Williams vs. Waters; and 2nd. Because the appellant was estopped from denying the title of the avowant. Comyn on Landlord & Tenant, in 6 Law Lib., 293, 294, and cases there cited.

3rd. That the appellees' prayer was properly granted, and the second and third prayers of the appellant properly refused: 1st, because the taking of Tucker's note by Mortimer for one quarter's rent, and his having the same discounted, and the remittance of part of the proceeds to the avowant, did not take away the right of the avowant to distrain after the note was overdue and unpaid. 2 G. & J., 493, Glenn vs. Smith. 5 Md. Rep., 389, Yates vs. Donaldson. 29 Eng. C. L. Rep., 166, Davis vs. Gyde; and 2nd, because there was no evidence that this note was received in satisfaction of the rent for [**17]  which it was given.

4th. That the fifth prayer of the appellant was properly rejected: 1st, because it is vague and uncertain, and might have misled the jury; 2nd, because, "the authority offered in evidence by the avowant," whether these words refer to the power of attorney to Mortimer, or the warrant to the sheriff, was sufficient to justify the distress; and 3rd, because even if there was any irregularity in the proceedings had under the warrant to distrain, which is denied, no question in reference to these proceedings is presented by this prayer.

5th. That the warrant to distrain being directed to the sheriff, and not to the bailiff of the landlord, was properly and legally executed in the sheriff's name by one of his deputies; and the sixth prayer of the appellant was, therefore, properly rejected. Watson on Sheriff in 7 Law Lib., 17, 20, 25. Acts of 1825, ch. 21; 1834, ch. 192, sec. 4, and 1842, ch. 208 sec. 1. 17 Wend., 35, Van Renselaer vs. Quackenboss. 2 Kinney's Law Comp., 581, and cases there cited.

6th. That the seventh prayer of the appellant was properly rejected: 1st, because there is no evidence in the cause that Mortimer, even if the avowant could be [**18]  held responsible for his fraudulent misrepresentations, did, by any fraud or misrepresentation, induce the appellant to become the tenant of the premises; and 2nd, because the various facts recited in this prayer did not constitute a valid defence against the right of the avowant to distrain.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON, TUCK and MASON, J.  

OPINIONBY:
TUCK 

OPINION:

 [*343]  TUCK, J., delivered the opinion of this court.
The first exception in this record relates to the authority from Mrs. Ebsworth to Mortimer, under which the distress was laid, it being contended, on the part of the appellant, that it did not authorize the collection of rents due at its date. The paper does not, in terms, confine Mortimer to the collection of such rents as might arise under leases to be made thereafter by him, but confers power to receive rents generally, and to use means to that end as fully as Mrs. Ebsworth herself might employ. We agree with the court below, that it was sufficient for the purpose for which it was offered in evidence, that is to say: to prove Mortimer's authority to act, in this case, as her agent.
The second exception was taken to the admissibility of a [**19]  deed from Mrs. Ebsworth to Mortimer, dated in 1839, for the property demised, offered by the appellant "for the purpose of showing, that at the time of making the distress the avowant had not the legal title to the premises, and therefore could 

 [*344]  not distrain." A tenant cannot dispute the landlord's title, though he may show that it has expired. This deed was not offered for this latter purpose, on the concession that the title was in the appellee at the time of the lease. Its effect, according to the appellant's construction, would have been to deny her title at that time, as well as on the day of the distress; and was properly rejected. We express no opinion on the construction of the deed, but dispose of this exception on the hypothesis, that it passed the title to Mortimer.
The plaintiff below offered eight prayers, all of which were refused, except the first.
The second, third and eighth, relate to the note of Tucker, taken by the appellant's agent, for one quarter's rent. It is clear, that taking security does not forfeit the remedy by distress. Act of 1842, ch. 208. The promissory note of the tenant ought not to have any greater effect than that of [**20]  another person, or any other security passed by him to the landlord. What difference can it make to the tenant, that his note is discounted, provided it be in the hands of the landlord to be surrendered at the proper time? It appears to have been taken for the tenant's accommodation, and could only operate as a suspension of the other remedy until it became due. When a party takes a negotiable instrument, we are not to infer a collateral agreement, that the holder is not to use it. The law makes no such presumption. Why change the form of the transaction at all, if the party was not to have such benefit from it, in its new form, as he might derive from other paper of the same kind? It was the tenant's duty to have paid this note himself. As he did not, and it was taken up by the agent of the appellee, the remedy by distress was properly resorted to. There was no agreement that it should operate as satisfaction, nor any evidence legally sufficient to warrant that inference. It was in possession of the avowant, at the trial, and tendered to the appellant, and that is all that the law requires. The refusal of these three prayers is therefore affirmed.
The fourth prayer was properly [**21]  rejected, because there was no evidence tending to show, that all the rent had been remitted 

 [*345]  by Mortimer to the avowant. The only evidence on the point, related to part of the quarter's rent for which the note was given.
The fifth prayer has been treated by the appellant's counsel, as if it related to the warrant to distrain, and the proceedings in pursuance thereof. We think it might as reasonably apply to the authority under which Mortimer acted as agent, and, for its uncertainty, was well refused.
The sixth prayer presents the question, whether, when a warrant to distrain is directed to a sheriff, he may execute it by one of his sworn deputies? It has been the practice to employ sheriffs and constables for this purpose. The act of 1825, ch. 21, authorises the latter officer to act, and allows him the fees paid to sheriffs for similar services, which would seem to recognize the sheriff's authority in such cases. But, aside from this view of the question, the landlord may direct his warrant to a bailiff, and if he cannot find any person to act in that capacity, is his remedy to fail? Before the act of 1834, ch. 192, he might have executed his own distress, but [**22]  now a warrant is required, which we understand to be a denial of the landlord's right to act for himself. The remedy being given in terms, by the act, and no person being specified who is obliged to act for the landlord, there may be a necessity for directing the warrant to an officer of the law, and if such officer has deputies known to the law, their acts done in his name must be taken as his acts. Besides, the act of 1834, recognises sheriffs, constables and bailiffs, as competent to levy these warrants.
The seventh prayer submits to the jury, to find that the appellant became tenant of the premises, in consequence of the misrepresentations or wilful silence of Mortimer, as agent, when there is no such evidence in the cause. And it also assumes, as law, that so long as any goods of Tucker were on the premises, the property of Giles could not be distrained. The landlord's remedy is not confined to the goods of his tenant; he may take any on the premises, not exempted by law; and there is nothing to show a right of exemption in this case.

 [*346]  For these reasons we think the court ruled correctly, in rejecting the above prayers of the appellant.
The avowant also offered [**23]  a prayer, which we are of opinion ought not to have been granted. It was decided in Joynes vs. Wartman, 5 Md. 195, that the distress proceedings authorized by the act of 1834, are void, unless the provisions of the act are complied with. The warrant and proceedings are facts to be found by the jury, and they must appear to be correct. In this prayer the jury was not required to find whether there was any warrant, or other proceedings under the distress, but every thing is assumed to have been done which the law required. We cannot overlook defects of this kind. Such has been the law of this court for many years, and numerous cases have been determined on similar grounds. For this reason the judgment must be reversed, and the cause remanded under a procedendo.
In thus disposing of the case, it becomes immaterial whether the record be amended or not, for, upon the new trial, it will be competent to the parties to supply the missing account and affidavit, on proving the loss of them.
Judgment reversed and procedendo awarded. 

47 of 187 DOCUMENTS 

MICHAEL P. JENNINGS vs. WM. PENDERGAST.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 346; 1856 Md. LEXIS 79 

DECEMBER, 1856, Decided 

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

Caveat by the appellant against probate of the will of Catharine Jennings, upon the ground that from extreme age and infirmity of body, she became insane and non compos mentis, and whilst in this condition, the appellee, her son-in-law, procured the execution of the will by her.

The will is dated the 7th of January 1853, the testatrix being at that time ninety-six years of age. By it she devised all her property of every description to the appellee, and appointed him sole executor. She died on the 4th of January 1855, leaving the appellant, her only son, and Margaret Pendergast, the wife of the appellee, her only surviving daughter, and eight grand-children, the children of two deceased daughters.

The insanity was denied by the appellee, and plenary proceedings being ordered, the case was tried before the orphans court.

The testimony on both sides is sufficiently indicated in the argument of counsel and the opinion of this court. The court below, being of opinion that at the time of executing the paper the testatrix was capable of making a valid will, passed an order dismissing the caveat, from which the caveator appealed.  [**2]  

DISPOSITION:
Order affirmed but without costs.  

HEADNOTES:

The facts that a testatrix was ninety-six years old when her will was executed, that by it she disinherited her only son, and grand-children, giving her whole estate to her son-in-law, who procured the will to be prepared by counsel, and that shortly before its execution her son was confined in jail upon the complaint of some person unknown, for an alleged assault upon her, where he remained for some months and was then discharged without trial, would, if not rebutted, be sufficient to sustain a caveat to the will.

But all the attesting witnesses, having testified positively to the mental capacity of the testatrix at the time of the execution of the will, and other witnesses having testified, some to her capacity and others to her imbecility, and the orphans court, before whom these witnesses were examined and the case tried, having sustained the will, their decision was affirmed.  

COUNSEL:
T. Parkin Scott for the appellant, argued:

That the will in controversy is unjust and unnatural, cutting off from all participation in the estate, not only the son of the deceased, but also, the children of her two deceased daughters. That the execution of this will was obtained by the appellee for his own advantage, from the deceased, when she was in the ninety-sixth year of her age, by fraud and misrepresentation, as shown by the testimony of several of the witnesses. That the deceased, when the will was signed, was imbecile, and non compos mentis, and incapable of executing a valid deed or contract, as shown by the thirteen witnesses upon the part of the caveator, all of whom give their opinions of her mental incapacity founded upon facts; and to show that such a will, whose execution is thus obtained, is not valid, reference is made to the following authorities. Story's Eq. sec., 238. 1 Bland, 377, Mrs. Owing's case. 5 G. & J., 300, Davis vs. Calvert. 2 Gill, 84, Brooke vs. Berry. 2 Phillimore, 69, Browning vs. Reane. Ibid, 449, Kinleside vs. Harrison. 1 Haggard, 355, Earl of Portsmouth's case. 6 Sergt. & Rawle., 55, Patterson vs. Patterson.  [**3]  9 B. Monroe, 30, Denton vs. Franklin. 1 Green's Ch. Rep., 84, Lowe vs. Williamson. 2 Do., 635, Goble vs. Grant. 4 Rawle, 356, Baker vs. Lewis. 5 Johns. Ch. Rep. 158, Van Alst vs. Hunter. 3 Md. Rep., 491, Cramervs. Crumbaugh.

John Stewart and C. J. M. Gwinn, for the appellee.

The question in this case is, whether the testatrix, Catharine Jennings, was of sound and disposing mind, and capable of making a valid deed or contract? No issues have been made up for a jury. In the plenary proceedings depositions have been taken and the testamentary capacity has been held by the orphans court to have existed, and the caveat dismissed. From this ruling of the orphans court an appeal has been taken, and this court must pass upon the facts as a jury, in order to determine whether the required testamentary capacity did or did not exist.

What rule of interpretation is to govern the court in dealing with the facts before it? The act of 1798, ch. 101, sub. ch. 1, sec. 3, requires that a person to make a valid will, or testament, must be "of sound and disposing mind, and capable of making a valid deed or contract." It has been supposed, that this rule requires a higher standard of testamentary [**4]  capacity than was required by the common law. Its true interpretation seems to be this: that as wills and testaments concern property, the law requires, that the testator when he seeks to dispose of his property by will or testament, should be in that condition of understanding, at the time of making such disposition, which would have been required to make any deed or contract into which he might have entered at the same time, valid or capable of enforcement against him. This is the true rule. To say that more intellectual capacity is required to make a contract than a will, and thus to seek the conclusion that the act of Assembly had in view some standard of capacity higher in reality than what is meant by a sound and disposing mind, is to involve the whole subject in absurdity. A testamentary disposition may be, to the last limit of the law, technical and complicated. A contract may be so simple, that it is within the comprehension of a child. All that our testamentary act means to say is, that if the testator was in such a condition of mind that any deed which he might have made would have been good against him, or any contract, however simple, have been enforced against him, he [**5]  has testamentary capacity sufficient. Let us see what contracts are good. In 1 Parson on Cont., 314, it is said, that courts of law as well as equity, afford relief to those who are of unsound mind. They endeavor to draw a line between sanity and insanity, but cannot distinguish between degrees of intelligence. Against the consequence of that deficiency of intellect, which makes mistake easy but does not amount to unsound or disordered intellect, even equity gives no relief, unless another party has made use of this want of intelligence to do a positive wrongful act. 3 Peere Wms., 129, Osmond vs. Fitzroy. 1 Ves. Jr., 19, Lewis vs. Pead. Chitty on Cont., 139. 9 Pick. 212, Farnam vs. Brooks. Story on Cont., sec. 37. In this case, it may be remarked here, that, there is no evidence looking to fraud or undue influence.

The low degree of intelligence required to enable a party to bind himself by a valid deed or contract, is shown by the law, as it stood in England, upon the subject of commissions of lunacy, prior to Sir Edward Sugden's Statute, 1 W. & M. Before that act the fact might be, that a person was incapable of managing his affairs, yet the right to dispose of his estate, either [**6]  by deed or contract, could not have been taken from him, unless the jury found that he was unsound in mind. Shelford on Lunacy, 87.

Now, are there any facts in this case which show, that if this testatrix had, at the date of her will, made a deed or contract, and survived, it would not have been enforced against her because of her unsoundness of mind, that contract not being for necessaries, not tainted with fraud, and not so far executed as to be incapable of recision? There is positive evidence to show her healthy condition of mind. The attesting witnesses to her will assert a positive opinion. They are allowed to give this opinion, because of the duty imposed on them to satisfy themselves of the condition of the mind of the testator. 7 Gill, 27, Brooke vs. Townshend. Shelford on Lunacy, 284, 286. The remainder of the witnesses for both sides give opinions--or opinions with opinions as a reason for an opinion,--and such testimony is inadmissible, unless they are connected with facts. Shelford on Lunacy, 279. 3 Wash. C. C. Rep., 587, Harrison vs. Rowan. 8 Mass., 371, Hathorn vs. King. 3 Do., 330, Poole vs. Richardson. 7 Sergt. & Rawle, 94, Rambler vs. Tyson. 4 Conn., 209, Grant [**7]  vs. Thompson. 5 Pick., 510, Needham vs. Ide. 29 Eng. Law & Eq. Rep., 38, Austen vs. Graham. Tried by this test the testimony of many of the witnesses is of no value, and indeed, inadmissible.

The capacity of the testatrix, being an inference of law, it is not only not rebutted but sustained by the testimony. Her great age only requires, that the court should look narrowly into the facts of the case. 2 Phillimore, 449, Kinleside vs. Harrison. 5 Johns. Ch. Rep., 158, Van. Alst. vs. Hunter. 2 B. Monroe, 75, Watson vs. Watson. No argument can be drawn from the preference she has shown for persons. 3 Md. Rep., 491, Cramer vs. Crumbaugh. The testimony shows that the reason of the disposition of the property made by this will was kindness received from the beneficiary under it. There was even a stronger reason to operate against the caveator. She had just before the making of this will received ill treatment from him. Though, as she did not complain against him, she does not seem to have known that he was in jail.

On the facts, therefore, and for the reasons given, we insist upon an affirmance of the order appealed from.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON [**8]  and TUCK, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*351]  LE GRAND, C. J., delivered the opinion of this court.
We confess we have had great difficulty in coming to a conclusion in this case. The testatrix was ninety-six years of age at the time of the execution of the will in contest. This circumstance standing alone is of great weight, and although not, per se, conclusive, yet goes far, when the common history of humanity is considered, to induce the belief that the party attaining so advanced an age must be much weakened in mind, if not reduced to that state which the books designate as fatuity. In the case before us the deductions to be made from the fact of extreme old age are strengthened by the peculiar character of the will; it disinherits the only son of the testatrix and eight grand-children, the offspring of two deceased daughters. It makes, in the first instance, none of the blood of the testatrix the object of her bounty, but gives it all to her son-in-law, the appellee, to the exclusion of his wife, her daughter. When is added to these facts the additional one, that a few days before the making of the will, the appellant and only son of the testatrix was confined in jail, on the [**9]  complaint of some unknown person, for an alleged assault on her, and there remained for some months, and then discharged without trial; and also, that the appellee, the sole beneficiary under the will, procured its preparation by counsel, the case is certainly surrounded with great suspicion. Did it rest entirely on these facts we would not hesitate to reverse the order of the orphans court. But the conclusions to be drawn from them are rebutted by very positive testimony as to the mental condition of the testatrix at the time of the execution of the will. All the attesting witnesses state her to have been of sound capacity; one of them, Mr. Whyte, the draftsman of the will testifies, he carefully and slowly read the will to her, and she said it was all right, and that he had not "a doubt upon the face of the earth but that the testatrix was of sound mind and memory." Nine other witness give the opinion, she was of sound mind at the date of her will, although sometime prior to her death, which occurred two years thereafter, she became childish and imbecile. These witnesses are unknown to this court, as are, also, those who prove her imbecility. 

 [*352]  The credit to be attached [**10]  to their evidence, in some degree, would depend upon their appearance, and their manner of giving it. We have been deprived of this advantage; the orphans court enjoyed it, and we cannot be insensible to the value of the conclusions which it enabled them to derive from it. All cases like the present, we think, ought to be pronounced upon by a jury. They would see the witnesses and be the better able to estimate the amount of credit which ought to be awarded to the testimony of each.
Repeating, were it not for the positive evidence of Mr. Whyte, and others, that we would hold the testatrix to have been incompetent at the time to have made a valid will, and the suspicions surrounding the transaction, yet we cannot feel ourselves justified in reversing the order of the orphans court.
Order affirmed but without costs. 

48 of 187 DOCUMENTS 

ROBERT MICKLE, Adm'r c. t. a. of B. U. CAMPBELL, vs. TRUEMAN CROSS, Adm'r d. b. n., c. t. a. of SAMUEL NEILSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 352; 1856 Md. LEXIS 80 

DECEMBER, 1856, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Orphans Court for Baltimore city.

The will of Samuel Neilson, executed on the 19th of February 1840, contained the following legacy: "I devise and bequeath to the honorable John Purviance, his executors and administrators, the sum of $ 4000, in trust and special confidence, however, to be distributed and paid in such amounts, and to such persons, as my friend, Richard Lemmon, shall direct and name, in accordance with the instructions given by me to him, and who will explain the reasons for my making this bequest."

The only question in this case is, whether the estate of Campbell, who was executor of Neilson, and died before settling his trust, is responsible or not for interest, from the date of the passage of his last account as executor, to his death, upon a sum of money retained by him to pay the above legacy as soon as the legatee should be prepared to receive it? This interest is claimed by the appellee, as administrator d. b. n., c. t. a. of Neilson, from the appellant, as administrator c. t. a. of Campbell. The facts of the case are fully stated in the opinion of this court. This appeal is taken from an order of the court below allowing the claim.  

DISPOSITION:
Decree [**2]  reversed.  

HEADNOTES:

A legacy of $ 4000 was bequeathed to a legatee, in trust and confidence to be distributed in such amounts and to such persons as a friend of the testator should direct. The executor having several times tendered payment of this legacy to the legatee, who declined to receive it, but would not renounce it or put in writing his refusal to accept, retained stocks and cash to pay the same as soon as the legatee should be prepared to receive it, which retention appeared in his several accounts which were passed by the orphans court. HELD:

That under these circumstances the legatee could not claim interest on the money so retained by the executor, and as there is no sufficient proof that the executor used the money so as to make interest, and being in no default for not paying the legacy, neither he nor his estate is responsible for such interest.

An executor or administrator can be charged with interest only when it appears that he is guilty of a culpable inattention to his duty, by keeping money in his possession when there is no apparent reason or necessity for so doing, or when he has made use of the money to his own profit and advantage.

Where a case against an administrator is tried in the orphans court upon petition, answer and exhibits referred to both in the petition and answer and admitted as true, the statements of the answer must be regarded as true, unless in conflict with what is found in the exhibits.

Notwithstanding the act of 1852, ch. 133, when a cause is heard on bill, answer and exhibits, the answer is admitted to be true, although it may not have been called for under oath nor read at the hearing as evidence by the complainant.  

COUNSEL:
T. Parkin Scott and Henry Webster for the appellant, argued:

1st. That the case having been submitted on petition, answer and exhibits, all that is alleged in the answer must be taken as true; and if not all, then so much of the answer as is responsive to the petitition. 2 G. & J., 215, Pennington vs. Gittings. 3 Do., 406, Cowman vs. Hall. Ibid., 433, Roberts vs. Salisbury. 7 Md. Rep., 563, Feigley vs. Feigley.

2nd. That the estate of Campbell is not responsible for interest on the cash balance of $ 2631.03, retained by him as executor to pay the legacy to Judge Purviance, as stated in his fourth administration account. What was the executor to do with this legacy? It was a legacy payable in presenti, at any time the legatee might choose to call for it. He tendered its payment to the legatee, who declined to receive it, but at the same time refused to renounce it. It was not his duty to apply to the court, under the act of 1798, ch. 101, sub-ch. 10, sec. 11, for an order directing its investment; for the court had no power to pass such an order under that act, except where money "is directed to be paid at a distant period or upon a contingency," which was not [**3]  the case here. It is true the court had the discretionary power, under the act of 1831, ch. 315, secs. 4 and 5, to order the money to be brought into court, or invested, but they did not exercise that power here. The executor, therefore, could only hold it in readiness to be paid over at any time the legatee might call for it. This was done, and the fact reported in the several accounts of the executor to the orphans court, who approved and sanctioned it by the passage of those accounts. The executor held this money as a stake-holder, liable to pay it at any time on demand. He tendered its payment to the legatee, and was always ready and willing to pay it. Under these circumstances the legatee could not have demanded interest; why then should the executor be made to pay interest? The duty to keep it ready for payment at any time to the legatee is a good reason why no investment should be made. There is no proof that he actually made interest on the money. He retained the fund with the assent of the legatee and the approbation of the orphans court. The principle of law is well settled, that an executor is in no case chargeable with interest, unless it appears he has used the money to [**4]  his own profit, or has been guilty of culpable neglect or inattention to duty. 11 G. & J., 207, Chase vs. Lockerman. 3 Do., 24, Wilson vs. Wilson. 9 Pick., 386, Dodge vs. Perkins. 2 Dallas, 182, Knight vs. Reese. 11 Mass., 506, Wood vs. Robbins. 13 Do., 233, Wyman vs. Hubbard. 8 Taunt., 45, Lee vs. Munn. 5 Monroe, 578, Kellar vs. Beelor. 2 Kent's Comm., 365.

Neilson Poe for the appellee, argued:

That the estate of Campbell is rightfully chargeable with interest on the cash balance in his hands, in the same manner in which he had been charged with interest in the settlement of his third account, and that there is nothing in the answer to the petition of the appellee which, if taken as true, exempts him from such liability. An executor is bound by our testamentary law to settle an account every six months. The first two accounts of Campbell were settled in 1841. His third account was stated on the 28th of October 1846, was passed by the orphans court, and is, therefore, an adjudication of that court final, unless appealed from in due time. In this account he charges himself with interest on the cash balance of $ 1626.14, previously retained by him to meet this legacy, from [**5]  the date of his second account, a period of five years; the residue of the sum retained to pay this legacy being stocks, which were interest-bearing investments made by the testator himself. Why did he thus charge himself with interest? It was because he knew he was bound to invest, and not investing that he was bound for the interest. By this account he has admitted the receipt of interest or his liability for it, and where a party once admits interest it must be continued to be charged against him. The onus is upon the executor to show that he has derived no profits from the trust fund in his hands. That the executor is liable for this claim, is, we think, fully settled by the authorities. 9 G. & J., 115, Thomas vs. Frederick Co. School. 4 Do., 461, Gwynn vs. Dorsey. 3 Do., 311, Diffenderffer vs. Winder. 10 Do., 186, Comegys vs. The State. 11 Do., 208, Chase vs. Lockerman. 9 Gill, 200, Worthington's Exc'rs vs. Owings. Acts of 1798, ch. 101, sub-ch. 10, and 1831, ch. 315. 1 Johns. Ch. Rep., 508, Dunscomb vs. Dunscomb. Ibid., 527, Manning vs. Manning. 4 Do., 303, Brown vs. Rickets. 2 Wend., 77, De Peyster vs. Clarkson. 1 Edw. Ch. Rep., 131, Garniss vs. Gardiner. 2 Barb. Ch. Rep., 213,  [**6]  Spear vs. Trickham. 13 Mass., 233, Wyman vs. Hubbard. 3 Leigh, 359, Burwell vs. Anderson. 1 Grattan, 292, Bourne vs. Mechan. 2 Dev. Eq. Rep., 142, Finch vs. Ragland. 2 Dev. & Bat. Eq. Rep., 325, Peyton vs. Smith. 2 McCord's Ch. Rep., 1, Black vs. Blakely. 1 Dessaus, 193, note. 3 Do., 241, Darrel vs. Eden. 1 McMullan Ch. Rep., 275, McAlister vs. Brice. 3 Munroe, 122, Campbell vs. Williams. 6 B. Munroe, 356, Bowling vs. Cobb. 7 Yerger, 214, Turney vs. Williams. 14 Illinois Rep., 1, Rowan vs. Kirkpatrick. 10 Barr., 408, Brinton's Estate. 1 Brown's Ch. Rep., 359, Newton vs. Bennet. 3 Do., 433, Franklin vs. Frith. 10 Eng. Law & Eq. Rep., 233, Williams vs. Powell. 2 Wms. Exc'rs, 15, 68.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and TUCK, J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*356]  ECCLESTON, J., delivered the opinion of this court.
Under the agreement, made part of this record, the only subject for our consideration is, whether the appellee as administrator de bonis non of Samuel Neilson, can claim of the appellant as administrator of B. U. Campbell, who was executor of the said Samuel Neilson, interest from the 19th of December 1846, to the decease of said Campbell, in April [**7]  1855, upon the cash balance of $ 2631, reserved or retained by him, as appears by his fourth account, "to enable the accountant to pay to the honorable John Purviance, so soon as he should be prepared to receive it, a legacy of four thousand dollars, bequeathed to him in trust and special confidence by the testator."
Whether the estate of Campbell in the hands of the appellant, is responsible for the interest now claimed, we think must very much depend upon what would be the appropriate answer to an inquiry, whether, under the circumstances disclosed in the record, Judge Purviance was excluded from the right of demanding interest upon his legacy.
The petition states that, in June 1840, Samuel Neilson departed this life, having first made his last will and testament in due form of law, whereby he appointed Bernard U. Campbell 

 [*357]  his executor; that the will was duly admitted to probate, and letters testamentary were granted to the said Campbell; who settled in the same court in which this petition was filed, four accounts as said executor; the first on the 2nd of October 1841, the second on the 9th of November 1841, the third on the 28th of October 1846, and the fourth on [**8]  the 19th of December 1846; that Campbell died in April 1855, leaving a will appointing his wife executrix, who renounced; and Robert Mickle was duly appointed his administrator with the will annexed; that the petitioner was appointed and qualified as administrator de bonis non of Neilson; and that Campbell died without having made a final settlement as said executor, leaving a large balance of the estate in his hands.
The petition refers to the will of Neilson, and says, "that amongst other bequests, the said Samuel Neilson did bequeath to the honorable John Purviance, his executors and administrators, the sum of four thousand dollars in trust, and special confidence however to be distributed and paid in such amounts, and to such persons as Richard Lemmon should direct and name, in accordance with the instructions given to him, and who would explain the reasons for making the bequest." It is also alleged by the petitioner, that he is "informed and believes, that as soon as this bequest was called to the attention of the said John Purviance, he unconditionally renounced and refused the same, and that the said Richard Lemmon, always refused to give any directions for the payment [**9]  and distribution of the said legacy, and that both the said Lemmon and the said Purviance, have departed this life without leaving any directions in reference to said legacy." The petition then states, "that by the second account of said B. U. Campbell as executor of said Neilson, he retained to meet said legacy, when the said Purviance should be ready to receive the same, certain stocks of the appraised value of $ 3608.50, and the sum of $ 1626.14 in cash. By the third account, settled on the 28th of October 1846, he retained the same stocks and $ 2754.43 in cash, to meet said legacy, charging himself with interest on the cash balance of $ 1626.14, previously retained, from the date of the second to the date of the third account, being five 

 [*358]  years, and by his fourth account settled on the 19th of December 1840, he retained the same stocks, and $ 2631.03 in cash, to meet the said legacy."
The petitioner charges, "that the said Bernard U. Campbell, during his life time neither invested the said cash balance, nor as your petitioner believes, kept the same as executor, in any bank or place of deposit separate and apart from his own funds; but that he mingled the same with [**10]  his own moneys, and as this petitioner believes used the same as if it were his own." And the prayer of the petition asks, that the present appellee may be required "to answer all the matters and things set forth in this petition, and particularly to disclose when and in what manner the said John Purviance renounced the said legacy, whether in writing or otherwise, whether the books and papers of said Campbell, show that he kept the said cash balance separate and apart from his own moneys or otherwise." And the prayer further asks, that the said Mickle may be required "to settle a final account of the estate of the said Neilson, from the books and papers of said Campbell." In the previous part of the petition, the petitioner had claimed the right "to call upon Mickle, from the books and papers in his possession, to settle the account of said Campbell as executor of said Neilson, and to hand over to him (the petitioner) the balance found to be due, if the estate of the said Campbell be sufficient to pay the same."
The petition and the answer are under oath.
The answer admits the statements contained in the petition in regard to the decease of Neilson, his having left a will appointing [**11]  Campbell his executor, to whom letters testamentary were regularly granted. That Campbell died, leaving a will naming his wife as executrix, who renounced, and letters of administration with the will annexed were granted to the respondent; that upon the decease of Campbell, letters of administration de bonis non on the estate of Neilson were granted to the petitioner. And the answer says, "This respondent admits, that the said Campbell stated and passed four accounts as executor as aforesaid, which are now of record in this court." It is also said in the answer, "this respondent admits that the 

 [*359]  said Bernard U. Campbell departed this life without having fully settled and closed up his said trust, as executor of the will of said Neilson; and this respondent, from the books and papers of said Campbell, hath stated the account herewith filed marked B. U. C., which he prays may be taken and considered as a part of this his answer. And this respondent admits, that the said Campbell did retain in his hands stocks and money to a considerable amount, as will appear by the accounts already passed in this court, and that herewith filed, to pay the legacy of four thousand dollars [**12]  to the late Judge Purviance as mentioned in said Neilson's will, and for greater certainty concerning said legacy, this respondent begs leave to refer to said will. And this respondent further answering says, that he is informed and believes that the said Campbell, in his lifetime and on several occasions offered to pay said legacy to the said Judge John Purviance, but that the said Purviance declined then to receive it, but would not renounce it, and would not put in writing any thing to indicate his refusal to accept or renounce or release said legacy."
The answer admits the decease of Judge Purviance and Richard Lemmon.
The respondent says, "that he does not find from the books of said Campbell, that he either invested the said cash balance or kept the same as executor in any bank or place of deposit, separate and apart from his own funds, or what he did with it, and he has no personal knowledge on the subject; but this respondent avers that the said Campbell, was at all times ready and willing to pay said moneys to whomsoever might be entitled thereto." And the respondent "denies that said Campbell, was in default in relation to said legacy."
The answer also says, the respondent [**13]  "has offered to pay and deliver over to said Cross, the stocks and moneys in his hands, belonging to said Neilson's estate as shown by the account herewith filed, but said Cross hath refused to accept the same."
The petition was filed on the 10th of June 1856, and the answer came in the same day. The account on the estate of Neilson, mentioned in the answer, as having been stated by 

 [*360]  the respondent, it seems was passed by the orphan's court the day it was filed with the answer.
The record states that the petitioner, by his attorney, "exhibits and files in court here, a copy of the last will and testament of Samuel Neilson deceased." And after giving the copy, the record then says that the petitioner, by his attorney, "exhibits and files in court here, copies of Samuel Neilson's 1st, 2nd, 3rd and 4th administration accounts, which said copies are in the words and figures following," &c.
This will and these accounts, it will be recollected, are mentioned in the petition and referred to therein; and instead of being disputed, contradicted, or denied, in any respect by the respondent, his answer admits them, and refers to them as matters of record in the court in [**14]  which the cause was pending. There is no proof of any kind dehors those instruments, and when considering what should be the effect of an answer in such a case, we think the same rule should prevail which is applicable when a cause is heard upon bill, answer and exhibits, in a court of equity. This being so, the present answer must be held as true in regard to what is stated therein, unless in conflict with what is to be found in the instruments referred to by it, and admitted as true.
Although this is the answer of an administrator, the principle applied to it is not in conflict with the decision in Pennington, Adm'r of Patterson, vs. Gittings' Exc'r, 2 Gill & Johnson 208. There the cause was not heard on bill, answer and exhibits, but a replication had been filed and proof taken.
The case of Warren vs. Twilley, Ante, 39, shows, that notwithstanding the act of 1852, ch. 133, when a cause is heard on bill, answer and exhibits, the answer is admitted to be true, although it may not have been called for under oath, nor read at the hearing, as evidence, by the complainant.
There is nothing in this case, showing any deficiency of Neilson's estate to pay [**15]  debts and legacies. Nor is it denied that when the debts were paid, Judge Purviance had a right to receive his legacy of $ 4000, provided he had not renounced it. If therefore the principal sum alone, had been actually 

 [*361]  paid to the legatee, the representatives of the estate of Neilson, would have had no cause of complaint. But it is shown by the answer, that instead of an actual payment, the legacy was tendered on several occasions, and Judge Purviance declined to receive it; neither would he renounce it, nor put in writing any thing to indicate his refusal to accept, or renounce, or release the same. The executor therefore retained stocks and cash to enable him to pay the legacy, "so soon as the legatee should be prepared to receive it." And this retention appears in the administration accounts passed by the orphans court. With regard to retaining money by an administrator, under the direction of the orphans court, see 4 G. & J. 462.
The cash retained did not amount to $ 4000, and although the cash and stocks together exceeded that sum, it is shown that all the dividends upon the stocks have been fully accounted for, so that the claim at present is based [**16]  alone upon the loss of interest on the cash. Now, if such a claim would be without foundation, provided an actual payment had been made to the legatee, why should not retaining the money for the purpose of paying him have a similar effect, if the sum retained did not exceed the principal of the legacy? The estate of the testator would be reduced no more in one event than in the other.
Judge Purviance having on several occasions refused to accept payment when offered, and there being no evidence of his having made a subsequent demand, or of having indicated his readiness to receive the money, he could have no claim for interest; especially when the answer avers a readiness and willingness at all times, on the part of the executor, to pay. And by retaining the money to pay the legacy in such a case, Campbell's estate is not responsible for the claim now insisted upon. The proof is not sufficient to show that the money, retained in his hands, was so used by him as to produce interest during the time for which it is claimed. He was in no default for not paying the legacy; and having on several occasions offered payment, and being at all times ready and willing to pay whenever the [**17]  party entitled to the money should be prepared to receive it, his conduct protected the estate of 

 [*362]  Neilson from any legitimate demand for interest upon the legacy. There is, therefore, no propriety in charging such an executor with interest, upon the presumption, that he made it merely because the money was in his hands; when it is shown that, with the approbation of the orphans court, he held the money for the purpose of paying a claim actually due, and which might be demanded at any time; thereby creating a necessity for him to be always ready and willing to pay, which he was, as alleged in the answer.
In Gwynn vs. Dorsey, Adm'r of Howard, 4 G. & J. 453, it is said: "Whenever an administrator manifestly intends fairly to do his duty, the rule should be not to hold him liable upon slight grounds." This principle is adopted in Chase vs. Lockerman, 11 G. & J. 185, where the court were considering how far executors were responsible for interest upon money in their hands. And in the latter case the former is referred to, as holding that, an administrator may be compelled to pay interest upon money kept in his hands without apparent [**18]  reason, from the end of thirteen months after the date of his letters, but as likewise holding, at the same time, that he is only to be charged with interest, where in so doing, it also appears that he is guilty of a culpable inattention to his duty. And in Chase vs. Lockerman, the court quote, Wms. on Ex'crs, 1132, as saying: "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 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 [**19]  keeps money dead in his hands, 

 [*363]  without any apparent reason or necessity, then it becomes negligence, and a breach of trust, and the court will charge the executor with interest."
From these authorities it will be seen, that an executor may be responsible for interest on money kept in his possession, although producing no interest, when there is no apparent reason or necessity for his doing so. And this being true, we conceive it to be equally true, that where there is an apparent reason or necessity for retaining the money, the executor is not liable for interest, unless it can be shown that he has received interest, or has made use of the money for his own profit or advantage.
We think there was reason for the retention by Campbell; and that the circumstances do not justify holding his estate responsible for the interest now claimed.
On the 11th of July 1856, the orphans court passed the decree from which this appeal is taken. In that decree the present appellant is required to settle a further account upon the estate of Campbell, and in stating such account the register is directed to charge that estate with interest, on the sum of $ 2631, from the 19th of [**20]  December 1846 to April 1855, the period of Campbell's death. We consider the charge of interest erroneous, and therefore the decree will be reversed, but the cause will not be remanded, as the agreement renders it unnecessary.
Each estate must pay its own costs.
Decree reversed. 

CONCURBY:
LE GRAND 

CONCUR:

LE GRAND, C. J., delivered a separate concurring opinion.
This case, in my opinion, is free from all difficulty. All the interest and dividends received by Campbell have been accounted for. He "repeatedly" offered to pay the legacy to Judge Purviance, who, as often, declined to receive, but still, without renouncing, the legacy. He occupied the attitude of, at any moment, being ready to ask for the payment of the legacy. His refusal to receive when offered to him, could not make Campbell his trustee, so as to devolve upon him the obligation to make an investment for the benefit of Judge Purviance. 

 [*364]  Had the latter brought suit for the amount, with interest, he could not have recovered interest, and, for the reason, that he had declined to receive the amount when tendered. If he could not recover, how can the administrator d. b. n. of Neilson, recover for the benefit [**21]  of the representatives of Judge Purviance? To allow of such a state of things, would be but to say, that what could not be done by Judge Purviance or his representatives, may be done indirectly by the appellee. I am of the opinion, neither Judge Purviance nor his representatives have any claim for interest, and as a consequence, the administrator d. b. n. of Neilson, cannot recover it for them. For these reasons, I concur in the reversal of the decree of the orphans court.  

49 of 187 DOCUMENTS 

ROBERT B. GRIFFIN and WILLIAM LEE, vs. ELIPHALET H. MERRILL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 364; 1856 Md. LEXIS 81 

DECEMBER, 1856, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Equity Side of the Superior Court of Baltimore city.

This appeal was taken from an order of the court below, (FRICK, J.,) overruling the demurrers of the appellants to a bill filed against them by the appellee. Each defendant filed a separate demurrer upon the ground of multifariousness.

The bill alleges, in substance, that in February 1847, complainant purchased out the interest of Yeatman and Bayles in a firm composed of Yeatman, Bayles and Griffin, then trading in Baltimore city under the name of "Griffin, Yeatman & Co.," each partner being equally interested in the business; that Griffin was, at the time of this purchase, indebted to the firm for money withdrawn for his private purposes; that the assets consisted of a stock in trade and outstanding debts, which complainant was led to believe would be adequate to meet the liabilities of the firm, but though the stock was sold on the most advantageous terms and the collection of the debts diligently attended to, as hereinafter stated, the sum produced did not pay such liabilities by a large amount, which complainant has paid by advances from his private means; that Griffin has not assisted him in paying these [**2]  liabilities, nor paid his own indebtedness to the firm, nor his proportion of such advances, and that a large proportion of the outstanding debts have proved desperate and cannot be collected; that immediately after this purchase complainant formed a copartnership with Griffin and Lee, under the name of "Griffin & Co.," for the purpose of continuing the business of "Griffin, Yeatman & Co.," and it was agreed that "Griffin & Co." should, and they, in fact, did, purchase the stock in trade of "Griffin, Yeatman & Co.," at a valuation and transfer to their books the debts due "Griffin, Yeatman & Co.," and collect them without charge, and pay with the money so collected, as far as it would go, the debts due by "Griffin, Yeatman & Co.;" that there was no written copartnership, but it was understood that complainant, Griffin and Lee should be equal partners, and that Griffin and Lee should give their whole time and attention to the business, and the complainant, by his capital and credit, sustain and further the interest of the firm, and, in accordance with this agreement, the business was conducted during the continuance of the firm of "Griffin & Co.," from February 1847 to July 1848, when [**3]  it was dissolved by mutual consent, Griffin and Lee having the sole management thereof, and the complainant making advances to meet its liabilities for which he was to be reimbursed; that after this dissolution the complainant, by agreement with his former partners, took into his possession the books and papers of the firm, for the purpose of collecting the outstanding debts due the firm, and applying the proceeds to pay its liabilities or to reimburse himself the advances he had made for that purpose, and that he diligently attended to such collection so long as he resided in Baltimore, and on removing to New York, where he now resides, it was agreed between him and his late partners, that said books and papers should be placed in the hands of "J. D. Pratt & Co.," of Baltimore, for the purpose of collecting the debts still outstanding and paying the proceeds to the complainant, to reimburse him for his aforesaid advances; that Pratt & Co. have used every effort to collect these debts, and have collected and paid over to complainant considerable sums of money on account thereof, all of which, as well as that collected by himself, is duly credited on the books of the firm and charged [**4]  to the complainant; that said books and papers are still in the hands of Pratt & Co., who are still endeavoring to collect the debts remaining unpaid, and who represent that most of them are desperate and cannot be collected; that the stock in trade of "Griffin & Co.," at the time of said dissolution, was advantageously disposed of and the proceeds duly applied to pay the debts due by them.

The bill then further charges, that during its existence, and since the dissolution, of the firm of "Griffin & Co.," complainant has paid from his private means, over and above all receipts from the assets of both firms, large sums of money, and has used all diligence in collecting and rendering available such assets to pay the debts due by these firms, or to reimburse himself for advances made for that purpose, and has duly charged himself on the books with all money collected by him, or which has been paid over to him by Pratt & Co.; that he has long waited in the hope that he would be reimbursed from these assets, but finding most of the debts still due to be desperate, he believes little or nothing more can be realized from them, and that the advances for which he has not been reimbursed [**5]  amount to about $ 20,000; that Griffin and Lee are largely indebted to "Griffin & Co." for money withdrawn for their private use, and have not assisted the complainant in paying debts, nor reimbursed him for his advances for that purpose.

The bill then prays for an account of the partnership business of "Griffin, Yeatman & Co.," to the time complainant purchased the interest of Yeatman and Bayles; also for an account of the receipts and disbursements of the firm of "Griffin & Co.," on account of that of "Griffin, Yeatman & Co.," and of Griffin's liability for money withdrawn by him, and for losses in conducting the business of "Griffin, Yeatman & Co.," and his indebtedness therefor to the complainant; also for an account of the business of "Griffin & Co.," and that the debts still due them may be disposed of by sale or otherwise, and that a decree may be passed for payment to the complainant of such sums as may be found to be due him by Griffin and Lee upon the settlement of the accounts of the business of both firms, and for general relief 

DISPOSITION:
Reversed and bill dismissed.  

HEADNOTES:

A bill prayed for an account of the concerns of two distinct partnerships. One of the defendants was a partner in both firms, but the other was only a partner in the latter firm. HELD:

That this bill is multifarious, even though the latter firm, as such, became agent for collecting and disbursing the outstanding debts of the former firm, there being no good reason shown why an account should be taken in reference to the affairs of such agency.  

COUNSEL:
Geo. Wm. Brown for the appellants, argued:

1st. That the bill is clearly liable to the objection [**6]  of multifariousness. In its stating part it confounds matters distinct and unconnected, and charges several matters of distinct nature against the respondents. Lee had no connection whatever with the firm of "Yeatman, Griffin & Co.," and cannot be called on to account for any matter connected with that firm. Griffin is liable to account, as he was a partner in both firms, but Lee is only connected with the latter. The bill, therefore, has reference to subject matters which affect the respondents in different degrees, and its prayer demands several matters, of distinct natures, against the respondents. The case is, in all essential respects, similar to that of White vs. White, 5 Gill, 359, where the objection of multifariousness was sustained. See, also, Story's Eq. Pl., sec. 271, note, and 272. 1 Daniel's Ch. Pr., 383, note. 5 Paige, 65, Boyd vs. Hoyt. 6 Do., 22, Swift vs. Eckford. If Lee was a proper party on the ground of agency, then, on the same principle, Pratt & Co. should have been made parties to the bill.

2nd. That the order of the court, overruling the demurrer and ordering the respondents to answer over, may be appealed from. 5 Gill, 359. A demurrer to a bill for multifariousness,  [**7]  like a demurrer for a misjoinder at common law, goes to the whole bill, and, if allowed, the bill must be dismissed and cannot be amended. 5 Paige, 65. 6 Do., 22. 2 G. & J., 14, Gibbs vs. Clagett. 2 H. & G., 386, Wolf vs. Wolf. 1 Md. Rep., 266, Thomas vs. Doub. 2 Do., 176, Williams vs. West. 3 Do., 555, Ware vs. Richardson. 4 Do., 76, Maddox vs. White.

Thos. S. Alexander for the appellee, argued:

That the demurrers were properly overruled. The firm of Griffin & Co. having agreed to act as agent in settling up the business of the firm of Griffin, Yeatman & Co., and having transferred the accounts from the books of the last firm into its own books, the taking of this agency account is indispensable to the adjustment of the accounts of Griffin & Co. It may be true, in the abstract, that Lee has no direct interest in the state of the accounts of the firm of Griffin, Yeatman & Co., at the period of its dissolution, or of the account between that firm and the appellee, as its settling partner, but when it is considered that the firm of Griffin & Co., in assuming the duty of liquidating agents of the firm of Griffin, Yeatman & Co., undertook to distribute the surplus effects of [**8]  that firm between the parties in just proportions, and that the appellee was occasionally collecting debts and supplying funds for the discharge of the liabilities of the last named firm, and that after the dissolution of the firm of Griffin & Co., the business of the two firms became yet more blended in the hands of the appellee as settling partner, it would seem most convenient that all the accounts should be taken in one cause, in order that the fund in hand may be distributed according to the ultimate equities of the respective parties. The appellant, Griffin, and the appellee have a direct interest in the entire account asked for by the bill. It would be difficult to show that Lee would be exposed to any inconvenience in the taking of that account, and, on the other hand, a state of things may be imagined in which his interest would be advantaged thereby. The firm of Griffin & Co. may be indebted to the firm of Griffin, Yeatman & Co.; Griffin may be indebted to the firm of Griffin & Co., and in advance to the firm of Griffin, Yeatman & Co.; if the account is taken as prayed for by the bill, Lee may insist that the balance due from Griffin & Co. to Griffin, Yeatman & Co., to the [**9]  extent of Griffin's interest, shall be applied to the discharge of his indebtedness to Griffin & Co. This case is, therefore, as I think, clearly distinguishable from that of White vs. White, 5 Gill, 359, and as sustaining these views, see 1 Myl. & Cr., 624, Campbell vs. Mackay. 3 Do., 85, Attorney General vs. Cradock. 4 Do., 17, Attorney General vs. Parr, and same case in 8 Clark & Finnelly, 434. 6 Sim., 251, Lewis vs. Edmund. 11 Do., 283, Brown vs. Douglas. 5 Beav., 546, Benson vs. Hadfield, and same case in 4 Hare, 32. 2 Younge & Coll., 430, Davis vs. Cripps. 4 Hare, 9, Lund vs. Blanshard. 2 Coll., 316, Boyd vs. Moyle. 2 Chitty's Digest, 1612, citing 10 Jur., 833, Sanders vs. Kelsey. Story's Eq. Pl., sec. 539. 2 How., 619, Gaines vs. Chew. 3 Do., 333, Oliver vs. Piatt. 5 Do., 127, Nelson vs. Hill.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and TUCK J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*369]  ECCLESTON, J., delivered the opinion of this court.
The appellants insist, that the demurrers should have been ruled good, upon the ground that the bill is multifarious. In support of which position they rely, with much confidence, upon White et al., vs. White, 5 Gill 359. [**10]  There the bill prayed for an account of the concerns of several distinct partnerships, some of the defendants not having been partners in all the firms; and there being nothing to show that either firm, as such, had any agency in regard to the concerns of the others, or of either of them. Henry White, (one of the defendants,) is said to have been the financier and agent, for many purposes, of the various firms, but he had never been a partner in either. The bill was finally dismissed, by the Court of Appeals, for multifariousness. And the facts we have mentioned had much, if not the controling influence, in that decision.
Under the demurrers we are, of course, to consider the statements contained in this bill, to be true.

 [*370]  The defendant, Lee, was not a partner in Griffin, Yeatman & Co., but was in Griffin & Co. On the dissolution of the former, their stock in trade was purchased at a valuation, and paid for by the latter, as we understand the bill. It also, appears to have been agreed, that the debts due to Griffin, Yeatman & Co., should be transferred to the books of Griffin & Co., which they were to collect without charge, and with the money so collected, were to pay [**11]  as far as it would go, the debts of Griffin, Yeatman & Co., or reimburse to the complainant the money advanced by him out of his private means for that purpose. Speaking in reference to the purchase of the stock in trade, and the debts to be collected, the bill says: "And in fact the said Griffin & Co. did so purchase the said stock in trade, and transfer said accounts of Griffin, Yeatman & Co. to their books, and collect said debts, and pay, as far as the money would go, the said debts." In a previous part of the bill, it is said: "That the assetts of said partnership of Griffin, Yeatman & Co., consisted of their stock in trade, and outstanding debts, which, as your orator was led to believe, and suppose, would be of sufficient value to meet the liabilities of said firm, but although the said stock was sold on the most advantageous terms, and the collection of said debts diligently attended to, as is hereinafter more particularly set forth, the sum produced did not pay the debts of said firm by a large amount, which your orator has paid out of his own private means; and that the said Robert B. Griffin has not assisted your orator in paying said liabilities, nor has he paid his own [**12]  indebtedness to said firm, nor his proportion of the money expended by your orator in paying said liabilities; and that a large proportion of said outstanding debts have proved desperate and cannot be collected."
The firm of Griffin & Co. was dissolved in July 1848, and the bill says: "Your orator further showeth, that after the dissolution of said firm, your orator, by agreement with his said partners, took into his possession the books and papers of said firm, for the purpose of collecting the outstanding debts, and applying the money received from them to the liquidation of the liabilities of said firm, so far as it would go, or of reimbursing 

 [*371]  himself for money advanced by him for that purpose; and that he diligently attended to the collection of said debts so long as he resided in said city, and on removing to the city of New York, where he now resides, it was agreed by and between your orator and his said late partners, that the said books and papers should be placed in the hands of Messrs. J. D. Pratt & Co., of the said city of Baltimore, for the purpose of collecting the debts of said firm still outstanding, and paying to your orator the proceeds of such collection [**13]  to reimburse him for advances made to pay the liabilities of said firm."
The bill likewise states, "that the said J. D. Pratt & Co. have used every effort to collect said debts, and have collected and paid over to your orator considerable sums of money on account thereof, all of which as well as money collected by your orator from said outstanding debts is duly credited on the said books of said firm, and charged to your orator. That the said books and papers are still in possession of the said J. D. Pratt & Co., who are still endeavoring to collect the debts remaining unpaid, and who represent to your orator, that the most of them are desperate and cannot be collected. And that the stock in trade of the said Griffin and company, at the time of said dissolution, was advantageously disposed of and the proceeds thereof duly applied to the discharge of the debts due by them."
The appellee considers this bill not liable to objection, on the ground of multifariousness, under the decision of White, et al., vs. White, although Lee was not a member of the first firm. There is said to be a material difference between that case and this, because here, Lee was a partner in Griffin & Co.  [**14]  , which firm, as such, became agents for collecting and disbursing the outstanding debts of Griffin, Yeatman & Co. This agency of the firm, in which Lee was a member, is supposed to distinguish this case from the one referred to, where the only agent spoken of is Henry White, who never had been a member of either partnership. But admitting this distinction to exist, still the fact of the agency now relied on cannot render it either necessary or proper, that Lee should be required to unite with Griffin in accounting, with regard to the 

 [*372]  concerns of the first firm, unless it appears there is some good reason why he should so account in reference to the affairs of the agency. And we see no such reason.
The bill shows plainly, that the debts which Griffin & Co. were to transfer to their books, for the purpose of collecting and disbursing on account of the first firm were so transferred; the collection was diligently attended to, and the money received, was paid over according to agreement; leaving uncollected only such of those debts as were desperate and could not be collected.
Although the bill may show a liability to, and a necessity for accounting with, the complainant,  [**15]  on the part of the two defendants, in reference to the concerns of the second firm; and also on the part of Griffin, in regard to the affairs of the first, still the facts stated do not exhibit any indebtedness to, or necessity for accounting with, the complainant, by the second firm, or by Lee as a member thereof, or in any character, in reference to an agency, or any matter arising from, or connected with, the firm of Griffin, Yeatman & Co. On the contrary, the bill shows, that the stock in trade purchased by the last partnership was paid for, that their collecting agency was faithfully attended to, and the proceeds duly applied, they having collected all the debts, and paid over the money, except such as were desperate and could not be collected.
It likewise appears that, after the dissolution of the second firm, by mutual consent, the complainant, by agreement of the parties, took possession of the books and papers of the firm, for the purpose of collecting the outstanding debts and applying the money arising from them; that subsequently, with the consent of the parties, the said books and papers were put into the possession of J. D. Pratt & Co., for the purpose of collecting [**16]  the debts still outstanding and paying the proceeds over to the complainant, to reimburse him for advances made on account of the liabilities of the said firm of Griffin & Co.; which books and papers still remain in the hands of J. D. Pratt & Co.
Demurrers to the bill were filed in White, et al., vs. White, and overruled by the court below; which decision was reversed 

 [*373]  by the Court of Appeals, and the bill dismissed. According to the principles there established we consider the present bill liable to objection for multifariousness, and that the court were wrong in overruling the demurrers; consequently, a reversal of their decision, and dismissal of the bill, must necessarily follow, but without prejudice and without costs.
Reversed and bill dismissed. 

50 of 187 DOCUMENTS 

THE SPRING GARDEN MUTUAL INSURANCE CO. vs. RANDALL EVANS, use of JAS. P. RILEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 Md. 1; 1856 Md. LEXIS 1 

JUNE, 1856, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

Covenant, by the appellee against the appellant, a Pennsylvania corporation, doing business by agents in Baltimore, to recover $ 1500 upon a fire insurance policy, issued by the appellant to Evans upon certain merchandise in a store in Winchester, Virginia. Plea, non infregit.

1st Exception. The plaintiff offered in evidence the policy sued on, which expired on the 29th of January 1850, and proved that the fire occurred on the 20th of March 1849. The only condition of the policy material to this case is the ninth, which is fully set out in the opinion of this court. The plaintiff also proved that the loss by the fire amounted to at least $ 1500, and the assignment of the policy to Riley after the fire. He then offered the testimony of Hammond and Lavender, and the notice given by him to produce the papers containing the preliminary proof, all of which is sufficiently stated in the opinion of this court. To the testimony of Lavender, so far as it details declarations of the president of the company, the defendant objected, because they were not binding upon defendant without proof of special authority from the company, but the [**2]  court (FRICK, J.) overruled this objection and permitted the evidence to go to the jury, and to this ruling the defendant excepted.

2nd Exception. The defendant then asked instructions to the jury, in substance as follows:

1st. That the plaintiff is not entitled to recover in this action, unless the jury find from the evidence in the cause that Evans, before the institution of this suit, furnished to the defendant such preliminary proof of his loss as is required by the 9th condition of the policy sued on, unless they further find that the furnishing of such proof was waived by the defendant.

2nd. (This prayer is fully stated in the opinion of this court.)

3rd. That the declaration testified to by Lavender, as made by a person representing himself as the president of the defendant, was not a waiver by defendant of the production by the plaintiff of the preliminary proof required by the 9th condition of the policy, unless the jury find from the evidence that such declaration was made by such person by authority of the defendant, and that by it the plaintiff was deceived and misled as to the nature of the proof he was required to furnish of his loss.

4th. That [**3]  the failure of the defendant to produce the papers referred to in the notice served by the plaintiff upon its attorney, the defendant giving no reason or excuse for such non-production, does not authorise the jury to presume or find that such papers contained the preliminary proof of the plaintiff's loss required by the 9th condition of the policy, and that such failure or refusal is not a circumstance from which the jury can legally presume that such papers contained such proof.

5th. That the onus is on the plaintiff to prove that he furnished to the defendant the preliminary proof of his loss required by the 9th condition of the policy, and that it is not incumbent upon the defendant to prove that such proof was not furnished.

6th. That if they find the facts stated by Lavender, and that the person with whom he had the conversation did not point out or specify any particular defect in the plaintiff's proof of loss, that such failure of said person to point out and state what, if any, were the defects in the plaintiff's proof, does not of itself, nor in connection with the facts detailed by Lavender, amount to a waiver by defendant of the preliminary proof, which, by the [**4]  9th condition of the policy, the plaintiff was bound to furnish to defendant.

The court granted the 1st and 5th prayers, but rejected the others, and to this rejection the defendant excepted.

3rd Exception. The defendant then objected to the testimony of Hammond, in so far as it relates to the contents of papers delivered by him at defendant's office in Philadelphia, because the notice served upon defendant had not laid a sufficient foundation therefor. This objection was overruled, the court refusing to entertain it at this stage of the cause, being after all the prayers on both sides had been presented and discussed, and the instructions of the court given thereon to the jury; and the testimony itself objected to, having been read to the jury as a portion of that on which the prayers were discussed and upon which the instructions of the court were based. To the refusal of the court to entertain this objection, the defendant excepted.

The verdict and judgment were in favor of the plaintiff for $ 1905, damages and costs, and the defendant appealed.  

DISPOSITION:
Judgment reversed and procedendo ordered.  

HEADNOTES:

Where the evidence is so loose and inconclusive that the jury, instead of making legitimate and reasonable inferences, would be indulging in conjecture and wild speculation were they to find from it the fact sought to be established, the court may instruct them that there is no evidence of such fact.

The president of an insurance company on being asked "what further preliminary proof of the loss was required," answered, that "the policy will show that." HELD, that this answer was not a tacit admission that there was no objection taken to any defect in the preliminary proof that had been furnished, nor a waiver of such proof.

The non-production of papers after notice duly served has no other legal effect than to allow the opposite party to prove their contents; the refusal to produce does not authorise any inference against the party refusing.

But where a party, under the obligation to sustain his defence by proof, has possession of the best evidence and fails to produce it, but attempts to sustain his defence by inferior evidence, it authorises the inference that he does not furnish the best, because it would injure, instead of benefitting, his cause.

Where all the facts and circumstances relating to the subject are admitted, a party has the right to ask the court to instruct the jury whether the evidence is sufficient to establish a waiver or not.

A prayer by the defendant that there is no evidence of a waiver, necessarily concedes the truth of all the plaintiff's evidence, and all legitimate inferences which may be drawn from it.  

COUNSEL:
Charles H. Pitts for the appellant, argued:

1st. That the refusal [**5]  of the court below in the third exception to receive the objection to Hammond's testimony is error, for which the judgment should be reversed. Before the act of 1825, ch. 117, it was not necessary to make objections to testimony below. In Handy vs. The State, 7 H. & J., 43, illegal evidence had been received without objection, and the Court of Appeals rejected the evidence and reversed the judgment. They cite Gittings vs. Hall, 1 H. & J., 14, as authority for this principle, which is also recognised in the case of Whittington vs. Farmers Bank of Somerset & Worcester, 5 H. & J., 489, and 6 H. & J., 548. The act of 1825 changes the rule established by these cases only so far as to prohibit the parties from urging and insisting upon any point or question before the appellate court, which should not appear by the record to have been raised or made in the court below, and "upon which that court may have rendered judgment." This act does not say at what time the point or question shall be made in the inferior court. It may be made at any time during the trial before the case is given to the jury. Evan's Pr., 298. In Hoddy's Lessee vs. Harryman, 3 H. & McH., 584, testimony was read to the [**6]  jury without objection, and the day after objection was made to it and sustained by the court, and the Court of Appeals, in 3 H. & McH., 591, say: "The General Court had a right to direct the jury that the testimony offered and admitted by the parties was illegal and inoperative, the Court of Appeals being of opinion that they are not bound by the admissions of the parties." The appellant having made its objection in time, the court's refusal to entertain it deprived the defendant of the right to have the question as to its admissibility decided by this court, and the judgment of the court below denying this right ought to be reversed.

2nd. The first exception presents the question as to the admissibility of that part of Lavender's testimony in which he details the declarations of the president of the company. The president is not a party to the suit, and his declarations are not admissible on that ground. If admissible at all, they were so only upon the ground that he was the agent of the company and had authority to bind it by such declarations. There was no evidence to show that he had such authority by express grant, or as incident to his office under the charter and laws [**7]  of the company. Corporations, like natural persons, are bound only by the acts and contracts of their agents, made and done within the scope of their authority. "The representations, declarations and admissions of the agent of a corporation stand upon the same footing with those of the agent of an individual. To bind the principal they must be within the scope of the authority confided to the agent, and must accompany the act or contract which he is authorised to do or make." Angel & Ames on Corp., 288, 293, 301, 302. 7 H. & J., 104, City Bank of Baltimore vs. Bateman. In deciding the question raised by this point this court is not confined to the ground of objection stated in the exception. If the testimony was inadmissible upon any ground, the judgment must be reversed upon this exception. 3 G. & J., 441, Sothoron vs. Weems.

3rd. The next point presents questions raised by the 2nd, 3rd and 6th prayers of the appellant. The only evidence in the record that the plaintiff furnished the preliminary proof required by the 9th condition of the policy is that of Hammond. Could any rational mind legally find from that testimony that such proof was furnished? 2 G. & J., 382, Davis vs.  [**8]  Barney. There is, also, no evidence of waiver. The only testimony relied on to prove it is that of Lavender. This, so far from showing a waiver, shows a direct assertion that the company required the proof "laid down in the policy." The policy was in the possession of the plaintiff, and he had merely to look at the 9th condition and be at once informed of the kind and quantity of proof which he had to furnish. In the case of the Columbian Ins. Co. vs. Lawrence, 2 Pet., 53, Chief Justice Marshall, in delivering the opinion of the Supreme Court, says: "We know of no principle or usage which requires the underwriters to specify their objections, or which justifies the inference that any objection is waived." The objection to pay the loss was based upon the insufficiency of proof to satisfy the company that there was so large a stock of goods as the plaintiff claimed to be paid for. It cannot be a waiver, because that which is said to be waived is clearly "within the objection." 6 Md. Rep., 359, Tyson vs. Webster, Adm'r of Macauley. The ground of the refusal to pay is not inconsistent with the requirement of preliminary proof. The person speaking as president did not deny the liability [**9]  of the defendant except as to amount. The amount was to be determined by proof. The proof was "laid down in the policy," the very thing said to have been waived was expressly insisted on. In the cases of Allegre vs. Md. Ins. Co., 6 H. & J., 411, 412, and Md. Ins. Co. vs. Bathurst, 5 G. & J., 159, the court put the waiver, in the first case, upon the ground that the company denied that the subject of loss was covered by the policy; in the second case, that the ground taken by the company was wholly inconsistent with a demand for preliminary proof. In this case the ground of refusal was not thus inconsistent. The question of waiver is not exclusively for the jury. It is for the court to say, upon an admitted state of facts, whether there is a waiver in law or not. The 6th prayer embodies and admits all the facts bearing upon the question of waiver, and the court was therefore properly asked to instruct the jury that these facts did not in law amount to a waiver. The 3rd prayer was improperly rejected. The jury could not legally find a waiver without first finding that the declarations relied upon were the declarations of the defendant by its authorised agent. The declarations could not [**10]  be construed as a waiver, unless the plaintiff was thereby misled and deceived as to the proof he was required to furnish. If the declarations informed him that the company insisted upon a compliance with the 9th condition of the policy, of course there was no waiver in fact or in law.

4th. The court erred in refusing the defendant's fourth prayer. A party is not bound to produce papers under notice. The refusal to produce papers gives the adverse party a right to offer parol proof of their contents. This is the only legal effect of a notice, and failure or refusal to produce papers. Evan's Pr., 293. 1 Greenlf. on Ev., sec. 37. 3 Camp., 363, Cooper vs. Gibbons. 1 Starkie's Rep., 314, Lauson vs. Sherwood. 4 How., 246, 247, Clifton vs. The United States. 7 Md. Rep., 101, Union Bank vs. Kerr.

Robert J. Brent and Charles F. Mayer for the appellee, argued:

1st. The first exception is to the testimony of Lavender, so far as it details the declarations of the president, and the reason stated for the objection is that the declarations were not binding on the company without proof of special authority. We must therefore assume that the objection is to these declarations of the [**11]  president, or a person whom the proof tended to show was the president. 2 Greenlf. on Ev., sec. 518. 1 M. & Malk., 200, Barrett vs. Deere. It will be observed that the papers relating to the preliminary proof had been left with the president by Hammond, and that the company failed to account for their non-production even after service of notice to produce them. Every presumption, therefore, that can be drawn from the withholding of the papers under circumstances like these should be drawn as against the company. But the true question is, whether these declarations are not admissible for the purpose of the cause? If admissible for any purpose there is no error in the ruling of the court. The rule of law is, that the objector to evidence must confine his objection strictly to that which is illegal. If some of the declarations are admissible for any purpose and a part inadmissible, then the court did right in overruling a general objection to all of them. 3 Gill, 220, Budd vs. Brooke. Tested by this rule, there can be no difficulty in saying that so much of the declarations as referred to the report of the agent and the size of the room, and its consequent incapacity to hold the goods [**12]  claimed to have been lost, was clearly admissible, because it went to the merits of the claim, by enabling the plaintiff to show:--first, on what ground his claim was resisted, and, secondly, that the ground of defence was untenable in fact. This view of the evidence excepted to would of itself sustain the ruling of the court in the first exception.

But the declarations were admissible further:--first, as a tacit admission, that there was no objection taken to any defect in the preliminary proof furnished to the company in March 1849, through Hammond. If the company retained the proof, and on being interrogated afterwards as to their reason for not paying, objected on a ground going alone to the merits of the claim, it certainly was legitimate evidence tending to satisfy the jury that there was in fact no defect in the preliminary proof now withheld by the defendant. The notice to produce certainly entitled us to give secondary evidence of the contents of the proof furnished. If we could show that the president had expressly said that the proof in his possession was full and complete, we could certainly have offered that declaration after notice to produce and failure to gratify [**13]  it, and so we are entitled to prove any declaration tending to show a tacit acquiescence in the sufficiency of the preliminary proof. This much of the declaration was therefore evidence for the jury in considering the sufficiency of the preliminary proof thus withheld by the defendant. But, secondly, even in cases where the preliminary proof is adduced and shown to be clearly defective, the company, through its proper officer, may waive the objection and render it unnecessary to supply the defect. All the authorities show that the assignment of a ground of defence going to the merits, and the failure to rely upon objections to the preliminary proof, is a waiver of objection to such proof. This much is clear, but the weight of authority is in favor of the proposition, that the insurance company are bound, when receiving preliminary proof, to disclose the specific defect, that the party seeking indemnity for loss may at once supply the formal defect if in his power. This proposition seems to commend itself by considerations of equity and good faith, and by maintaining in full force the broad distinction between matters of form which may be supplied and the substance of the claim itself,  [**14]  and we maintain it as sound law upon the following authorities: Angell on Fire & Life Ins., secs. 242 to 248, and the cases there cited. 6 Cush., 342, Clark vs. New Eng. Ins. Co. 6 Cowen, 404, Francis vs. Ocean Ins. Co. 3 Comst., 122, O'Niel vs. Buffalo Ins. Co. 2 Do., 53, Bodle vs. Chenango Ins. Co. 1 Hoff. Ch. Rep., 172, McEvers vs. Lawrence. 7 Cowen, 462, Dawes vs. North River Ins. Co. 25 Wend., 383, McMasters vs. Westchester Ins. Co. 16 Do., 385, Etna Ins. Co. vs. Tyler. 2 Pet., 25, Columbian Ins. Co. vs. Lawrence. 10 Pet., 507, Columbian Ins. Co. vs. Lawrence. 9 How., 390, 403, Taylor vs. Merchants' Ins. Co. 6 H. & J., 408, Allegre vs. Md. Ins. Co. 5 G. & J., 159, Md. Ins. Co. vs. Bathurst.

The question of waiver is for the jury, 25 Wend., 381, McMasters, et al., vs. The Westchester Mutual Ins. Co., and therefore the evidence was properly admitted, as it, at least, tended to prove a waiver. But it may be said that there could be no waiver at the time of that conversation, because it was then too late to have supplied the defect if any had been pointed out. The Court of Appeals have an obiter dictum to that effect in 3 Gill, 186, Edwards vs. Balto. Ins. Co. But it will be [**15]  observed, that in that case the loss occurred in November 1839, and the alleged waiver was, by letter of the president, on the 3rd of March 1840, a period of four months, as applied to a case where all the parties, insurers and insured, resided in Baltimore, though the goods were burnt in the country at a considerable distance. In the present case the fire was on the 20th of March 1849, at Winchester, Virginia, where the plaintiff resided; the preliminary proof was delivered at defendant's office, in Philadelphia, a few days afterwards, and the alleged waiver was in the conversation occurring on the 4th of May 1849, that is one month and some fifteen days after the loss. Now it is expressly said in the same case, in 3 Gill, 187, 188, that the condition requiring notice to be "forthwith" given, signifies simply "due diligence under all the circumstances of the case," and that "is a question for the jury." And we refer on this point also to 9 Wend., 163, Cornell vs. Le Roy. In the case above cited, from 9 How., 403, the preliminary proof was not furnished until nine months after the loss, and yet a waiver at that time was held sufficient. It was not then too late for this plaintiff to [**16]  have supplied the defect in his preliminary proof if disclosed to him.

But it is said, that the declarations of the president to Lavender reserved any existing defect in the preliminary proof, by referring him to the policy for the proof necessary. To this we answer:--First, that as yet no specific defect has been shown by the company, but every presumption arises against them by the suppression of the papers. 4 How., 246, Clifton vs. The United States. Secondly, that the policy could not determine wherein the proof already furnished was defective, unless the defect should be pointed out or the proof returned to the plaintiff, that he might compare it more carefully with the terms of the policy. Lavender enquired what "further proof was necessary" The reference to the policy could not elucidate the enquiry, nor could the company retain the proof furnished and at the same time require proof de novo, because if such a demand had been assented to and full preliminary proof furnished as of the 4th of May 1849, it would enable the company to raise the question of tardiness in the proof. The plaintiff tendered himself ready to cure any defects in form, and is insultingly told to go [**17]  and prepare his papers over again, and this a month and-a-half after the proof, such as it was, had been furnished, and while the defendant perversely held the papers and superciliously refused to point out to the witness or to the court on the trial any defect whatever in the proof so promptly furnished. Thirdly, that it is manifest from the evidence of Lavender that the president had discovered no defect in the proof, as he declared there were several printed forms of policies in the office, and he did not even know which one to give to Mr. Lavender as applicable to the plaintiff's policy. It is therefore plain and palpable that the president was not at that time aware of any existing defect, and had discovered none, nor has he yet proved there was any defect of form. On the contrary, this company refuses to furnish the papers in their possession, and then say that the plaintiff must prove that these papers are not defective. The exception went on the ground of want of authority in the president, but, non constat, that if necessary we could not have afterwards shown the authority to make these declarations, the order of the proof being with the party offering it. But the authority [**18]  of the president must be presumed: we find that waiver of preliminary proof has always been allowed on the declarations of presidents of insurance companies. Angell on Ins., sec. 243. 6 Cush., 342, Clark vs. New Eng. Ins. Co. And in 3 Gill, 186, the court clearly imply that the president had authority to make the waiver if his letter had in law amounted to such a waiver.

2nd. The second exception brings up the 2nd, 3rd, 4th and 6th prayers, which were rejected. The second prayer was properly refused, because it assumes as its basis, first, that there is a total failure of evidence to show the furnishing of the preliminary proof, and, secondly, a total failure of evidence tending to show a waiver of such proof. If either ground assumed in the prayer is untenable, the court will not reverse the ruling of the court below. But we insist that both grounds taken are untenable, as shown by our observations and authorities cited on the first exception. We have shown that the question of waiver was for the jury, and it was therefore a vice in the third prayer to instruct the jury that it was no waiver. But the prayer was moreover vicious in requiring special proof of authority to the president,  [**19]  as also shown in our argument on the first exception. The fourth prayer is also erroneous, because it proceeds upon the ground that the refusal of the defendant to produce the papers furnished by the plaintiff was not a circumstance from which, with other proof in the cause, the jury could presume that the suppressed papers contained the preliminary proof. But the court will find that such non-production will, in special cases, give rise to a presumption in "odium spoliatoris," and the law will presume that the papers withheld would make out the case of the adversary. Now this is not the case of the non-production of the defendant's own papers or documents, but it is the case of papers left by the plaintiff with the defendant for its action. If the defendant refused to allow the claim, the plaintiff had, at least, an interest in having access to his own papers that he might prove on the trial their contents. It is rather like the case where there is but one instrument between the parties, and the production of which is necessary to the plaintiff's case, and where the court will on motion order the production of papers. 1 Greenlf. on Ev., sec. 559. But here the papers were left at defendant's [**20]  office in Philadelphia, and there was no power in the court to compel a foreign corporation to produce a document not in the jurisdiction. Surely this is sufficient, under all the circumstances, to raise the most unfavorable presumption against this corporation when refusing to produce papers in which the plaintiff has a common interest, if not exclusive property. It is not the case of a mere bailee of papers refusing to return them to the true owner upon notice, and it is not in principle the same as the celebrated case of the goldsmith, refusing to produce a precious stone bailed to him for a specific purpose. 1 Strange, 505, Armory vs. Delamirie. Suppose a corporation withholds a partnership book or document, and will not produce it on notice, will the court presume nothing against it, but require strict proof of its contents? And here is the case of an insurance company receiving the plaintiff's papers for examination and for its decision on the claim. It refuses to pay, withholds the papers on notice, and yet insists that if produced they would appear to be defective. Truly it would be strange if the law held out a premium to parties thus to defeat the ends of justice and the [**21]  attainment of the truth. In a case where the owners of the aggressive ship failed to produce a letter written to them by the master of the damaged ship, it was presumed that the letter contained an admission of the damage. 3 Greenlf. on Ev., sec. 408, and 1 Do., sec. 37, and especially 4 How., 246. The 6th prayer was equally defective if the above views expressed by us are correct, so far as we have considered the question of waiver.

3rd. The third exception is nothing more, as shown on its face, than an offer to rule out secondary evidence after a notice duly served to produce the primary, and after the secondary had been given to the jury without objection, and after the prayers had been framed on it by the defendant itself. It is therefore respectfully submitted, that the judgment must be affirmed.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and MASON, J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*13]  ECCLESTON, J., delivered the opinion of this court.
Whether there was error in refusing to grant the second prayer of the defendant, contained in the second bill of exceptions, we propose first to consider; and in doing so the plaintiff will be allowed the full benefit of all [**22]  the testimony of his witnesses, Hammond and Lavender. For which purpose the correctness of the decisions below, in regard to the first and third bills of exceptions, will be conceded, without, however, deciding whether they were correct or not.
The prayer alluded to asks the court to instruct the jury, "that there is no evidence in this cause that such preliminary proof of loss, as required by the 9th condition of policy, was furnished by said Evans before the institution of this suit, and that there is no evidence that such preliminary proof of loss was waived by defendant, and that the plaintiff is not entitled to recover in this suit."
The following is the language of the 9th condition of the policy: "Persons sustaining any loss or damage by fire, shall forthwith give notice thereof in writing to the company, secretary or agent. And as soon after as possible, they shall deliver as particular an account of their loss and damage as the nature of the case will admit, signed with their own hand. And they shall accompany the same with their oath or affirmation, declaring the said account to be true and just; showing also whether any and what other insurances have been made on the same [**23]  property; what was the whole value of the subject insured; in what general manner (as to trade, manufactory, merchandize or otherwise,) the building insured or containing the subject insured, and the several parts thereof were occupied, at the time of the loss, and who were the occupants of 

 [*14]  such building, and when and how the fire originated, as far as they know or believe. They shall also produce a certificate under the hand and seal of a magistrate or notary public most contiguous to the place of the fire, and not concerned in the loss, stating that he has examined the circumstances attending the fire, loss or damage alleged, and that he is acquainted with the character and circumstances of the insured claimants; and that he verily believes that he, she or they, have, by misfortune, and without fraud or evil practice, sustained loss and damage on the subject insured, to the amount which the magistrate or notary public shall certify. And until such proofs, declarations and certificates are produced, the loss shall not be payable."
In reference to the preliminary proof thus required, the plaintiff examined G. W. Hammond, who says: "It was, I think, on the 22nd of March [**24]  1849, two days after the fire, that I went to Baltimore. In compliance with the request of Mr. J. P. Riley, I called, on the 23rd, the day after my arrival, at the office of Mr. Lovegrove, agent for this company, to present certain papers and to arrange the settlement of the loss. I was informed by a person who I took for the clerk of Mr. Lovegrove, that he, Mr. Lovegrove, was in the country and would not be in until late in the evening. I left with the clerk for Mr. Lovegrove's inspection the papers sent by Mr. Riley, among which were a notice of the loss and a transfer of the policy to Mr. Riley. I accordingly called again on the following day and found Mr. Lovegrove in the office. I cannot now remember all that passed in conversation between Mr. Lovegrove and myself, but this I remember, that he declined taking any step in the matter, returned me the papers I had left for his inspection, and referred me to the office of the company in Philadelphia, giving as a reason for this that the company was about to close and discontinue the agency in Baltimore. I went to Philadelphia the following day, I think, and soon after my arrival I called at the office of this company, saw, I think,  [**25]  the president and secretary of the company, stated what had passed at the office of their agency in Baltimore, and presented the papers of Mr Riley. 

 [*15]  I was informed by the president that their board would meet on a certain day, and then the matter would receive proper attention, but until then nothing could be done. As this day would not arrive until after my departure, I requested him to report the action of the board to Mr. Riley, which he said he would do."
If this testimony is the only evidence on which the plaintiff can properly rely to show a compliance with the 9th condition of the policy, the defendant certainly had a right to ask the court to instruct the jury there was no evidence that such preliminary proof as the policy required had been furnished; for the witness, Hammond, in speaking of the papers which he took to the agent in Baltimore, and afterwards to the office of the company in Philadelphia, does not profess to give the contents, or to speak of the character, of any of them, except that he says, "among them were a notice of the loss and a transfer of the policy." Instead of making legitimate and reasonable inferences, a jury would be travelling in the [**26]  fields of conjecture and wild speculation were they to find upon such proof as this that not only the notice of the loss but the other requirements of the 9th condition had been complied with.
But in aid of the testimony of this witness the plaintiff relies upon that of Mr. Lavender. The conversation of the president of the company with this witness is supposed to be a tacit admission, that there was no objection taken to any defect in the preliminary proof furnished to the company, through the agency of Hammond. Let us see with what propriety such a supposition is entertained. The witness had called to know why the loss had not been paid, stating at the time if there was any deficiency in the proof he would try to supply it. The person, representing himself as president of the company, said they had sent an agent to Winchester, and from his information they did not believe there could have been so much stock in a little room 10 by 12 feet. The witness denied the correctness of the information given by the agent, and then enquired what further proof was wanted? The president replied "the policy will show that;" or "it is laid 

 [*16]  down in the policy." The witness asked for a [**27]  blank policy, but none was furnished, the president stating they had several forms of policy, and he did not know which one was used in this case. Thus it will be seen, that after speaking of the difference of opinion in regard to the size of the room and the quantity of goods it contained, Mr. Lavender wished to know what further proof was required, and he was answered, by being told the policy will show that, or it is laid down in the policy. The enquiry was not whether any further proof was required, but what further proof? and the answer being as already stated, to such a question, so far from being a tacit admission, that there was no objection taken to any defect in the preliminary proof, it was in truth just the reverse, and amounted to an assertion that further preliminary proof was necessary; for if none was required the policy could not possibly show what further proof was required; and if it could show that further preliminary proof was necessary, then the conversation was not a tacit admission of there being no objection to any deficiency in the proof.
The following notice to the defendant was served upon its attorney: "Take notice, that on the trial of the above cause [**28]  you are required and notified to produce the written notice of loss by fire, sent to you by the above plaintiff, and left with you in Philadelphia shortly after said fire, as also the account of the particulars of the plaintiff's loss by said fire, accompanied and verified by his affidavit, and the certificate of a magistrate or notary public, certifying his opinion of the amount of said loss by fire, and that the same was occasioned without fraud or evil practice, which said last two papers were also delivered to your company, shortly after said fire, and before this suit." Because the defendant neither produced the papers mentioned in this notice or gave any excuse or reason for not producing them, the plaintiff insists that such conduct on the part of the defendant, in connection with the other proof in the cause, authorized the jury to presume that the papers contained the necessary preliminary proof. But the position here assumed is not sustained by the authorities. In such a case as this the non-production of the papers has 

 [*17]  no other legal effect than to allow the opposite party to prove their contents. The refusal to produce does not authorise any inference against [**29]  the party refusing.  Cooper vs. Gibson, 3 Camp. Rep. 363. Lawson & another, Assignees of Shiffner, vs. Sherwood, 1 Stark. Rep.c 314, in 2 Eng. Com. Law. Rep. 405. 1 Greenlf. on Ev., secs. 37, 560. Evans' Pr., 293. Roscoe on Ev., 6.
The plaintiff's attorney, however, seems to consider his view of this question fully sustained by the case of Clifton vs. The United States, 4 How. Rep. 246. But the unfavorable inference there allowed against the party for not producing the papers was under very different circumstances from the present. There it was contended on the part of the United States, that the goods in question had been forfeited by the claimant in consequence of his having fraudulently imported them. And the court below, under the 71st section of the act of 1799, (as the Supreme Court say they had a right to do,) "had pronounced the proof sufficient to establish the offence, unless explained or rebutted by opposing evidence."
The counsel for the government, with a view of further strengthening their cause, and in pursuance of previous notice for that purpose, called upon the claimant for the production of his books [**30]  and papers having relation to the importation of the goods. But neither the books or papers were produced, or any account given for the non-production. And on page 246 it is said: "Probable cause for the prosecution having been thus sufficiently established, the claimant went into his defence, and instead of furnishing evidence of the prices actually paid by him to the houses abroad from whom the goods were purchased, as he might have done, either by executing a commission to take their testimony, or by persons concerned in making the purchases, or by the production of the books of account that had been called for, as the call afforded him an opportunity to put them in evidence, he placed the defence altogether upon the judgment and opinions of merchants and other persons acquainted with this description of goods, as to the value and cost of the article in the home market, tending 

 [*18]  thereby to confirm and support the correctness of the valuations as fixed in the invoices."
In the instructions given below it was stated: "That the claimant knew from whom he had bought the goods, and what was their actual cost, and yet had not produced the testimony, or accounted for its absence;  [**31]  that to withhold testimony which it was in the power of the party to produce, in order to rebut a charge against him, where it is not supplied by other equivalent testimony, might be as fatal as positive testimony in support or confirmation of the charge. And that if the claimant had withheld testimony of his accounts and transactions with these parties, (meaning the foreign houses from whom he had purchased the goods,) the jury were at liberty to presume that, if produced, they would have operated unfavorably to his case."
It is evident that the Supreme Court affirmed these instructions, because they were given at a stage of the case when probable cause for the prosecution had been established, and the onus of exonerating himself from the charge by proof was therefore cast on him. And a very serious charge it was, involving in its result not only the loss of considerable property, but loss of character also, being accused of violating the revenue laws of the country, by means of frauds and perjuries.
On page 247 the court use this strong language: "Under these circumstances the claimant was called upon by the strongest considerations, personal and legal, if innocent, to bring [**32]  to the support of his defence the very best evidence that was in his possession, or under his control. This evidence was certainly within his reach, and probably in his counting-room, namely, the proof of the actual cost of the goods at the place of exportation. He not only neglected to furnish it, and contented himself with the weaker evidence, but even refused to furnish it on the call of the government, leaving, therefore, the obvious presumption to be turned against him, that the highest and best evidence going to the reality and truth of the transaction would not be favorable to the defence."
Now in the case before us there was no obligation on the defendant to show any defect in the preliminary proof, until 

 [*19]  the plaintiff had first made out a prima facie case of compliance with the requirements of the policy on that subject, which we think has not been done. The decision, therefore, in Clifton vs. The United States, cannot with propriety be applied to the present question. In truth that decision only recognizes the principle, that when a party under an obligation to sustain his defence by proof, has in his possession important evidence on the subject and fails [**33]  to produce it, but attempts to establish his defence by evidence of inferior character, it authorises an inference that he does not furnish the best, because it would injure, instead of benefitting, his cause. And we see no reason for doubting the correctness of the position, already stated upon the authorities referred to, that the present failure to produce the papers under the notice only allowed the plaintiff the right to prove their contents.
After a careful consideration of all the circumstances, we are brought to the conclusion that the first proposition contained in the defendant's second prayer is right; and that the court ought to have instructed the jury there was no evidence in the cause that such preliminary proof as the 9th condition of the policy required, had been furnished by the plaintiff before the institution of the suit.
The prayer also contains the proposition, that there was no evidence that the preliminary proof of loss was waived by the defendant, which, in our opinion, is also correct.
The conversation between Mr. Lavender and the president is the proof which is relied upon to establish a waiver. But we suppose what has been said in reference to that conversation [**34]  is sufficient to show, that instead of considering it as any proof of an implied waiver, it is a negation of any such implication.
The counsel of the plaintiff, however, says the court were right in refusing the prayer, because, whether there was a waiver or not, was a question for the jury, and not for the court.
In Edwards vs. The Baltimore Fire Insurance Co., the plaintiff prayed the court to instruct the jury, "that if they believed the facts set out in the foregoing statement, the defendants 

 [*20]  have waived the adduction, by the plaintiff, of the preliminary proofs required by the conditions annexed to said policy of insurance, and that such waiver dispenses the plaintiff from now offering evidence of his having furnished the same." Which prayer the court refused, and the decision was affirmed.  3 Gill 185. Now if the doctrine contended for by the counsel for the present plaintiff is correct, with reference to the circumstances of this case, it is reasonable to presume the late Court of Appeals would have placed their affirmance of the decision just referred to, upon the ground that the prayer presented a question to the court, which was exclusively [**35]  for the consideration of the jury; but they give not the least intimation of their entertaining such an opinion. On the contrary the court enter into an argument to show that if the letter, supposed to create the waiver, could be so construed, it could be of no avail to the plaintiff, because at the date of the letter it was too late to supply any defect in the preliminary proof. And then, on page 187, they decide the letter not to be a waiver, without intimating a doubt of their authority to treat the question as one of law.
Where all the facts and circumstances relating to the subject are admitted, in our opinion a party has the right to ask the court to inform the jury whether the evidence is sufficient to establish a waiver. Here there is no conflict of testimony, the proof being all on one side; and the prayer is such that it necessarily concedes the truth of all the plaintiff's evidence, and all legitimate inferences which may be drawn from it. That such is the necessary concession of the prayer, may be seen by referring to M'Elderry vs. Flannagan, 1 H. & G. 308, where it is said: "Before the court could legally give the instruction prayed for by the appellee,  [**36]  they must admit the truth of the testimony offered by the appellants, and of the testimony given by the appellee, which may operate in the appellants' favor, and the existence of all material facts reasonably deducible therefrom, even though contradicted in every particular by the testimony on the part of the appellee." See also Cole vs. Hebb, 7 G. & J. 20, and Guy vs. Tams, 6 Gill 82.

 [*21]  In the absence of evidence to show that such preliminary proof as the policy made necessary had been furnished, and no waiver of that proof having been established, the plaintiff, of course, had no right of action, and therefore the second prayer should have been granted.
From the views already expressed it is evidently proper, in our opinion, that the decision below should be reversed, because the defendant's fourth and sixth prayers were refused.
Having thus settled the important questions involved in this controversy, we suppose it unnecessary to express any opinion in regard to the other matters referred to in the argument.
Judgment reversed and procedendo ordered. 

51 of 187 DOCUMENTS 

RICHARD B. DORSEY, Exc'r of WM. H. DORSEY, vs. ARABELLA DORSEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 Md. 31; 1856 Md. LEXIS 4 

JUNE, 1856, Decided 

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

In this case a petition was filed in the court below by the appellant, the widow of William H. Dorsey, deceased, to ascertain whether under the will of her husband, which was duly admitted to probate, she took the personal property thereby bequeathed absolutely, or only a life estate therein. This will was in the shape of a letter written by the testator to the appellant, his father and executor, and is set out in full in the opinion of this court.

It was asserted by the petition, and admitted in the answer of the executor, that he had delivered to her as her absolute property the furniture mentioned in the will. The petitioner then proved that this will, with the insurance policies mentioned in it and other private papers, was enclosed in a package and left by the testator with Keighler, his partner, the day before he left Baltimore, with his wife, for the west; that he so left Baltimore on the 7th of April 1854, on the business of his firm, the extent of his journey being to the western borders of Missouri; that he died on his return from this journey, in the city of New York, on the 1st of August 1854; that the Mr. Arthur [**2]  mentioned in the concluding clause of the will is the father-in-law of the testator, residing in Missouri, with whom also the appellee now resides, and that the testator's mother resides in Baltimore.

The petitioner further offered to prove by Keighler, that the probable value of the testator's claim against the firm of which he was a member is, and was at the execution of the will, $ 2000, (the executor in his answer claimed it was not less than $ 6000,) as a fact or circumstance to be taken into consideration by the court in construing the will, but the court excluded the testimony as inadmissible. The court then decided that the widow was entitled absolutely to the entire residue of the testator's personal estate, and passed the order set out in the opinion of this court, from which the executor appealed.  

DISPOSITION:
Order affirmed, with costs.  

HEADNOTES:

A testator bequeathed "all his property, both real and personal," with certain specified exceptions, "to his wife;" the furniture she was to dispose of as she saw fit, "and also all the rest of the property," and then in the concluding clause of the will added: "In case of the death of both myself and wife, all the property and effects before mentioned as belonging to my wife shall revert to my mother." The wife survived the testator. HELD, that under this will the wife took an absolute estate in the property bequeathed to her.  

COUNSEL:
Vernon Dorsey and Robert J. Brent for the appellant.

The first question in this case arises upon the will. The testator bequeathed all his property, real and personal, to his wife, with the exception of "$ 1250 to each of his sisters and his mother," and the sums necessary to pay certain specified debts. He then describes the property [**3]  belonging to him, and adds, "the furniture my wife may dispose of as she sees fit; and also all the rest of the property." If the will had gone no further the widow would clearly have the absolute estate, subject to the debts and legacies. But the material inquiry arises on the final clause: "In case of the death of both myself and wife, all the property and effects before mentioned, as belonging to my wife, shall revert to my mother after paying," &c. It seems to us that upon the whole context of this will the widow has but a life estate, with a power to dispose of the property either during her life or absolutely, but with a remainder in all to the testator's mother. We maintain this proposition upon the very analogous case of Smith vs. Bell, in 6 Pet., 75, decided by Chief Justice Marshall upon a similar will, in which all the authorities are reviewed by that most distinguished judge. The very fact that he gave his widow the jus disponendi illustrates our proposition, and demonstrates his own belief that he had not given her an absolute estate by the previous words under which she now claims. Again he says, that at the death of his wife "all the property before mentioned as belonging [**4]  to my wife shall revert to my mother." How could this reverter take place at the death of the widow unless he designed her to take but a life estate? The will then is clear and unequivocal upon its face, and the mother is the ultimate beneficiary of the whole property, subject to the debts and legacies.

But it is supposed our construction may be prevented by the introduction of the parol evidence stated in the record. In the first place we maintain, that no parol evidence can be received to alter or affect the clear and unmistakable intention of the testator as gathered from the whole context of the will. 5 H. & J., 155, Carroll vs. Norwood. 7 G. & J., 127, Negro Caesar vs. Chew. 5 Md. Rep., 305, Walston vs. White. 2 Jarman on Wills, 468. And, secondly, we maintain that the parol evidence, if admissible, in no way tends to alter or change the construction of the will or the meaning of the testator. The idea of the appellee seems to be, that as the testator left on a distant journey some two days after the date of his will and took his wife with him, he merely intended to give the property to his mother in case both he and his wife died on the journey. But there is nothing in the [**5]  parol evidence or on the face of the will so to limit its effect and operation. The mere fact, as proved, that he left for the west two days after the execution of the will and took his wife with him, does not show that at the date of the will he contemplated taking his journey or taking his wife with him. But even if he had on the face of the will recited that he made it in contemplation of that journey, the will could not be considered as conditional upon his dying during the journey, nor could its construction or effect in any way be affected by such a recital. 9 Pet., 174, Tarver vs. Tarver. Moreover this is admitted to be a testamentary paper, therefore the words "in case of my death," used at the commencement of the will, had reference to his death at any time. If this interpretation is given to these words at that place, it must also be given to them at the commencement of the last clause, where he uses precisely the same language, "in case of the death of both myself and wife." He uses the same words in both cases, and if in the first he did not intend to restrain the operation of the will to the contingency of his death at any particular time, so in the last, he did not intend [**6]  to restrain it to the contingency of the death of his wife at any particular time, but intended to convey the same meaning as if he had in the respective clauses used the words "after my death," and "after the death of both myself and wife." The will on its face shows that he contemplated that the "reverter" of all the property to his mother should take effect unconditionally, "after the death of himself and his wife," whenever those events occurred, and he places the order of their deaths in such a way as to show that he expected his widow to die after him. We see nothing in the parol evidence to change the plain and palpable construction of this will so as to deprive the mother of her estate in remainder. It certainly cannot be maintained that the delivery of the furniture to the widow as her absolute property can affect the rights of the remainderman, or that of the executor to retain and invest money belonging to the remainderman.

If we are right in these views, the court below erred in deciding that the widow was entitled to the payments of the money as her absolute property. Such payments, if ordered at all, ought to have been only on adequate security being given for the [**7]  benefit of the remainderman, as the life-tenant is proved to reside in Missouri. But we maintain, the order should be to invest the money and pay over the income or dividends only to the life-tenant. Act of 1798, ch. 101, sub-ch. 10, sec. 11. 1 Story's Eq., sec. 603. 2 Do., secs. 843 to 846. 6 G. & J., 196, Evans vs. Iglehart. 12 Do., 276, Clagett vs. Crawford. 5 Md. Rep., 235, Miller & Mayhew, vs. Williamson, et al.

William George Brown for the appellee, stated, that in the event of a reversal he wished the opinion of this court upon the admissibility of the testimony of Keighler, rejected by the court below, and to show its admissibility, as one of the facts and circumstances surrounding the testator at the date of the will proper to be considered by the court in placing a construction upon the language of the will, cited: 1 Greenlf. on Ev., sec. 287, note 3, and cases there cited, and Wigram on Extrinsic Evidence, 11 to 14. He then argued:

1st. That the main motive which governed the testator in framing the letter admitted to probate as his will, was to provide for the occurrence of death upon the particular journey, full of hazard, which his wife and himself were about [**8]  to take, and in the event of his death it was his intention to devise and bequeath to his wife absolutely the residue of his property, provided she survived him.

2nd. That if the language of a part of the will were capable of receiving two constructions, the court would place such a construction upon the ambiguous clause as to make it conform to the general intent, and to reconcile it with other provisions of the will which are free from ambiguity; but it is contended there is no ambiguity in the provisions of this will.

3rd. That the general intent will prevail in the construction of a will over a particular intent, if there should be any conflict between them. And as it is sufficiently apparent that the testator's chief and main intent was to secure, in proportion to his means, a competence to his wife, by leaving her all his property after payment of his debts and certain legacies to his mother and sisters, this intent should be gratified, and a construction should not be adopted by which his wife would receive only the interest of $ 3500 and what may come from the two firms for her life, not much more than the interest upon the sum which he had received from her father.  [**9]  

4th. That the intention of the testator is manifested by the clause, which, in case of his death, bequeaths to his wife all his property, both real and personal, with certain specified exceptions: and again, in the latter part of the same provision, declares that "the furniture my wife may dispose of as she sees fit, and also all the rest of the property." But it is contended by the appellant that this provision is controlled by the last clause of the will, and that thereby the estate of the wife is cut down to a life estate, with remainder absolutely to the testator's mother. The clause is: "In case of the death of both myself and wife, all the property and effects, before mentioned as belonging to my wife, shall revert to my mother." The difficulty arises from the fact that the testator has applied a term of contingency to the death of his wife, which is an event certain to take place, and to satisfy this term it is necessary to connect with her death some circumstance, in association with which it is contingent; that circumstance is naturally the time of its happening, and such time is necessarily the death of the testator. Hence it is an established rule, that where a bequest [**10]  is left A, and in case of his death to B, if A survive the testator he takes absolutely. The last clause of the will then, even standing by itself, should be construed to mean, that if the testator's wife died before him his mother should take the share left to her, but if the wife survived, then she is to take absolutely. But when this clause is taken in connection with the rest of the will all doubt ceases, and the wife surviving her husband becomes entitled to the residue absolutely, and not as a mere life estate. 5 G. & J., 101, Hill vs. Hill. 1 Roper on Legacies, 406. 2 Strange, 1261, Lowfield vs. Stoneham. 4 Ves., 161, Hinckley vs. Simmons. 5 Do., 806, King vs. Taylor. 6 Do., 557, Turner vs. Moor. 8 Do., 12, Cambridge vs. Rous. Ibid., 410, Webster vs. Hale. 18 Do., 291, Ommaney vs. Bevan. 1 Younge & Col., 492, Clarke vs. Lubbock. 2 Eq. Cases Ab., 344, Trotter vs. Williams. 11 G. & J., 328, Young vs. Robinson. 4 Barn. & Ald., 574, Wright vs. Stephens. 7 Simons, 40, Grigan vs. Baines. Such a remainder would be void. 1 Jarman on Wills, 665, note 1.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and MASON, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*37]  LE GRAND, C. J., delivered the [**11]  opinion of this court.
This is an appeal from an order of the orphans court of Baltimore city, passed the 6th day of October 1855, directing the appellant, as executor of the last will and testament of William H. Dorsey, deceased, to pay over to the appellee a certain sum of money which he has in hand, and also "hereafter from time to time pay in like manner over to said Arabella Dorsey, as her absolute property, the balances which he may hereafter have in hand belonging to the estate of said William H. Dorsey, after deducting proper charges, expenses, and any debts which may be due by said estate, if any there should be."
The questions involved in the case arise under the following letter of William H. Dorsey, which was admitted to probate as a testamentary paper:
"Balto., April 5th, 1854.

R. B. DORSEY, ESQ'R,
Dear Sir:--In case of my death, I desire you to act as my executor, and wind up my affairs according to the following directions:
All of my property, both real and personal, I bequeath to my wife, with the following exceptions, viz:--To my mother and each of my sisters I leave $ 1250 cash, to be invested for their benefit in some safe and productive stock;  [**12]  six hundred dollars to be applied to the payment of a note for $ 600 to Johnston & Bros., due August 12, and $ 110 to pay a note to G. D. Clarke, the jeweller, for a watch: these are all the debts I owe, except small accounts about town. My effects consist of an interest in the houses of Duval, Keighler and Dorsey, and Duval, Rogers & Co., of eight and-a-half per cent. of the profits of each house; the proceeds of two policies of insurance in the New York Mutual, for $ 7500 and $ 2500; the furniture of the room in Courtland street, and some 450 acres of land in Clay, Clinton and De Kalb, counties, Missouri.
The furniture my wife may dispose of as she sees fit, and also all the rest of the property. By the articles of co-partnership, 

 [*38]  upon the death of a partner, those who remain are bound to wind up the concern as speedily as possible.
In the case of the death of both myself and wife, all the property and effects before mentioned, as belonging to my wife, shall revert to my mother, after paying Mr. Arthur $ 4000, being the amount, principal and interest, I have received from him.
Yours, truly,
W. H. DORSEY."
On the part of the appellant it is insisted, that the property [**13]  given by this paper only conferred on the appellee a life estate, whilst on the part of the appellee, (and as was adjudged by the orphans court by the order appealed from,) it is held that the bequest was absolute without remainder over to any one.
In the view of the case which we have, it is unnecessary we should discuss the two other questions presented in the argument, namely, the right of the appellee to introduce parol evidence to show the circumstances attending and surrounding the testator; and the obligation devolving on the orphans court to invest in some safe and productive fund the interest bequeathed, provided the appellee only takes a life estate.
The case principally relied upon by the counsel for the appellant to support his theory of the case, is that of Smith vs. Bell, 6 Peters 68. It is a case, in some particulars, analagous to the one now under consideration. The clause in the will which gave rise to the controversy, and which was discussed and decided by the court, was in these words: "I give to my wife, Elizabeth Goodwin, all my personal estate whatsoever and wheresoever, and of what nature, kind and quality soever, after payment of my debts,  [**14]  legacies and funeral expenses, which personal estate I give and bequeath unto my said wife, Elizabeth Goodwin, to and for her own use and disposal absolutely; the remainder after her decease to be for the use of the said Jesse Goodwin."
There, as here, the question was, what kind of estate did the wife of the testator take? The first part of the clause gave her absolutely the property; but the difficulty of interpretation arose from the use of the words, "the remainder after her decease to be for the use of the said Jesse Goodwin." To 

 [*39]  reconcile these inconsistent members of a sentence, and, at the same time, to give efficacy to the intention of the testator, was the office of the court. This was accomplished by giving some meaning to every member of it. If Jesse Goodwin was to enjoy "the remainder after her decease," then the first part of the clause must be so construed as to limit the estate of the wife to that of her life. This Chief Justice Marshall considered to be the true meaning of the language employed by the testator, deducing the conclusion, in some degree, from the character of the relation in which the wife and son stood to him. He held it to be [**15]  natural and proper that the husband and parent should be anxious to give some evidence of his regard and solicitude, both for the wife and the son, and, availing himself of the force of this natural instinct of the human mind, he felt authorised so to interpret the language of the doubtful clause as to give every part of it some meaning, and to the whole that meaning which common sense would impute to the action of a rational being. This is, in substance, the decision of the case; and one, as Judge Marshall conclusively shows, fully justified by those previously had. We adopt the principles of that case and apply them to the one in hand.
The first member of the second paragraph of the paper is in these words: "All my property, both real and personal, I bequeath to my wife, with the following exceptions," &c., and clearly gives the wife an absolute estate. About this there cannot be a doubt; but, if a doubt were possible, the first member of the third paragraph would remove it. In it he says: "The furniture my wife may dispose of as she sees fit, and also all the rest of the property." These portions of the paper, taken together, make the meaning of the testator too obvious for [**16]  mistake. But, it is said, their apparent meaning is controlled by the following, which is the concluding part of the paper: "In case of the death of both myself and wife, all the property and effects before mentioned, as belonging to my wife, shall revert to my mother, after paying Mr. Arthur $ 4000, being the amount, principal and interest, I have received from him."

 [*40]  Now the question is, what is the meaning, as here used, of the words, "In case of the death of both myself and wife?"
A few passages from Roper on Legacies will satisfactorily dispose of the inquiry.
At page 406 of the 1st Vol., it is said: "That wherever a testator has defectively expressed the event upon which a legacy shall go over, yet, if his meaning can be discovered from a reasonable construction of the whole will, the court will effectuate the intention when it is practicable." As to the event to divest a legacy when thus described, "in case of the death of the legatee," without annexing to those terms his dying within any particular period, the same author, at the page above given, remarks: "The words in which such a bequest over is expressed, neither have nor by construction [**17]  have they received a precise and definite meaning, in which they must be uniformly understood. The expression itself is incorrect, as it applies words of contingency to an event which is certain. No person can with propriety speak of death as a contingent event, which may or may not happen. When therefore a testator so expresses himself, the question is, what he means by that inaccurate expression. He may perhaps have had some contingency in his mind; as that the legatee was dead at the time he was making the will, or might die before the testator, or before the legacy should be payable, and then the inaccuracy consists in not specifying the period to which the death was to be referred. He might have meant to speak generally of the death whenever it might happen, and then the contingent or conditional words must be rejected, and words of absolute signification must be introduced; and, accordingly, in every instance in which these words have been used, courts have endeavored to collect from the nature and circumstances of the bequest, or the context of the will, in which sense it is most likely this doubtful and ambiguous expression was employed." On page 407, the author, sustained [**18]  by the numerous authorities which he cites, thus applies the rule: "It is," says he, "a settled rule upon this subject, that if a legacy be given to A generally, "and in case of his death" to B, those expressions, unexplained by the 

 [*41]  context of the will, are to be confined to the event of death happening during the life of the testator; so that, if the legatee survive him, the legacy will immediately vest, discharged of the executory bequest to B; and parol evidence that the testator used the words in a different sense cannot be admitted."
The clause relied upon by the appellant falls directly within the principle quoted and illustrated in the above citation from Roper. Besides, which, we are of the opinion that the whole character of the paper shows it was the intention of the testator to give an absolute estate to his wife if she survived him, and only to confer an estate on his mother, in the event of his wife not surviving him.
Order affirmed, with costs. 

52 of 187 DOCUMENTS 

JOHN J. HECKART and ROB'T R. VANDIVER, vs. LEMUEL ROBERTS, Lottery Commissioner.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 Md. 41; 1856 Md. LEXIS 5 

JUNE, 1856, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court for Baltimore city.

This was a petition by the appellants for a mandamus, to compel the State lottery commissioner to pay to each of the petitioners $ 425.01, the balance alleged to be due upon a lottery grant, and decreed to be paid to them by decree of Baltimore county court, as a court of equity, the decree giving one-fourth of the sum ordered to be paid, to each of the petitioners. The court (LEE, J.) refused the application, and the petitioners appealed.

The argument of the case before LE GRAND, C. J., ECCLESTON and TUCK, J., was stopped by the court, who affirmed the order appealed from.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Two parties having separate claims against a State officer cannot unite in an application for a mandamus to compel payment.  

JUDGES:
LE GRAND, C. J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*42]  LE GRAND, C. J., delivered the opinion of this court.
The decision appealed from in this case must be affirmed, if, for no other reason, than that too many persons have joined in the application for the writ. Their claims are alleged to be separate, and being such they cannot be united.  Smith, et al., vs. Erb, et al., 4 Gill, 437.
Judgment affirmed. 

53 of 187 DOCUMENTS 

JAMES OWINGS vs. JACOB JONES, by his next friend, MARY JONES.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 Md. 108; 1856 Md. LEXIS 12 

JUNE, 1856, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

This was an action on the case, brought by the appellee against the appellant, to recover damages for injuries received by falling into a vault, appurtenant to the property of the defendant and built under the foot pavement of Bank Lane, a public street in the city of Baltimore. The plaintiff was a free colored boy, from fourteen to sixteen years of age, and sued by his mother as next friend. The pleadings are sufficiently stated in the opinion of this court.

Exception. The facts proved in the case are fully stated in the opinion of this court. The defendant asked the following instructions to the jury:

1st. If they find from the evidence that the sewer connected with defendant's property was well and securely covered before the accident complained of, and that at the time of the accident defendant was not in possession of the property, then the plaintiff is not entitled to recover, even if the jury should find that defendant had not obtained the permission of the city commissioners and approval of the mayor previous to the construction of the sewer.

2nd. That if they find that at the time of the injury complained [**2]  of defendant was not in possession of the property, having previously rented the same to Peters, as set out in the agreement of renting offered in evidence, and that Peters was in possession, then the plaintiff is not entitled to recover.

The court, (FRICK, J.,) refused these prayers, and instructed the jury, that if they find from the evidence that the sink in question was erected under the foot pavement, in violation of the ordinances of the city council, that is, without permission from the city commissioners, with approval of the mayor, and was constructed and covered in such manner as to be unsafe for passers by in its ordinary condition, or that it was, from its construction, liable to be rendered unsafe in the necessary opening of it for the purpose of cleaning it, then they are at liberty to consider the same a nuisance erected by the defendant, for the continuance of which he is responsible, provided he rented or received rent for the premises; and provided, if they find as above, they also find the plaintiff sustained the injury as given in evidence by reason of such nuisance.

To the refusal to grant his prayers, and to the instruction of the court, the defendant [**3]  excepted. The verdict and judgment were in favor of the plaintiff for $ 1300 damages, and the defendant appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

Where no question in regard to the pleadings was presented to the court below, no such question can be considered by this court.

The doing of an unlawful act subjects the doer to every consequence which flows from it.

Where property is demised, and at the time of the demise is not a nuisance, and becomes so only by the act of the tenant while in his possession, and injury happen during such possession, the owner is not liable.

But where the owner leases premises which are a nuisance, or must in the nature of things become so by their user, and receives rent, then, whether in or out of possession, he is liable for injuries resulting from such nuisance.

Where a party sues for such injury, it is essential to his right to recover that he should prove that he could not have avoided the injury by the exercise of reasonable caution and care.  

COUNSEL:
John Nelson and David Stewart for the appellant, objected that the plaintiff does not count upon a nuisance from which the damage resulted, but upon the personal negligence of the defendant; that as long as it may be true in point of law that the allegata and probata must agree, so long will it be maintained that an action for negligence cannot be sustained by proof of a nuisance upon property not in possession of the defendant; that the declaration filed in the case assumes the averment of possession to be indispensable to a recovery, for the first count rests upon possession merely as a basis, while the second combines ownership and possession as the foundation for recovery. They then argued that the court below erred in rejecting each of the prayers offered by the defendant, as well as in the instruction given to the jury.

1st Prayer. This prayer affirms that if the jury should find, (of which there was clear evidence,) that the vault was well and securely covered before the accident complained of, it was no nuisance,  [**4]  notwithstanding the omission of the defendant in constructing it to comply with the provisions of the ordinances of the city, and that not being in possession of the premises when the accident occurred, however negligent may have been the conduct of those who were in possession, he, as landlord, was not liable in this action. This proposition is sustained by the following authorities: 4 Taunt., 649, Leslie vs. Pounds. 2 H. Bl., 349, Payne vs. Rogers. 56 Eng. C. L. Rep., 782, Rich vs. Basterfield. 4 Term Rep., 318, Cheetham vs. Hampson.

2nd Prayer. This prayer, without reference to the character of the structure, asserts the non-liability of the defendant, because he was not in possession of the premises when the accident complained of occurred. In support of this proposition we cite 3 Camp., 398, Coupland vs. Hardingham. 19 Eng. C. L. Rep., 375, Daniels vs. Potter. 3 Stephen's N. P., 2366.

3rd. That the instruction of the court was erroneous:--1st, because there was no evidence upon which the jury could have been justified in finding "that the sink in question was erected under the foot pavement in violation of the ordinances of the city council," inasmuch as there was no [**5]  evidence that Bank Lane is a public street, to which only the ordinance applies. 2nd, because there is no such evidence of the sewer "being constructed and covered in such manner as to be unsafe for passers by in its ordinary condition, or that it was, from its construction, liable to be rendered unsafe in the necessary opening of it for the purpose of cleaning it." 3rd, because it does not put to the jury the material and indispensable inquiry, whether the plaintiff used reasonable and ordinary care to avoid the injury complained of. The case of Irwin vs. Sprigg, 6 Gill, 200, is conclusive on this point. See also 2 Pick., 621, Smith vs. Smith. 11 East, 60, Butterfield vs. Forrester. 19 Eng. C. L. Rep., 411, Proctor vs. Harris. The proof on this question being that the accident occurred in the day time, in a lane with which the plaintiff was perfectly familiar, and where an accident could not well have occurred without negligence on his part, it was for the jury to decide whether he used ordinary care. Now the effect of the instruction was, that whether there was or was not such reasonable care on the part of the plaintiff, the other facts being found by the jury, the plaintiff was [**6]  entitled to recover, which is clearly erroneous. To show that the burthen of proof on this point was on the plaintiff, we refer to 12 Pick., 177, Lane vs. Crombie, and 6 Cowen, 191, Harlow vs. Humiston. And as to the difference in cases of accident by day and by night as to the rule of ordinary care, we refer to 2 Eng. C. L. Rep., 350, Weld vs. The Gas Light Co.

J. N. Steele, S. H. Tagart and James Malcolm for the appellee, said that the objection based upon the pleadings in the case is not tenable, because no question was made in reference to the pleadings in the court below, and therefore under the settled law of this court no such question can be raised here. They then argued:

1st. That the first prayer of the defendant was properly rejected:--1st, because it does not submit to the jury the question, whether the sewer was so covered that the ordinary and necessary cleansing of it could be accomplished without rendering it unsafe. 28 Eng. C. L. Rep., 220, King vs. Pedley. 23 Do., 52, King vs. Moore. 4 Denio, 311, 317, Fish vs. Dodge. 2nd, because the construction by the appellant of a sewer, with its mouth opening into the foot pavement of a public street, in violation [**7]  of the ordinances of the city, was an illegal act, for which he was responsible in damages to any person who might be specially injured thereby while in the customary and legal use of the street. 6 Gill, 200, Irwin vs. Sprigg. 31 Eng. C. L. Rep., 92, King vs. Ward. 9 Do., 407, Greasly vs. Codling. 3rd, because the mode in which the sewer was covered, which under this prayer was to shield the defendant from responsibility, if, in the opinion of the jury, the sewer was well and securely covered, was itself illegal and in violation of the express provisions of the city ordinances on the subject, and was therefore in itself a ground for the liability of the appellant for any special damage resulting from it.

2nd. That a sewer constructed under a public street with its mouth in the foot pavement thereof, and without the permission of the city commissioners and the approval of the mayor, and so covered as to be unsafe to passers by, or liable to be rendered unsafe in the proper and ordinary opening of it for the purpose of cleaning it, is a nuisance, and he who lets premises with such nuisance upon or connected with them, is liable for the continuance of the same to any person who may [**8]  be specially injured thereby. 5 Coke's Rep., 101, Penruddock's case. Cro. Jac., 555, Brent vs. Haddon. 2 Salk., 460, Rosewell vs. Prior. 4 Term Rep., 320, Cheetham vs. Hampson. 7 Mees. & Wels., 455, Thompson vs. Gibson. 77 Eng. C. L. Rep., 133, Alston vs. Grant. 10 Mass., 74, Staple vs. Spring. 6 Gill, 425, Smith vs. State. 3 Denio, 306, Waggoner vs. Jermaine, and the cases cited under the first point.

3rd. That none of the objections urged against the instruction given by the court are valid. The first is answered by ordinance of 1846, No. 25, in force when the sewer was constructed, and which provides the mode in which vaults shall be covered "on the footways in the several streets, lanes or alleys of the city." As to the second, we say there was sufficient evidence for the jury to decide whether the sewer was constructed and covered in such a manner as to be unsafe for passers by in its ordinary condition, or that it was, from its construction, liable to be rendered unsafe in the necessary opening of it for the purpose of cleaning it. In reference to the third objection, it will be observed, that it was not urged in the court below, and is now raised for the [**9]  first time. But the evidence shows there was no ground for such a defence. The proof is that the sink was in the foot-pavement very near to the door of Dr. Davis' carriage-house, and that it was necessary for the plaintiff to pass and repass over the mouth of the sewer. It was left the night before the accident with a broken and insecure covering upon it, and the plaintiff was found the next day in it crying for help, with his leg broken by the fall, and no evidence was offered by the defence of any want of care or caution on his part. It is submitted that this evidence made out a prima facie case for the plaintiff, and that there was nothing in it from which a rational mind could come to the conclusion that the accident was caused by want of care on his part. But the objection assumes, that the jury were directed that upon finding certain facts the plaintiff was entitled to recover. This is not so. It only tells the jury that upon certain facts they are at liberty to find the sewer a nuisance, for the continuance of which the defendant was responsible if the plaintiff was injured by it. Given in this form, it did not shut out the defence before the jury, that the accident was caused [**10]  by the plaintiff's want of care. It did not pass upon that point, and the counsel for defendant were at liberty to ask for an instruction upon it, or to argue it before the jury without an instruction. Further, the closing words of the instruction are, that the jury must find that the plaintiff sustained the injury "by reason of the nuisance." The plaintiff was bound by the instruction to prove that he sustained the injury, by reason of the nuisance, and, consequently, not by his own want of care or caution.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and MASON, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*114]  LE GRAND, C. J., delivered the opinion of this court.
This is an appeal from the Superior Court of Baltimore city.
The action was brought in the court below, to recover damages for an injury alleged to have been sustained by the plaintiff from falling into a hole or vault opened under the pavement on a public street in the city of Baltimore, appurtenant to a lot fronting on said street, belonging to the appellant.
The declaration contained two counts, the first of which alleged, that the defendant (appellant) being possessed of a certain messuage, &c., "wrongfully and  [**11]   unjustly made and opened a certain hole leading to the vault and sink, under the said street, belonging to the same messuage and premises, and unjustly and wrongfully placed and kept a weak and insufficient covering upon the hole leading to the said vault and sink, by means and consequence of which said wrongful, unjust and negligent, and improper conduct of the said defendant," the said plaintiff "necessarily and unavoidably slipt and fell into said vault," &c.
The second count alleged, that the defendant being "the owner and possessor" of the messuage referred to, situate on the public street therein described, and upon which there was "a certain hole opening into a certain vault or sink under said street, which the owner and possessor, and in the possession, 

 [*115]  occupation, use and enjoyment of the said messuage, "opened or caused to be opened, and negligently closed the said vault or sink and the said hole," by means whereof, &c., the plaintiff "necessarily slipt and fell into the said vault," &c.
The defendant below plead not guilty, upon which the issue was joined.
At the trial the plaintiff offered evidence by the witness [**12]  Sprague, that defendant was the owner of the messuage described in the declaration; that he first knew the property in 1850, when he rented a room in the house from William C. Peters. And by Amos, another witness, that he was one of the hands who cleaned the sewer in question with three other hands; that after cleaning it, in putting back the stone covering its mouth, said stone broke in half, although they were careful in letting it down; and by Andrews, that he had hold of the stone, and when letting it down he let go of it to avoid mashing his fingers, and it then broke. That when taking it up it was so firm that four men had to raise it with picks. It was about 2 1/3 inches thick and 2 1/2 feet square. A plank was put over it, but not more than a foot wide. That the stone had not then fallen in; that witness went back in the afternoon, when there was neither plank nor stone over the sewer, and that a new stone was brought about two hours afterwards. This was in August 1852.
The plaintiff further offered in evidence by Lindley Ellicott, that on the evening of some day in August 1852, hearing screams from Bank Lane, he proceeded to this sink, in which he found the plaintiff,  [**13]  who was withdrawn therefrom with ropes, and that there was no plank over the hole. That this occurred between five and seven o'clock in the evening.
He likewise offered evidence by said witness, that the plaintiff at this time was in the employment of Dr. Davis, who resided on St. Paul's street, whose carriage-house door was very near to this sewer, which was on Bank Lane, and it was necessary for the plaintiff to pass and repass over the vault of the sewer, and that the pavement under which it was opened was very narrow.
He then offered evidence by Drs. Smith and Jenkins of the nature and extent of the injury inflicted upon him.

 [*116]  The defendant, in the progress of the cause, offered in evidence the agreement of lease between himself and W. C. Peters, by which it appeared the property was leased for the term of seven years, Peters agreeing to pay therefor a certain annual rent; but in no manner stipulating to keep the demised premises in repair, nor to cause to have kept cleaned the sink. He also proved that possession of the property was taken by Peters between the months of January and April 1850.
The plaintiff gave in evidence the ordinances of the mayor and city [**14]  council of Baltimore, No. 49 of 1838, and No. 16 of 1850, and having proved the vault was made in 1849, rested his case.
On this state of proof the defendant submitted to the court two prayers, both of which were rejected, and in lieu of them an instruction was given by the court of its own motion.
Before proceeding to notice the objections urged to the action of the court in regard to the instructions asked and given, we will notice one founded on the pleadings. It is said on behalf of the defendant, that the counts in the declaration relate to the alleged negligence of the defendant, and not to an injury arising from a nuisance, and therefore, under the proof in this cause, there could be no recovery. In reply to this objection, it is but necessary to say, there is no question in regard to the pleadings presented to us by the record. In the cases of Leopard vs. Ches. & Ohio Canal Company, 1 Gill 222; Stockton vs. Frey, 4 Gill 406; Brooke vs. Waring, 7 Gill, 5, and in the case of Dorsey vs. Dashiell, 1 Md. 198, it is distinctly laid down, that where no question in regard to the pleadings [**15]  was presented to the court below, none can be considered by this court. In the case now before us neither the prayers of the defendant, nor the instruction given by the court, make any allusion to the pleadings, and, consequently, under the decisions to which we have referred, they cannot now be considered.
The ordinances of the mayor and city council of Baltimore, already referred to, specify the manner in which vaults shall be constructed, and that permission to construct them shall be first obtained from the municipal authorities.

 [*117]  It was not pretended at the trial below, nor has it been before us, that there had been a compliance with the requisitions of the ordinances; but, it is contended, as it was in the Superior Court, that this circumstance cannot, in anywise, affect the defendant in this proceeding. We think otherwise. The doing of an unlawful act subjects the doer to every consequence which flows from it. This is a principle of universal operation, and founded in good sense and public justice. He stands in a different light from one who does a legal act but does it so imperfectly that it may occasion injury. In the one case there is a positive and reckless [**16]  contempt and defiance of the commands of the law, whilst, in the other, a mere carelessness, which, however culpable, is free from the charge of wilfulness.
The first prayer of the defendant is based on the idea, that if the jury should find from the evidence the sewer was constructed well and securely before the accident, and that the property at the time of the accident was in the possession of another than the defendant, then there can be no recovery in this case. The second proceeds on the hypothesis, that if the jury shall find the defendant had previously to the accident leased the premises, and at the time of the occurrence it was actually in the possession of another, then the defence is complete, notwithstanding all other circumstances in the cause.
A careful examination of the authorities satisfies us there is no foundation for either of the prayers. We have consulted them in the original reports, but inasmuch as they are very clearly brought together and discussed, both by court and counsel, in the case of Rich vs. Basterfield, 4 Manning, Granger & Scott, (56 Eng. Com. Law Rep., 784,) we will content ourselves with a reference to that case.  [**17]  
After a full review of all the cases, and that too after a second argument, we understand the court to deduce, at least, the two following principles from the numerous adjudications to which reference is had:--First. That where property is demised, and at the time of the demise it is not a nuisance, and becomes so only by the act of the tenant while in his possession, and injury happen during such possession, the owner 

 [*118]  is not liable; but, Second. That where the owner leases premises which are a nuisance, or must in the nature of things become so by their user, and receives rent, then, whether in or out of possession, he is liable.
We are of opinion, however, that the instruction of the court, actually given to the jury, was defective, in not requiring the jury to find that the plaintiff could not have avoided the accident by the exercise of reasonable caution and care. This is essential to the right of recovery of the plaintiff.  Irwin vs. Sprigg, 6 Gill, 200.
Judgment reversed and procedendo awarded. 

54 of 187 DOCUMENTS 

GEORGE R. GAITHER vs. JOSEPH MYRICK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 Md. 118; 1856 Md. LEXIS 13 

JUNE, 1856, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

Assumpsit, by the appellant against the appellee, to recover damages for losses on the sale of flour shipped by the plaintiff on board the ship "Seaman," on a voyage from Baltimore to Valparaiso and a market, alleged to have been occasioned through the negligence and misconduct of the defendant, who was part owner and master of the ship, and consignee of the flour. Plea, non assumpsit, with an agreement to waive all errors in pleading, and that either party might give in evidence any matter which would be admissible under any state of pleadings, and that the plaintiff should file a brief statement of the grounds of his claim. This statement sets forth that the plaintiff was owner of two hundred barrels, parcel of a lot of flour, shipped through his agents, Wysham & Sons, in April 1849, on board the above named ship for Valparaiso and a market. The grounds of claim against the defendant are:

1st. As part owner and master of the vessel: for neglect and want of care of the flour during the continuance of the contract of affreightment.

2nd. As part owner and master: for improper delivery of the flour on the mole at Lima, and [**2]  for want of care and attention for its protection, afterwards, from injury, it being left, as alleged, on the mole, exposed to the action of the sun and of the spray of the sea washing against the mole.

3rd. As consignee of the flour: in various respects:--1st, for receipt as consignee of the flour at an improper place; 2nd, for want of care after its receipt; 3rd, for neglect of due and becoming efforts to sell it at the earliest practicable period and for the best attainable price; 4th, for remissness in not enforcing compliance by the purchaser with a sale of the flour at $ 8 per barrel; 5th, for leaving the flour at Lima, or some other place, unsold when he left that country; 6th, for placing the flour, without authority, and in violation of his duty and undertaking as consignee, in the hands of some other person; 7th, for omitting to invest the proceeds, as instructed, in a return cargo.

Exception. The proof, so far as necessary to be stated, is briefly as follows: The ship "Seaman" cleared at Baltimore the latter part of April 1849, for the west coast of South America, Callao being the port named as her destination. Part of her cargo was flour of various brands. The [**3]  defendant was master, consignee of the entire cargo, part owner, and interested in a shipment of four hundred barrels of flour of the "Harper's Ferry" brand, shipped by the owners. There were also two hundred barrels of flour, shipped through Wysham & Son, of the "Oakland" brand, which belonged to the plaintiff. The plaintiff's flour was proved to have been, when shipped, good and sweet, of a superfine quality, which brought an extra price in the Baltimore market, perfectly fresh, and carefully put up in barrels well made out of seasoned timber. The bill of lading described this flour of the plaintiff as shipped for "Valparaiso and a market," to be there delivered to "Capt. Myrick, or assigns," &c. The letter of instructions from the shippers to Capt. Myrick, dated "Baltimore, 20th of April 1849," directed him to sell the plaintiff's flour to the best advantage. In regard to returns he was to exercise his own judgment, to do that which he thought most advantageous for them. Again this letter says: "In regard to returns you must be governed by circumstances;--it is possible you may sell your vessel, and unless you feel certain that something can be made by investing the proceeds in [**4]  something to pay a profit here, it would perhaps be advisable to bring or send home the money."

The voyage out was of medium length. When the ship arrived at Valparaiso the captain received a letter from a Mr. Dartnell, a commission merchant, residing in Lima, dated "Lima, July 13th, 1849," and directed to Capt. Myrick, at Valparaiso, in which the writer acknowledges the receipt of a letter from Capt. Myrick, of the "23rd of April," and says that good flour should bring at Lima $ 10 or $ 10 1/2 per barrel, also that "the Seaman may probably find a buyer at about $ 12,000 or $ 13,000."

It was then proved that the captain sold at Arica one hundred and fifty barrels of flour, at $ 9 1/4 per barrel, and delivered the same out of the "Harper's Ferry" brand, and Wysham, a passenger on board the vessel, and a witness for the plaintiff, swears, that, in order to get at this "Harper's Ferry" brand, the captain removed out of the way the other flour shipped by Wysham & Son, whilst the second mate of the vessel, a witness for the defendant, says, that the flour discharged at Arica was from the top of the ship, and that the "Harper's Ferry" brand was stowed on top of the others. This [**5]  was all the flour sold at Arica, but Wysham proves that the captain told him he could have sold the whole of the flour on board, at an average price, a little less than $ 9 1/4 per barrel, but that he did not sell it, because he expected a better price at Lima, his advices being that he could get for it there from $ 10 to $ 10 1/2 per barrel.

The ship then proceeded to Callao, where she arrived on the 5th of October 1849. As to the condition of the flour at this time on board, Wysham says: "the flour on board the vessel on its arrival at Callao was sweet, and that he tried some of every brand." The second mate, on the other hand, says, that the day after the arrival at Callao sample barrels of each brand were sent ashore, and shortly after news came that the flour in them was sour, and shortly after this orders came from the captain to deliver the whole cargo on the mole; that witness then got the flour up from the hold and examined every barrel on board the vessel, by taking the plugs out and tasting and smelling the flour, and that he found it was all sour; that he then reported its condition to the chief mate, who examined it with the steward, and both pronounced it sour; that [**6]  it had a very sour taste, the smell was musty, bad, sour and very disagreeable, that when a barrel was opened the smell was very offensive.

In regard to the delivery of the flour on the mole, Wysham proves, that between the day of the arrival, (5th of October,) and the 13th of October, the captain sold the vessel for $ 10,500 on a contract, which obliged him to deliver her within ten days thereafter, and that he afterwards caused all the flour to be landed on the mole, at a time when the castle and warehouses were completely filled with storage, and that the flour was suffered to remain there on the mole for six or eight days exposed to the sun and light. Dartnell, on the other hand, says the flour was put into warehouses immediately after it commenced being landed day by day, and was not allowed to remain on the mole. As to the effect of such exposure upon the flour, two witnesses for the defendant, who had frequently been to the Pacific and carried flour to that market, say that, in their opinion, the exposure of the flour on the mole at Callao for six or eight days would not have any injurious effect upon it, and that it would be better so exposed than if kept in the hold of [**7]  the vessel. Wysham, on the contrary, says, that from his knowledge of flour, such exposure did it injury, and that, in his opinion, such exposure, even for twenty-four hours, would cause flour to become sour; and Krebs, another witness for the plaintiff, who had been engaged in the business of selling flour, says that exposure to light and heat, or either, is very injurious, and that all flour warehouses are darkened, and that exposure to heat and light for six or eight days would cause it to turn sour.

As to the sale of the flour, the plaintiff offered in evidence a letter from Capt. Myrick to Wysham & Son, dated "Lima, October 13th, 1849," in which he says he had sold their flour at $ 8 per barrel, a price much less than he anticipated, but occasioned by the market being overstocked. This letter also states, that "all the different brands kept perfectly sweet, and appears as fresh as when shipped at Baltimore." Dartnell, a witness for the defendant, proves, that all the flour in the cargo was sold, some ten or fifteen days after the vessel's arrival, by him, as local consignee, at the request of Capt. Myrick, at $ 8 per barrel, on condition of being sound and merchantable, as [**8]  represented to the purchasers; that sample barrels were delivered on the day of sale to the purchasers, who, within twenty-four hours thereafter, threw up the purchase, because the bread made from these barrels was not sound; that the quality of the flour was then examined by the seller, in company with competent and impartial persons, and was found to be sour, thus rendering it impossible to compel the purchasers to receive it; that had the purchase been brought before the tribunal of commerce, which would have caused an official examination, the laws of the country would have condemned the flour to be thrown into the sea, as had been frequently practiced there; that after the purchase was thus abandoned attempts were made to sell the flour, and some few sales were made before Capt. Myrick left Lima, and before its bad character became known; that upon consultation with, and at the request of, Capt. Myrick, witness shipped one hundred and fifty barrels of this flour, (one-half being the plaintiff's flour and the other half that shipped by the owners,) to Paita, where it was placed at $ 10 per barrel, but being found unsound, it was afterwards sold by the consignees there at $ 4 per [**9]  barrel; and that Capt. Myrick left Lima about the 12th of December 1849, having staid until that date endeavoring to effect sales of the flour. It was also proved that it was the usage and custom, and that the laws of Peru required it to be done, for all supercargoes or consignees to employ a local consignee to effect sales of cargoes, and that all mercantile transactions there were conducted in the Spanish language.

The account of sales were then offered in evidence by the defendant, showing that all the flour was not sold until the 12th of June 1850. In these accounts various charges, including those for the landing, reshipment, and freight of the flour sent to Paita, were deducted from the gross sales, and the result was an almost entire loss of his flour to the plaintiff. It was also proved by another witness, that he, (witness,) was out in the Seaman in 1848 with Capt. Myrick, then acting as captain, and that they had a consignment of flour on board, and that the same proved sour and the shipment resulted badly. It was also proved that Baltimore flour, when carried to Callao, is very liable to become sour and unmerchantable.

The plaintiff then asked instructions, in [**10]  substance as follows:

1st. If the jury find from the evidence that defendant was part owner of the "Seaman" when she sailed from Baltimore, in April 1849, and so continued until the vessel was sold by him at Callao; that such sale was there made as stated by the witness Wysham; that the plaintiff's flour could have been sold by defendant at a fair and reasonable price, if he had made proper efforts to sell it, at some one or more of the ports at which he had arrived before he went to Callao; that he went to Callao under the expectation of selling the vessel there at an advantageous price, and would not have gone so far except for such expectation, and that such extension of the voyage was not made in consequence of any obligation of duty, and was not the offspring merely of a desire to promote the interest of, and fulfil his duty to, the owners of the cargo consigned to his order, and that in consequence thereof plaintiff's flour became deteriorated and damage resulted to him, then the plaintiff is entitled to a verdict for such damages as the jury shall find he really sustained from the extension of the voyage to Callao.

2nd. If the jury find the facts set out in the first [**11]  prayer, and that defendant had visited Callao, as master of the same vessel, in 1848, and on that voyage the cargo consisted in part of Baltimore flour, which became sour by reason of the character and length of the voyage, and that such flour, when carried in such a vessel to Callao, is very liable to become sour and unmerchantable in a voyage of the usual length, and that defendant had experience and knowledge of such liability; that defendant went to Callao in the present voyage to accomplish his own purposes, or to promote the interest or objects of the owners of the vessel, and that a prudent and careful consignee, under the state of facts as the jury shall find them from the evidence, ought not to have carried the plaintiff's flour to Callao, then plaintiff is entitled to recover such damages as the jury shall find he sustained from the carriage of his flour to Callao.

3rd. If the jury find that defendant sold at Arica one hundred and fifty barrels of flour, part of the cargo, at $ 9 1/4 per barrel, and that this was a fair price for flour at that time in that market, and that in making this sale defendant acted judiciously and with sound discretion; that he filled this [**12]  contract of sale by delivery of flour in which he was interested, and shall not find that the purchaser was unwilling, or, in case the offer had been made, would have been unwilling, to receive a proportionate part of this quantity from the plaintiff's flour; that defendant's object in so filling this contract exclusively out of the lot in which he was interested, was to secure to himself and his co-owners the supposed benefit of this contract in exclusion of the owners of the other flour, and that this discrimination was not made bone fide, and that loss was occasioned to the plaintiff thereby, then the plaintiff is entitled to recover such damages as the jury may find he actually sustained, by defendant's omission to deliver a proportionate part of these one hundred and fifty barrels out of his flour.

4th. (This prayer was abandoned.)

5th. If the jury find that defendant sold one hundred and fifty barrels of flour at Arica, at $ 9 1/4 per barrel, and filled the sale out of flour in which he was interested, and that he could, if he had consented and been willing, have sold the whole cargo, at an average price, a little under $ 9 1/4 per barrel, and that this would have been [**13]  a fair and reasonable price, and that he refused so to sell the whole because of his unwillingness to reduce the price of that which he did so sell; and shall not find that the lot actually delivered on this sale was of superior or better quality than the other flour on board his ship, and that a prudent and careful person, under the actual state of facts, as the jury shall find them from the evidence, ought, in the absence of any ulterior objects, to have sold the whole cargo at such average price, then the plaintiff is entitled to a verdict for such damages as the jury may find from the evidence he actually sustained from defendant's omission to sell his flour at Arica.

6th. If the jury find that defendant sold the vessel, after his arrival at Callao, on or before the 13th of October 1849, under a contract to deliver her within ten days, and that within these ten days he discharged the cargo, in order that he might be ready to comply with this contract, and that at the time the cargo was so discharged the castle and warehouses at Callao were entirely filled with articles there stored, so that it was impossible to store therein the flour so discharged, and that the flour, if [**14]  landed, would necessarily have to remain on the mole until room could be found for it in the castle or warehouses, and that this was known to defendant before the flour was landed, and that when landed it was left on the mole for six or more days before it could be, or was, received into the castle or warehouses, and that whilst it so remained on the mole it was exposed to the action of the weather and was thereby injured, then the plaintiff is entitled to recover such damages as the jury may find he really sustained from such landing of the flour and exposure on the mole.

7th. That by the terms of the bill of lading the flour was delivered to defendant as consignee as soon as, and whenever, the vessel reached Valparaiso and a market, and if the jury find there was a proper market for this flour at Arica, such as a prudent and judicious owner, acting in the premises, ought and would have embraced, and that defendant had knowledge of the contents of the bill of lading and of the fact that there was such a market at Arica, then his omission to avail himself of it was negligence and want of due care on his part as consignee, and the plaintiff is entitled to recover such damages as [**15]  the jury may find he really sustained by reason of such negligence and want of care.

8th. If the jury find that defendant caused the plaintiff's flour to be landed and left on the mole at Callao, in the manner stated by the witness Wysham, and that at the time he had not found a market therefor, and did not then know, and had not then any reasonable ground for believing, he would be able to sell the same there at a fair price or for its value, then such removal was an improper act on his part, if the jury find it was done by his orders, and if they further find the plaintiff sustained damage therefrom, he is entitled to a verdict for such damages as they may find he really sustained thereby.

9th. If the jury find the facts set forth in the preceding prayer, and that before such landing sample barrels had been delivered at Callao, and that upon trial thereof the flour therefrom had been pronounced sour and the bread made from it bad, and that by the laws then in force at Callao sour flour was unmerchantable and could not be sold except in violation of these laws, and was liable to be cast into the sea and thus totally lost to the owner, and that these facts were known both [**16]  to defendant and the person he employed to act for him in the sale of the flour, and that notwithstanding such knowledge defendant afterwards caused the flour to be landed at this port, as stated by Wysham and the second mate, such conduct was improper, and amounted to negligence and want of due care on defendant's part, and the plaintiff is entitled to recover such damages as the jury may find, in case they should find that any, did result to him thereby.

11th. If the jury find the facts set forth in the preceding prayer, then no allowance should be made by them for the expenses incurred in the landing of the flour at Callao which was reshipped to Paita.

12th. If the jury find the facts set forth in the 10th prayer, and that one hundred and fifty barrels of the flour were afterwards reshipped from Callao and sent to Paita, then no allowance should be made by them for the expenses incurred in such reshipment.

13th. If the jury find that after defendant found that plaintiff's flour could not be disposed of at a fair price, or for its value, at Callao, he consented or permitted that part of it should be sent to another market, to be there disposed of by another person,  [**17]  without the knowledge or consent of the plaintiff, or of any member of the firm of Wysham & Son, and that he remitted and abandoned all and any supervision over the flour, and over its sale and disposition, in the meantime, then such conduct was a violation of his duty as consignee, and even if the jury shall find that some other person assumed to sell the flour in the absence of the defendant, and without his knowledge and approval of the terms of sale, such sale is not binding on the plaintiff, unless they find that he, or Wysham & Son, ratified or recognised such sale as validly made, and notwithstanding such sale plaintiff's title to the flour has not been divested, and the jury, if they find the facts set forth in this prayer, may and ought to find that defendant has unlawfully converted and disposed of the flour to his own use, and is liable in this action for such damages as the jury may find from the evidence the flour was worth at the time of such conversion.

14th. If the jury find that flour was shipped by Wysham & Son on board the Seaman, as shown by the bill of lading, and that two hundred barrels thereof was designated as "Oakland" flour and belonged to the plaintiff,  [**18]  and that it was in good condition, fresh and sweet, and of extra quality as superfine flour, and was carefully and properly barrelled up in barrels well made of seasoned timber, then the burden of proof is on the defendant to show, if he shall affirm that the flour became sour and spoilt before it was landed from the vessel, that it became sour and spoilt without any negligence or want of due care on his part.

The court, (FRICK, J.,) granted the 14th prayer, but refused all the others, and to this refusal the plaintiff excepted. The verdict and judgment were in favor of the defendant, and the plaintiff appealed.  

DISPOSITION:
Judgment reversed and procedendo ordered.  

HEADNOTES:

The principles which regulate the conduct of factors abroad apply to supercargoes: they are liable for injuries to the employer, occasioned by the want of reasonable skill or ordinary diligence.

By reasonable skill is understood such skill, and no more than, is ordinarily possessed and employed by persons of common capacity engaged in the same trade, and by ordinary diligence that degree which persons of common prudence are accustomed to use about their own business.

Supercargoes are also bound to good faith, and must exercise their judgment after proper inquiries and precautions, and, where they have a venture in the same ship, they must exercise as much diligence and care about their factorage transactions as about their private concerns.

They are chargeable for negligence if they sell without making proper inquiry, after having received notice of facts which ought to put a person of prudence on his guard.

As a general rule they cannot delegate their authority, but exceptions may arise where the power of delegation is conferred by the necessity of the case, the usages of trade, or the law and custom of the country where the agency is to be executed.

Where the master of the ship is consignee of the cargo, his duties and liabilities are as distinct as if confided to different persons.

It is the duty of the ship to carry the cargo according to the projected voyage, and this must be done by every reasonable and practicable method; every act not properly and strictly in furtherance of this duty will make the master and owners responsible.

In some cases a sale of the cargo and ship may be justified, but the necessity of the case must require that course; in such case the master is to do that which a wise and prudent man will think most conducive to the interest of all concerned; some regard may be allowed to the interest of the owners of the ship, but that of the cargo must not be sacrificed to it.

Transhipment for the place of destination, if practicable, is the first object, if that be impracticable, a return or safe deposit may be made; the merchant should be consulted, if possible: a sale can only be justified by that necessity which supersedes all human laws, and if the master sell without such necessity, he and his owners will be answerable to the merchant.

The words, "to Valparaiso and a market," in a contract of affreightment, authorise the ship to visit such other ports beyond the named port as the master and supercargo thinks expedient in the exercise of a sound discretion.

These words also imposed on the ship the carriage of the cargo until a market was found, or the goods left on deposit for sale under circumstances authorising such a departure from the original contract.

Under this contract the master and supercargo was not bound to sell at the first or any other port, if he had reason to believe that he could find a better market by going further, and acted in good faith.

A prayer which submits to the jury the finding of facts of which there is no sufficient evidence, is erroneous.

The presumption of law is, that an agent has done his duty until the contrary appears; misconduct and negligence will not, in the absence of proof, be presumed.

If a master, who is also part owner and supercargo, sells the vessel before the cargo is landed, and then lands it before a sale was effected or storage obtained for it, in order to deliver the vessel in compliance with his contract of sale, and the cargo is injured by such landing and exposure, he is responsible to the shipper for the loss resulting therefrom.

The power to sell is subordinate to the claim of the cargo to be carried and delivered according to the projected voyage, and the fact that the shipper knew that the vessel might possibly be sold cannot affect his claim for damages incurred by the sale.

The shipper cannot recover for an act of the master subjecting the cargo merely to the risk of being taken and destroyed under the local laws of the port of discharge, in the absence of proof that it was so taken, or that any loss to the cargo resulted therefrom.

Where the cargo is landed before sale and before the termination of the voyage, and is reshipped to the place of destination, the shipper is not liable for the charges of landing and reshipment; it lies on the master to excuse himself for such act.

Where the consignee is master, and this is known to the shipper, he cannot wholly abandon his duty as master to discharge that of supercargo; he must act in both, as far as possible, with reference to the interest of the respective principals.

If such a consignee abandons or delegates his trust to another, merely because the cargo could not be disposed of at one of the ports reached prior to the termination of the voyage, it is a violation of duty for which he is responsible.

But if another party, wrongfully and without his privity, assumes authority to sell, and does sell the cargo, the consignee will not be responsible.  

COUNSEL:
William Schley for the appellant, argued, that the court below erred in its refusal to grant each of the rejected prayers except the fourth, which he admitted was too broad, and therefore abandoned it.

1st Prayer. The plaintiff proved by Wysham that defendant sold at Arica one hundred and fifty barrels of flour of the Harper's Ferry brand, and that to get at this brand he removed out of the way the flour shipped by Wysham & Son. The same witness proved that the vessel arrived at Callao on the 5th of October 1849, and [**19]  that between that day and the 13th defendant sold the vessel under a contract, which obliged him to deliver her within ten days thereafter. It was also proved that defendant was interested in the flour of the Harper's Ferry brand. A letter from Dartnell, offered in evidence by defendant, dated at Lima, on the 13th of July 1849, and which was received by defendant at Valparaiso, stated that "the Seaman may probably find a buyer at about $ 12,000 or $ 13,000." This was in answer to a letter from defendant, dated the 23rd of April, and which, of course, was written before he sailed from Baltimore. There was evidence therefore from which the jury might have found, if they so believed, that he went to Lima, for the purpose of selling the vessel there; and as he sold his own flour at Arica, there was evidence from which they might have found that he thought a sale at Arica, at the price which could have been obtained there for the entire cargo, a desirable price; and might have found further that his real inducement to go to Lima was to find an advantageous sale for his vessel. The reason why he did not sell at Arica was to keep his vessel in ballast, and he went to Callao to sell his vessel,  [**20]  and not to sell his flour. This was evidence from which the jury might infer that he went there from bad motives and for his own interest. This prayer looks to the liability of the defendant as consignee of the flour which was shipped for "Valparaiso and a market." As to the general duties of a consignee: he must not discriminate in his own favor to the prejudice of his principal, (Russell on Factors, 33, 270, 271, in 48 Law Lib., 34, 170, 171, 172;) he must exercise the purest good faith, (Paley on Agency, 11, 17.) It is true the letter of instructions from Wysham & Son to the defendant speaks of the possibility of the sale of the vessel, but it does not contemplate such a sale on any contingency. It is in reference only to the return voyage that this sale is spoken of, and it clearly never contemplated a sale until the voyage out was completed; that is, until a market was found for the flour; for the contract of affreightment was not completed until then. It is said there is no proof of the quantum of damages, but this is not so. It was in evidence that the flour was put up in extra order and was sweet, that it went along with that which was sold at Arica for $ 9 1/4 per barrel,  [**21]  and the presumption is that the plaintiff's was equally good with that sold there. When it arrived at Callao it was at first sold at $ 8 per barrel, and the subsequent sales were for less and less; all these are facts from which the jury could fix the standard of damages, and the prayer does not ask for any specific sum, but only for such damages as the jury may find.

2nd Prayer. This prayer is based on the same hypothesis as the first, with the additional facts, that defendant had experience of the injurious effect of a protracted voyage on a cargo of flour, and it submits to the jury the question of fact, what a prudent consignee, under the circumstances, ought to have done: whether a party has exercised reasonable care and skill is a question for the jury.

3rd Prayer. This prayer differs from the first and second, in introducing the element of purposed discrimination by the defendant in filling the sale at Arica with his own flour, in exclusion of any part of the plaintiff's flour. The legal proposition is, that the defendant in accepting the commission as consignee, was bound to act in the business of the plaintiff in the like beneficial manner as he acted in his own [**22]  business. The Harper's Ferry brand, which he sold at Arica, was the only flour which had been shipped for Callao, and yet he sold that before it reached its destination, leaving the plaintiff's flour, which had been shipped for an intermediate port and a market, unsold. The jury upon all these facts might have found, if they really so believed, that he made the discrimination for his own advantage as one of the owners of the Harper's Ferry brand. On this point see 2 Pick., 123, Barrett vs. Lewis. 5 Leigh, 456, Johnson vs. O'Hara. 4 How., 554, 559, Michoud vs. Girod.

5th Prayer. This prayer is based on the evidence of Wysham, that the whole of the flour on board could have been sold at a little less than an average of $ 9 1/4 per barrel, if defendant had been willing to sell at that price. The jury might have discredited the statement to Wysham, that he did not sell because he expected a better price at Lima. The jury might have found from all the evidence that he retained the flour unsold, in order that he might carry his vessel to Callao without want of ballast.

6th Prayer. There was conflicting evidence as to whether the exposure of the flour on the mole for six or more [**23]  days would cause it to turn sour. The jury might have agreed with the notions of the plaintiff's witnesses on this point. There surely was evidence to go to the jury on this point. There was also evidence to justify their finding every fact embraced in the hypothesis of this prayer. This prayer concedes, (which is denied in the eighth prayer,) that he might properly land the plaintiff's flour before he had found a market, but insists that he had no right to land it until he had procured proper storage.

7th Prayer. This prayer involves the construction and effect of the bill of lading. The terms, "Valparaiso and a market," mean, till a market is found. (1 Philip on Ins., 496. 5 Pick., 51, Chase vs. Eagle Ins. Co. 16 Do., 303, Deblois vs. Ocean Ins. Co. 1 Arnold on Ins., 359, 438.) The defendant therefore had no right to land the cargo at Callao, having gone beyond Valparaiso, unless there was there an actual market. In a policy of insurance the terms, "Valparaiso and a market," would have continued the risk until a market was found. The defendant therefore was bound to carry our goods until he found a market; the contract of affreightment was not completed until then. This expression [**24]  also means, as I understand it, that the cargo may be sold at any intermediate port before reaching the named port.

8th Prayer. This prayer affirms that it was an improper act for the defendant, as master, to land the flour, and equally improper for him as consignee to receive the flour, before he had assurance, or reasonable assurance, of a market at Lima. By the terms of the bill of lading he was bound to go further, if necessary, until a market was found, or, in the alternative, to retain it on board. Angell on Carriers, secs. 95, 97, 281.

9th Prayer, This prayer is based, in part, on the evidence of Dartnell, that the act of landing sour flour was in contravention of law, and exposed the articles to condemnation and destruction, and on the evidence, (as sought to be established by defendant,) that the flour was sour before it was landed, and so known to defendant. The act was inconsiderate and imprudent, and placed defendant, as proved by Dartnell, in the power of bakers and other persons there, and produced eventual heavy loss.

10th, 11th, 12th Prayers. These prayers look to the expenses of landing, of reshipment, and of freight on the one hundred and fifty barrels [**25]  landed at Callao and subsequently shipped to Paita, because, as alleged, there was no market at Callao. The defendant in his accounts of sales had deducted these expenses, and it was shown by the facts that there was no market at Lima.

13th Prayer. The defendant sent the flour to another person in another market for sale. The flour sent to Paita was sold at prices which left the charges thereon unpaid by $ 235.12. The defendant had no right to dispose of the consignment in this manner. It was an unlawful conversion of the flour. Whenever a party is entrusted with an agency or a trust in which he is to exercise his discretion, it is a personal trust, which cannot be delegated. 4 Camp., 183, Catlin vs. Bell. 1 Hill, 501, 505, Commercial Bank vs. Norton. 26 Wend., 485, Lyon vs. Jerome. 8 Barr., 442, Etter vs. Bailey. 11 How., 223, Warner vs. Martin.

John Nelson for the appellee, stated that the facts of the case show, that the letter of instructions from Wysham & Son to the defendant, written at the commencement of the enterprise, spoke of the possibility of the sale of the vessel during the voyage, showing, therefore, that this matter was well known to the parties, and also [**26]  that, in addition to the flour of the plaintiff, there was flour of the owners, of whom the defendant was one, and in all sales of this flour that of the plaintiff shared equally with that of the defendant, except at Arica, where the sale was of the Harper's Ferry brand only, and none of the plaintiff's flour was of that brand. He then argued, that the court below properly rejected all the prayers which were refused.

1st Prayer. Because it is based on an hypothesis resting upon facts assumed, and opposed by the testimony in the cause. It assumes as proven:--1st, that there was an occasion offered for a sale of the flour at an intermediate port; 2nd, that defendant went to Callao with a view to the sale of his ship; and 3rd, that by this prolongation of the voyage the flour was injured. Of these facts, thus assumed, there is not a title of evidence. Again, the jury could not find damages unless there was proof of them. There is no proof as to what the condition of the flour was at Arica when it arrived there. There is no proof that it was examined there or that it was then sweet. There is, therefore, no evidence or standard from which the jury could estimate the damages. 2 Md.  [**27]  Rep., 217, Merchants Mutual Ins. Co. vs. Wilson.

2nd Prayer. Is liable to the same objection as the first. There is no evidence that the defendant went to Callao in 1848; the only testimony on this point is, that he was in the Pacific in 1848. There is, therefore, no evidence tending to show that he had experienced a knowledge of the fact that flour was liable to sour in Callao.

3rd Prayer. For the same, and additional reason, that defendant was under no legal obligation to sell in the manner affirmed by this prayer. A consignee is to use reasonable diligence and discretion, and the only test of this is, whether he takes the same care of the property of his principal as he does of his own, and this was done in this case. There is no evidence that the purchaser at Arica would not be unwilling to receive a part of the several brands. The sale was of Harper's Ferry brand, and this is prima facie proof that he was unwilling to buy any other. There is no obligation on the part of a factor having a general cargo, to sell at an intermediate port a part of all the various consignments, and no authority can be found for such a proposition.

5th Prayer. Because it was opposed to [**28]  the only evidence in the case having relation to the subject. The only evidence that defendant had an opportunity to sell the whole cargo at Arica is that of Wysham, offered by the plaintiff himself, and this witness states that the reason why defendant did not sell at Arica was, that he could get a better price at Callao. If, therefore, he could get a better price at Callao, it was not his duty to sell at Arica. Besides, the proof is that he carried two hundred and fifty barrels of his own flour to Callao.

6th & 8th Prayers. Because there was no sufficient evidence to go to the jury in support of the hypothesis of these prayers. The two are connected and have relation to the discharge of the cargo at Callao. They do not put to the jury to find that the flour was sweet when it arrived at Callao, and there was therefore no evidence upon which the jury could find there was any damage. There is no proof that the discharge was made in order to expedite the sale of the vessel, or that the castle and warehouses were then full of storage. Again, there are facts in the case which have an important bearing on these propositions. The sale of the vessel was in contemplation of the parties [**29]  when the voyage was commenced. The ship was cleared for Callao, and was to go beyond Valparaiso. The defendant had written to see if a sale of the vessel could be effected at Callao. After he had sold the vessel it was clearly competent for him to discharge the cargo. What was he to do with the cargo when he undertook the voyage, with the knowledge and assent of the consignors that he was to dispose of his vessel? If the testimony shows that, in the exercise of a reasonable discretion and judgment, he put the flour on the mole, independent of the sale of the vessel, he did all that the law requires of him, and as to this the witnesses say it was better to put the flour on the mole in that climate than to keep it in the hold of the vessel. The prayers exclude this from the jury.

9th Prayer. Because there was no evidence of any damage sustained by the plaintiff from the act complained of in this prayer. If the flour had been cast into the sea the plaintiff might have a ground of claim, but it was not cast into the sea and the penalty therefore did not attach. There is no evidence that there was any damage occasioned by the landing of the flour, in violation of a penal law prohibiting [**30]  it from being landed. There is the same uncertainty in regard to the data or standard of loss.

10th, 11th, 12th Prayers. Because the reshipment to Paita was rendered necessary by the condition of the market at Callao, and was in pursuance of the defendant's duty as factor. These prayers, with the 7th and 13th, involve the question of the true construction of the bill of lading, which is the important question in the case. What is meant by "Valparaiso and a market?" It means that if the ship did not find a market at Valparaiso, she was to go further and elsewhere to find a market. "A market" means posterior to the named port--you must go to Valparaiso at any rate. The question then is as to the duty of the party on arriving at Callao, the ultimate destination of the vessel. The case in 4 Camp., 183, was that of an insurance of a cargo to be sold in the West India Islands, and it was held that a new destination could not be given under this risk, but that is not the present case, for here the defendant was to give, by the terms of the bill of lading, a new destination if a market was not found at Callao. The case in 11 Howard, was one of personal trust and confidence, and the sale [**31]  was made by the clerk of the party to whom the tobacco was consigned, and it was held, that a factor cannot delegate his power to a clerk unless by express contract. That is not this case. May not the master of a vessel, in a case of necessity, commit the property of his principal to a third party for sale? This is the question here, and, I think, the authorities clearly show that he may do so. 1 Johns. Cases, 175, Lawler vs. Keaquick. 31 Maine, 409, Stone vs. Waitt. 2 Pick., 615, Day vs. Noble. The case last cited is precisely the present case. The defendant left the flour in the hands of a trustworthy merchant, and his own flour, with that of the plaintiff, was sent to Paita and there sold. There is therefore no imputation, nor any ground for an imputation, resting against this defendant.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and TUCK, J.  

OPINIONBY:
TUCK 

OPINION:

 [*136]  TUCK, J., delivered the opinion of this court.
The appellant sued the appellee, to recover damages for losses alleged to have been sustained on the sales of flour shipped on board a vessel which sailed from Baltimore, for "Valparaiso and a market," of which the appellee was part owner, master and [**32]  supercargo. Misconduct, negligence, and consequent liability, are imputed to him in each and all of these capacities.
At the trial fourteen prayers were offered by the appellant, all of which were refused, except the last. They involve the construction of the contract, and the extent and proper exercise of the discretion reposed in the appellee, under the circumstances by which he found himself surrounded, at his first port of destination, and afterwards in the progress of the voyage. The questions presented, in the argument, will appear by the statements and points filed, and we shall dispose of them in 

 [*137]  their order; first, however, stating generally the rules of law by which we suppose cases of this kind to be governed.
The principles which regulate the conduct of factors abroad apply to supercargoes. Beawes' Lex. Merc., 44, 47. Story's Agency, sec. 33. They are liable for injuries to the employer, occasioned by the want of reasonable skill or of ordinary diligence, by which is to be understood "such skill as is, and no more than is, ordinarily possessed and employed by persons of common capacity engaged in the same trade, business or employment; and by ordinary [**33]  diligence that degree which persons of common prudence are accustomed to use about their own business and affairs." Story, sec. 183. They are also bound to good faith, and must exercise their judgment after proper inquiries and precautions, and, where they have a venture on the same ship, they are bound to exercise, at least, as much diligence and care, as to their factorage transactions, as they do as to their own private concerns. And they are chargeable for negligence if they sell without making proper inquiry, after having received notice of facts which ought to put a person of prudence on his guard. Ib., sec. 186. Russell on Factors & Brokers, 33, 34. As a general rule they cannot delegate their authority, any more than other agents, but exceptions may arise where the power of delegation is conferred by the necessity of the case, the usages of trade, or the law and customs of the country where the agency is to be executed. Story, secs. 13, 14, 34, a. 11 Howard 209. Where, as in this case, the master is made consignee of the cargo, the duties and liabilities are as distinct as if confided to different persons. Story, sec. 41.
The responsibility of the [**34]  defendant in his capacity of part owner and master arises from the sale of the ship, and the alleged improper delivery of the flour at Callao. It is the duty of the ship to convey the cargo according to the projected voyage, and this must be done by every reasonable and practicable method. "Every act that is not properly and strictly in furtherance of this duty is an act for which both the master and owners may be made responsible." Abbott on Shipping, 241. There are emergencies under which a sale of the cargo 

 [*138]  and even of the ship may be justified, but the necessity of the case must require that course. This necessity may arise suddenly, and under circumstances that could not have been provided for. "In general, it may be said that, (in such a case,) the master is to do that which a wise and prudent man will think most conducive to the benefit of all concerned;--some regard may be allowed to the interest of the ship and its owners, but the interest of the cargo must not be sacrificed to it. Transhipment for the place of destination, if it be practicable, is the first object, because that is in furtherance of the original purpose: if that be impracticable, return [**35]  or a safe deposit may be expedient. The merchant should be consulted, if possible. A sale is the last thing that the master should think of, because it can only be justified by that necessity which supersedes all human laws. If he sell without necessity, his owners, as well as himself, will be answerable to the merchant." Abbott, 243. 1 Arnould on Insurance, 189, &c. Smith's Mercantile Law, 171, 292.
As to the construction of the contract: that is, the meaning of the words to "Valparaiso and a market," we understand the counsel to agree that they must be interpreted according to the analogy of this case to one arising under a policy of insurance containing such a clause; and by this test, we think, they authorised the ship to visit such other ports, beyond the one named, as the appellee thought expedient, in the exercise of a sound discretion.  Deblois vs. Ocean Ins. Co., 16 Pick. 303. Whether he was under any obligation to seek a market this side of Valparaiso, or to go there in the first instance, we need not decide, inasmuch as he did visit the named port, and no question is made on this part of the case. These terms also imposed on the ship the [**36]  carriage of the cargo until a market was found, or the goods left on deposit for sale under circumstances authorising such a departure from the original contract of affreightment. In the case of Richardson vs. London Ass. Comp., 4 Camp. 93, the goods in question were the investment of an East India captain, and the voyage was described in the policy to be, "at and from London to Maderia, the Cape of Good Hope, and all or any of the ports or places in 

 [*139]  the East Indies, &c., until arrived at the last place of discharge on the outward voyage, with leave to exchange the goods in the course of the voyage." The company's cargo was discharged at Calcutta, (a place within the policy,) and the ship ordered with another cargo to Madras. The captain had also landed the whole of his investment at Calcutta and had disposed of a considerable part of it; but, being unable to sell the residue, he resolved upon a new market, and for this purpose reloaded it on board the ship for Madras; on which intermediate voyage she was lost. The question was, whether, under the terms of this policy, the risk still continued on the residue of the captain's investment on board [**37]  at the time of the loss, or whether it had ended at Calcutta? Lord Ellenborough held, that the risk had ceased at Calcutta, "the last place of discharge on the outward voyage." If, he said, "the company's officers wish for the protection which is here sought; (that is, until the goods are finally disposed of in some market in the East Indies,) they must not limit the risk to the duration of the outward voyage, but extend it to the arrival of the goods to a market at their final port of discharge." It is added by Mr. Arnould, (Vol. 1, 439,) "There can be no doubt that an insurance in such form would effectually protect the goods until actually disposed of in some foreign market." If this be the liability of the insurers in such cases, it is clear that it is the ship's duty to carry the cargo until disposed of.
We proceed to apply these principles to the case before us.
The first prayer was properly refused, because it submitted to the jury the finding of facts of which there was no sufficient evidence. One specification is sufficient. There was nothing from which the jury could have found that the defendant did not make reasonable efforts to sell the plaintiff's [**38]  flour at a fair price, at some one or more of the ports which he visited before he reached Callao. On the contrary, it was in proof that he had offered the flour at Arica, and, not satisfied with the prices there, said he was going to Lima, of which Callao is the outer port, because he had received advices of better prices at that place. In the absence of evidence of such negligence and misconduct, the law does not presume that he did not make 

 [*140]  reasonable efforts to effect sales at such ports as he thought it expedient to visit, as it was his duty to have done; and especially as that presumption is rebutted by the consideration that it was his interest, as part owner, to sell the cargo as soon as practicable. And, even if he could have made sales at Arica or elsewhere, he had a discretion to do so or not, provided it was fairly exercised. The nature of the voyage--for a named port and a market--necessarily implied, as we have seen, that he was not bound to sell at the first or any other port, if he had reason to believe that he could find a better market by going further, and acted in good faith on such information. We may illustrate this view, (and the same applies to propositions [**39]  presented by some of the other prayers,) by supposing that, with the advices he had received at Valparaiso before him, he had sold the plaintiff's flour at Arica for the price offered, and had then sailed for Lima, and there sold his own flour at the higher price named in his advices. Would not the plaintiff have had good reason to complain that he had sold his flour at the wrong market? Yet, when he has acted upon the information received, and loss has occurred to the plaintiff, he is charged with negligence. Certainly the result should not alter the application of the principle.
Objections equally fatal apply to the second, third and fifth prayers. The second is based in part on the first, besides embodying other propositions of fact without evidence to sustain them, which we need not indicate.
The third is objectionable for the reason that there is nothing to show that the purchaser of the one hundred and fifty barrels sold at Arica, was willing or unwilling to have taken any of the plaintiff's flour as part of the quantity he wanted. To fix liability on the appellee in this aspect of the case, could only be done by drawing an inference against his interest and [**40]  duty, when there is nothing in his management of the cargo, up to that time, to show that he was not governed by a desire to promote the interests of all concerned. Flour is sold by the brand it bears, and there is no evidence that the purchaser at Arica wanted any other than the particular kind that he bought, and the plaintiff's flour was not of that brand. Besides, this 

 [*141]  prayer imputes to the appellee not only gross negligence, but want of good faith to the owners of the cargo, against the presumption that an agent has done his duty until the contrary appears.  Corner vs. Pendleton, 8 Md. Rep., 337.
The motive attributed to the appellee, by the fifth prayer, for not selling all the flour at Arica, is not warranted by the proof, but in conflict with the only evidence on the point. Wysham proved that the appellee's reason, as he informed him at the time, for not selling there at less than nine dollars and-a-quarter, was, that from information received, he expected to obtain ten or ten and-a-half at Lima. In the face of this proof, and in the absence of any sustaining the theory of the prayer, it was impossible for the jury to have found that he [**41]  did not sell at Arica, because of an unwillingness to reduce the price of his own flour to an average less than he could obtain for the quantity which he actually sold.
In addition to the above views all the preceding prayers proceed, in part, on an assumed violation of duty which the law does not infer, denying to the appellee any discretion whatever; whereas, as we have seen, the doctrine is well settled, that persons in his capacity are often compelled to act in a manner which the law does not sanction, if access can be had, or information given to, and directions received from, the principal. If the law were otherwise, it is difficult to imagine that such agencies would be accepted at all, imposing liability for mere errors of judgment, committed in the honest exercise of discretionary powers.
We entertain, however, a different view of the propositions presented by the sixth prayer. The ship arrived at Callao on the 5th or 6th of October, as proved by Wysham and Dartnell. The appellee wrote, on the 13th, that the flour had kept perfectly sweet, that he had sold it at $ 8, and that the vessel also was then disposed of. Wysham proved that the vessel was sold to be delivered [**42]  in ten days, and that after that sale the defendant caused all the flour to be landed on the mole, when there was no storage for it, and that it was injured by such exposure, though, on this point, and as to the condition of the flour, at the time of arrival, there was conflicting evidence. 

 [*142]  One of the witnesses also stated that sample barrels were sent ashore which were tried, and the flour pronounced sour, and that the appellee had all the flour delivered on the mole, after he knew that the first purchase had been thrown up. Now, if the appellee had not discovered, on the 13th, that the flour was damaged--and that he had not is clear from his own letter--the inference is that he sold the vessel before the cargo had been landed, and, (according to the evidence of the mate,) that it was landed after he knew its unsound condition, and before he had made a second sale, or obtained storage for it. Upon the state of case submitted to the finding of the jury by this prayer, if the appellee landed the flour, "in order that he might be ready and prepared to deliver the vessel pursuant to the terms of the contract of sale," and the flour was injured by such exposure on the mole, [**43]  the plaintiff was entitled to recover for the loss resulting from such disposal of the cargo. Upon this hypothesis there was no excuse for landing the flour at all without having first made sale of it, or obtained proper storage; and the case is stronger against him, if, as he wrote, and Wysham states, the flour was sweet. The prayer ascribes a motive for the landing, to be found by the jury, inconsistent with the interest of the shippers, and merely looking to the interest of the ship-owners, and which, if true, was, to the extent of the damage thereby incurred, a sacrifice of the interest of the cargo to that of the owners of the vessel. Abbott, 243. We have seen that the ship may be sold under pressing emergencies, but there was no such necessity if the hypothesis of the prayer be correct. The counsel for the appellee adverted to the letter of Wysham & Co., in which it is said, "it is possible you may sell the vessel," for the purpose of showing that the plaintiff knew, at the time of the shipment, that a sale was in contemplation. This letter had reference to a return cargo; we suppose that it was never imagined by any of the parties that the vessel would be sold before the [**44]  flour was disposed of. The ship may always be sold if the owner or the master choose to violate a duty. It cannot be prevented. But the power to sell is subordinate to the claim of the cargo to be carried and delivered according to 

 [*143]  the projected voyage; and that the owners of this cargo knew that the vessel might possibly be sold, can have no effect upon their claim for damages, if they incur loss by the sale. The obligation to carry the cargo is, generally, paramount to every other duty, and yields only to that "necessity which supersedes all human laws." Abbott, 243. True, the appellee had an interest in selling the ship, but he had also incurred an obligation to the plaintiff; and, as was said by Lord Ellenborough, in 1 Campbell 527, "No man should be allowed to have an interest against his duty."
According to the rules governing the case as applied in disposing of the first prayer, we think there was no error in refusing the seventh. There was nothing to show that the conduct of the appellee, at Arica, was different from what a prudent and judicious owner would have done under the same circumstances, and with the same advices before him.
If, as stated [**45]  in the eighth prayer, the defendant, not having found a market, had the flour landed, and placed, and left on the mole at Callao; and if it became damaged, before a sale could be effected, by reason of exposure there for six or eight days, it is very clear that he was liable for the consequences. This, however, was for the jury, about which there was evidence on either side.
We think the ninth prayer was properly refused. It is merely speculative as to losses that might have resulted from landing sour flour in violation of the local laws. But, as the flour was not seized and condemned under these laws, the plaintiff cannot be said to have suffered by an act subjecting the flour merely to the risk of being taken and destroyed, in the absence of proof that such violation of the law did place the defendant in the power of dealers in the article, whereby loss was actually incurred by the plaintiff.
The tenth, eleventh and twelfth prayers relate to the expenses of landing, reshipment and freight of the flour that was sent to Paita. It was the duty of the ship to have carried the flour to a market, or until finally landed under circumstances authorising a departure from [**46]  the original contract, which, as we have said, had not occurred at Callao. Consequently the plaintiff 

 [*144]  was not liable for the freight from Callao to Paita. This prayer leaves out of view the sale of the vessel; but as the carrying of the cargo, according to the contract, is the master's first duty, it lies on the defendant to excuse himself for having forwarded part of the flour to Paita, on another vessel, and he cannot charge for such freight.
The eleventh and twelfth prayers ought also to have been granted, upon the hypothesis of the tenth. Until the flour was sold it ought not to have been landed. The landing without a previous sale, was such an act as to relieve the consignor of the flour from all liability for the charges of landing and reshipment.
The thirteenth prayer seeks to charge the appellee, as supercargo, for a conversion of the flour, by having sent it to Paita, for sale by another person. We have seen that emergencies may arise to render a deposit of the cargo necessary, as, for example, the sale of the ship, or the want of a market, because a sale cannot be made if a purchaser cannot be found; and other circumstances may arise justifying [**47]  this course; and if the consignee acts in good faith, with reference to his predicament at the time, he ought not to be censured. The general rule is that the trust cannot be delegated, but this is not without exceptions. "The authority is exclusively personal, unless, from the express language used, or from the fair presumptions growing out of the particular transaction, or of the usage of trade, a broader power was intended to be conferred on the agent." Story, sec. 14. Where the consignee is master, and this is known to the shipper, he cannot wholly abandon the latter duty to discharge that of supercargo. He must act in both, as far as possible, with reference to the interest of the respective principals.  1 Johns. Cases 174, Day vs. Noble. 2 Pick. 615. There is nothing stated in the prayer to excuse the consignee; but it goes upon the ground that he abandoned his trust to another, merely on finding that the flour could not be disposed of at Callao. In this view, we think, the first branch of the prayer, if offered alone, might have been granted. But it went further, and asked to recover the value of the flour, if the jury found that some [**48]  other person assumed to sell it in 

 [*145]  the absence of the defendant, and without his knowledge or approval of the terms of sale. Of course such a sale would not divest the title of the plaintiff; but it does not follow that the defendant would be liable, because another person wrongfully, and without his privity, had assumed authority to dispose of it. As an entirety the prayer was faulty and properly refused.
It follows that, dissenting from the rulings below on the 6th, 8th, 10th, 11th and 12th prayers, the judgment must be reversed, and a procedendo ordered.
Judgment reversed and procedendo ordered. 

55 of 187 DOCUMENTS 

THE MAYOR & CITY COUNCIL OF BALTIMORE vs. BARZILLAI MARRIOTT.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 Md. 160; 1856 Md. LEXIS 15 

JUNE, 1856, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

This was an action on the case, brought by the appellee against the appellants, to recover damages for an injury sustained by the plaintiff, in consequence of the negligence of the defendants in not preventing or removing an accumulation of ice on the footway on the north side of Fayette street, in the city of Baltimore, upon which the plaintiff slipped and fell down, and received injury, whereby he became lame and crippled for life. Plea, non cul.

Exception. The plaintiff offered in evidence the charter of the city of Baltimore, (act of 1796, ch. 68,) and its supplements, and various ordinances of the city, providing for the removal of snow and ice from the streets, and giving authority to the water company to lay pipes and introduce water into the city. (See pages 6, 7, 8 of Ord. of 1848.) The plaintiff then proved, that on the evening of the 19th of February 1849, after dark, whilst returning from church, he slipped and fell on a large sheet of slippery ice which completely covered the footway at the corner of Fayette and Calvert streets, and by the fall fractured his knee-cap in such manner as permanently to lame and cripple [**2]  him for life; that this ice had been formed in very cold weather, by the freezing of water running from certain hydrants attached to lots occupied by various individuals on the north side of Fayette street; that the water from these hydrants escaped through gutters in the foot-pavements, and in cold weather became frozen and obstructed the gutters, and then spread over the footway, forming a large quantity of ice, which rendered the passage of the footway dangerous to passers by; that this occurred in spells of cold weather; that at the time, and for several days before the accident, the ground in the city was not covered by snow or ice, but was covered by ice in several places where there was running water, and that the weather had been clear, cold and freezing, from the 12th of February to the date of the accident. He also proved, that for several winters past the accumulation of ice in this particular locality was regarded by the witnesses as a nuisance. One witness says he had complained to the water company about it, but they had not remedied it, and he had lodged complaints at the police office.

The defendants then proved by the officer whose duty it was to supervise the [**3]  contractors for cleaning streets, and had general supervision under the ordinances to preserve health and remove nuisances, that he had frequently directed the police to pay attention to this particular locality, and that there was as much attention paid to prevent ice accumulating on the side walk of that street as to any other point in the city, if not more; that, from the peculiar situation of the street, he believes it almost impracticable to prevent the accumulation of ice on the pavement; that unless the city was to employ an immense force, (far greater than she has,) ice will accumulate on the side walks throughout the city; that if the city officers were to watch that particular place only, it might be prevented from accumulating, but that no care could prevent ice forming on the foot-pavements, as it will sometimes form in a single night if the hydrants are allowed to run; that he has no knowledge of the condition of this street at the particular occasion when the accident occurred; it might have been in a dangerous condition, but he has no knowledge of it. They further proved, that persons living on this street had been frequently notified by the police to clear away the [**4]  ice on the pavements fronting their premises, and that the ice was occasioned by the leaking of the hydrants, some of which were in a decayed and defective condition, and by their being allowed to run. They also proved by another witness, who was in company with the plaintiff at the time, that he, the witness, passed the locality a few feet ahead of the plaintiff, when the latter fell, and that the night was cold and star-light, and that the lamp was burning at the corner where the accident occurred.

The plaintiff then offered the prayer which is set out in the opinion of this court. The defendant then offered the following prayers:

1st. If the jury find from the evidence that the mayor and city council of Baltimore did pass an ordinance, or ordinances, providing against any nuisance arising from the accumulation of ice or other obstructions on the side walks, the corporation is not liable for any injury which the plaintiff may have sustained, (if the jury shall so find,) from injuries arising from their neglect or violation by the owners of property binding on the street, upon the foot pavements of which the injury was sustained by the plaintiff.

2nd. (This prayer is [**5]  stated in the opinion of this court.)

3rd. If the jury find from the evidence that the plaintiff did not use reasonable and ordinary care and diligence, whereby he might have avoided the injury sustained by him as given in evidence, then the plaintiff is not entitled to recover, even if they should also find that defendants were guilty of a want of ordinary care and diligence in not causing the ice to be removed from the pavement.

The court, (FRICK, J.,) granted the plaintiff's prayer, and also the 2nd and 3rd prayers of the defendants, but rejected their first. To the granting of the plaintiff's, and to the rejection of their first prayer, the defendants excepted. The verdict and judgment were in favor of the plaintiff for $ 500 damages, and the defendants appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

The charter of the city of Baltimore provides, that the corporation "shall have full power and authority to enact and pass all laws and ordinances necessary to preserve the health of the city, and to prevent and remove nuisances." HELD:

That the effect of this provision is to make the city, like individuals and private corporations at common law, responsible for causing or not removing nuisances, to any person who has received special damage therefrom.

Where a statute confers power upon a corporation to be exercised for the public good, the exercise of the power is not merely discretionary, but imperative, and the words "power and authority," in such case, mean duty and obligation.

The mere passage of ordinances providing for the removal of snow and ice from streets, so as to prevent their accumulation from becoming a nuisance, is not a discharge of the obligation imposed by the charter: the city is bound to make vigorous efforts to enforce such ordinances, in order to bring itself within the saving of having used reasonable care and diligence.

A party suing to recover damages resulting to him from such nuisance, must show that he used reasonable and ordinary care and diligence to avoid the injury.

Where a party sustains an inconvenience or injury which is experienced in common with all citizens, then the source of complaint is a common nuisance, and the remedy must be by indictment.  

COUNSEL:
Grafton L. Dulany for the appellants, argued: That an action on the case, such as that brought in this cause, will not lie at common law against a political or municipal corporation, like that of the city of Baltimore, for the non-feasance or misfeasance of its officers, although injury should result therefrom to other persons; that the proper remedy in such cases is against the individual [**6]  whose act or negligence has occasioned the mischief. By the charter of the city, (act of 1796, ch. 68,) authority is given to the corporation to cleanse and repair streets, and remove nuisances. The public are interested in these privileges and franchises thus granted; they are not granted for private emolument. It is a power communicated, for the exercise of which the city authorities, acting for the public good, and not their own, are made the judges. By the 8th section of the act of 1796, ch. 68, the ordinances of the city authorities are made as obligatory upon all persons within the limits of the city, "to every intent and purpose, as the acts of the General Assembly of Maryland." The ordinance No. 35 of 1838, exercises the power to remove nuisances so far as they are occasioned by water from the hydrants. The ordinances No. 27 of 1847, and No. 3 of 1848, show the care with which the city has exercised the power conferred by the charter to prevent and remove nuisances. Where then is the negligence of the city? The party injured is not without his remedy, for each one of the owners of these hydrants who permits it to overflow is responsible under the ordinances, and for his neglect [**7]  the party injured may sue him. The corporation has no fund out of which the damages could be paid; if paid at all they must come out of the public, and in such a case salus populi est suprema lex. It is more fit that the individuals should be responsible who neglect their duty under the ordinances. If the city authorities have the right to legislate over the subject of nuisances, their action cannot be ministerial, and there is no power to review their action thereon. You might just as well say that the State is responsible for every murder or act of violence committed within its limits, because it is the duty of the State to protect the citizens against such acts. If the city is responsible at all in such cases, it is responsible in every case for non-feasance or misfeasance, just as a jury may think in each case, and if the doctrine of responsibility is to be carried to this extent the consequences would be monstrous. For every case of sickness occasioned by an epidemic the city would be responsible, if a jury might think the city authorities had not properly exercised the power to preserve the health of the city. I admit that the city is responsible, like an individual, in all cases [**8]  where she acts as the owner of property, as in the case of wharfs, &c., and the cases cited on the other side are all cases of this character. But those are different cases from the present, where the city is sovereign within its limits, having authority to legislate over the subject by which the injury was occasioned, and has exercised this sovereign legislative power for the public good. In support of these views, and as exempting the city from responsibility in such an action as this, I refer to 17 How., 161, City of Providence vs. Clapp; the manuscript opinion of Chief Justice Taney, in the case of Hughes vs. The Mayor & City Council of Baltimore, in the Circuit Court of the United States. 1 Hill, 545, Martin vs. Mayor, &c., of Brooklyn, 7 Mass., 187, Riddle vs. Proprietors of Locks & Canals on Merrimack River. 9 Do., 237, Mower vs. Inhabitants of Leicester. 4 Pick., 149, Jones vs. Inhabitants of Lancaster. 3 Greenlf., 445, Haskell vs. Inhabitants of Knox. 2 Term Rep., 669, Russell vs. Men of Devon; and to the case of Barron vs. The Mayor & City Council of Baltimore, reported in 7 Pet., 243.

Vivian Brent and Charles E. Phelps for the appellee, argued:

1st. That the ancient [**9]  doctrine, as laid down in the early text books, that a corporation could not be sued civiliter for torts, is now entirely exploded, and corporations have been held liable for the acts and omissions of their agents in every form of action sounding in tort, and municipal corporations constitute no exception to this principle. Cowp., 86, Mayor of Lynn vs. Turner. 5 Bing., 91, Henley vs. Mayor of Lyme, and the same case in King's Bench, in 3 Barn. & Adol., 77, and, on appeal, in the House of Lords, in 1 Bing. N. C., 222. 12 Pick., 184, Baker vs. The City of Boston, and 19 Do., 511. 3 Hill, 531, Bailey vs. The Mayor, &c., of New York, and the same case in error, 2 Denio, 433. 3 Hill, 612, Mayor, &c., of New York vs. Furze. 1 Sandf., 222, Delmonico vs. The Mayor, &c., of New York. 3 Comst., 464, Rochester White Lead Co. vs. City of Rochester. 1 Selden, 369, Lloyd vs. The Mayor, &c., of New York. 3 Do., 493, City of Buffalo vs. Holloway. 1 Duer, 452, 495, Davis vs. The Mayor, &c., of New York. 4 Ohio Rep., 500, Goodloe vs. Cincinnati. Wright, 417, Paine vs. Commissioners of Portage County. 10 Ohio, 159, Rhodes vs. City of Cleveland. 15 Do., 474, M'Combs vs. Town Council of Akron. 1 Indiana [**10]  Rep., 98, Ross vs. City of Madison. 5 Watts & Serg., 545, Dean vs. New Milford. 10 Harris, 54, City of Pittsburg vs. Grier. Ibid., 384, City of Erie vs. Schwingle. 9 Humph., 757, City of Memphis vs. Lasser. 1 Sandf., 27, Boyland vs. Mayor, &c., of New York. Ibid., 465. Levy vs. Mayor, &c., of New York.

There is nothing in the character of this defendant, either belonging to it in common with corporations in general, or peculiar to the nature of municipal corporations, whether arising from any supposed sovereignty or otherwise, which exempts it prima facie from liability to actions ex delicto for the negligence, whether of misfeasance or of non-feasance, of itself or its servants. Sovereignty cannot be predicated of a municipal corporation in that large, general, sense in which it is said to exempt the possessor of it from civil liability, nor indeed in any strict sense whatever. The State of Maryland is sovereign, inasmuch as it represents the majesty of the people, embodies their law,--creative power--and is above the reach of law, simply because the creature cannot place itself above the creator. Sovereignty is the ultimate, absolute, uncontrollable power of government; of making [**11]  laws and enforcing obedience to them, which, in all societies, must be vested somewhere. By the democratic and republican theory this sovereignty is ascribed to the people of the State. The expression of the people's will is their constitution. By that instrument the people resolve their sovereignty into the three grand elements of which it is composed, define with precision their respective limits, and distribute them appropriately among the legislative, the executive, and the judicial departments. Having done this the people have delegated their whole sovereignty. Whatever attributes or prerogatives of sovereignty have not been expressly delegated, slumber in abeyance. No reserved prerogatives exist in the people capable of a practical exercise, in the sense in which the people of the several States possess reserved rights in reference to the Federal Government. One great reserved right the people do indeed retain, simply because it is inalienable:--the right of recalling their delegated powers and parcelling out their authority anew.

Much less does any original reserved sovereignty exist in any portion of the people, or in any collection of citizens. Nor does any number of [**12]  citizens, however large, any more than an individual citizen, possess sovereignty of and in themselves. Sovereignty cannot be apportioned. It grows spontaneously out of the people at large, in their aggregate capacity, and is expressed by the will of the majority of the whole people. Each citizen contributes, whether he wills it or not, whether conscious of it or not, his infinitesimal portion of the sovereignty of the State. No citizen, therefore, can detect or distinguish out of the common mass that portion of the common sovereignty that has emanated from himself, or appropriate it, for the purpose of founding upon it any exclusive or peculiar personal prerogative. That would be to unravel the web of society and resolve it into its original elements. "If one man has this right every man has, and therefore no man." If no individual citizen can set up such a claim, how can any aggregation of citizens (not claiming to represent the whole people) set it up with any better show of reason? How large a number is requisite? If the inhabitants of a county, for instance, may set up this claim, why not the inhabitants of an election district? why not those of a village? why not the members [**13]  of a family? If the citizens of Baltimore do possess, and may avail themselves of, original sovereignty, why not as well the citizens of a particular ward?

But it is said the inhabitants of Baltimore city are incorporated for political purposes, and have conferred upon them, by their charter, legislative powers. Here, it is to be observed, the ground changes entirely. The argument shifts. The city descends from the lofty ground of original sovereignty, representing the apportioned majesty of a portion of the people, and contents itself with referring us to the expressed will of the State Legislature, to which we are all alike subject. It is essential to keep this distinction constantly in view. The whole alleged obscurity which surrounds this subject arises from confounding the supposed rights and immunities inherent in the collective inhabitants of the city, regarded as an aggregation of natural persons, with the franchises granted to the corporation as an artificial person, the creature of the Legislature, existing only in "intendment and consideration of the law." In this view the defendant upon this record, to wit, the corporation called "The Mayor & City Council of Baltimore,  [**14]  " is just as distinct from the collective inhabitants of the city of Baltimore, as from the collective inhabitants of any other city in the United States. (Bligh vs. Brent, 2 Younge & Coll., 268.) "If the whole body of members existing at any given time be collected together within our view, we do not see the corporation, although we see all the existing corporators." (Grant on Corp., 2.)

It is admitted, therefore, that this corporation is the creature of the legislature; that it is just what the legislature makes it and nothing more; that it may exercise just such powers, and enjoy just such immunities, as are expressly conferred upon it, or which result from necessary intendment and implication, and no more. Then the question arises, has this corporation been clothed with any of the attributes of sovereignty, in the sense claimed, of an immunity and exemption from civil liability, for its tortious acts of misfeasance or of non-feasance: 1st, by express terms? or 2nd, by necessary implication?

No clause in the charter or its supplements has been referred to, in which it is pretended that this delegated sovereignty has been expressly or in terms conferred. On the contrary [**15]  the original charter of 1796, ch. 68, declares precisely to the opposite effect, when in the 2nd section it enacts, that this defendant, "by their corporate name, may sue and be sued, &c., and do all other acts as natural persons." But the defendant denies our right to call it to account for a neglect of its duty, on the ground that the legislature has given it "power and authority to enact and pass all laws and ordinances necessary" for the furtherance of the objects, and the performance of the duties, for which it was created. Legislation, it is contended, is a function and an attribute of sovereignty; whenever, therefore, the power of legislation is granted, there is granted along with it an exemption from civil liability.

This argument proves too much. The power to pass by-laws or ordinances is frequently conferred by the legislature upon corporations, both public and private. And the by-laws of railroad corporations, a bank, or a college, are just as binding upon the individual corporations, and all others who subject themselves to their operation, within the scope of their respective charters, and for the legitimate objects of their creation, as are the by-laws or ordinances [**16]  of the corporation of the city of Baltimore upon its citizens, who are the corporators, and upon all others who come within the sphere of their influence. If this defendant, therefore, as respects its legislative powers, is sovereign, it follows that bank and railroad corporations, &c., are also sovereign as respects their legislative powers; that it is a mistake to suppose there is any peculiar significance in this grant of legislative power, as it is nothing more than the corporation would have had independent of any express grant, and by the general rule of law, applicable to all corporations. The power to make by-laws is incident to all corporations by the common law, as is also the power to enforce them by fines and penalties. (2 Kent's Com., 296.) The object of the legislature in this case, as well as in other similar cases, was to create a corporation with certain defined and limited powers, and it proceeds to specify, with distinctness, those subjects which are to come within the scope of its authority for the purpose of excluding all others.

But it is said there is a distinction between a private corporation and a corporation created for public, political and municipal [**17]  purposes. This is simply begging the question and losing sight of the well recognized distinction before adverted to, between the inhabitants of the city, as an aggregation of natural persons, and the technical, artificial person, the creature of the legislature, which is the defendant on this record. The whole fallacy lies in the assumption, that the by-laws or ordinances of the corporation of Baltimore city have the force or dignity of law in any higher or more significant sense than the by-laws or ordinances of any other creature of the legislature. And this assumption is the offspring of the vague and loose ideas attached to the word "law." Law is the emanation of the supreme sovereign power of the State. By that law this corporation was called into existence, and the use of the expression, "law," in connection with the enactments of this corporation, is to be taken in the same restricted and subordinate sense in which it is applied to the enactments of any other corporation which is equally a creation of that law. The mere power to legislate, therefore, within certain limits and for certain specified objects, whether of a public or private nature, does not, of itself, raise a [**18]  corporation above the reach of remedial justice.

There yet remains one ground only upon which the non-liability of the defendant may be urged, and that is, that with reference to the particular duty to repair its streets and abate nuisances the city has vested in it the largest discretionary powers, of the exercise of which it is the sole judge, and for the neglect to exercise which it cannot be called to account. In using this argument the defendant lays aside the stilts of sovereignty finally and forever. Discretionary powers are an entirely distinct matter from sovereign prerogatives, and may be predicated of corporations, whether public or private, or even of natural persons in certain official capacities. The argument, therefore, at this stage, opens to us the admission, that if we can show from a consideration of the various charters which have been passed upon this subject, that the intention of the legislature was to impose upon this defendant a ministerial duty, and not merely to confer discretionary powers, that then the defendant may be liable for a neglect of such duty. This question we will consider hereafter.

2nd. Where a duty is imposed by law, such as the [**19]  duty to repair highways, and as included therein, the duty to clear the highway of nuisance, the party upon whom such obligation lies, whether an individual or corporation, is liable to indictment for a neglect of such duty, or to a special action on the case, at the suit of an individual who sustains special damage by such neglect. See the cases above cited in Cowp., 86; 5 Bing., 91; 3 Hill, 612; 5 Watts & Serg., 545; 10 Harris, 54; Ibid., 384, and also 7 Mass., 169, Riddle vs. The Proprietors of Lisbon Bridge. 2 Shepley, 203, Watson vs. The Proprietors, &c. 11 Wend., 539, The People vs. The Corporation of Albany.

3rd. Within the principles laid down it was the duty of the defendant to prevent or remove nuisances and obstructions, and to keep the streets and footways and necessary drains in repair. 1st. There must be a liability to repair existing somewhere. The common law of England placed that liability upon the inhabitants of the Parish, and for a neglect they were punishable by indictment. A similar application of the principle in this country would make it, even in the absence of statutes, the duty of city and county corporations to repair the highways or streets within [**20]  their respective limits, they being the only bodies that have the requisite power and funds. 2nd. But we are not left to reason from general principles. We do not place the liability of the defendant upon the common law, but upon the various statutes and charters which have imposed it in express terms. By the act of 1782, ch. 17, entitled, "An act for the more effectual paving the streets of Baltimore Town," provision is made for the election of "special commissioners," and they are made a body corporate. Special taxes are designated and appropriated "towards paving, cleansing and keeping in repair the streets, lanes and alleys, within the said Town." The fund arising from these taxes is placed under the special commissioners together with a further fund arising from fines and forfeitures, and it is called a "permanent fund to keep in repair the streets." They are invested with general powers to pave and keep clear the streets, "and to agree on, execute and perform, every other act, matter or thing which to them shall appear necessary for the fulfilment of said act." They are directed to employ "proper and capable persons" as scavengers to clean the streets. In case of default of the [**21]  owners to "pave and repair the footways" in front of their houses, "the said special commissioners shall make, amend and repair the same out of the public moneys by this act directed to be raised." The said special commissioners are hereby further authorised and empowered to remove or cause to be removed all manner of obstructions to the passage through the said streets, lanes and alleys, which they shall find remaining in the same an unnecessary length of time. By the act of 1796, ch. 68, incorporating Baltimore city, the powers of the special commissioners are vested in the corporation of Baltimore city, and provides that the corporation "shall have full power and authority to enact and pass all laws and ordinances necessary to preserve the health of the city and to prevent and remove nuisances." Now apply the well known principle, that where a statute confers a power upon a corporation, to be exercised for the benefit of the public or of third parties, that exercise is not discretionary but imperative. "Power" in such cases means duty, and "authority," obligation. Dwarris on Statutes, 712. 2 Salk., 609, Rex vs. Barlow. Skinner, 370, Rex vs. Inhabitants of Derby. 1 Vernon, 152, Blackwell's [**22]  Case. 11 Wend., 539, The People vs. Albany. 3 Hill, 612, Furze vs. New York. 9 How., 248, Mason vs. Fearson. Besides, the imposition of the duty is accompanied by the grant of a special fund to be appropriated to the purpose, and this is, of itself, sufficient to charge the corporation. 5 Bing., 108. 10 Harris, 64, 65. The power to repair streets and remove obstructions therefrom, resolves itself, therefore, into a plain, direct and executive duty, not to be discharged by legislation merely, not to be satisfied by the passing of ordinances and the appointment of agents, but requiring ministerial action. 3 Hill, 618. 10 Harris, 65. The plaintiff does not seek to charge the defendant with an omission to carry into effect its own ordinances, but with a neglect to perform the duties enjoined upon it by its charter. Nor can the defendant, on the other hand, screen itself from liability behind its own ordinances, which it passed for its own indemnity. The corporation cannot, by legislation, shift off upon third parties, an obligation imposed upon and accepted by itself. The ordinances in question were read to the jury, not as prescribing a rule binding on the city, but as evidence of what [**23]  was reasonably necessary to be done by the city, in order to the proper performance of its charter duties, in the matter of repairing streets and drains, and removing nuisances, and thus to determine whether due diligence required the defendant to remove the ice from the pavement, or prevent its accumulation. 17 How., 161, City of Providence vs. Clapp. 10 Harris, 65.

4th. The ice on the pavement, in this case, was a nuisance and an obstruction, within the meaning of the charter, which the defendant was bound to remove, or a defect in the footway or drains which the defendant was, in like manner, bound to repair, as is evidenced by its own ordinances. Independent, however, of the definition given by the city, of its liabilities in this respect, by its own ordinances, the ice on the pavement was a nuisance and an obstruction equivalent to a want of repair. 1 Hawk. P. C., 212. Jacob's Law Dic., "Nuisance." Bac. Abr., "Highways," D. 3 Bl. Com., 216. 4 Do., 167, 3 Pick., 268, Bigelow vs. Inhabitants of Weston. 13 Metcalf, 292, Drake vs. City of Lowell. 7 Greenlf. Rep., 442, Springer vs. Inhabitants of Bowdoinham. 2 Fairfield, 271, Frost vs. Inhabitants of Portland.

5th. There [**24]  was evidence from which the jury were authorized to infer reasonable notice to the defendant, and want of due diligence in removing the obstructions. 7 Greenl., 445. 13 Pick., 98, Reed vs. Inhabitants of Northfield.

6th. But there is another aspect under which the defendant's liability arises, independently of its charter duties. The obstruction in this case was not an inevitable result of the ordinary operation of the elements, over which the defendant could not reasonably be presumed to have control. It was the natural and necessary consequence of the authority given by the defendant to the Water company to lay its pipes and introduce its water within the limits of the city. The powers and rights vested by statute in the defendant, over the streets, &c., within its jurisdiction, are analogous to those of proprietors of fixed property in general. Its liabilities, therefore, are the same so far as to bring it within the principle, "Sic utere tuo ut alienum non loedas." 1 Adol. & Ellis, 822, King vs. Pedley. 7 Mees. & Wels., 456, Thompson vs. Gibson. 2 Denio, 443, Mayor, &c., of New York, vs. Bailey. 4 Do., 317, Fish vs. Dodge. 9 Humph., 757, City of Memphis vs. Lasser.  

JUDGES:
The [**25]  cause was argued before LE GRAND, C. J., Tuck and MASON, J.  

OPINIONBY:
MASON 

OPINION:

 [*173]  MASON, J., delivered the opinion of this court.
This action was brought to recover damages for an injury sustained by the plaintiff, in consequence of the alleged negligence of the defendants, in not preventing or removing an accumulation of ice on the footway on Fayette street, Baltimore, upon which the plaintiff slipped and fell, and broke his kneecap, whereby he became lame and crippled for life.
There is no dispute about the facts. That the ice had accumulated and been suffered to remain on the side walk for a long time, to the great inconvenience and even danger of persons passing, and that the plaintiff actually fell and seriously 

 [*174]  injured himself, there is no doubt. But the questions presented upon this record are, first, is a municipal corporation like the city of Baltimore, responsible at common law, as individuals are, for the consequences of causing or not removing nuisances? secondly, if not, has this corporation been made so responsible by any act of our Assembly? and thirdly, if responsible in either aspect of the case, does the evidence disclose that the plaintiff has [**26]  received such special or particular damage from this nuisance which is not common to all the community, and which will entitle him to maintain the present action?
We will first proceed to consider the second general proposition, viz., the liability of the city under the statutes.
The act of 1796, chap. 68, incorporating the city of Baltimore, among other things, provides, that the corporation "shall have full power and authority to enact and pass all laws and ordinances necessary to preserve the health of the city, and to prevent and remove nuisances." It is a well settled principle that when a statute confers a power upon a corporation to be exercised for the public good, the exercise of the power is not merely discretionary but imperative, and the words "power and authority," in such case, may be construed duty and obligation.
Whether the obligations and liabilities which attach to the individual, in regard to nuisances, apply or not equally to corporations, at common law, it is not now necessary for us to determine. We are of opinion, that the effect of the provision in the statute just cited, was to place the corporation of Baltimore, in regard to their obligations to [**27]  prevent and remove nuisances, upon the same footing which is held by individuals and private corporations. The people of Baltimore in accepting the privileges and advantages conferred by their charter, took them subject to the burthens and restrictions which were made to accompany them under the same charter. One of those burthens was, the obligation to keep the city free from nuisances. A disregard of the obligation thus imposed would be attended with the same consequences which would result to the individual at common law, were he to disregard his obligations to the community in this particular. As the duty is 

 [*175]  the same in the corporation and the individual, so are the consequences the same for its disregard. The only difference is, that the common law imposes the duty upon the individual, while a statute of our State imposes it upon the corporation. To say that, under the statute, the city of Baltimore is bound to prevent nuisances, and yet to add that none of the common law consequences attach for not doing so, is to assert what would amount to a contradiction of the first proposition, and virtually affirms that the city is not bound to remove or prevent [**28]  nuisances. The counsel for the defendants seems rather to admit this position, that the city would be responsible if this obligation was not discharged, but seeks to establish the proposition, that the passage of the ordinances given in evidence, providing for the removal of ice and snow from the streets, operated as a full discharge of the city's obligations, and will constitute a complete defence to all actions like the present. In order that the city should relieve itself from this obligation, it was not only necessary that it should pass ordinances sufficient to meet the exigencies of the case, but it was also bound to see that those ordinances were enforced. To pass an ordinance, and not enforce it, would be the same as if none had been passed, so far as the public interests were concerned. There is no evidence in this record of any effort on the part of the city to enforce their ordinances on this subject, but, on the contrary, it appears they were suffered to sleep as dead letters on its statute books. To have enforced them was necessary to bring the city within the saving, of having used reasonable care and diligence in removing the nuisance complained of. In the case of Pittsburgh City vs. Grier, 22 Pa. 54, [**29]  the court very justly remark, upon a case very similar to the present, that "it is no matter whether that duty (removing a nuisance) remains unperformed because she has no ordinances on the subject, or because, having ordinances, she neglects to enforce them. The responsibilities of the corporation are the same in either case." In the same case, (page 67,) the court further say, "they ought to have performed that duty with vigilant fidelity."
We are not prepared to say that had the city, after it had 

 [*176]  passed its ordinances upon this subject, and endeavored to enforce them with vigilance and energy, would not thereby have so far used ordinary care and diligence, as to have exempted them from responsibility upon an action like the present. But this does not appear to have been done, at least there was no proof of it, although the nuisance complained of had existed for a long time before the accident to the plaintiff occurred. And besides, the defendant by modifying its second prayer, which was granted by the court, could have secured all the advantage to which it was entitled upon this point. That prayer was as follows:
"2d. If the jury believe that the accident happened [**30]  to the plaintiff by reason of the ice being upon the pavement, and that said ice could not have been prevented from being on said pavement, whereby the injury was occasioned, at the time of said accident, but that it was owing to causes which could not have been prevented by ordinary and reasonable care and diligence of the Mayor and City Council, that then the plaintiff is not entitled to recover."
Under it, evidence showing due care and diligence, might have been offered, and the court might, in addition, properly have told the jury, that a vigorous effort to enforce their ordinances on this subject, on the part of the city, would have amounted to such care and diligence, and thus have relieved them from responsibility. Were this not so, there would be no telling how far the city might be made liable for failure to remove nuisances. Great public immorality might be regarded as a nuisance, and every wrong or injury, resulting from such a source, might be laid to the city's account, notwithstanding every effort, through its police, had been made to suppress such immorality and vice. The same might be said of causes producing epidemics and the like.
It was also necessary that the [**31]  plaintiff should, on his part, show "reasonable and ordinary care and diligence, whereby he might have avoided the injury sustained by him." But the defendants had the full benefit of this legal principle, by having their third prayer (which embraced the proposition) granted.

 [*177]  The only proposition, then, advanced by the defendants, which was denied, was that which affirmed that the mere passage of the ordinances for removing the snow and ice, &c., operated as a discharge of the city from responsibility. For the reasons already assigned, we think the court was right in not adopting this proposition as law.
We think, also, that the plaintiff's prayer was properly granted, as containing the whole law of the case upon the proof legitimately offered. That prayer was as follows:
"If the jury find from the evidence in the case, that ice had accumulated in large quantities on the public footway on the North side of Fayette Street, between St. Paul and Calvert streets, in the city of Baltimore, completely covering the said portion of said footway, in such manner as greatly to obstruct, inconvenience and endanger the public in walking along and over said footway; and if the jury [**32]  further find, that the said obstruction could have been removed, or the danger and inconvenience therefrom remedied, by the use of proper care and diligence on the part of the defendant, or its proper agents appointed for that purpose; and if the jury further find from the evidence, that the defendant and its proper agents aforesaid, had notice, or might by care and diligence have obtained notice, of such obstruction by ice as aforesaid, a sufficient time to have removed the same before the occurrence of the injury complained of, then it was the duty of the said defendants, or its agents, to have removed the said obstruction in a reasonable time after notice thereof, or after they might have obtained notice thereof, by the use of ordinary care and diligence; and if the jury further find that the plaintiff, while exercising ordinary care and diligence on his part, received the injury complained of by falling on said obstruction by ice, and that such injury occurred after the lapse of a sufficient time from the notice of such obstruction to the defendant, or its said agents, or from the period when the defendant or its agents might have obtained notice thereof, by the exercise of ordinary [**33]  care and diligence, then the plaintiff is entitled to recover such damages by reason of his injury, as the jury may think he has sustained under the circumstances."

 [*178]  The only questions remaining, are, was the condition of the street which led to the accident, such as to amount to a nuisance, and if so, has the plaintiff sustained such an injury, special and peculiar, as will entitle him to recover. There can be no doubt from the evidence in the case, and it seems not to be controverted by the defendants, that the condition of the street was a nuisance. It is equally clear too, that the plaintiff has sustained such an injury as will entitle him to maintain this action. Where a party sustains an inconvenience or injury which is experienced in common with all the citizens, then the source of complaint becomes a common nuisance, and the rule of law is clear, that the remedy must be by indictment. But, on the contrary, notwithstanding the party producing the nuisance may be indicted, yet if its existence has produced special and particular damages to an individual, the latter may maintain a special action against the wrongdoer. The law upon this particular point is correctly [**34]  and fully stated in the case of Stetson vs. Faxon, 19 Pick. 147; and by Judge Archer, in an opinion delivered in the Baltimore county court, in the case of Barron & Craig vs. City of Baltimore, reported in the 2 American Jurist 201, in the year 1828.
The view we have taken of this case does not conflict, in our judgment, with the decision of the Supreme court in the case of The City of Providence vs. Clapp, 17 Howard 161.
In that case the court say, "it is admitted that the defendants are not liable for the injury complained of at common law, but that the plaintiff must bring the case within the above statute to sustain the action." We have said in this case, that the liability of the defendants is fixed by the statutes of our State, and nothing more.
The general liability of a municipal corporation, like the present, in actions of this kind, has been recognised by a number of well adjudged cases, many of which resemble the case at bar.  City of Erie vs. Schwingle, 22 Pa. 384. Pittsburgh City vs. Grier, Ibid., 54. Delmonico vs. New York City, 1 Sandf. 222.  19 Pick., 511. Henly vs. Mayor of Lyme, 5 Bing. 91, [**35]  and others.
Judgment Affirmed. 

56 of 187 DOCUMENTS 

ROBERT J. BRENT and OUTERBRIDGE HORSEY, vs. THOMAS DAVIS and JOHN FERRY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 Md. 217; 1856 Md. LEXIS 19 

JUNE, 1856, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

Assumpsit by the appellees, as partners in trade, against the appellants, to recover the amount of a judgment obtained on a promissory note placed in the hands of defendants, as attorneys at law, for collection. Plea, non assumpsit.

A bill of discovery was filed by the defendants and answered by the plaintiffs, and leave granted to take the testimony of Neale under a commission de bene esse, but neither the answers nor the deposition, if taken, were used at the trial.

Exception. The plaintiffs offered in evidence the receipt set out in the opinion of this court, signed by Horsey in the firm name, and proved that at its date defendants were associated in the practice of law in Baltimore city, where they had an office, and where also plaintiffs resided. They then offered the record of the judgment on the note referred to in the receipt against Kelly in Carroll county court. This record shows that the suit was brought on the 29th of March 1845, and the declaration filed by T. P. Scott, as the plaintiffs' attorney; that Abner Neale subsequently appeared with said Scott as plaintiffs' attorney; that the judgment was rendered [**2]  on the 6th of April 1846, and, on the 5th of April 1847, was ordered to be entered satisfied by said Neale as plaintiffs' attorney. Defendants admitted they had notice of demand made on them for the money claimed in this case before suit brought, and plaintiffs here rested their case.

The defendants then offered the following notice of copartnership, published in "The American," a newspaper of Baltimore city, of which Ferry, one of the plaintiffs, was at the time a subscriber, and which he daily received:

"Law Notice.

The undersigned have associated themselves together for the prosecution of their profession in the city of Baltimore, and will faithfully attend to any business confided to their charge. Robert J. Brent will continue, as heretofore, to attend the courts of Howard District, Charles county, Washington city, Alexandria, and the Supreme Court of the United States.

OUTERBRIDGE HORSEY.

ROBT. J. BRENT,

Office No. 14 Law Buildings, and St. Paul street."

They further proved by a number of witnesses, members of the Baltimore bar, that it was their usage and practice to take charge of claims to be collected in the counties where they did not practice,  [**3]  and sometimes to receipt for such claims; that in such cases it was their usage and practice to send such claims to some suitable and competent attorney practicing in the county where the debtor resided, and sometimes to put into the receipt to whom sent; that there was a diversity in the practice of witnesses, some of them charging commissions on the amount of the claim when received from the county attorney, and others not; that most of them informed their clients in such cases that they did not practice in such county, and would send the claim to some attorney practicing there, and some of them sometimes merely gave the name of an attorney, that the creditor might send his claim to him.

They further proved that neither of them ever was a member of the bar of Carroll county, or ever attended the court of that county, and that said Neale, at the date of his appearance to said suit, and ordering the judgment to be entered satisfied, was an attorney practicing in that court, of good reputation as a competent and upright attorney.

The plaintiffs then offered the following prayer:

If the jury find from the evidence that defendants received from the plaintiffs the note mentioned [**4]  in the receipt, and that the money due thereon was subsequently paid by the maker on a judgment recovered against him in Carroll county court, as shown by the record thereof; that Neale, who received the money, was the agent of defendants, and that before this suit demand was made on defendants for payment of the money so received, then plaintiffs are entitled to recover.

The defendants then offered the following prayers:

1st. That there is no evidence of any authority given by defendants to Neale to appear as attorney on record for the plaintiffs in the suit in Carroll county, or to charge the defendants by reason of the receipt of the money by said Neale.

2nd. If the jury find that the co-partnership between defendants did not extend to the collection of claims in Carroll county, and that the plaintiffs knew this fact, then there is no joint legal liability on the defendants for the collection of this claim, though the receipt was signed by Horsey in the partnership name, unless there is evidence in the case to satisfy the jury that Brent was privy and assenting to such use of that name.

3rd. That the appearance of Neale constituted him the lawful attorney of [**5]  the plaintiffs in that suit jointly with T. P. Scott, and, as such attorney, he was entitled to receive the money recovered by the judgment, and is responsible to the plaintiffs therefor, and they cannot recover in this suit.

4th. If the jury find from the evidence that defendants placed the note in the hands of Neale, an attorney of Carroll county court, for collection, and used ordinary care, diligence and prudence in selecting said Neale as a competent and faithful attorney, then the plaintiffs cannot recover for any default of Neale.

5th. If the jury believe from the evidence that the note was placed by the plaintiffs in the hands of defendants to be collected as stated in the receipt, that defendants were not members of the bar of Carroll county and did not practice law therein, and that this last fact was known to the plaintiffs at the time, and that when claims for collection or suit are placed in the hands of attorneys residing in Baltimore city, against persons residing in any county where such attorneys do not practice their profession, it is the usage of the profession, or members of the bar in said city, to forward such claims to members of the bar who practice [**6]  in the courts of the county where the suits must be brought, and that defendants, acting upon such usage, forwarded the note to Neale, an attorney in Carroll county, to be collected, and that in selecting Neale for this purpose, they exercised ordinary care, prudence and diligence, and selected an attorney of established character for integrity, fidelity, and competency in his profession for the discharge of the duty so confided to him, then the plaintiffs cannot recover in this action.

6th. That in order to entitle the plaintiffs to recover in this case, it is incumbent on them to satisfy the jury, by evidence in the cause, that Neale was employed by defendants, or one of them, as attorney to prosecute and collect the claim, and that there is no such evidence in this case, and plaintiffs are, therefore, not entitled to recover.

The court, (FRICK, J.,) granted the plaintiffs' prayer, and rejected all those of the defendants. To this ruling the defendants excepted, and the verdict and judgment being against them, appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

In an action for money had and received there can be no recovery, unless it be shown that the money was actually received by the defendant or his agent.

Where a law partnership is limited to the transaction of professional business in the city of Baltimore, and a party, with knowledge of this fact, places in the hands of one of the partners a note for collection in Carroll county, and takes a receipt therefor from him in the firm name, there is no joint responsibility unless the other partner assented or was privy to the transaction.

But if the other partner was privy to or assented to the transaction, and the firm sent the note to an attorney in Carroll county as their agent, for collection, and such agent received the money on the note and failed to account for it, then the firm is responsible to the owner of the note.  

COUNSEL:
Henry May and St. Geo. W. Teackle for the appellants, argued, that the prayer of the appellees was erroneously [**7]  granted:

1st. Because it assumes there was evidence to show the note receipted for was the joint property of the plaintiffs, whereas there was no such evidence. The receipt is simply of John Ferry, and there is no evidence of co-partnership between the appellees, or that the note originated in any partnership business. See the rule as stated in 2nd Greenlf. on Ev., sec. 478.

2nd. It submits to the jury to find that Neale was the agent of the defendants, when there is no evidence to establish such agency, but, consistently with the record, he may, and is presumed to, have been authorised by the clients to appear in the cause. Even if the law should presume, (which we do not admit,) that Mr. Scott, the first attorney appearing, was the agent of the defendants, it will certainly not presume that every attorney who subsequently appears is also such agent. It would rather presume that the clients had retained additional counsel. (7 H. & J., 275, Henck vs. Todhunter.) This is not an action on the case for negligence, but assumpsit for money had and received by the defendants, and in such a case the onus is on the plaintiffs to show the agency of Neale, as the proof is that he received [**8]  the money, and not the defendants. The question is simply, whether the jury can, upon no other evidence than the face of the Carroll county record, find that Neale was the agent of the defendants? That the agency must be proved in some way, see 2 Esp., 509, Matthews vs. Haydon. 2 Saund. on Pl. & Ev., 672. 11 Mod., 88, Thorold vs. Smith.

3rd. This prayer precludes the jury from considering the evidence of notice to the appellants of the fact that defendants' copartnership did not extend to Carroll county, and, therefore, that Mr. Horsey had no legal authority to bind his co-partner by any such receipt. It is proved that prior to the date of the receipt Ferry was a subscriber to "The American" newspaper, and is, therefore, chargeable with notice of defendants' advertisement in that paper. Story on Part., sec. 161. 1 Starkie on Ev., 166. 1 Starkie's Rep., 186, Leeson vs. Holt. Peake's N. P., 42, Gorham vs. Thompson. Ibid., 154, Graham vs. Hope. Notice to one partner is notice to all. Story on Part., sec. 107. Here there is evidence tending to show that the appellees, with full notice of the limited and local partnership between the appellants, took from one of the partners the receipt [**9]  in a case not authorised by the terms of the co-partnership as known to Ferry, and there is no evidence whatever of the privity or assent of the other partner to this unauthorised transaction. In such a case the co-partnership cannot be held liable to the party so dealing with one of the firm. 13 Penn. State Rep., 650, Porter vs. Kelly. Story on Part., secs. 110, 112, 128, 129, 130. 43 Eng. C. L. Rep., 754. 3 Ala. Rep., 187, Huntington vs. Branch Bank.

4th. The prayer precludes all inquiry as to the effect of usage in reference to the practice of attorneys in Baltimore city, in selecting the county attorney in similar cases. The defendants resided in Baltimore, and were not members of the bar of Carroll county. There is no evidence that they specially undertook personally to prosecute this claim in Carroll county. The receipt simply states that the claim was "to be collected." Now what are the duties of an attorney, and his obligation to his client? Some of the cases intimate that a fee must be paid, or promised to make an attorney liable. (3 Bibb., 517, Eccles vs. Stevenson. 2 Wash. (Va.) Rep., 203, Stephens vs. White.) But we are willing to concede that the liability exists,  [**10]  though in an inferior degree, where, as in this case, no compensation is given or promised. In such cases the agent is only liable for gross negligence. (Paley on Agency, 77, 78.) The general rule is, that an attorney is only liable for ordinary care and diligence, and good faith. (7 Shepley, 421, Wilson vs. Russ. 4 Burr., 2060, Pitt vs. Yalden. 5 Call., 118, Hawkins vs. Minor.) He must be diligent in the usual course of proceedings. (Wright, 466, Gallaher vs. Thompson.) In this case the usage is clearly proved by a number of witnesses, who testify, that, as attorneys in Baltimore, it is their practice to send such claims to county attorneys for collection. In our view of it the proof shows that this usage is a well established local usage, and is sufficiently general and contemporaneous with the date of the receipt in March 1845, to be relied on before the jury as evidence by which to construe and expound the undertaking of the appellants; that in all these particulars it satisfies the decisions in 6 H. & J., 408, Allegre vs. Ins. Co. 9 G. & J., 220, Powell vs. Bradlee. 1 H. & G., 239, Bank of Columbia vs. Fitzhugh. 2 Md. Rep., 241, Merchants Mutual Ins. Co. vs. Wilson. 6 Md. Rep.  [**11]  , 48, Foley & Woodside, vs. Mason. See, also, 1 Greenlf. on Ev., sec. 292. 2 Sumner, 567, The Schooner Reeside. 2 Douglas, 511, Noble vs. Kennoway. 1 Camp., 503, Vallance vs. Dewar. But the case of Jackson vs. The Union Bank, 6 H. & J., 149, is more strictly analogous to the present controversy than any yet cited. It was there held, that a party depositing in a Baltimore bank a draft payable in the District of Columbia, could not hold the Baltimore bank responsible for the laches of another bank in the District of Columbia, to which the draft had been sent according to the practice and usage of the Baltimore banks. The court in that case say, "the draft was payable in the District of Columbia, and the placing it with the defendants for collection, was equivalent to an agreement with them that it should be sent by them for that purpose to some bank in the District of Columbia."

Orville Horwitz and John Nelson for the appellees, argued:

1st. That the general proposition contained in the plaintiffs' prayer was correct, viz., that the money collected by Neale, the agent of the defendants, on the judgment, was in contemplation of law money collected by them, and that they are responsible [**12]  for its payment to the owners and holders of the note on which the same was collected by them as attorneys. 2 Blackf., 22, Pollard vs. Rowland. 12 Smedes & Mar., 669, Wilkinson vs. Griswold, et al. 2 Pike, 413, Cummins vs. McLain, et al.

2nd. That defendants' first prayer is erroneous:--1st. The note is delivered to and receipted for by them; suit is brought on it, and for two years before payment of the money Neale appears as the attorney of record in Carroll county. From whom must he have got the note? How was the possession transferred from Brent and Horsey to Neale? Either by delivery to act as their agent or by finding? In the first case they are clearly responsible; in the second case it was their duty to have watched the progress of the case during the three years it was on the docket in Carroll county, to have looked after the note committed to their charge, and to have interfered to protect the interest of their principals, if Neale was improperly of record. 2nd. Is not the fact of their failure to use the answers to the bill of discovery and the testimony of Neale before the court? and is it not competent to draw the inference from such failure, that if used they would [**13]  have shown directly that Neale was their agent, and that he received the note from them?

3rd. There is no evidence to sustain the defendants' second prayer. The evidence consists of the advertisement, and its construction is for the court. The manifest interpretation of this law notice is, that defendants had fixed their place of business--their office--in Baltimore city, and that they will faithfully attend to any business confided to their charge, not to business within the city only, but to any business. Suppose the debtor Kelly had resided in Baltimore county instead of Carroll? The second sentence of this advertisement holds out the additional inducement, that one of the defendants will himself attend in person to business before certain courts out of the city, negativing the idea that their business is to be confined to the city, and presenting the inference, that, except at the places named, they will transact any business confided to their charge through their agents.

4th. It is admitted that so far as the defendant to the suit in Carroll county is concerned, Neale was the attorney of the plaintiffs, and they were bound by his acts, and cannot therefore recover the [**14]  money a second time from Kelly, (7 H. & J., 275, Henck vs. Todhunter,) but as between plaintiffs and defendants the former have nothing to do with Neale. He is to them in that regard a stranger without privity, upon the familiar principle, Delegatus non potest delegare. 4 Pet., 396. 4 Miss., 522. An attorney is selected because of the confidence of the principal in his ability, integrity and responsibility, and the principal cannot be turned over to a sub-agent, where there is a breach of duty or a want of responsibility. 26 Wend., 485, Lyon vs. Jerome. The defendants' third prayer was therefore erroneous.

5th. That the duty undertaken by the defendants was not to select for the plaintiffs, with due care and diligence, a competent and faithful attorney of Carroll county, but to collect the money from Kelly, (3 Penn. Rep., 224, Riddle vs. Poorman, et al.,) and their fourth prayer was therefore incorrect.

6th. As to the fifth prayer we insist:--1st. That there is no evidence of any knowledge on the part of the plaintiffs that defendants were not members of the bar of Carroll county, and did not practice law there. The most that can be contended is, that there was knowledge,  [**15]  inferentially, that Brent did not in person attend regularly that court. 2nd. There is no evidence of any usage of any description. There is evidence of a diversity of practice among members of the bar as to the collection of claims out of the city. Some take such claims and some do not; some receipt for them and some do not; some send the claims to an attorney and some give the name of the attorney to the client; some charge commissions and some do not; some state to their client that they do not practice in the particular court and some do not. "In any case a usage to be admissible must be proved to be known to the parties, or be so general and well established that knowledge and adoption of it may be presumed, and it must be certain and uniform." (6 Md. Rep., 50, Foley & Woodside, vs. Mason.) Is there in this case any proof of certainty and uniformity? or that such usage was known to the plaintiffs? or that it was so general and well established, that knowledge and adoption might be presumed? Again, there can be no usage admissible in evidence to vary the terms of the contract where they are clear and manifest, (6 Md. Rep., 49,) and the undertaking by the receipt in this case is [**16]  clear and manifest.

7th. As to the sixth prayer we insist:--1st. It is not incumbent on the plaintiffs to prove, by direct evidence, that Neale was employed by the defendants. It having been shown by the receipt that the note was placed in their hands for collection, the onus of showing that their agency was revoked, and that the note came to the hands of another party by the intervention of the plaintiffs, is on the defendants. 2nd. As before stated, the inference is irresistible that Neale must have received the note from defendants, there being no evidence to show that it ever was in the hands of any other person after it was delivered to them for collection.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and TUCK, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*226]  LE GRAND, C. J., delivered the opinion of this court.
This action was brought to recover the amount of a judgment obtained on a promissory note, payable to the appellees by a certain Thomas G. Kelly, of Carroll county. The facts of the case, as shown at the trial below, may be thus stated:--The appellants were associated in copartnership, (as was proven by an advertisement to that effect in one of the newspapers published [**17]  in the city of Baltimore,) for the conducting of their business in the city of Baltimore as lawyers; that the appellee, Ferry, placed in the hands of the appellant, Horsey, the promissory note of Kelly, and the said Horsey gave him therefor the following receipt:
"March 27th, 1845.
Received of John Ferry, Esq., a note of Thomas G. Kelly, of Carroll county, dated 31st December 1842, for $ 350, one day after date--to be collected.
BRENT & HORSEY."
On the note so handed to Mr. Horsey suit was brought against the maker, and judgment obtained on the same in Carroll county court. The suit was brought by T. Parkin Scott, Esq., as the attorney of the payees. Subsequently, Abner Neale, Esq., appeared as their counsel. The money was obtained on the judgment, but never paid over to either the appellants or appellees in this case. This suit is brought on the theory, that the appellants having received the note for 

 [*227]  collection, are bound, in law, for the amount received by Neale. This is denied on various grounds:--First, that Horsey had no power to bind his partner to do any professional business beyond the limits of the city of Baltimore. Second, that inasmuch as neither [**18]  of the appellants practiced their profession in Carroll county, the reception of the note for collection only implied, on their part, an obligation to exercise due diligence in the selection of some attorney of that county who was generally esteemed and regarded as trustworthy and competent; and Thirdly, that it is the custom among the members of the profession in the city of Baltimore, when they do not practice in a particular county, or court, to transmit to an attorney who does so, any paper given to them for collection, and that such reception and transmission is not understood as subjecting them to any liability for the conduct of the person selected to prosecute the claim.
The appellants never received any fee or commission for their agency in the transaction. It was also proven that the appellee Ferry was a subscriber to and daily received the newspaper, the "Baltimore American," at the time the notice of the co-partnership between the appellants appeared in it as an advertisement.
On this state of facts the appellees submitted to the court below one prayer, which was granted; and the appellants six, which were all rejected. From this decision this appeal is taken.
We think [**19]  the court erred in granting the prayer of the plaintiff, and in rejecting the first, second and sixth prayers of the defendants.
This is not an action for negligence, but for money had and received, and there can be no recovery, unless it be shown that the defendants actually received it themselves, or that their agent did so. The prayer of the plaintiff concedes this by requiring the jury to find that Abner Neale was the agent of the defendants. The defect in the prayer is, that there is no evidence from which the jury could find such agency. There is not the slightest evidence in the record to show how, or by what authority he became associated with the case in 

 [*228]  Carroll county court. The suit was brought by T. Parkin Scott, Esq., and if any inference is to be drawn of the creation of an agency by the defendants, from the fact that the note was handed to one of them, and therefore to be accounted for, it would be that Mr. Scott, and not Mr. Neale, was the agent selected.
The first and sixth prayers of the defendants are but the converse of the proposition contained in the plaintiffs', and ought to have been granted.
The second prayer of the defendants ought also to have [**20]  been granted. It merely asserts, that if the partnership of the defendants was limited to the transaction of professional business within the limits of the city of Baltimore, and that the plaintiffs "were apprised of this fact," then there is no joint responsibility, unless the defendant Brent assented or was privy to the transaction. Had this prayer been granted, the jury might have found all the facts therein required to be found by the jury. The fifth prayer of the defendants was properly rejected. The evidence relied upon to sustain the usage we regard as insufficient. For the views of this court on the subject of usage, see Foley & Woodside, vs. Mason & Son, 6 Md. 37, 50. We abstain from an expression of opinion in regard to the other propositions, inasmuch as we regard them as mere abstractions in this case. The question here is, not whether Mr. Scott or Mr. Neale be responsible to the plaintiffs? but, whether the defendants are? It would be improper to decide on the responsibility of persons who are not parties before us.
Whilst we hold, that if the partnership was limited to the city of Baltimore, one partner had no right to bind his co-partner,  [**21]  without his consent, for matters not covered by the terms of their agreement, nevertheless, we hold it clear, that if there was privity or assent to a contract to do that not covered by the co-partnership, it binds all. If the jury should believe from the evidence that Mr. Horsey signed the receipt given in evidence, and that Mr. Brent ratified the act, and that Mr. Neale was their agent, and received the money and failed to account for it, then the defendants are responsible. That the 

 [*229]  plaintiffs may have an opportunity to supply the proof of the agency of Mr. Neale, if they can do so, we send the case back.
Judgment reversed and procedendo awarded. 

57 of 187 DOCUMENTS 

HIRAM KAUFFMAN vs. EMILY J. WALKER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 Md. 229; 1856 Md. LEXIS 20 

JUNE, 1856, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

A mortgage, under the act of 1833, ch. 181, of certain property in the city of Baltimore, was executed to the appellee, on the 22nd of April 1845, by Wm. H. and Wm. E. Hanson and wife, to secure a debt of $ 1000. On the 11th of March 1853, after forfeiture, the mortgagee filed her petition in the Superior Court for a decree for a sale under this act. This petition states the death of Wm. H. Hanson, and that the appellant had, by mesne assignments, become sole owner of the property, subject to the mortgage. On the same day she filed a statement of her claim, amounting to $ 1247.67, to which was annexed this affidavit:

"STATE OF MARYLAND, City of Baltimore, to wit:

On this 9th day of March 1853, before me, the subscriber, one of the justices of the peace of the State of Maryland, in and for the city of Baltimore aforesaid, personall, Emily J. Walker, and made oath according to law that the above account is just and true as stated, and that she has not received any part of the money stated to be due, or any security or satisfaction therefor, more than the credit is therein given for, and the mortgage and note herewith filed.  [**2]  

SAMUEL RINGGOLD."

The court, on the same day, passed a decree (under the act of 1833, ch. 181, as stated in the titling,) for a sale, "unless the mortgage debt, with interest and costs, be paid to the complainant within five days from this date." The trustee advertised the property thus:

"Trustee's Sale.--By virtue of a decree of the Superior Court of Baltimore city, sitting as a court of equity, the undersigned, as trustee, will offer for sale at public auction, on the premises, on Thursday, the 14th day of April next, at half-past 3 o'clock P. M., the following property, viz: All that lot or parcel of ground, with the improvements thereon, situate on the south side of Lombard street, in the city of Baltimore, at the distance of three hundred and ninety-one feet, or thereabouts, westerly from the south-west corner or intersection of Lombard and Canal streets, fronting on Lombard street about twenty-four feet, and extending back about one hundred feet to the midway between Lombard and Granby streets. The above lot is in fee, and is improved on Lombard street by a good and substantial three-story brick dwelling-house, with a brick back-building. Terms of sale," &c. This [**3]  description of the property is similar to that in the mortgage.

The property was sold in pursuance of this advertisement to Louis Wagner, for $ 1550, and the sale duly reported by the trustee. The appellant excepted to the ratification, because:

1st. No notice was given to him as provided by the decree.

2nd. The affidavit annexed to the claim of the mortgagee is not in due form of law, as contemplated by the act of 1833, ch. 181.

3rd. The sale is for less than half the value of the property.

4th. The decree and sale have been obtained by surprise, and without notice to the exceptant, who was ready and willing to pay the mortgage debt, or so much of it as was justly due.

5th. The sale was collusive between the purchaser and the agent of the complainant, and for the purpose of depriving the exceptant, the owner of the property, of his just and equitable right.

6th. And for other good and sufficient reasons.

An additional objection was afterwards filed: That the petition prays for relief under the act of 1833, ch. 181, and the decree was under the same act, and that the court, under this act, had no authority so to decree.

The purchaser and [**4]  complainant in their answers aver that the sale was bona fide and fairly made, and insist that it should be ratified. The appellant then filed in court a written offer to give bond, with sureties to be approved by the court, in any sum the court may require, that the property, if fairly exposed at public sale at the Exchange, after due notice and proper description in the advertisement, will sell for more than double the sum obtained at the sale made by the trustee.

Testimony for and against the exceptions was taken, by consent, before a special commissioner appointed for the purpose.

As to the value of the property, the witnesses on the part of the exceptant state that, in their opinion, it was worth $ 3000 or more; that the lot was worth about $ 3.50 per front foot, and the house about $ 2000. Those on the other side state that the house was old, out of repair and dilapidated; that the location is not desirable, and the character of the neighborhood would not recommend the property; that land in that neighborhood is worth $ 2 per foot; one of the witnesses states that he thinks $ 1500 was a fair price for the property, whilst another says he thinks the property sold very [**5]  low.

As to the advertisement, one of the witnesses for the exceptant, who had owned the property for nearly ten years, says he saw the advertisement before the sale and did not recognise the property, and that he would not now recognise it by reading the advertisement, because he does not know the distance of the property from Canal street; another states he would not recognise it as Hanson's old house for the same reason; other witnesses state the same thing, and one states that he would recognise it, because he is acquainted with the distances in that location. These witnesses also proved the house was in possession of the purchaser as tenant; that it had formerly been occupied for a long time by Hanson; that there was an old number on the house nearly obliterated; and that there are several three-story brick houses on Lombard, between Canal and Lloyd streets; that this house was at the corner of Lombard and Lloyd streets when the latter should be opened, and that if Lloyd street should be continued southerly it would give the lot one hundred feet front thereon; that there was a three feet alley on the east side of the premises used with the property, and that to settle a doubt [**6]  in regard to it, one of the former owners paid a sum of money for it to the claimant. On the other side, one witness says he thinks he would recognise the property from the advertisement, by its distance from Canal street and the size of the house, and another states that he read the advertisement and went to the sale in consequence of seeing it.

As to the sale, it was proved that the attendance was small--not more than ten or twelve persons; that it rained before and after, but very little during the sale; that there were four bidders; that it was conducted in the usual mode; that the trustee was present and did every thing he could to sell the property well; that Kauffman was not present, either in person or by agent.

There is proof that Kauffman knew of the mortgage and the amount due on it; that he employed counsel to contest its validity before the petition for the decree was filed; that such counsel wrote a note to the agent of the mortgagee in reference to the matter, stating that Kauffman was dissatisfied with the mortgage, and asking who was its owner, and for a statement of the mortgage claim, and he remained expecting a reply, but heard nothing from such agent [**7]  or his counsel until several days after the sale had been made, and that the proceedings and the sale were a surprise to him, he being on friendly terms with said agent, did not think proceedings would be instituted and a sale made without notifying him as counsel for Kauffman.

The court, (FRICK, J.,) delivered the following opinion in the case:

"The act of 1833, ch. 181, under which this proceeding is taken in equity, bears analogy to the entering a judgment at common law upon terms. Consent is given by the mortgagor to enter up a decree against him at any time, with liberty to enforce the payment by a sale, when by a statement, verified as the act directs, it is shown by the mortgagee that the claim or any part of it has matured, and still remains due and unsatisfied. This is all the preliminary proceeding and condition that is required to effect the sale. No other or further notice is contemplated by the act, and no particular form of verification is required. In this case the affidavit filed appears to me a substantial and sufficient compliance. As to any further notice to the mortgagor or his assignees, or in fact of any notice at all to any party, the act is entirely [**8]  silent. Payment at the time limited is the only means of averting the consequences of the debtor's own assent and appointment of the time of payment.

"The day further given, in analogy to the general chancery practice, is, therefore, only a stay of execution of the decree as further grace and time to the mortgagor, of which, he (being presumed to know when the debt in the first instance is due,) has no right to claim notice, at least not under the act, to which, stringent and grinding as it is, he has submitted himself by the terms of his contract. Harsh and summary as the whole proceeding often is, yet the mortgagor has by his own assent subjected himself to it, and his assignee with notice of the mortgage on record can stand in no better position. The court can extend no equity or notice to him which is cut off from his assignor by the terms of the contract. The proceeding is substantially ex-parte on the part of the mortgagee. The act nowhere, in any form, requires notice to any other party, and the creditor is only to see that he keeps strictly within the requirements of the act. If no notice, by the act, is required of him to the mortgagor or his assignee, then the objection [**9]  of surprise (which here is want of notice) can be of no avail. The purchaser of the equity of redemption stands in the place of the original mortgagor, who has waived all notice to which he would be entitled under any other chancery proceeding.

"No other objection is therefore left upon the exceptions but the inadequacy of the price. However manifest it may be from the testimony on this head taken altogether, that the property has not sold for its actual value, and that the proceeding was somewhat precipitated, and out of the view of some of the parties most interested, I dare not pronounce it so grossly inadequate as to authorise me, standing alone on that objection, to set aside the sale.

"I consider these and similar proceedings as properly under the act of 1833, ch. 181, and that the supplement of 1839, ch. 9, sec. 3, is to be construed as part of the act, the proceeding authorised by that third section having direct reference in its execution to the original act. The proceeding is necessarily, in the first instance, under the act of 1833, and the latter supplement in reference to the proceedings after the period limited for the payment of the debt, still directs the [**10]  decree to be passed under this act, the phraseology being, 'That the decree authorised by' the 2nd section of the act of 1833 may be passed as well before as after.

"In overruling the exceptions, I can only regret that these proceedings must be entertained in a court of chancery under an act of Assembly which, on its face, repudiates all equity principles."

From the order overruling the exceptions, and finally ratifying the sale passed in conformity with this opinion, the exceptant appealed.  

DISPOSITION:
Order reversed and cause remanded.  

HEADNOTES:

A trustee's advertisement of the sale of a house and lot in the city of Baltimore, described the property as situated on "the south side of Lombard street, at the distance of 391 feet, or thereabouts, from the south-west corner or intersection of Lombard and Canal streets, fronting on Lombard street about 24 feet, and extending back about 100 feet, to the midway between Lombard and Granby streets, and is improved by a good and substantial three-story brick dwelling-house, with a brick back-building." HELD:

That this was an insufficient description of the property, and, in connection with the fact that it sold for much less than its value, will avoid the sale.

The advertisement is designed not only to let the public know what property is thus brought into market, but also to afford the owner an opportunity to redeem it from sale, or to prevent its being sacrificed.

Judicial sales will not be set aside for causes that the parties in interest might, with reasonable diligence, have obviated; every intendment will be made to support them.

But where the court can see that injustice will be inflicted, by the ratification of a sale, upon a party not in default by reason of the carelessness or omission of the trustee, the sale should not be ratified.

In such sales the court acts for all parties, through its officer, the trustee, and all parties look to the court for protection against the consequences of his acts or omissions.

A party claiming under the mortgagor is not entitled to notice of the proceedings, to obtain a decree, either under the act of 1833, ch. 181, or its supplement of 1839, ch. 9.  

COUNSEL:
Benj. C. Barroll and Alex. B. Hagner for the appellant, argued:

1st. That the acts of 1833, ch. 181, and 1839, ch. 9, are penal statutes, and, as such, ought to receive a strict construction: no sale should be made under their provisions except in conformity to their express terms. Dwarris on Statutes, 729, 743, 748, 750, 751, 754, 768. Md. Digest, 84, title Attachment.

2nd. That Kauffman was entitled to notice of the petition, which was filed after the mortgage debt was due under the act of 1839, ch. 9, sec. 3. In this particular it differs from the cases of Ing vs. Cromwell, 4 Md. Rep., 31, and Williams vs. Williams, 7 Gill, 302, which [**11]  were under the act of 1833, ch. 181, and the petitions were filed before the mortgage debt was due. The act of 1833 authorises the passing of a decree before the mortgage is due, and expressly says it may pass without notice. The act of 1839 says a decree may pass after the mortgage is due, but does not say that no notice is necessary. Unless the court see distinctly that notice is dispensed with under a strict construction of the act of 1839, they will not ignore the general rule of equity proceedings relating to defendants. The act of 1833 authorised the decree without notice, because the mortgagor knew when he signed the mortgage exactly at what time the decree would order the sale to be made, but this reason does not apply in cases under the act of 1839, and in this case Kauffman bought after the mortgage was due, and could not possibly know when the sale was to take place. The reason of the law therefore ceases, and "cessante ratione cessat lex." But again, the decree contemplated notice to Kauffman before the sale should be made, otherwise the provision allowing five days for the payment of the mortgage debt was useless. This court will not so construe a solemn decree as to reject [**12]  so important a part of it as unmeaning. If this was a proceeding under the act of 1785, ch. 72, the decree would be reversed, unless it gave a day to bring in the money, although the defendant may have been contesting the case for years. How much more important is it that the day should be given to the defendant in a case like the present? And if it is so important the day should be given, he certainly should have notice of it, in order to avail himself of it.

3rd. That the affidavit annexed to the claim is defective in many particulars:--1st. It was made and filed prior to the decree, whereas the act of 1833 requires it to be made as well as filed before the sale, and after the arrival of the period limited by the decree for the sale. 7 Gill, 304, Williams vs. Williams. 2nd. The statement was filed on the 11th of March 1853, and only pretends to show the amount due on the 7th of March, whereas it should have shown the amount "remaining due" at the time it was filed. 3rd. The account inserts charges for taxes, whereas no such right of tacking to the mortgage is allowed by the acts of Assembly. 5 Md. Rep., 195, Joynes vs. Wartman. 4th. The affidavit does not show that the affiant [**13]  appeared in person before the magistrate, whereas it should show upon its face that the requirements of the law have been fully complied with. 8 Md. Rep., 25, Warner vs. Fowler. 5th. It asserts that the mortgagee made oath "according to law." This is improper; it should say how the oath was made, whether on the Bible or otherwise, as authorised by the constitution. 2 H. & McH., 377, Evans vs. Bonner. It must always appear on the face of the affidavit which of the modes the affiant adopted. 6th. Again, if the court hold that the proceedings in this case do not embrace the act of 1839, because the petition prays relief specially under the act of 1833, then the affidavit is defective and void, because made before a justice of the peace. As additional authorities on these objections, see 5 Md. Rep., 99, Hays vs. Dorsey. Ibid., 161, Gatchell vs. Presstman. Dwarris on Statutes, 749. 1 H. & J., 136, Smoot vs. Bunbury. Ibid., 567, Dyson vs. West.

4th. That the property sold for an inadequate price. The law on this point we understand to be this: if the sale be in all respects regular, the court will not set it aside for inadequacy of price unless it be gross. But if there be other material [**14]  irregularities accompanying the sale, then mere inadequacy will weigh with the court as an auxiliary argument inducing it to set the sale aside. 11 G. & J., 1, Glenn vs. Clapp. 6 Gill, 236, Cohen vs. Wagner. 7 Do., 269, Johnson vs. Dorsey. Now we contend, 1st, that the proof here shows gross inadequacy of price. There cannot be the slightest doubt upon the evidence that the property did not bring half its value, and the offer of the appellant to insure double what it sold for, in case it be fairly brought into market, will have weight in determining this question, as it certifies the court that the mortgagee's interest will not be prejudiced by a resale. But, 2nd. The price was certainly inadequate, and this should cause the sale to be set aside when considered in connection with these irregularities, viz:--1st. The defective advertisement, not describing the property by the number of the house; not mentioning its being at the corner of Lloyd street; not mentioning the alley; not describing it so as to be recognised even by those who once owned it. (8 Gill, 260, Alexander vs. Walter.) In a large and compactly built city, to describe a lot as situate "three hundred and ninety-one feet,  [**15]  or thereabout," from any given point, is absurd, if the object be to give notice to the community of the specific property intended to be sold. It would almost have required a surveyor with his measuring rods to have found the property. Kauffman himself did not know of the sale until it was over. That the further opening of Lloyd street south of Lombard would give this lot one hundred feet front on the former street, is a fact so important to a judicious and proper sale, that no advertisement ought to omit to mention of it. 2nd. The small number of bidders present. 3rd. The inclement weather while the sale was proceeding in the open street.

5th. That the proceedings including the decree, and the sale under it, were a surprise upon Kauffman, the owner of the equity of redemption.

Charles F. Mayer for the appellee.

If essential, it might be contended that the act of 1833 is a remedial law, and not to be so strictly construed as to require more than a substantial conformity to provisions preliminary to a decree and sale. There is nothing in the act that derogates from equity the assent of the mortgagor to the decree being regarded as equivalent to a subpoena and answer.  [**16]  (7 Gill, 304, Williams vs. Williams.) The Supreme Court, in 4 Wheat., 235, Bank of Columbia vs. Okely, and 2 Pet., 671, Bank of Columbia vs. Sweeney, has, to a like assent to a special common law procedure, assigned the same virtue and merit. But we need not take this position to overcome the objections here interposed.

1st. As to the form of the affidavit: No particular form of affidavit is prescribed by the act. The statement of claim is required generally to be "verified by affidavit." Is not that done here even without the word "appears?" Omitting that word the affidavit puts the affiant "before" the justice, and she is there certified to have sworn to the truth of her account. It is to be read as if it had stated, "Before me, Emily J. Walker makes oath," &c. Can any one obliterating the unmeaning word "personal" read the affidavit to any other effect?

2nd. As to the time the affidavit was made: It was made before the sale, which is all that the act enjoins. It is only necessary that the court should have the act of selling justified by the precedent oath of the claimant, and that is here fulfilled. If between the affidavit and sale the debt is paid, the party may prevent [**17]  ratification by alleging and proving payment. There is nothing conclusive, therefore, in this affidavit, and hence no particular time for making it is limited, only that it be before the sale. But if there is any weight in this objection, we insist, that not being one of the exceptions, it was waived, and cannot therefore prevent a ratification. 4 G. & J., 479, Brown vs. Wallace. 5 Md. Rep., 161, Gatchell vs. Presstman.

3rd. As to notice: The act of 1839 is not only, on general principles, a part of the act of 1833, and, like all supplements, has its only operation as if embodied in the original act, but the decree referred to in the supplement is, by the supplement's very words, the decree which the act of 1833 allows or institutes. Why should notice be requisite for a decree that the supplement points to, which is put in pari ratione with the decree of the original act, when the decree limited by that act does not require notice? This court has decided over and over again, that in order to a valid decree under this system notice is not necessary. 5 Md. Rep., 99, Hays vs. Dorsey.

4th. If notice of the decree was not necessary there could, in law, be no surprise inflicted [**18]  upon Kauffman. By the cases cited on the other side, it will be seen that the court esteems that the parties interested are duly notified of the requirement to pay the debt, and are fully guarded in their rights by their knowledge of the time fixed by the mortgage for paying the claim, and by the warning, that in default of payment a decree may pass for a sale.

5th. As to the inadequacy of price: Is this alleged inadequacy made at all apparent, or at least is it so gross as to raise the inference of fraud or gross remissness in the trustee? (11 G. & J., 1, Glenn vs. Clapp.) In Cohen vs. Wagner, 6 Gill, 236, and Johnson vs. Dorsey, 7 Gill, 269, the disproportion between the sales and the estimated values of the property was quite as great as the extreme estimate here would create, and yet there it did not create the inference of fraud or faultiness. But a fair view of the evidence will, as we insist, show that there was no such inadequacy as insisted upon by the other side.

6th. But to help out this inadequacy fault is found with the advertisement as wanting in due identification of the property. We may here urge that this alleged defect is not made a subject of exception,  [**19]  and the objection is therefore not to be entertained. But what is there in the objection? The location of the property is defined by the street on which it binds, by the front it occupies, by the distance it is from another street, by the improvements that are on it. What better designation could be given? It is just that particularity of description and identification which, in 8 Gill, 261, is stated, would have sufficed to make a tax-sale valid so far as the point of description in the advertisement was concerned. The advertisement practically proved itself sufficient, for a number of persons were, in fact, instructed by it, were to attend to bid for the property. And any one looking toward purchases in that quarter of the city, would readily be informed of the actual property to be sold, by taking into view the distance from Canal street and the size of the house connected with the property. All was done that reasonably could have been effected to designate the property; for it appears the house had not a number that could be discerned and that could have served to identify it. Where is any witness adduced by the appellant who says he would have attended the sale, if the advertisement [**20]  had announced by local references what was to be sold? I throw out of the case the appellant's offer to insure, on a resale, a larger bid. Under our decisions biddings at judicial sales are not to be opened upon such offers.  

JUDGES:
The cause was argued before LE GRAND, C. J., TUCK and MASON, J.  

OPINIONBY:
TUCK 

OPINION:

 [*240]  TUCK, J., delivered the opinion of this court.
Judicial sales will not be set aside for causes that the parties in interest might, with a reasonable degree of diligence, have obviated. Every intendment will be made to support them. But where the court can see that injustice will be inflicted by the ratification of a sale upon a party not in default, by reason of the carelessness or omission of its own officer, it should interfere to prevent it.
Several objections have been made to this sale, but we think it necessary to advert only to two, the others being insufficient. We are satisfied that the property was sold for much less than its value, if the opinions of the witnesses are to be relied on. And this result was probably caused by the imperfect manner in which the property was described in the notice of sale. The advertisement is designed not only to let the public [**21]  know what property is thus brought into market, but also to afford the owner an opportunity to redeem it from sale, or to prevent its being sacrificed. Alexander vs. Walter, 8 Gill 239. Some of the witnesses say, and among them one who had owned this property for ten years, that they would not have known, from this notice, what property was to be sold, unless they had known the number of feet from Canal street. City property is often described in this way, but a more particular description should be given, if the property be susceptible of it, as we think this was. Without intending to intimate any such purpose in the present case, for there is no evidence of the fact, it appears to us that if the purchaser, or others, had colluded with the trustee to make the property sell for less than its value, by keeping the owner in ignorance of the sale, they 

 [*241]  need have resorted to no form of notice, if he advertised at all, better calculated to produce that result, than the one under which this house and lot were sold. It is to prevent the possibility of injustice from such causes that notice of the sale is required, and that includes a description of the property,  [**22]  by which the owners and the public may be informed. If Kauffman had had notice of this decree, he might, if the advertisement had fallen under his eye, have conjectured what property the trustee proposed to sell. The knowledge of one fact might have put him on inquiry as to the other. But the proceeding was ex parte; he does not appear to have known even that the petition had been filed. To be sure, he was not entitled to notice in fact of these proceedings, but, in the absence of it, no inference of knowledge of the sale should be drawn, from this advertisement, to his prejudice. The court acts for all the parties, through its officer the trustee, and to it they look for protection against the consequences of his acts or omissions. We do not think it can be averred that the trustee did all that was reasonably required of him, in order to bring this property fairly into the market. This error on his part, and the inadequacy of price, are reasons for vacating the sale, though the latter objection alone, under the decisions of this court, might not, probably, be sufficient.  Glenn vs. Clapp, 11 G. & J., 1. Cohen vs. Wagner, 6 Gill 236. Johnson vs. Dorsey, 7 Gill, 269. [**23]  
The purchaser has an interest in maintaining the sale, but, as he buys subject to ratification by the court, he takes the risk of losing his bargain if it should turn out that sufficient objections exist to its final confirmation.
Order reversed and cause remanded.
This case was argued and decided at December term 1855, and during that term a motion was made for a re-argument, upon the ground that the decision that the advertisement was defective in its description of the property, would have the effect to disturb many titles. In support of this motion many advertisements, describing property in a similar mode, were filed. This motion was argued by Mayer & Alexander for 

 [*242]  the motion, and by Barroll & Hagner contra, and was overruled by the court at the present term.  

58 of 187 DOCUMENTS 

EDWARD DOWLING vs. JOHN SPEAR SMITH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 Md. 242; 1856 Md. LEXIS 21 

JUNE, 1856, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

The act of 1853, ch. 409, required the clerks of the Court of Common Pleas, the Superior Court, and the Register of Wills, of Baltimore city, within thirty days after its passage, to file with the comptroller bonds in certain prescribed penalties, conditioned for the faithful performance of their duties, with sureties, the sufficiency of which was to be certified by the judges of the respective courts, the bonds to be approved by the comptroller, and, when so approved, to be filed in his office.

This act having omitted to designate the period of the duration of these bonds, and to provide for their renewal, the supplemental and amendatory act of 1856, ch. 286, was passed, the provisions of which, necessary here to be stated, are as follows:

The 1st section enacts, that each of the above named officers, who may not have given his official bond within two years past, "shall, within thirty days after the passage of this act, file with the comptroller a bond," as prescribed by the act of 1853.

The 4th section provides, that when the bond is inspected by the judge, and is deemed good and sufficient, and is so certified,  [**2]  it shall be forthwith entered among the proceedings of the court, and sent to the comptroller for his approval, who, when it is approved, shall send to the judge a certificate of the fact, which shall be entered among the proceedings of the court in which the bond shall have been recorded.

The 5th section, which is similar in this respect to the 4th section of the act of 1853, declares: "That a refusal, or neglect on the part of," any of these officers, "to comply with the requirements of this act within thirty days after its passage, shall be deemed a disqualification within the meaning of the constitution, and thereupon their places shall be filled according to the provisions of the fourteenth and eighteenth sections of the fourth article of the constitution, and subject to the term and service therein prescribed." (These sections of the constitution give the judge the power to appoint a clerk, in case of a vacancy, until the next general election.)

The 6th section provides, that the act shall take effect "from the date of its passage." It was passed by the House of Delegates on the 7th, by the Senate on the 8th, and engrossed on the 10th of March 1856.

Dowling, the [**3]  appellant, the clerk of the Superior Court of Baltimore city, presented his bond to the judge of that court, on the night of the 7th of April 1856, for his certificate as to the sufficiency of the sureties. The judge gave a certificate that he had "examined the said sureties, who made oath, in due form of law, that they are able and sufficient," &c. The bond was delivered to the clerk on the morning of the 8th, and on the same day was sent by mail to the comptroller at Annapolis, and was received at his office on the morning of the 9th of April. That officer declined to approve the bond, because it was not filed with him within thirty days from the passage of the act of 1856. He also objected that the certificate of the judge did not state that the sureties to the bond are sufficient. This latter difficulty was obviated by an amendment to the certificate, but the comptroller still withheld his approval, upon the ground that the bond had not been filed in time.

The court, (LEE, J.,) then laid a rule upon Dowling, to show cause why he should not be declared disqualified, within the meaning of the constitution, to hold his office, and why his place should not be filled according [**4]  to the constitution and the act of 1856. Dowling, in his answer to this rule, denies that he has been convicted, or has been guilty of any wilful neglect of duty or of any misdemeanor in office as clerk, and insists that he has not become liable, within the true meaning of the constitution, to removal from his office, the franchise of which he claims, under the sanction of the constitution, as a protected and vested interest, indefeasible save where, by the rule and ordinance of that constitution, he shall be judicially established to have forfeited it, and denies the authority of the court to challenge or control his constitutional claim and franchise, and its right to lay the rule or arraign him for any supposed disqualification for tenure of his office. The court, immediately upon filing of this answer, passed an order declaring the office vacant.

Shortly afterwards the court passed another order, appointing the appellee, Smith, clerk to fill the vacancy, who, having duly bonded, applied to the court for an order upon Dowling to compel delivery of possession of the office. Upon this application the court passed an order requiring delivery as claimed, unless cause be shown to [**5]  the contrary.

In his answer to this order Dowling insists upon his former grounds of defence, denies the constitutionality of the 5th section of the act of 1856, and, even conceding that it was constitutional, denies that the action of the court under it was warranted by it. He also charges, that as soon as he had knowledge of the existence of the act, he did all in his power to comply with its requirements, and insists that he did file his bond within time, as that act is to be construed as having passed on the 10th of March, and not on the 8th of March 1856.

The court then passed an absolute order, requiring Dowling to deliver possession of the office to Smith. From this order, as well as from the previous order declaring the office vacant, Dowling appealed.  

DISPOSITION:
Order reversed.  

HEADNOTES:

The constitution provides, that the clerk of the Superior Court of Baltimore city shall be subject "to be removed for wilful neglect of duty or other misdemeanor in office, on conviction in a court of law." The 5th section of the act of 1856, ch. 286, enacts, that a "refusal or neglect" on the part of this clerk to give the bond prescribed by that act, "within thirty days after its passage, shall be deemed a disqualification within the meaning of the constitution," and directs his place to be filled by the judge of the court, as provided in case of a vacancy by the provisions of the constitution. HELD:

That this section of the act in question is unconstitutional, because it provides for the removal of the clerk in a manner directly in conflict with the one prescribed by the constitution. Before the clerk could be removed for such failure to give bond, he must be convicted therefor in a court of law of "wilful neglect of duty in office." Per LE GRAND, C. J., and ECCLESTON, J. Contra, per TUCK and MASON, J.

The 16th sec. of the 4th art. of the constitution makes all existing laws relating to the former clerks, applicable to the new clerks to be elected under the constitution, and gives the Legislature power from time to time to amend and alter them, and under this provision the Legislature had the power to pass the act of 1856, ch. 286, with the exception of its 5th section.

Where an act of Assembly requires something to be done within a certain time from its passage, the time is to be reckoned from the date of the engrossment of the law, and not from the date of its passage by the two houses of the Legislature; a law is not perfected until it has been engrossed. Per MASON, J.  

COUNSEL:
Charles J. M. Gwinn for the appellant.

The two orders passed by the Superior Court raise the single inquiry, material to this case; that is, whether that court had the right to declare the office of its clerk vacant, as, by the record, appears to have been done?

The appellant was duly elected clerk of the Superior Court of Baltimore on the first Wednesday of November 1851, under art.  [**6]  4, secs. 14, 24, of the constitution of Maryland, for a term of six years. Having "duly qualified" according to law, under art. 4, sec. 16, he entered on the discharge of his duties. Now there are two inquiries to be made here:--1st. What was the form of qualification necessary? 2nd, (and this is the gist of the case now pending,) What was the legal effect of his fulfilment of the qualifications, declared to be necessary to his perfect tenure of his office.

Upon his election he was bound to take the oath prescribed by the 9th sec. of the 1st art. of the constitution,--of fidelity to the constitution and laws, that he had not been guilty of bribery, and would not receive the profits of any other office during his term. When this oath was taken he was qualified to hold the office. The giving of the bond was not a qualification for office, and there is nothing in the constitution to make it so. The words, "qualified according to law," in art. 4, sec. 16, can, of course, refer, in Dowling's case, only to such measures as the law then required of a clerk, before he could enter upon his office. As the law then stood, the clerk of the Superior Court bonded under the act of 1800, ch.  [**7]  82, which was amendatory of the acts of 1716, ch. 1, and 1742, ch. 10. The first and last of these acts assumed that the clerk was qualified to act even if he did not bond, as they required. They made bonding necessary, however, to the officer, by declaring, (1716, ch. 1, sec. 3, 1800, ch. 82, sec. 3,) that he should not have the right to collect his fees unless he did bond as they required. If the act of 1742, ch. 10, bears a contrary interpretation, it is superseded by that of 1800, ch. 82. The officer was duly qualified to act as clerk under these laws,--he was civilly responsible for malconduct in office, and criminally responsible for offences committed by him as an officer--but he could enjoy no emolument from the office unless he bonded. The law of 1823, ch. 195, did not alter this state of things. It only provided an additional safeguard, by declaring that the clerk should bond in every second year, and by directing his punishment by fine if he did not. The omission to give the bond was no disqualification; for it would have been folly to provide that he should be punished for not giving the bond as clerk, if he ceased to be clerk when he did not give the bond. The law of 1840,  [**8]  ch. 52, only prescribed the time at which the bond should be renewed.

When the new constitution was adopted, the words, "when duly elected and qualified according to law," meant only, qualified according to the requirements of the constitution as the supreme law of the State, for there was not then in force any statute which made a compliance with its terms necessary to a qualification to office.

Having become thus legally qualified, it was not competent for the Legislature to add to the tenure of his office any qualification except that which the constitution provided for. The Legislature might make the forfeiture of the office a part of the punishment which it imposed for any malfeasance or nonfeasance, but it could only do this by prescribing it as a punishment to be inflicted after a conviction. 3 Cow., 686, People vs. Barker, and the same case in 20 Johns., 457. The act of 1853, ch. 409, was a departure from this well settled rule of law, unless it is construed in subordination to it and to the constitution. It provided that new bonds should be given by the clerk of the Superior Court, and by the other officers therein named, within thirty days after its passage, and [**9]  declaring that his refusal or neglect to do so "should be deemed a disqualification within the meaning of the constitution; and thereupon their places shall be filled according to the provisions of the 14th and 18th sections of the 4th art. of the constitution." This law did not provide for a renewal of the bond, and the Legislature assumed that the law of 1823, ch. 195, was repealed by the act of 1853, ch. 409, by the preamble of the law of 1856, ch. 286, which is the immediate subject of this controversy. This law of 1856, ch. 286, is, in its 5th section, a repetition of the words of the act of 1853, ch. 409, sec. 4, under which the clerk of the Superior court had bonded. The re-enactment of the portion of the former law prescribing its penalty does not help the construction of the law. It is now for the first time, when the Superior Court has undertaken to act under it, material to construe its correctness.

Concede now that the clerk of the Superior Court did not bond within thirty days, as required by the law of 1856, ch. 286. What is the effect of that failure to comply with the requirements of the law of 1856? The law says, it "shall be deemed a disqualification within the [**10]  meaning of the constitution, and thereupon his place shall be filled according to the provisions of the 14th and 18th sections of the 4th art. of the constitution." Now what are disqualifications within the meaning of the constitution, and how are they ascertained to exist? For disqualification here must be construed to mean, acts that work a forfeiture of the office, its tenure having commenced. The word occurs several times in the new constitution. In sec. 29, art. 3, in case of "Disqualification" of a member of the Legislature a new election shall be ordered. The only cause of disqualification would seem to be his election to the Congress of the United States, which vacates his former seat. It is stated in its meaning, though not in terms, in art. 3, sec. 36, where a person who shall fight a duel, or who shall send a challenge or accept one, shall be incapable of holding any office of profit or trust. It need not be argued here, however, that the forfeiture of an office held by a person who had done any of these acts could only follow a conviction and be a part of, or a consequence of, the sentence. The word occurs in art. 4, sec. 20, in the provision for sheriffs, and again in [**11]  art. 4, secs. 25, 26, but no interpretation is given to its meaning.

From these clauses, therefore, we can derive no light. We may, indeed, assume that the word was not used with any definite idea of its legal application to the circumstances of which it proposed to treat. The word drifted into sec. 29, art. 3, and sec. 20, art. 4, from the old constitution, where it had a meaning, and where it meant a property qualification.

We are obliged to construe the words, "shall be deemed a disqualification within the meaning of the constitution," in such manner as shall make them harmonise with the process, by which, in the new constitution, it is provided that the clerk of the Superior Court shall become disqualified for office; that is, by regarding his neglect or refusal to give the bond required by the act of 1856 as a wilful neglect of duty, or as a misdemeanor in office, for which, upon conviction therefor in a court of law, he may, by the judgment of such court having jurisdiction, be removed from office. A legal vacancy then occurs, and the office may then be filled under the provisions of the 14th sec. of the 4th art. of the constitution. For, to sum up the argument, the [**12]  law of 1856 does not say that the clerk refusing or neglecting to bond shall be thereby disqualified. If it did, we might argue the constitutional power of the Legislature to create a defeasance of a vested office by superadding a qualification, superior to, and not required by, the constitution. It does not say that by his neglect or refusal he shall be deemed to have resigned his office, which is the more common method, but one equally liable to objection and comment. But the act says that the clerk shall be deemed to be "disqualified within the meaning of the constitution," and the public authorities are, therefore, left by the law to ascertain, in the mode in which the constitution has pointed out, the fact of his neglect or refusal; and it is the duty of the court before which this question is tried, if the wilful neglect or refusal to bond is ascertained, to declare such disqualification in the only legal mode--that is by its formal judgment and act of record.

An argument will be drawn on behalf of the appellee from the language used by the Court of Appeals, in the case of Thomas vs. Owens, 4 Md. Rep., 224. In reply to the sentence referred to it need only be said that,  [**13]  without discussing whether the law there announced is applicable to the case of the Comptroller or Treasurer, or not, it certainly cannot, either upon reason or precedent, be considered as binding upon the court in the decision of this case. In general, even, it must be said that the doctrine of this isolated passage, if insisted upon, and engrafted upon our law, would be fraught with great evils. If the non-compliance by a constitutional officer with all legislative requirements not inconsistent with the tenure of his office, is to be deemed a resignation, he is at the mercy of every legislative body that may choose to set traps for him in the discharge of his official duty. The least omission to perform some statutory act, may be tried in the closet of an executive, and an office may be declared vacant as effectually by his ex parte decision, as it could be by the judgment of a court for some well ascertained and undoubted misdemeanor.

If the Legislature can enable a court to disqualify an officer who does not file his bond in a given time, without enabling him to show, by process of a jury trial, that he was prevented by the act of God even, can it not enable a governor to [**14]  pronounce a judge's disqualification, who shall not literally adhere to every minute process in the administration of justice which it may see fit to enjoin? If in office he had committed the grossest corruption, he could claim, under the bill of rights, to be informed of the accusation against him, and to have the benefit of a trial by jury, before the sentence of deprivation of his office could be made against him. But if such a construction holds, as is insisted on here, for the simplest non-feasance, he may be tried he knows not when, and he knows not where, without counsel, before one to whom he is not, by the common law, or the constitution, amenable, and he may be as effectually injured in the loss of credit, name and office, as if he had stood at the bar as a criminal, and had been so adjudged.

The argument to be derived from the common law, and from the practice in the English courts, in cases of forfeiture, are conclusive upon the point, that even where there is no doubt that a forfeiture has occurred, it cannot be taken advantage of except by the intervention of a jury. In case of self-murder even, however apparent the fact may be, no part of the personal estate is [**15]  vested in the king before the self-murder is found by an inquisition. 13 Viner's Abr., title, Forfeiture, 451. 1 Hawk. P. C., 68, ch. 27, sec. 9. Things even causing death, which may come properly within the description of deodands, are not so without the finding of a jury. 1 Chitty's Blacks., 302. 3 Inst., 57. So in treason under statutes 5th and 6th Edw. 6, ch. 11, sec. 9, and 26th Hen. 8, ch. 13, sec. 4, all lands, tenements and hereditaments were forfeited, yet an inquisition of office was necessary to vest them in the king, and this security continued until 33 Hen. 8, ch. 20, sec. 3, which expressly dispensed with the necessity of an office or inquisition. And in case of felony goods are not in the king without an office found of such felony, because the property cannot alter without matter of record. 5 Coke, 109, Foxley's case. 4 Bac. Abr., 342, title, Forfeiture, letter B. So the king, even where his tenant in capite has alienated, is not in possession till the alienation is found by office. 16 Viner's Abr., 80. Where a man is attainted the king cannot enter without office. 16 Viner's Abr., 80. So it is generally said that where an officer, who holds his office by patent, commits [**16]  a forfeiture, he cannot, regularly, be turned out without a scire facias, nor can he be said to be completely ousted or discharged without a writ of discharge; for his right appearing of record the same must be defeated by matter of as high a nature. 7 Bac. Abr., 323, letter M. 2 Chitty's Blacks., 199. 8 Coke, 14, The Prince's case. 9 Coke, 98, Sir Geo. Reynel's case. Dyer, 198, Rex vs. Eston. Dyer, 211, (a,) Sir Robert Cheston's case. 2 Term Rep., 554, King vs. Amery. Siderfin, 81, Sidney Beere vs. Windebanke. Where in appeal the defendant waged battel, and was vanquished, but not by death, by which judgment was given that he be hanged, for without judgment the lord cannot have the escheat. 10 Viner's Abr., 140, 141. Coke Litt., 390, (b.) So in this country, where a statute imposes a forfeiture by way of a penalty, the law does not vest them in the party to whom the goods and chattels are given, without a judicial proceeding declaring the forfeiture. 10 Wend., 266, Fire Department vs. Vip.

Finally, it would seem that this bond was rendered in time, both from the certified copy of the law, and from the printed volume which states the law to have been passed on the 10th of March [**17]  1856.

J. Meredith for the appellee,--after calling the attention of the court to the 4th point on the appellant's brief, that the act of 1856, though passed by the House of Delegates on the 7th, and by the Senate on the 8th, of March, did not become an operative law till the 10th of the same month, when it was engrossed,--stated, that as the point had been left entirely untouched by the opening counsel, he presumed that it was abandoned, and though prepared to argue it, would, on that presumption, pass it by without remark. Mayer for the appellant, observed, that the point had not been abandoned. Meredith then stated, that in that case he had a right to require an opening, and would give way to the counsel, or his colleague, for that purpose. This offer being declined, he then observed, that should the point be raised in the concluding argument, the counsel of the appellee would claim the right to reply.

He then proceeded to say, that the case involved a question of legislative power. The constitutionality of an act of the General Assembly is the main subject for discussion; and the court need not to be reminded, that of all subjects of judicial cognizance, it demands the [**18]  gravest and most considerate attention. If he had entertained a doubt of the validity of the act of 1856, it would have been removed by the decision of the court, in Thomas vs. Owens, 4 Md. Rep., 189, on the authority of which he should ground the argument he proposed to offer.

That, the court would recollect, was a controversy between the Comptroller and Treasurer of the State, as to the time when the salary of the former legally commenced. The 1st sec. of the 6th. art. of the constitution, creates a Treasury Department, consisting of those two officers, and amongst other provisions, requires them to "take such oath, and enter into such bond, for the faithful discharge of their duties, as the Legislature shall prescribe."

The only qualification required by the constitution, for the office of Comptroller, is that contained in the 4th sec. of art. 1, which directs that the oath, the formula of which is given, shall be taken by every person, elected or appointed to any office of profit or trust, before he shall enter on its duties; and on neglect or refusal to take such oath, he shall be considered as having refused to accept the office, and a new election or appointment shall [**19]  be made, as in case of refusal or resignation.

The appellant, Thomas, was elected Comptroller on the 5th of November 1851, and qualified by taking the oath on the 10th of December, from which time he claimed salary.

At the session of 1852, an act was passed by the General Assembly, in execution of the powers granted by the section of the constitution before referred to, which prescribed the oath, and the penalty and condition of the bond to be given by the Comptroller and Treasurer; and provided that in case of neglect or refusal to give bond, within twenty days after a demand by the Governor, "such neglect or refusal shall be deemed a disqualification within the meaning of the constitution;" and forthwith a fit and proper person shall be appointed to fill the vacancy. Thomas took the oath and gave the bond on the 28th of February 1852, and it was contended on the part of the Treasurer, that his salary commenced on that day.

The court decided, that he became duly qualified for office, by taking the oath prescribed by the constitution, and was therefore entitled to salary from that period; that all which was required of him was to qualify according to existing laws, and [**20]  having done so, he was to be considered as rightfully in office; that the authority given to the Legislature to prescribe an oath, and require a bond, not demanded by the constitution, was meant to guard against consequences which would have resulted from the operation of a well known and universally acknowledged principle of law:--that when a constitution defines the qualification of an officer, it is not within the power of the Legislature to change or superadd to it, unless the power be given expressly, or by necessary implication. The constitution does contain an express grant of such a power, and therefore the act of 1852 was rightfully passed, and the Comptroller was bound to obey its requirements, as he would be bound to obey any future law upon the same subject; for the exercise of the power is not confined to its first exertion by the Legislature, but extends to all time; and that if the Legislature should hereafter alter the oath or bond which the act of 1852 prescribes, a failure to comply with such new law would be held a resignation of office.

These are the principles of law, thus sanctioned by the authority of the court, which we hold to be decisive of this case.  [**21]  We admit, that the legislative department of the government is the depository of those powers only that are conferred upon it by the constitution, either expressly, or by necessary implication. And we admit still further, that no power can be implied which the constitution directly prohibits, or which is repugnant to any of its provisions.

The act of 1856, the constitutionality of which is denied, requires new bonds to be given by the clerks of the Common Pleas, and of the Superior Court, and by the Register of Wills, of Baltimore city, within thirty days after the passage of the law; and repeating the language of the act of 1852, requiring bonds from the Comptroller and Treasurer, declares that a refusal or neglect shall "be deemed a disqualification within the meaning of the constitution," and that thereupon the office of the uncomplying clerk shall be filled according to the 14th and 18th sections of the 4th art. of the constitution.

As in the case of the Comptroller and Treasurer, there is no other qualification for the office of clerk than that prescribed by the 4th sec. of art. 1, namely, the oath of office. But this omission is explained by the 16th sec. of art. 4,  [**22]  which declares that the clerks of the several courts throughout the State, "when duly elected and qualified according to law, shall have the charge and custody of the records, and other papers belonging to their respective offices." By what law? By the law in force for the time being. This is palpable from another provision of the same section, which declares, that all laws then in force relating to clerks, shall "be applicable to the clerks respectively of the Court of Appeals, the Circuit Courts, the Court of Common Pleas, the Superior Court, and the Criminal Court of Baltimore city." Whatever qualifications then were required by these laws, or any of them, the clerks first elected under the new constitution were bound to conform to, in order to be "qualified according to law."

Now what laws requiring bond, with security, to be given by the clerks of courts, were then in force?

In 1742 the Provincial Legislature passed an act, (ch. 10,) providing, that every county clerk should give bond, with sufficient securities; that it should not be lawful for the clerks then in office, or to be thereafter appointed, to take upon themselves the keeping of the records, or to receive [**23]  any of the fees of office, till they had entered into bond with the prescribed conditions; and that these bonds should be given by the clerks then in office, within a time limited by the act, and should be renewed as often as the county courts respectively might see cause, in reference to the solvability of the sureties.

The act of 1856, now, in question, is substantially this act of 1742, which was in force when the first constitution was adopted, and remained in force and unchanged till 1800. (State vs. Wayman, 2 Gill & Johns., 285.)

In 1800 an act was passed, (ch. 82,) increasing the penalty, and altering the condition of the bond prescribed by the act of 1742, but containing no repeal of that law. Like that act, it applied to clerks in office, as well as those to be subsequently appointed, and was also limited to take effect on a day named. It provided, that it should be unlawful for clerks to receive fees of office until they had entered into bond; and left the 4th sec. of the act of 1742 untouched, which, as has been seen, authorised the judge, in his discretion, to demand a new bond.

To this discretionary power, another safeguard was added by the act of 1823,  [**24]  ch. 195, which required a renewal every second year, under a penalty of $ 1000. But this last act contained no repeal of the act of 1742, or that of 1800, and both of these being affirmative statutes, it might well be questioned, if the point were at all material, whether the money penalty should not be construed as cumulative upon the disqualification provided for by both the former acts.

Thus then stood the law when the present constitution went into operation, requiring bond with securities, renewable every second year. No clerk therefore could be, in the language of the constitution, "qualified according to law" until he gave such bond. The appellant was elected clerk of the Superior Court at the first election in 1851, and having given bond, was "qualified according to law."

At the session of 1853, an act was passed requiring new bonds to be given, within thirty days after its passage, by the clerks and register of the courts in the city of Baltimore, under penalty of disqualification. This law the appellant also conformed to. But the act of 1853 containing no provision for the renewal of the bonds which it required, the amendatory act of 1856 was passed to supply that [**25]  omission, by requiring new bonds to be filed, and to be renewed every two years, under the same penalty. The appellant failed to comply with this law, within the time limited for filing a new bond; and the judge of the Superior Court, being notified of that fact by the Comptroller, proceeded, under the express requirements of the act, to declare the office vacant, and to appoint a successor.

Assuming the constitutionality of the act, it is clear, that after a failure to comply with its terms, Dowling was no longer "qualified according to law," but disqualified, not only within the meaning of the constitution, but by the very words of the 16th sec. of the 4th art., which gives the charge and custody of the records and other papers of the office, only to a clerk "duly qualified according to law." The disqualification is not by force of the act of 1856, but is declared by the constitution.

It is plainly undeniable, if the act of 1856 does not transcend the limits of the legislative power, that by this failure to comply with its terms, the appellant was no longer "qualified according to law," but disqualified, not only within the meaning, but by the express words of the 16th [**26]  sec. of the 4th art. of the constitution. He had no longer a legal right to "the charge and custody of the records and other papers belonging to the office." "Suppose," said Judge Eccleston, in the case of Thomas vs. Owens, "suppose that subsequent to the act of the Legislature, the Comptroller had refused to comply with its provisions, insisting that he was already in office, and would perform its duties, and demand his salary, upon the ground that he had taken the oath directed in the 1st article, could it be successfully maintained that he had a right to do so? I think not. If not, then why? It could only be for the reason that he was not qualified. And yet in the supposed case every requisite to constitute him Comptroller would exist, except a compliance with the legislative act."

Now to what extent, and within what limits, does the constitution confer legislative power? The third article of the Declaration of Rights--which is a part of the organic law, as supreme and obligatory as the constitution itself,--(1 Gill & Johns., 472,)--expressly subjects all laws in force "to the revision of, and amendment or repeal by, the Legislature." And the 16th sec. of the 4th art. of the [**27]  constitution, recognises this power over the laws relating to clerks throughout the State then in force, by declaring that they "shall be applicable to the clerks respectively of the Court of Appeals, the Circuit Courts, the Court of Common Pleas, the Superior Court, and the Criminal Court of Baltimore city, until otherwise provided by law."

"Whenever a question arises concerning the constitutionality of a particular power, the first question is, whether the power be expressed in the constitution? If it be, the question is decided. If it be not expressed, the next inquiry must be, whether it is properly an incident to an express power, and necessary to its execution? If it be, then it may be exercised by Congress. If not, Congress cannot exercise it." (3 Story's Comm., 114.) Now taking the 16th sec. of the 4th art., with the article in the Declaration of Rights, it amounts to this, that the Legislature shall have power to revise, amend, or repeal all laws relating to clerks. The power then is expressed:--it is a general power, and necessarily a continuing power. It does not however execute itself, but is to be executed only by legislation." "What is a power," says the same learned [**28]  jurist, "but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of employing the means necessary to its execution? What is a legislative power, but the power of making laws? What are the means to execute a legislative power but laws? In a word, the powers given by the constitution imply the ordinary means of execution; for without the substance of the power, the constitution would be a dead letter." (3 Comm., 109.) In order, however, to avoid all doubt or disputation as to the admissibility of implied powers, as well as to guard against their abuse, the 2nd sec. of the 10th art of the constitution declares, that "the Legislature shall have power to pass all such laws as may be necessary and proper for carrying into execution the powers vested by the constitution in any department or office of the government, and the duties imposed upon them thereby." This is almost a literal transcript of the last clause of the 8th sec., art. 1, of the constitution of the United States, and whatever doubt may have existed as to its true interpretation, was removed by the judgment of the Supreme Court, in McCulloh vs. The State of Maryland, 4 Wheaton, 316. It was [**29]  insisted in that case, that the language of the clause was to be rigorously construed; that the word "necessary" was to be taken as equivalent to absolute and indispensable necessity; that it was to be considered as controlling the whole sentence, and as limiting the right to pass laws for the execution of the granted power, to such as without which the power itself would be nugatory. The court, however, rejected this narrow construction, and, by a masterly argument, demonstrated the necessity of giving it a liberal interpretation. They decided that the word as used in the clause meant nothing more than needful, appropriate, suitable, fitted to the object or end proposed; that the court when inquiring, as it had a right to do, whether Congress had made a selection of constitutional means to execute the granted power, would compare the law with the constitution, not in order to ascertain whether better means might have been chosen, but to see whether those which have been chosen have a natural connection with the power granted; whether they are adapted to give it effect; whether they are appropriate means to the end. For the choice of the means,--the degree of the necessity, is for [**30]  the Legislature alone to decide. The court cannot inquire into these without passing the line that circumscribes the judicial department, and treading on legislative ground.

There being then an express grant of power in the present case, to revise, amend or repeal all laws relating to clerks, the only question to be considered is, whether the act of 1856 was a necessary and proper law to carry that power into execution? Among these laws, none appear to have been regarded as more important than those requiring security for the due and faithful discharge of the duties of an office of such great public trust. From the earliest period of Maryland legislation, as we have seen, laws intended to effect this object have been enacted, and from time to time revised and amended, at the discretion of the Legislature. The power was never questioned under either of the preceding constitutions, though neither of them contained any express grant of authority; it was conceded to be inherent. The act of 1853 effected no change in the character and nature of the qualification required by previous laws. It did not substitute another thing in the place of the bond: it did simply what the act of 1800 [**31]  had done, increase the penalty and alter the conditions. The act of 1856 simply re-enacted that of 1823, requiring a renewal every two years. The object of both acts was to protect public and private interests. The clerks of the courts established for the city of Baltimore, were invested with much higher and more important trusts than their predecessors under the former constitution. They were receivers of large portions of the revenues of the State; and the great increase of responsibility, in this and other respects, made a change of penalties a wise and salutary precaution. The preamble to the act of 1856 manifests the wisdom and expediency of these laws.

Now the means to secure obedience to these laws was indispensable to their efficiency. Following the precedent of the act of 1852, relating to the office of Comptroller and Treasurer, and copying the very words of its 7th section, both these laws inflict the penalty of disqualification for neglect or refusal to comply with their provisions, as did the act of 1742. Can the right to do so be questioned? The right to punish infractions of law is incidental to the power of legislation; it is a means for carrying that power into [**32]  excution, and is conducive to its beneficial exercise. The penalty of disqualification resulted from the power granted, was adapted to give it effect, was an appropriate means to the end: was "necessary and proper," in the language of the 2nd sec. of the 10th art., according to what we have seen to be the true and settled interpretation of those words. If this be so, then all judicial inquiry, whether better means might have been chosen, is forbidden. "The choice of the means," say the Supreme Court,--"the degree of the necessity is for the Legislature alone to decide. The court cannot inquire into these without passing the line that circumscribes the judicial department, and treading on legislative ground."

But, nevertheless, the means must be constitutional,--neither expressly prohibited by it, or repugnant to any of its provisions; that we freely concede. It is not pretended that there is any express prohibition against the infliction of the penalty of disqualification to be found in the constitution. On the contrary, the 16th sec. of the 4th art. presupposes it, as does the 20th sec. of the same article, in the case of sheriffs. But a repugnancy is supposed to exist between [**33]  this penalty and the 14th sec., which provides, that clerks shall be subject to removal "for wilful neglect of duty, or other misdemeanor in office, on conviction in a court of law." And the argument is, not merely that this is the only mode by which a clerk can be removed from office, but by which he can forfeit his office. Removal and forfeiture are very distinct things. What is a misdemeanor in office? It is clear that the convention used the word in its technical sense. It declares "wilful neglect of duty" to be a misdemeanor; and so it is, indictable and punishable at common law. 1 Stark. Crim. Pl., 149. The words, "or other misdemeanor in office," necessarily mean misdemeanor ejusdem generis,--indictable at common law, such as all unlawful acts done colore officii,--extortion, corruption, falsification of records, and other offences of a similar character. The convention did not intend to create new misdemeanors, unknown to the common law, but merely to make forfeiture of office cumulative upon fine and imprisonment. Can it be seriously contended, that neglect or refusal to give an official bond, in order to be qualified to hold office, is a misdemeanor in office? Where is the [**34]  precedent for such an indictment to be found? There is no repugnancy. The constitution itself prescribes the remedy. Clerks not "qualified according to existing laws," shall not have the charge and custody of the records and other papers belonging to the office; in other words, shall be disqualified from holding office. Can a clerk be said to be "qualified according to law," who refuses or neglects to give a bond demanded by law as a qualification for office? If after election he refuses or neglects to give the bond required by the existing law, he cannot enter into office, because he is not qualified according to law. In like manner, if after qualifying according to existing laws, he enters into office, and a law is subsequently passed, in the rightful exercise of the legislative power, requiring a new bond, which he refuses or neglects to give, this court has already decided, in Thomas vs. Owens, that he is forbidden by the constitution to continue in office, and precisely for the same reason, because he is no longer "qualified according to law."

In truth, the acts of 1853 and 1856 were, in regard to disqualification, entirely supererogatory; they simply gave the true and unmistakable [**35]  construction of the 16th sec. of the 4th art.; they were declaratory, and nothing more. Strike the penalty out of both of them, and the same consequence would follow. The disqualification is the penalty imposed by the constitution itself.

Reverdy Johnson on the same side.

The appellant must make good one of two propositions: 1st. That the 5th section of the act of 1856, ch. 286, is unconstitutional, or 2nd. That the mode adopted by the judge of the Superior Court in vacating the office and appointing a successor to Dowling was not warranted by the act.

1st. Had the legislature the power to pass this law? The argument on the other side goes to the extent, not only of denying that the constitution contains any provision requiring such a bond, but also that it has put it out of the power of the Legislature to pass a law requiring such bonds to be given. In construing the constitution one rule of construction is applicable, viz., that all fit subjects of legislation are within the legislative department, unless vested elsewhere or expressly prohibited to the legislature. The rule of construction of State constitutions is entirely different from that of the constitution of [**36]  the United States. In the latter you look to see if the particular power is among the enumerated powers granted to Congress; in the former you look to see if it is legislative in its character, and whether it is prohibited to the Legislature. There is no doubt that the law in question, in the absence of any prohibition to the Legislature to pass it, is a power which can only be exercised by the Legislature. The form and character of the bonds which shall be given by the clerks who are revenue officers of the State, is a subject exclusively appropriate to statutory provision. The object to be attained is security to the public revenue against the danger of negligence in the revenue officer, and there is just as much necessity to require the renewal of the bond as to require a bond in the first instance. Is there then any provision in the constitution which prohibits the Legislature from passing this law? In my judgment clearly not. The convention knew that the clerks of the old county courts were required to give bonds. Did they mean to put the clerks to be elected under the constitution in a different predicament? If they did they intended these clerks should not give bonds at all.  [**37]  The 4th section of art. 1, prescribes the oath to be taken by all officers before entering upon the discharge of the duties of their offices. If this alone gives the officer a right to his office, independent of any subsequent legislation, then all the subsequent laws in regard to bonds are at an end. Not only so, but if this oath is all that is necessary to entitle the appellant to his office, then no bond could be required, even under antecedent laws. But you must take this constitution as a whole and construe all its provisions together. The 16th sec. of art. 4, makes the clerks therein referred to, subject to existing laws, "until otherwise provided by law." This provision keeps in force all the previous laws relating to clerks, until amended or repealed by subsequent legislation. The 3rd art. of the Declaration of Rights, also, continues in force all laws existing at the date of the constitution, except such as are repugnant thereto. These provisions, taken together, show, that the officer taking the oath must also conform to existing laws, and perform such duties as the legislature may from time to time prescribe. 7 Md. Rep., 477, Marshall vs. Harwood. The act of 1853, ch. 409,  [**38]  containing the same provision as the act under consideration, is one of contemporaneous construction. I submit, therefore, that the Legislature had a clear right to pass this law.

2nd. Was the mode adopted in this case, to vacate the office, warranted by the act and the constitution? The 14th sec. of art. 4, makes the clerk subject to be removed for wilful neglect of duty, or other misdemeanor in office, on conviction in a court of law. It also provides, that in case of a vacancy the judge shall have the power to appoint until the next general election of delegates. The law, in question, provides, that a failure to comply with its provisions shall be deemed a disqualification within the meaning of the constitution, and gives the judge the power to fill the vacancy until the next general election. Now it is said on the other side, that there must be, under the constitution, a conviction in a court of law before a removal from office can take place. But by the law in question, the bond is to be approved by the judge and comptroller, and then entered of record in the Superior Court. If the clerk does not comply with these provisions within thirty days from the passage of the law,  [**39]  he is not, under the law, any longer the clerk. Even, in the absence of the 5th section, if the time had passed and he had failed to give the bond, he would be no longer clerk, because these are conditions precedent to his holding the office; it is a failure to qualify and he is just as much out of office as if he had failed to comply with any antecedent law. If the legislature had the power to require the execution of the bond they could declare the consequences of a failure to execute it. Is he to remain in office until the grand jury indict him, or the petit jury convict him, and the Court of Appeals determine the law? The question is, were the Legislature bound to leave the officer in office until these questions should be determined? Refusal to qualify himself for an office is not a crime for which a party can be indicted. How can it be said that the refusal to give a bond is a crime for which a man can be indicted? But again, to sustain an indictment under this clause of the constitution, the party must be in office. But if he fails to give bond he is not in office and could not be guilty of any offence in office. This clause of the constitution applies only to the case of a [**40]  party in office, officially doing an act which is a wilful neglect of duty, or a misdemeanor, and has no application to the case of a party failing to qualify. How could you indict Dowling under this provision of the constitution? If he fails to give the bond he is out of office, and can be guilty of no misdemeanor as clerk; for on the moment the thirty days had expired he was not in office as clerk. If, upon his election, Dowling had not given bond at all, and had gone into office, he could not, according to the argument on the other side, be removed, except upon conviction in a court of law. He would thus be in office and have control of the public revenue without any bond at all. Such cannot be the construction of the constitution. There are other modes of vacating an office than by wilful neglect or misdemeanor in office. Suppose Dowling had left the State, or suppose he was dead, would not the judge have the power to fill the vacancy? In the case of Thomas vs. Owens, 4 Md. Rep., 224, this court has said, in reference to the offices of comptroller and treasurer, that they are to "qualify according to existing laws, liable, however, to any demand the Legislature might thereafter [**41]  make on them; and on their failure to comply therewith, to be deemed as having resigned their offices." I refer also to the case of Parker vs. Overman, in the Supreme Court of the United States, at its December term 1855, as a full warrant for the action of the court below in this case, and submit that both the orders appealed from should be affirmed.

Chas. F. Mayer for the appellant, in reply, argued:

1st. That the act of 1856, ch. 286, is unconstitutional in assuming to define or superadd a disqualification within the meaning of the constitution, if there be such term, actually or constructively, as disqualification, as to clerks, in the constitution, or if it be convertible with cause of forfeiture of office. The legislature is not authorised to interpret the constitution. It is unconstitutional, too, in not only adding, if it be construed to mean any imputation of delinquency, a cause of forfeiture of office, but in making, too, an act of omission, per se, a transgression. The constitution declares, that the clerk, on conviction in a "court of law," of "wilful neglect of duty," or "other misdemeanor," shall be "subject to removal," and, but for that particular exposure [**42]  to forfeiture for such a cause, shall hold his office for six years. There is no other cause of forfeiture that the constitution contemplates, or that can constitutionally be attached to the office of clerk. The removal, there, is part of the sentence of the court before whom the conviction occurs, and is to be pronounced only by that court. People vs. Barker, 3 Cowen, 686, and 20 Johns., 457.

2nd. Not only must the declaration of forfeiture be a judicial act, but the act entailing the forfeiture must be formally and distinctively established as any penal charge, and judicially, and in the course of criminal procedure, with privilege of jury trial. An office, whether emanating from the people's suffrage by election, or conferred by direct commission from the State, as by patent of the English Crown, must be avoided by procedure of as high a nature as the patent matter of record. Here, without proof of any kind, and with a denial of wilful neglect, the judge summarily excludes even the privilege of testimony, and pronounces for the guilt of the appellant on what he, ex mero motu, receives as an authentic letter from the comptroller, who repudiates the bond, in part, for a defect [**43]  which is the fault of the judge himself. 5 Coke, 109, Foxley's Case. 4 Bac. Abr., 342, tit. "Forfeiture," Letter B. 7 Do., 322, title "Officer & Office." 10 Viner's Abr., 140, 141. 16 Do., 80, 81, 83. 13 Do., 451. 1 Hawk. P. C., 68, ch. 27, sec. 9. 1 Chitty's Pl., 302, Statutes 5th & 6th, Ed. 6th, ch. 11, sec. 9. 26 Henry 8th, ch. 13, sec. 4. 33 Henry 8th, ch. 20, sec. 3. 2 Chitty's Bl., 199. 8 Coke, 14, Prince's Case. Dyer, 198, Rex vs. Eston. Ibid., 211, (a,) Sir Robert Chester's Case. Sid., 81, Beere vs. Windebanke. 2 Term Rep., 554, 557, King vs. Amery. 10 Wend., 266, Fire Department vs. Vip.

3rd. The constitution makes all laws applicable to the new clerks of the courts that attached to the clerks of the county courts until other laws, in pari materia, be passed. It is only under that provision that the legislature could exact new bonds under any terms; but those prior laws did not make the failure to give bond a cause of forfeiture of office, nor, per se, a penal offence. And it might well be doubted whether any such consequences could, by new legislation, be affixed to omissions to give bonds, even if a conviction in a court of law were required, and it was necessary to [**44]  convict the party for the case of the omission of "wilful neglect of duty." Const., Art. 4, secs. 14, 16, 24. Art. 1, sec. 4. Acts of 1800, ch. 62, sec. 3. 1716, ch. 1, sec. 3. 1742, ch. 10, secs. 2, 4. 1823, ch. 195. 1840, ch. 52. 1853, ch. 409. 1856, ch. 286.

4th. It is not to be conceded, that the act of 1856 was passed the 8th of March, but it must be understood as passed when both branches of the Assembly recognised it, on the 10th of March, as a law. The printed volume of laws so dates the passage of the law. If that be so, the bond was presented in time, and the supplemental certificate operating, ab initio, the bond, as admitted by the comptroller, was adequate, and was, even on the 9th of March, good and in time. If even the suppletory amendment from the judge had not relation back to make full the certificate, the appellant could not suffer, as the omission was the act of the State herself by her own officer.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON, TUCK and MASON, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*266]  The Judges delivered separate opinions in the case.
LE GRAND, C. J.:
Looking to the proper interest manifested by a large portion of the community in [**45]  the questions supposed to be involved in this case, and differing, as I do, in some particulars, from the opinion pronounced by my brother MASON, (which is concurred in, to a considerable extent, by my brother TUCK,) I deem it advisable to briefly indicate the views which I entertain in regard to the matter embraced by these appeals.
The case is before us on two appeals. First, on an appeal from an order passed by the judge of the Superior Court for Baltimore city, declaring the office of the clerk, of said court, vacant. And Secondly, from an order directing the appellant, Dowling, to surrender to the appellee, Smith, all the books, records, &c., belonging to the office of the clerk of said court.
The appellant, Dowling, in November 1851, was elected to the office of clerk of the Superior Court, and shortly thereafter gave the necessary bond, and took the oath prescribed by the constitution.
There is no question that he was properly inducted into office: that is to say, in strict conformity with the requirements of the constitution and the then existing laws. Nor is there any question as to his compliance with the act of 1853, chap. 409. If he be out of office, he is [**46]  so, only, because of an alleged noncompliance with the act of 1856, chap. 286.
The office of clerk to the Superior Court for Baltimore city, is created by the 14th section of the 4th article of the constitution of the State. After reference to other matters, it declares: "There shall also be a clerk of the Court of Common Pleas, in Baltimore city, and a clerk of the Superior Court of Baltimore city, and there shall also be a clerk of the Criminal Court of Baltimore city; and each of the said clerks shall be elected, as aforesaid, by the qualified voters of the city of Baltimore; and shall hold his office for six years from the time of his election, and until a new election is held, and be re-eligible thereto: subject, in like manner, to be removed for wilful neglect of duty, or other misdemeanor in office, on conviction in a court of law."

 [*267]  The 16th section, of the same article of the constitution, provides, that "All laws relating to the clerks of the Court of Appeals, clerks of the several County courts and Baltimore city court, shall be applicable to the clerks, respectively, of the Court of Appeals, the County courts, the Court of Common Pleas, the Superior [**47]  Court, and the Criminal Court of Baltimore city, until otherwise provided by law."
By the 14th section of the 4th article, it is provided, that "In case of a vacancy in the office of a clerk, the judge or judges of the court of which he was clerk, shall have the power to appoint a clerk, until the general election of delegates held next thereafter, when a clerk shall be elected to fill such vacancy."
It is under these clauses of the constitution, and the provisions of the act of Assembly of 1856, chap. 286, the authority is claimed for the judge of the Superior Court, to vacate the office of the clerk to his court.
It is manifest, from these citations, that all laws relating to clerks of the several courts, which were in force at the adoption of the constitution, continued so, and, as applicable to the clerk of the Superior Court, "until otherwise provided by law." Until the act of 1853, chap. 409, there was no attempt, since the adoption of the present constitution, to alter or modify, in any particular, (so far as bonds of clerks are concerned,) the laws existing previously thereto. Dowling entered into his office in the year 1851, and bonded. His bond was, consequently,  [**48]  given under the act of 1800, chapter 82. Its condition covered the whole period "during his continuance in office;" that is to say, for the period of six years, should he continue in office such a length of time.
The act of 1853, chapter 409, did not, in any wise, change the condition of the bond, which it required the clerk of the Superior Court to enter into. Its whole office was to change the amount of the penalty, and to fix the time within which, after the passage of the act, the bond required should be given, The obligation of the bond given under this act, extends over the whole period of his continuance in office, or at least, until such time as he shall give a bond, as required by the act of 

 [*268]  1856, chapter 286. If, therefore, the bond executed in 1853 be a good bond, the public are not without security against any neglect, or failure to discharge his official duty, by the clerk. This is my opinion.
I entertain no doubt that it was competent to the legislature to pass, (with the exception of the 5th section,) the act of 1856, chapter 286. The 16th section of the 4th article of the constitution, expressly authorises the legislature to alter the laws relating [**49]  to the clerks: but it does not authorise an alteration of the constitution itself. Did such a power exist in the legislative branch of the government there would be, in fact, no constitution. Its provisions would depend wholly upon the wisdom or caprice of the members at each recurring Assembly. To admit of such a power in the Legislature would be to ignore all our consecrated ideas of the protection furnished to our rights of person, liberty and property, by Magna Charta and our Bill of Rights, both of which provide and guarantee, that we shall not be dispossessed of anything, except by the judgment of our peers.
Whilst I hold, with the exception of its 5th section, the act of 1856, to be a legitimate exercise of legislative power, I am still clearly of opinion, that that section is an infraction of the organic law, and in this, that it seeks to provide for the removal of a clerk, in a manner directly in conflict with the one prescribed by the constitution.
If the legislature exact of a clerk the renewal of his bond, and he refuse to comply, such refusal is a neglect of duty, inasmuch as he is bound to conform to all laws relating to him as clerk, and to his office [**50]  as such; and he may be convicted for the same, in a court of law, and amoved. It is proper, however, to observe, that the mere failure to give bond, within the time prescribed, is not, ex necessitate, such a "wilful" neglect of duty as would, under every possible state of circumstances, command a conviction. It is not every neglect of duty which will, under the constitution, justify a conviction; it must be a "wilful" neglect. The importance of this word, in this connection, is made manifest by contrasting the section of the constitution, in which it is found, with the language of 

 [*269]  the 3rd section of the 4th article. In the latter it is said: "The Court of Appeals shall appoint its own clerk, who shall hold his office for six years, and may be re-appointed at the end thereof; he shall be subject to removal by the said court, for incompetency, neglect of duty, misdemeanor in office, and for such other causes as may be prescribed by law."
By this part of the constitution, it will be seen, the clerk of the Court of Appeals may be removed by the court for any neglect, wilful or not; and that the power is reserved to the Legislature to prescribe [**51]  other causes of removal than those specified in the constitution. This is not so in regard to the clerks of the Circuit Courts, nor of the clerk of the Superior Court, nor of the clerk of the Court of Common Pleas, nor of the clerk of the Criminal Court. So far as they are concerned, the judge of the particular court has no power to remove; they must be convicted "in a court of law;" and if the conviction be for a neglect of duty, such neglect must be "wilful," and of the wilfulness in the particular instance, the jury must be the judges.
The distinction in the constitution, between the power of the judges of the Court of Appeals over their clerk, and that of the judges of the other courts over their clerks, is obvious and broad, and we cannot but hold, that to the convention which framed the instrument it was apparent, and was by it intended to be so.
The fact is, the constitution, in regard to nearly all the officers recognized by it, points out the manner, mode and causes of removal; and it is a well settled principle of construction, that where a right or franchise is conferred, subject to be divested in a manner specified, the manner so designated must be pursued. It [**52]  is to such cases the maxim, expressio unius est exclusio alterius, properly applies. And so, accordingly, it has been frequently held, both by courts of law and legislative bodies, that where certain qualifications are specified, as those constituting the right of a party to hold and enjoy an office, and no power by the constitution be reserved to the legislature to add to or take away therefrom, the enumerated requisites are all that can be insisted upon. I agree with my brother 

 [*270]  Eccleston in what he has said in regard to the action of the Superior Court. The matter was coram non judice, and, therefore, of non-effect.
The result of the opinion pronounced by the judges of this court is, that the orders of the Superior Court, in the premises, be reversed.
Order reversed. 

CONCURBY:
ECCLESTON 

CONCUR:

ECCLESTON, J.:
Although the clerk of the Superior Court of Baltimore city may have failed to procure the approval of his official bond, according to the provisions of the act of 1856, ch. 286, within the time prescribed by that act, still I do not think, that for such failure, the judge of the court had the right to declare the office vacant, and to pass the orders which [**53]  he did, for the purpose of filling the vacancy. The language of the act must be construed with reference to the provisions of the constitution on the subject; and, in my opinion, notwithstanding the failure to procure the approval of the bond in due time, the judge had no authority to treat the office as vacant whilst Dowling continued to claim it, until, for such failure, he was convicted in a court of law of "wilful neglect of duty" in office, according to the 14th section of the 4th article of the constitution.
Believing the action of the court below was erroneous, I think there should be a reversal, and therefore need not inquire whether the proceedings, in point of form, were irregular or not.  

DISSENTBY:
MASON; TUCK 

DISSENT:

MASON, J.:
The main question for our determination upon the present appeal is, whether the act of 1856, chap. 286, is a constitutional exercise of power upon the part of the legislature? That act provides, that the clerk of the Superior Court of Baltimore city shall execute a bond with securities, &c., within thirty days from the passage of the law, and in the event of his not doing so, the 5th section provides, that it "shall be deemed a disqualification within [**54]  the meaning of the constitution, and thereupon his place shall be filled according to the provisions 

 [*271]  of the 14th and 18th sections of the 4th art. of the constitution." It is supposed that these requirements are inconsistent with the terms of the constitution which relate to the clerks of the several courts in this, that the act superadds a qualification, and provides a mode of removal from office not contemplated by the letter or spirit of the constitution; and this question is to depend upon the proper construction of that instrument.
The true meaning and spirit of the constitution can only be collected from an interpretation of its several parts relating to the same subject, taken in connection with each other. And in determining the constitutionality of statutes, comity requires, that acts of a co-ordinate branch of our government are never to be declared, by this court, to be unconstitutional and void, except upon the clearest conviction that they are repugnant to the organic law.
The terms of the constitution, which are to control this question, are to be found in the 14th and 16th sections of the 4th article. By the 14th section it is provided, that "there shall [**55]  be a clerk of the Superior Court of Baltimore city elected as aforesaid, by the qualified voters of the city of Baltimore, and shall hold his office for six years from the time of his election, &c., subject in like manner to be removed for wilful neglect of duty, or other misdemeanor in office, on conviction in a court of law."
If this provision stood alone it might be a very grave question, whether the legislature could require any additional qualification for the clerk, such as giving a bond, inasmuch as no such qualification is enumerated in this section; but we are relieved from any difficulty upon this point, so far as the requirement of a bond is concerned, by the 16th section. That section provides, that "all laws relating to the clerks of the Court of Appeals, clerks of the several county courts, and Baltimore City Court shall be applicable to the clerks, respectively, of the Court of Appeals, the Circuit Courts, the Court of Common Pleas, the Superior Court and the Criminal Court of Baltimore city, until otherwise provided by law; and the said clerks, when duly elected and qualified according to law, shall have the charge and custody of the records and other papers belonging [**56]  to their respective offices."

 [*272]  If there was doubt as to the previous section there is none as to this. It intended to make applicable to the clerks elected under the new constitution, so far as they might relate thereto, all the laws then in existence, relating to the former clerks; and further to empower the legislature, from time to time, to amend or repeal those laws at will. In other words, upon every subject upon which statutes were in force relating to clerks, it was the design of the constitution to empower the legislature to legislate upon the same subjects. But it was not the purpose of the constitution to authorise the legislature, under the shadow of this power, to impose new duties and qualifications not contemplated by the constitution or the then existing acts of Assembly. Among the laws relating to the former clerks, at the time of the adoption of the present constitution, were those requiring official bonds. We do not deem it necessary to go into an examination as to the precise state of the law upon this subject. It is sufficient for us to know, that the laws required bonds to be executed by the clerks, and therefore the power was vested in the legislature [**57]  to regulate the subject, if it should be deemed necessary, by subsequent acts. We think it clear, therefore, that it was within the power of the legislature to pass the act of 1856, chap. 286, so far as it requires the execution of a new bond by the clerk, and for its renewal every two years. It was simply otherwise provided by law as to the nature of the clerk's bond.
This leads us to the consideration of other and more difficult questions, namely, whether, in case of the neglect of the clerk to give the bond as required by the act, the effect of such omission would amount, ipso facto, to a vacation of the office; or if not, whether the legislature has power to provide for the removal of the clerk and for the appointment of his successor in case he fails to give the bond as required.
We are of the opinion, that unless the omission to give the bond, of itself, vacated the office, the legislature had no power to confer upon the Superior Court the right to turn the clerk out upon any pretext or proceeding whatever, for the reason that the said 14th sec. expressly provides, that he shall be removed 

 [*273]  on conviction in a court of law; and as there could be, under [**58]  the constitution, no proceeding in the Superior Court in the nature of a criminal prosecution, against the clerk, there could be no conviction in that court, and, therefore, no removal. The point then is, has the clerk, by omitting to give the bond, in the spirit of the constitution and laws, actually vacated his office, in the same manner as if he had resigned, removed from the State, or the like; or has he only done, or omitted to do, an act which amounts to such a wilful neglect of duty, that, upon conviction of which, he forfeits his office? If the first, "it was a case of vacancy in the office," and the Superior Court was right in filling the place, as is required by the aforesaid 14th section; but if it was the second, the court was wrong in attempting to fill the office before it had been made vacant by a conviction in a court of law.
We cannot shut our eyes to the fact, that it was the design of the constitution, and the laws existing at the time of its adoption, that this clerk should give bond, and that such bond should constitute an essential qualification for the office. It would hardly be contended, that Mr. Dowling could have entered rightfully upon the duties [**59]  of his office upon the mere force of his election alone, without giving a bond under the constitution and laws as they then stood. The language of the constitution, that the clerks, "when duly elected and qualified according to law, shall have the charge and custody of the records and other papers belonging to their respective offices," is equivalent to saying that they shall not act or be considered as in office until they shall have qualified; and one of the modes of qualification is giving bond. What official act could a clerk perform without having "the charge and custody of the records and other papers" of the office? Yet he cannot have these without first giving a bond.
In the exercise of the power conferred by the constitution, to otherwise provide by law, for the regulation of the bonds of the clerks, the Legislature passed the acts of 1853, chap. 409, and 1856, chap. 286. The first of these acts required a new bond to be given within thirty days after its passage, in the penalty of $ 30,000, and contemplated the continuance of the 

 [*274]  bond during the term of office. This act, in its letter and spirit, was complied with. The act of 1856, differed substantially [**60]  from the previous act, only in requiring the renewal of the bond every two years. It is not necessary, in this connection, to decide how far the bond, under the act of 1853, continues in force, notwithstanding the failure to bond under the act of 1856. It is probable it would continue in force, inasmuch as it was intended to cover the whole term of the clerk. But it is clear, that any bond executed under the act of 1856, to run for two years, could not bind the obligors on that bond for official acts done by the clerk, after the expiration of the two years, because the extent of the obligation, under the law, was for the faithful discharge of the duties of the clerk for two years only, and that obligation, by construction, cannot be enlarged.  Robey vs. Turner, 8 G. & J., 125. At the end, therefore, of the two years, if the clerk should fail to renew his bond, we would have either the office, with its records and papers, in the possession of a clerk acting without the obligations of a bond, or the office would be vacant. We have already said the constitution and laws contemplate a bond for the public security, and that the clerk could not get possession of the office [**61]  until he gave such bond. Is it not virtually a contradiction, in terms, and a violation, at least, of the spirit of our system, to say, that while he cannot get into the office without first giving a bond, yet, after he does get in, the clerk may hold it without any? But it is said, he may be convicted in a court of law, and removed, for not giving the bond, regarding the omission to do so, as a "wilful neglect of duty, or other misdemeanor in office." During the slow process of this prosecution he is to continue in office, perpetrating, if he pleases, all manner of wrong against the public, without any bond to protect them against the consequences of such official misconduct. But, in addition to the removal from office, as a penalty for wilful neglect of duty, or other misdemeanor, the law contemplates that the public, as well as individuals, shall find indemnity and redress against the clerk for such official misconduct in his bond; and it was never, therefore, the design of the constitution and laws, that there should ever be a 

 [*275]  clerk without a bond. The object of the bond, as has been remarked, was to afford security and indemnity against the wilful neglect  [**62]   of duty, or other misdemeanor in office, on the part of the clerks, and if it was contemplated, that there could be no clerk without a bond; neither, as a consequence, could there be any wilful neglect, or other misdemeanor in office, without a bond to cover it. But if not giving the bond be a wilful neglect of duty, or misdemeanor in office, then there is a neglect of duty or misdemeanor not covered and provided for by the bond; and that, too, such a neglect of duty as almost to embrace within its scope and consequences every other neglect of which the clerk might be guilty; for if the clerk is himself irresponsible, and has given no bond, there is no pecuniary indemnity against his official misconduct.
The 14th section of the constitution, already cited, provides, that "in case of a vacancy in the office of a clerk," the judge may appoint the successor. The constitution is silent as to what is to constitute such vacancy, or how it may occur. It would certainly hardly be contended that this term would only embrace a vacancy resulting from a conviction. If it did, death, resignation or removal from the State, could not be regarded as such vacancy. We do not doubt for one moment [**63]  that the term vacancy was employed in the constitution in its usual signification, and that it embraced every event or act, such as death, resignation and the like, and every other conduct from which, in legal contemplation, or actual intendment, the party is understood as having vacated the office, as well as a vacancy resulting from a conviction in a court of law.
The omission of the clerk to give the bond was equivalent to a resignation, removal from the State, or the acceptance of another inconsistent office. He was guilty of an act of omission, as inconsistent with the tenure of the office, as if he had accepted the office of collector of the port of Baltimore, or bona fide removed to California, either of which would have, beyond question, amounted to a vacancy within the meaning of the constitution.
In the case of Van Orsdall vs. Hazard, 3 Hill Rep. 243, the court announce some general principles quite applicable to 

 [*276]  the case now before us. It is there said that "a vacancy may sometimes arise from a mere implied resignation, as by accepting an office incompatible with that which is claimed to be vacant."
The clerk in this instance took his office [**64]  burthened with the obligation to discharge its duties and accept its emoluments, only under the restraints and penalties of a bond, and upon the condition imposed by the constitution, that the Legislature should have power from time to time to regulate the nature, amount and duration of the bond. If he fails to comply with the requirements of the Legislature in this particular, he is no longer clerk. He vacates the office by his own act. He puts himself out. The alternative presented to the clerk is, give bond and remain in office, or omit to do so, and go out. The proposition is a plain one, about which there can be very little room to dispute in regard to facts. It is not a neglect of duty, or a misdemeanor within the meaning of the constitution. These may depend upon a number of contingencies, and therefore a proper subject of investigation before a jury in a court of law.
The constitution of the State of Arkansas provides, that "the qualified voters of each county shall elect one sheriff, &c., for the term of two years. They shall be commissioned by the Governor, reside in their respective counties during their continuance in office, and be disqualified for the office a second [**65]  time, if it should appear that they or either of them are in default," &c. Art. 6, sec. 17, Con. Ark. Dig., 64.
By a statute of the State, Dig., 871, "the sheriff of each county shall be ex officio assessor for the county." The same statute requires, that to qualify the sheriff to act as assessor, he shall, "on or before the 10th day of January in each year, make and file in the office of the clerk an affidavit, in the following form, &c., and if any sheriff shall neglect to file such affidavit within the time prescribed, his office shall be deemed vacant, and it shall be the duty of the clerk, without delay, to notify the Governor of such vacancy."
In the case of Parker & others, vs. Overman, 18 Howard 137, the Supreme Court were called upon to interpret these 

 [*277]  several provisions in the laws of Arkansas. The question was one of title to land, and depended upon the regularity of a tax sale. The objection to the sale was that the land was not legally assessed. Upon the point we cite from the opinion of the Supreme Court:
"The record shows, that Peyton S. Bethel, the then sheriff of the county of Dallas, did not file his oath as assessor [**66]  on or before the tenth of January, as required by law. He did file an oath on the fifteenth of March, but this was not a compliance with the law, and conferred no power on him to act as assessor. On the contrary, by his neglect to comply with the law, his office of sheriff became ipso facto vacated, and any assessment made by him in that year was void, and could not be the foundation for a legal sale. The neglect also to file his assessment and give immediate notice on the 25th of March, so that the purchaser might have his appeal at the next county court, was an irregularity which would have avoided the sale, even if the assessment had been legally made."
It will be seen that the office was, by the statute, (which was sustained by the court,) declared to be vacant upon the omission to make the affidavit. In the case before us the statute declares the office vacant upon the failure to give the bond, and as our constitution contemplates by its express provisions, that a bond shall constitute an essential element in the qualification of a clerk, and as the constitution of Arkansas is silent upon the subject of the sheriffs making any affidavit, the case decided by the [**67]  Supreme Court is even stronger than the one we are now considering. In both cases the act of omission to comply with the law, is not regarded or treated as a ground for removal from office, but as constructive evidence of an actual abandonment of the office by the incumbent.
There is nothing in the judicial decisions of our own State repugnant to the views expressed in this opinion, but, on the contrary, they rather tend to sustain them. 6 Har. & John. 96.  7 G. & J., 253. 8 Ibid. 125. 9 Ibid. 15.
The suppositive case, that the Legislature might impose upon the several clerks duties or obligations in giving bonds or otherwise, which it might be impossible or wrong for them to 

 [*278]  comply with, is not this case. We are not to strain our vision to find improper or corrupt motives in the Legislature for the passage of any law. It is our duty to enforce acts of Assembly whenever we can. But where we find acts or duties imposed upon public officers or individuals by the Legislature, which it would be impossible for them to perform, or wrong to respect, a different state of case would be presented than the one now before us, and when such does [**68]  arise we shall be prepared to act. In the law before us, we can discover nothing that is unjust or unreasonable. Indeed it is almost a copy of the act of 1853, which was complied with, promptly and without complaint, or difficulty.
The case before us presents a question of jurisdiction. If the question was, whether the clerk in not giving the bond was guilty of a neglect of duty, as defined by the said 14th sec. of the constitution, and a forfeiture of his office was the penalty, then the Superior Court has no jurisdiction over the subject. But if the omission to give bond vacates the office, then the jurisdiction belongs to the Superior Court, and the issue of fact to be determined is simply, has the clerk failed to give the bond? That issue, when determined by the court below upon the facts, is subject to be reviewed by this court upon appeal, and the question now is has the issue been established? And the same rule would apply if the question was whether the clerk had resigned, or bona fide removed from the State.
It appears from the record that the act of 1856 passed the House of Delegates on the 7th day of March, and the Senate on the 8th, and that it was engrossed on the [**69]  10th. Mr. Dowling's bond appears, from the statement of the judge, to have been approved on the 8th of April, and, by the statement of the comptroller, that it was presented to him for approval on the next day, namely, the 9th of April. In this aspect of the case the question is, was the bond executed and filed with the comptroller within the time prescribed by the act of 1856? and this presents the further question, at what precise point of time does an act take effect? If the law went into operation as soon as passed by the Senate, the bond was not in time, but 

 [*279]  if it takes effect only from its engrossment, then it was in time and the act of Assembly has been complied with.
I am clear the law was not perfected until it had been engrossed. It is not necessary to examine how far a law would be defeated for want of engrossment, but we are not to assume that such omissions or neglect of duty would occur, but we must assume that all things will be done, and rightfully done, which the law requires. I only say that notice of the existence of a law, penal in its character, can only be imputed to persons interested therein, from the date of its engrossment.
It would be unjust [**70]  to require any party to know the existence of a law while it is in its crude state previous to engrossment. When amendments have been made, or rejected, pending a bill, it becomes a matter of importance, in order to understand precisely the true purport of the enactments which may have been adopted, that every provision should be clearly and distinctly written out in their proper order, and this is the office of engrossment. Till this is done the law has not been perfected.
Upon this subject, Jefferson, in his Manual, sec. 31, says: "In reducing numerous, difficult and illegible amendments into the text, the secretary may, with most innocent intentions, commit errors," &c.: and, if the secretary cannot know the contents of an act until it is engrossed, how much more difficult would it be for strangers?
After a careful examination, I have been unable to find any case deciding this very point, and therefore it must be determined, as a new question, upon general principles.
Formerly it was the practice to engross bills before their third reading, and not afterwards to receive amendments, but Jefferson, in his Manual, sec. 31, says this practice has been departed [**71]  from, and bills are now amended upon their third reading and afterwards engrossed. This only shows that engrossment is an essential part of legislation. The same author says, sec. 48, that bills are to be signed by the respective presiding officers, after the engrossment--hence it is to be inferred that the act was not complete till engrossed. Bouvier, (Law Dic., Vol. 1, page 273,) says, in regard to the proceedings of Congress, that "when a bill is engrossed, and has received the sanction 

 [*280]  of both houses, it is sent to the President for his approval;" and the same is said in 8 Bacon Abr., 214. From this it appears, that after the engrossment the sanction of both houses is necessary. In a recent case in California, The People vs. Clark, 1 Cal. 407, the court say: "If no time be specified when a statute shall be in force, it ought to go into effect from and after its passage, that is, from and after the point of time when its existence is perfected." In the matter of Richardson, 2 Story's Rep., 580, it is said by the learned judge, "If there be any choice, as to the principle of interpretation, one should think [**72]  that ought to be adopted, in cases of this sort, which is most favorable to private rights and public justice;" and these remarks were made in regard to the very question now before us.
From what I have said, I am of opinion, that in point of fact, so far as we can learn from the disclosures in the record, the bond was given in time, and that the comptroller might have accepted the bond as required by the act of Assembly.
Inasmuch as there has been no default on the part of the clerk, the bond may still be approved and filed, and said approval would relate back to the day when the bond was presented by the clerk at the office of the comptroller.
Not regarding the office of the clerk to be vacant, it was an error in the Superior Court to appoint General Smith.
TUCK, J.:
I am of opinion that the judge correctly declared the office of clerk to be vacant, on his neglect to comply with the act of 1856, ch. 286, without expressing any opinion as to the constitutionality of the fifth section. The constitution and laws vacated the office by such omission, on the part of the incumbent, to continue his bond, which I deem necessary to his discharging its functions, and the fact of omission [**73]  was a matter to be ascertained by the judge.
The office being vacant, the judge had a right to fill it, and this having been done, it was competent for him to pass an order, after the qualification of his appointee, directing the appellant to surrender the office to him.

 [*281]  I agree with the views expressed by my Brother MASON, on this part of the case, and think the orders appealed from should be affirmed. Differing from him as to the time when a bill passed by the Legislature becomes a law, I think the act under which these proceedings were had was consummate on the 8th of March, and that, consequently, the bond was not filed in the comptroller's office within the time limited by law.  

59 of 187 DOCUMENTS 

ST. GEO. W. TEACKLE, Permanent Trustee of GEO. CAREY, GEO. T. WETHERED and JOHN H. O'DONNELL, vs. GEORGE S. GIBSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 70; 1855 Md. LEXIS 33 

DECEMBER, 1855, Decided 

PRIOR HISTORY:
 [**1]  CROSS-APPEALS from the Equity Side of the Superior Court of Baltimore city.

The bill in this case was filed on the 8th of December 1850, by Teackle, permanent trustee in insolvency of Carey, Wethered and O'Donnell, to set aside an alleged fraudulent transfer and preference made by the insolvents, in 1840, in favor of the defendant, Gibson. The allegations of the bill and the facts of the case are fully stated in the opinion of this court. The court below, (FRICK, J.,) sustained one of the pleas of limitations filed by the defendant and overruled the other and dismissed the bill. From this decree both parties appealed.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

Since the act of 1841, ch. 163, the defendant cannot rely in this court upon any objection to the jurisdiction of the court below, unless it appears by the record that such objection was made below.

Where a defendant pleads two pleas, one of which is overruled and the other sustained and the bill dismissed, and the complainant appeals, this court will consider both pleas, and if either is a good defence, will affirm the decree dismissing the bill.

In all cases of concurrent jurisdiction between courts of law and equity, the statute of limitations is equally obligatory in each court.

Where an insolvent debtor makes a fraudulent transfer of money and personal property to a favored creditor, the trustee in insolvency may maintain an action at law therefor against the preferred creditor.

Under the act of 1829, ch. 208, sec. 3, the provisional trustee has as full power to sue for and recover property fraudulently conveyed by the insolvent as the permanent trustee has.

Limitations will begin to run against such provisional trustee from the time of his appointment and qualification, and when once commenced, continues to run against the permanent trustee also.  

COUNSEL:
Henry Winter Davis for the trustee:--1st, moved to dismiss the appeal of Gibson, because the decree dismissing the bill is in his favor and there is no decree or order against him from which any appeal lies. 2 Md. Rep., 271, Mitchell vs. Smith. 9 Gill, 56, Ramsay vs. Glass. 5 Md. Rep., 186, Ringgold vs. Barley. 8 Gill, 370, Winter vs. Donovan. 4 G. & J., 407, Charlotte Hall School vs. Greenwell. 1 Gill, 32, O'Reiley vs. Murdoch. But if this motion should be overruled, the complainant then insists that the first plea was properly overruled by [**2]  the court below, because the provisional trustee could not file a bill to set aside this fraudulent transfer and preference, nor has he any right to call a mortgagee to settle an account, nor has he any right to the possession of the mortgaged property; but this can be done only by the permanent trustee. Under the act of 1816, ch. 221, the provisional trustee is simply made the custodiary, for the time being, of the property which was in the possession of the insolvent, and he cannot sue for it unless it has been taken out of his possession, in which case he may maintain an action as special bailee. 5 H. & J., 403, Kennedy vs. Boggs. Where the statutes refer to the provisional trustee, they speak only of property in the possession of the insolvent or choses in action, which the insolvent himself could sue for and collect; but in the case of fraudulent deeds and preferences, the insolvent himself has no right to sue, for they are good as against him, though fraudulent as to creditors. The act of 1819, ch. 84, sec. 8, only requires the provisional trustee to give bond for the delivery over to the permanent trustee of the property and estate of the insolvent in his hands, and does not [**3]  vary or enlarge the powers conferred upon him by the act of 1816. The 10th section of the act of 1825, ch. 205, simply requires the provisional trustee to execute a deed conveying to the permanent trustee that property only which had come into his hands under the previous laws. The act of 1829, ch. 208, sec. 3, dispenses with the necessity of a deed from the insolvent to the provisional trustee, and, according to my construction of it, vests in him all the property, effects and claims of the insolvent debtor; that is, such as the debtor himself could sue for and recover. But property fraudulently conveyed by the insolvent is not that to which the insolvent himself has any title or claim. This act therefore refers only to the powers conferred upon the provisional trustee by previous laws, and invests him with no new powers. There is a very good reason why the provisional trustee should not have the power to sue in such a case as this. The law nowhere provides that the permanent trustee may carry on a suit instituted by the provisional trustee, and the suit so instituted must therefore fail. See also on this point 2 H. & G., 24, Brown vs. Brice. 4 G. & J., 385, Glenn vs. Karthaus. 5 [**4]  Gill, 138, Alexander vs. Ghiselin.

2nd. The appeal of the complainant presents the two general questions:--1st, whether the plea of limitations allowed by the court below is a defence to the claim made by the bill? and 2nd, whether in the form in which it is pleaded it is a good defence?

The bill by its allegations and prayers seeks two measures of relief which are perfectly consistent with each other, and to neither of them is the plea of limitations of three years either applicable or a bar:--1st. So far as the bill charges a transfer of assets by way of security against liabilities, and prays an account of the assets transferred, and of the liabilities actually existing or discharged, and for payment and delivery to the trustee of the assets not collected or not actually applied, the limitation of three years has and can have no application. The plea confesses the mortgage. It does not aver an adverse possession, but leaves it where the bill leaves it,--a possession as mortgagee. And on that fact alone the case of Alexander vs. Ghiselin vests the right of the insolvent trustee to the possession of the assets so mortgaged, and when they get into his hands he administers [**5]  them according to the liens and priorities recognised by the law. No court has ever held the plea of possession of a mortgaged chattel, note or money, for three or six years any bar to a suit for an account and payment of the residue. A fortiori, can such plea be no bar to a bill for an account of a general transfer, of notes, open accounts and bonds, which must be collected, and of goods which must be sold, where the time assigned to sell and collect must be of uncertain duration, and where the liabilities which they are to meet and protect are not specified and may not be due for months or years, or may be matter of dispute and litigation? yet such is the exact case made by the bill, and the consequence of sustaining the plea is to give the whole assets transferred to the defendant without account, though on the face of the bill, and admitted by the plea, they are twice or three times the liabilities alleged but not admitted to exist. These propositions cover so much of the bill as relates to the assets unliquidated and unapplied to the discharge of liabilities actually incurred and paid. It is simply the claim of a mortgagor to an account and payment of the balance, which entitles [**6]  him to the balance on a final settlement of the whole matter, united with the claim of the insolvent trustee under our acts to receive possession of the unapplied assets, and to administer them himself under his responsibility as representative of the creditor and debtor. As to limitation to a mortgage, see 3 H. & McH., 328, Lamar vs. Jones. 3 G. & J., 389, Green vs. Johnson. 6 Do., 80, Callis vs. Tolson. Ibid., 275, Dougherty vs. McColgan. 7 Do., 20, Cole vs. Hebb. 10 Do., 217, Tiernan vs. Rescaniere. 6 Gill, 445, Griffith, et al., vs. Reigart & Wife. 4 Wash. C. C. Rep., 631, Wisner vs. Barnet. 4 Cranch, 415, Higginson vs. Mein. 6 Wheat., 481, Prevost vs. Gratz. 5 How., 233, Taylor vs. Benham. 1 Hare., 594, Portlock vs. Gardner. 4 Younge & Collyer, 42, Denys vs. Shuckburgh. 4 Mylne & Cr., 1, Attorney Gen. vs. Fishmongers Co.

2nd. But the bill, after praying that relief, asks the additional relief that the assignment may be declared fraudulent and void against creditors. The result of obtaining this relief, in addition to that above mentioned, is, that if the defendant has actually received any money from the things transferred, over and above his dividend under the insolvent [**7]  assignment, he will under this prayer be obliged to pay such difference to the trustee for the benefit of the other creditors. It is therefore plain that this relief is not inconsistent with the former, but in addition to it and of the same nature, and that the former may be granted and this fail. Albert & Wife, vs. Winn & Ross, 7 Gill, 446, and 5 Md. Rep., 66, and 2 Md. Ch. Dec., 42, 169. Thomas vs. Doub, 8 Gill, 1. Any relief consistent with the allegations of the bill may be granted if it contains a general prayer. 10 G. & J., 108, Gibson vs. McCormick. 6 H. & J., 29, 30, Chalmers vs. Chambers. Ibid., 292, Drury vs. Conner. Therefore, even if the plea be a bar to this part and purpose of the bill, it was erroneous to hold it good as to the other relief for being a good plea as to part only, and yet pleaded to the whole bill it was too wide, and for that reason alone should have been overruled.

3rd. But the plea, if intended to apply to this bill, considered as a bill, to avoid a fraudulent assignment, is entirely misconceived. A conveyance giving an improper preference against the insolvent laws is fraudulent and void, because a fraud on the rights of creditors to have the [**8]  property equally distributed among them. It is not merely an implied and constructive fraud, but an actual, intentional and dishonest fraud, which knowingly attempts to take from the other creditors the difference between the dividend and the property conveyed. It is a worse fraud than taking property by a voluntary conveyance. Act of 1816, ch. 221, sec. 6. 7 G. & J., 170, Dulaney vs. Hoffman. 1 Md. Rep., 455, Waters vs. Dashiell. 1 Am. Lead. Cases, 50. 5 H. & J., 403, Kennedy vs. Boggs. The question then is, when does the statute begin to run in cases of such fraudulent preferences. If the fraud exists and be not known, the rule of equity is clear that the statute only begins to run from the discovery of the fraud. 2 Story's Eq., sec. 1521, (a.) 6 Wheat., 497, Prevost vs. Gratz. The bill here alleges that this discovery was made within three years before filing the bill, and the plea admits this allegation, not being accompanied with an answer denying the fraud or the time of its discovery. Now the plea, if available at all, must go either:--1st, to the possession of the property, or, 2nd, to the debts of the creditors represented by the complainant.

1st. A fraudulent assignee [**9]  stands exactly in the place of the fraudulent assignor as against a suing creditor of the assignor. He can take all the defences which would be available for the assignor at the same time and under the same circumstances, but he can take no other. The insolvent trustee in this suit represents as well the creditor as the assignor, and has the right of both free from the disabilities of the assignor. The first principle of the statute against conveyances to hinder, delay and defraud creditors, is, that as respects the claim of the creditor the property is considered as never having been out of the hands of the debtor, entirely irrespective of the length of time during which it may have been held by the fraudulent donee. No instance exists of a plea of limitations based on the possession of the property by a fraudulent donee in the English courts, and there is none in the Maryland courts. This court has never decided that a fraudulent grantee can plead that he has held the property for more than three years, and thus interpose the plea of limitations. They have only decided that he may plead limitations to the debts of the suing creditors. The reason is that the fraudulent donee stands [**10]  in the place of the donor; the property is regarded as in the donor's possession, and a plea by him of limitations based on possession would be an absurdity. The only mode in which limitations ever did, or ever could apply, in England, was on the ground of laches, in failing to prosecute the fraudulent donee after obtaining judgment and a right to execution against the donor, which was the condition precedent to a right to sue the donee. On these points see 5 Gill, 449, Worthington vs. Shipley. 1 Md. Rep., 455, 470, 472, Waters vs. Dashiell. 2 Brock., 285, 288, 289, Gallego vs. Gallego. 5 G. & J., 432, Birely & Holtz, vs. Staley. 2 H. & G., 191, Strike vs. McDonald. 7 How., 220, McLaughlin vs. Bank of Potomac. 11 Wheat., 213, Hinde vs. Longworth. 2 Dessa., 215, Buist vs. Smyth. 4 How., 503, 560, Michoud vs. Girod. 11 Wheat., 78, Brooks vs. Marbury. 6 Wheat., 481, Prevost vs. Gratz. 8 Pet., 244, Gregg vs. Sayre. 2 Bland, 26, Kipp vs. Hanna. 10 Pet., 177, Boone vs. Chiles. Story's Eq., secs. 437, 439, 1265, 1520, (a.) 7 G. & J., 170, Dulaney vs. Hoffman. 11 Mees. & Wels., 530, Grimsby vs. Ball.

2nd. The only other aspect in which a plea of limitations can be considered in such a [**11]  suit is as applicable to the debt of the creditor. Here again the right of the donee is the right of the donor. He has all his rights, but he has no more than his rights; for the principle of the law is, that it does not regard the property as at all, for any purpose, altered by the fraudulent conveyance. How far then is the plea of limitations applicable to the creditor's debt? As far in the mouth of the donee as it was in that of the donor, and no farther. In England there was no limitation to a judgment, and therefore there was none to a suit to enforce the judgment against the fraudulent donee, but the presumption of satisfaction from the lapse of twenty years. So long as execution can be obtained the right to levy it on the property fraudulently conveyed exists. This was available to the donee just as a plea of payment, accord and satisfaction or release would have been. In Maryland the plea of twelve years' limitation to a judgment would protect the donee if not sued until after judgment against the donor. If the donee be sued before judgment, under our act, then also he has open all the defences of the donor and none other. He may plead accord and satisfaction or release, or [**12]  he may deny the debt by non-assumpsit; as to a judgment, he may plead nul tiel record if the proceeding were after judgment; or he may plead limitations of three years to the debt if simple contract, or twelve years if under seal. And so this court have held in McDowell vs. Goldsmith, 6 Md. Rep., 319, and 2 Md. Ch. Dec., 370. But in no case has he ever been allowed to go behind a judgment and plead limitations to the original claim, because the judgment concludes him as well as the donor, unless rendered by fraud. 2 Pet., 107, Venable vs. Bank of U. S. 4 Wheat., 503, Wheaton vs. Sexton. It is therefore plain, that the plea of limitations in this case is utterly untenable, for there is no plea that all debts are barred by any limitation, and there may be debts by judgment or specialty which would not be barred for twelve years, while three years is the limitation here relied on. And there is no plea at all going to this point, but it rests exclusively on the accrual of the trustee's right against the donee, and has no relation to the debts he represents. The two points are totally distinct:--1st. If possession of the assets by the donee be the point, then it is immaterial whether the [**13]  debt accrued yesterday or ten years ago. 2nd. If the plea goes to the debt then the possession may have been only of yesterday, and yet the debt being barred cannot be enforced against the donee, because it could not against the donor. The plea in this case involves the additional absurdity, that but for the fraud the mortgagee could be compelled to account, but because of the fraud his possession is argued to have been adverse, and not as mortgagee, and so barred by lapse of three years. The complainant had no remedy at law which he could enforce and which he is now seeking to enforce in equity, and it is therefore absurd to say that there is any analogy in such a case between law and equity.

3rd. But if applicable the plea is badly pleaded; for, 1st it goes to the whole relief when it should be confined to so much of it as prays a decree avoiding the assignment; 2nd, it does not meet the averments of a discovery of the fund within three years; nor of the other fact, of the time consumed in vacating a fraudulent assignment of the equity of redemption of these assets to Hinkley and Woodward within three years from which this suit was brought; 3d, nor is the plea accompanied with [**14]  an answer going to the denial of these particular facts of avoidance by anticipation of the plea of limitations; nor is there any answer denying the fund in the assignment alleged in the bill. Story's Eq. Pl., secs. 674, 754, 815. 2 Daniel's Ch. Pr., 7, 13, 716, 720, 721, 762, 763. 3 G. & J., 491, 503, Carroll vs. Waring. 8 Gill, 322, 331, Negro Franklin vs. Waters. 3 Leigh, 729, Shields vs. Anderson. 2 Younge & Collyer, 58, Booksbank vs. Smith. 2 Sch. & Lef., 634, Hovenden vs. Lord Annesley. 2 Ball & Beatt., 118, Blennerhassett vs. Day.

William H. Norris for the defendant, argued:

1st. That as the appeal is from the decree dismissing the bill every point which will sustain the action of the court below is open upon the complainant's appeal, whether decided in favor of the defendant or against, or which are in fact presented by the record. Upon appeal from such a decree the simple question is, did the court below do right in dismissing the bill? This court has nothing to do with the reasons upon which the bill was dismissed. This is the result of the general principles of chancery law. 15 How., 465, 466. Corning vs. Troy Iron & Nail Factory. 1 Md. Rep., 395, Young vs. Frost.  [**15]  1 Cowen, 702, Atkinson vs. Manks. 16 How., 105, Piquignot vs. Penn. Rail Road Co. 6 G. & J., 46, Ellicott vs. Ellicott. 1 Gill, 248, Berry vs. Pierson. But this is additionally so by force of the acts of 1830, ch. 185, and 1832, ch. 302, sec. 6, the former of which declares, that upon appeal from the final decree all previous interlocutory orders are open for review. 11 G. & J., 364, Lee vs. Pindle. 3 Gill, 152, 153, Dugan vs. Gittings. 3 Md. Rep., 210, Boehme vs. Carr. Act of 1831, ch. 319. 6 How., 205, Forgay vs. Conrad. 7 Gill, 244, Mong vs. Bell. Acts of 1785, ch. 72, sec. 27; 1826, ch. 200, sec. 14, and 1818, ch. 193, sec. 1. Even at law such questions as arise on this appeal in favor of the appellee are examined on the appeal of the plaintiff when the judgment is against him and he alone appeals. This court has frequently said in common law cases, that if they see a plea of limitations which will bar the plaintiff's claim they will not send the case back even if they reverse. 1 Md. Rep., 115, Mudd vs. Harper. Ibid, 208, Dorsey vs. Dashiell. 4 G. & J., 470, Berry vs. Harper. 6 H. & J., 61, Turnpike Co. vs. Barnes. 6 Gill, 191, 200, Emory & Gault vs. Owings. This question therefore [**16]  being open the defendant insists:

2nd. That the special plea of limitations by the defendant is a complete bar to the suit, and completely bars the complainant until he avers that the provisional trustee had been kept in ignorance of his right of action by the concealment and fraud of the defendant, and such averment could not in truth be made, because Hinkley, the provisional trustee, was himself one of the grantees in the deed of trust from which the complainant alleges that he first discovered the transfer assailed by the bill. The complainant is the permanent trustee and he has no independent right to sue, but a derivative one only, through the provisional trustee. The act of 1816, ch. 221, undoubtedly intended that the title to sue should be vested in the provisional trustee, but the legislature omitted to make him a bonded officer. This defect was remedied by the act of 1819, ch. 84, secs. 7 & 8. Then came the act of 1825, ch. 205, sec. 8, which requires a deed from the insolvent to the provisional trustee of all his estate, both real and personal. Then the act of 1829, ch. 208, sec. 3, which vests in the provisional trustee, when he has filed his bond, "all the estate,  [**17]  property, effects, rights and claims of the insolvent debtor," and enacts that his appointment and bonding "shall operate as an authority to such trustee or trustees to take possession, for the benefit of the creditors of such insolvent, of all property, estate and effects, books, papers, accounts, bonds, notes and evidences of debt of such insolvent, without the necessity of such insolvent's executing a deed thereof, and to entitle such trustee or trustees to use all legal means for the recovery thereof." These various acts are all to be construed together, and they clearly intended to give the provisional trustee as full and ample powers to sue for and recover property fraudulently conveyed away by the insolvent, as to the permanent trustee. On this point see 5 H. & J., 408, Kennedy vs. Boggs. 2 Daniel's Ch. Pr., 739. 7 G. & J., 20, 43, Cole vs. Hebb. 9 Pick., 212, 246, 247, Farnam vs. Brooks. 9 Greenlf., 131, Cole vs. McGlathry. 1 Md. Rep., 471, 472, Waters vs. Dashiell. 2 H. & G., 26, 27, 28, Brown vs. Brice, and Act of 1834, ch. 293, sec. 5. We therefore insist, that the first plea was a complete bar to the complainant's bill.

3rd. The questions arising upon the second plea,  [**18]  which was sustained by the court below, relate, 1st, to the form of the bill and its allegations. As to this the defendant insists, that the bill is simply one to vacate a transaction void by the insolvent laws, and only asking for an account and delivery of the balance as subordinate to that design. The case of Alexander vs. Ghiselin only decides, that all the property to which the insolvent had the right of possession was transferred to his trustee, but it never decided that property deposited as security, apart from all fraud, could be taken possession of by the trustee. The bill therefore does not properly seek relief upon this transfer as a valid mortgage. It asks that the preference may be set aside as fraudulent, and because it calls for an account it is said to be a bill to redeem a mortgage. In such a bill as that there would be a tender of the debts due, and a bill which sets up a fraud as the ground of relief cannot be tortured into a bill for the redemption of a valid mortgage. 22 Eng. Ch. Rep., 257, 258, Ferraby vs. Hobson. Ibid., 322, Glascott vs. Lang. 7 Eng. Law & Eq. Rep., 259, 260, Price vs. Berrington. 2 Rhode Island Rep., 129, 132, Mt. Vernon Bank vs. Stone. Story's [**19]  Eq. Pl., secs. 27, 36, 251, and note 2. 16 Pet., 195, Hobson vs. McArthur. 6 H. & J., 29, Chalmers vs. Chambers. 1 Daniel's Ch. Pr., 412, (note 11,) 425, 426, 437, 438. This bill then is nothing but a bill to set aside an undue and improper preference under the act of 1834. All its allegations are to this point and it cannot, because it asks for an account, be treated as a bill for an account simply. The bill contains no charge that the transfer was fraudulent at common law. 2nd. But suppose the bill distinctly stated the three propositions:--1st, that the preference was fraudulent and ought to be set aside; 2nd, that the trustee was entitled to the funds in order for distribution, subject to liens and agreements to pay the defendant, and 3rd, that he was entitled to the surplus, treating the case as a mortgage, how then would the case stand? In such case the bill must advise the party of the alternative aspect of the case, so that he may answer, reply or plead. But no such case is presented by this bill, and if it was, the bill would still have been properly dismissed, because the purposes are wholly inconsistent and the double aspect would not help the case. 4 G. & J., 444, Burch [**20]  vs. The State. 6 G. & J., 231, State vs. Bank of Maryland. Ibid., 188, Evans vs. Iglehart. Story's Eq. Pl., secs. 245, 246, 249, 251, 254. 2 Md. Rep., 37, McElderry vs. Shipley. 2 H. & G., 41, Lowry vs. Tiernan. 17 How., 143, 144, Shields vs. Barrow. 1 Daniel's Ch. Pr., 463. Acts of 1816, ch. 221, sec. 6; 1812, ch. 77, sec. 1, and 1834, ch. 293. 7 Gill, 404, 405, Gardner vs. Lewis. 4 Md. Rep., 360, 361, Mayor & C. C. of Balto. vs. Norman. If the assignee of a bankrupt deals with a party who has intermeddled with the assets, he waives the fraud and cannot treat him as a wrongdoer. 7 Md. Rep., 272, Lanahan vs. Latrobe. 14 Eng. C. L. Rep., 50, Brewer vs. Sparrow. 28 Do., 29, Campbell vs. Fleming. See also on this point 6 H. & J., 266, Harding vs. Stevenson. 12 How., 83, Harris vs. Runnels. 1 Pet., 43, 44, Gaither vs. Farmers & Mechanics Bank. Chitty on Bills, 82, 91. 2 Pet., 539, Bank of U. S. vs. Owens. 7 Gill, 481, Albert & Wife, vs. Winn & Ross. 2 Starkie on Ev., 478.

4th. There was adequate remedy at law, and therefore the bill was properly dismissed. The violation of a statute is no fraud. The act of 1834 merely says, that such transfers as were before its enactment valid shall [**21]  be void. The trustee could clearly have maintained trover for the bonds, notes and goods transferred. Equity had therefore no jurisdiction in the case. 7 G. & J., 170, Dulaney vs. Hoffman. 3 Md. Rep., 383, Hertle vs. McDonald. 11 G. & J., 443, 444, Oliver vs. Palmer. 7 G. & J., 117, 120, Adair vs. Winchester. 1 Story's Eq., secs. 76, 79. 12 Georgia Rep., 9, Bowen vs. Johnson. 9 Metcalf, 470, Thayer vs. Smith. 7 Cushing, 181, Woodman vs. Saltonstall. 8 Ala. Rep., 743, Knotts vs. Tarver. 1 Kelly, 376, McLaren vs. Steapp. 12 G. & J., 480, Richardson vs. Stillinger. 4 H. & J., 46, Taylor vs. Ferguson. 1 H. & G., 221, Drury vs. Conner. 2 H. & G., 41, Lowery vs. Tiernan. 5 Sandford, 205, 207, N. A. Fire Ins. Co. vs. Graham. Act of 1801, ch. 74, sec. 6. The act of 1841, ch. 163, applies only to appeals by defendants, and therefore does not prevent this point from being considered in this case upon this appeal by the complainant.

5th. As to the question of limitations, the defendant insists that the general plea of limitations is a good bar. The creditors cannot pursue the property thus fraudulently as is alleged transferred. The trustee alone can do it. The plea of limitations then must [**22]  be directed against him alone, and the question then is, when did the right of action accrue to him? The transfer being fraudulent it accrued immediately and the statute began to run from that time. The trustee's right to sue vested immediately upon his bonding, and the possession of the defendant from that moment as against him was tortious. As against this right of the trustee we plead the statute of limitations, and we say it is a flat bar. At law there are no exceptions to be engrafted upon the statute except those found in the act itself, of 1715, ch. 23. Nor is there any difference between a court of equity and a court of law in this respect. In cases of concurrent remedy equity follows and obeys the law. 3 Md. Rep., 383, Hertle vs. McDonald. 6 Md. Rep., 336, McDowell vs. Goldsmith. 3 Gill, 161, 164, Dugan vs. Gittings. 11 G. & J., 372, Abell vs. Harris. 7 Gill, 76, Sindall vs. Campbell. 8 Yerg., 241, Walker vs. Smith. 9 Pick., 212, 246, 247, Farnam vs. Brooks. 5 Barbour, 393, Bucklin vs. Ford. 1 Law Lib., 28, Wilkinson on Limitations. 1 Gill, 248, Berry vs. Pierson. 2 G. & J., 310, Watkins vs. Harwood. 8 G. & J., 468, Planters Bank vs. Farmers Bank. 2 Daniel's Ch. Pr., 735,  [**23]  736, 739. Story's Eq. Pl., secs. 753, 754. Chitty on Cont., 817. 24 Wend., 602, 603, 606, 607, 608, Humbert vs. Trinity Church. 8 Gill, 331, Negro Franklin vs. Waters. 10 G. & J., 225, Tiernan vs. Rescaniere. 5 Mason, 152, 153, 155, Sherwood vs. Sutton. 17 Wend., 202, Allen vs. Mille. Douglas, 655, Bree vs. Holbech. 2 Younge & Col., 58, Brooksbank vs. Smith. 1 Story's Eq., sec. 78. 5 Mees. & Wels., 117, Browning vs. Paris. 22 Ala. Rep., 631, Newcombe vs. Leavitt. 26 Eng. Law & Eq. Rep., 428, Imperial Gas-light Co. vs. London Gas-light Co.

6th. The next question is, has the amended bill made any difference in the case? We say it has not, because fraud or ignorance makes no defence in cases where the remedy is concurrent at law and in equity. The question simply is, did a right of action accrue or exist for three years before the filing of the bill. If the amendment avails any thing, it changes the case to one of exclusive jurisdiction in equity, and this cannot be done by amendment, for it in effect makes a new case. 17 How., 144, Shields vs. Barrow. 10 Pick., 128, Pratt vs. Bacon. 1 Eng. Cond. Ch. Rep., 323, Taylor vs. Shaw. 22 Do., 408, 409, 410, Watts vs. Hyde. 7 How., 828,  [**24]  Stearns vs. Paige. 4 Paige, 538, Lloyd vs. Brewster. 1 Johns. Ch. Rep., 187, Lyon vs. Talmadge. 3 Do., 423, Shephard vs. Merrill. 14 Pet., 160, Walden vs. Bodley. 16 Wend., 476, 477, McCrea vs. Purmort. 5 Mason, 112, 113, Pratt vs. Northam. But the amendment at last brings the case to a simple one of ignorance of rights, which is no bar to the running of the statute. It is simply a sheer case of igno rance on the part of the complainant, without any fraud or concealment on the part of the defendant. In such cases ignorance is no bar to the plea of limitations. 11 G. & J., 372, Abell vs. Harris. 24 Wend., 605, 606, Humbert vs. Trinity Church. 2 Jac. & Walk., 139, 142, Cholmondeley vs. Clinton. 1 Eng. Law & Eq. Rep., 48, 49, East India Co. vs. Paul. In those States where fraud is held a good reply to the plea of limitations, it is held that the fraud must be the fraud of the defendant. 3 Greenlf's Rep., 405, Bishop vs. Little. 9 Do., 131, Cole vs. McGlathry. If this be so the statute will run down to the time of the filing of the amendment introducing new matter. 3 Iredell's Ch. Rep., 535, 542, 543, Christmas vs. Mitchell. 1 McLean, 85, 86, Miller vs. McIntire. 1 Daniel Ch. Pr., 455,  [**25]  and notes. Douglas, 655, Bree vs. Holbech. 2 Md. Ch. Dec., 391, McDowell vs. Goldsmith. We therefore insist:--1st, that the complainant should not have been allowed to amend his bill as he did after hearing of the pleas of the defendant; 2nd, that the amendment was not sufficient in law after the pleas filed by the defendant; and 3rd, that, at all events, the amendment extended the limitation down to the time of applying therefor, on the 14th of February 1853.

7th. That the pleas were not too wide and did not need the support of an answer, see Story's Eq. Pl., secs. 751, 753, 754. 1 Daniel's Ch. Pr., 598, note 2. 6 Pet., 326, New Jersey vs. New York. 8 How., 222, Maxwell vs. Kennedy.  

JUDGES:
The cause was argued before LE GRAND, C. J., TUCK and MASON, J.  

OPINIONBY:
MASON 

OPINION:

 [*84]  MASON, J., delivered the opinion of this court.
Many grave and important questions have been discussed with much ability by counsel in the progress of their argument, which we think the exigencies of this case do not require us to determine upon the present appeal.
Whatever force there would have been in the suggestion, if made at the proper time, that a court of equity had no original jurisdiction over [**26]  this case, it is now too late for us to entertain such an objection, inasmuch as none was taken, as required by the act of 1841, chap. 163, in the court below. By that act it is provided, that the defendant shall not, in the Court of Appeals, rely upon any objection to the jurisdiction of the court below, unless it appear by the record, that such objection was raised below.
The appellant as permanent trustee in insolvency of Carey, Wethered and O'Donnell, on the 8th of December 1850, filed his bill in equity, making substantially the following case: that the firm above named became embarrassed in 1839; and being absolutely insolvent in the following year, with full knowledge of their condition, transferred large sums of money and other property, constituting nearly the whole assets of the firm, to several preferred creditors. That Gibson, the defendant, received of such assets more than $ 18,000, which sum exceeded his claim against the firm, and his liabilities for them; that at the time of the said transfer the firm was utterly insolvent, and Gibson knew of such condition; that the several members of the firm applied for the benefit of the insolvent laws in 1841, and that the appellant [**27]  became permanent trustee for all the parties, on the 23rd of October 1846; that Gibson 

 [*85]  has never accounted for any of the assets which came into his hands, &c.
Subsequently, by an amended bill, it was further alleged, that after the assignment to Gibson the insolvents made a deed to Hinkley and Woodward, dated September 24th, 1840, embracing the balance of their assets and property, and under which deed the grantees took possession of the books and papers of the firm. Upon a bill filed in equity by the permanent trustee to vacate this deed, a decree was passed 12th of July 1848, vacating the deed and transferring the property, books and papers of the insolvent, embraced by said deed, to the trustee. From these books he discovered, for the first time, the transfers above mentioned to the present defendant, and that he had no other means of ascertaining the fact. The prayers of the bill were for a discovery, an account, and for a delivery of the assets in the defendant's possession to the complainant, and for general relief, &c.
The defendant pleaded two pleas of limitation, namely:
1. That Hinkley was appointed provisional trustee of Carey on the 12th of January 1841;  [**28]  and of Wethered on the 13th of August 1841; and Horsey became provisional trustee of O'Donnell on the 13th of July 1841; and that the cause of action accrued to Hinkley, as provisional trustee of Carey, Wethered & Co.; and to Horsey, as provisional trustee of O'Donnell, more than three years before bill filed, or before serving or suing out process, and also more than three years before the appointment of complainant as permanent trustee; nor did the defendant promise within three years before bill filed, or process served or issued, nor either when or since the provisional trustees were in office, to account or make satisfaction for any matters in the bill.
2. That the cause of action accrued to the complainant more than three years before bill filed, or before serving or suing out process; and defendant did not promise complainant to account for, or pay any thing for any matter charged in the bill.
The court overruled the first and sustained the second plea, and dismissed the bill. Both parties it seems appealed from this decision.

 [*86]  Without inquiring into the regularity of the appeal of the defendant, because of the circumstance that the decree [**29]  was in his favor, the court is nevertheless of opinion, that all the advantages which he seeks under his appeal can be attained under the complainant's appeal. The question presented upon the appeal regularly before us is, whether the decree dismissing the bill was properly passed? and if either of the defendant's pleas presents a good ground of defence to the case as made by the complainant's bill, the decree must be affirmed, and it matters not upon which plea the court below based the dismissal of the bill.
The second plea, in its connection with the amended bill, raises the question, in addition to the question of the general inapplicability of either plea to this particular transaction, whether the three years' limitation began to run from the appointment and qualification of the permanent trustee, or from the time the fact of the alleged fraudulent transfer to Gibson came to his knowledge? This is a most important question, and one by no means free from difficulty, but as it does not enter into the first plea, and as the court have no difficulty in determining that that plea was improperly overruled, we are relieved from the necessity of deciding the question upon this appeal.  [**30]  
It is not charged in the bill that the provisional trustees had no knowledge of this alleged fraudulent transaction. Indeed such a theory is expressly negatived by the fact that Hinkley, who was the provisional trustee of two of the three insolvents, was also one of the grantees of the deed, under which the possession of the books and papers of the insolvent firm passed to him, and from which knowledge of the transfer was to be acquired.
The two remaining questions presented by the first plea, which we are required to determine, are, first, does the present proceeding disclose such a transaction or trust to which the plea of limitations would be inapplicable? and if not, then, secondly, does the insolvent system of Baltimore city confer power upon the provisional trustee to sue in such a case as the present, and thereby bring him and the creditors he represents 

 [*87]  within the operation of the statute of limitations, which statute begins to run from the time the cause of action accrued, provided there is no disability existing at the time in the party entitled to sue?
It is certain upon the facts disclosed by the bill, that an action or actions at law would have been maintained [**31]  by which the relief now sought could have been fully secured, whether equity possesses concurrent jurisdiction or not. This being conceded, it has been settled by this court, that in all cases of concurrent jurisdiction, between courts of law and equity, the statute of limitations is equally obligatory in each court.  Watkins vs. Harwood, 2 G. & J. 307. Dugan vs. Gittings, 3 Gill 138. Hertle vs. Schwartze, 3 Md. 366.
We think this principle disposes of the first objection taken to this plea of limitations.
Next, as to the second point, namely, the right of the provisional trustee to sue. True it is, that the case of Kennedy vs. Boggs, 5 H. & G. 403, expressly decided, that the act of 1816, chap. 221, the act under which the local system of insolvency for Baltimore city was created, did not confer any power upon the provisional trustee to sue for the recovery of the property of the insolvent from third parties, and if the legislation upon this subject had rested here, we would have had no difficulty in sustaining the views of the appellant upon this point. But to meet a case like the present it would [**32]  seem that the act of 1829, chap. 208, was enacted. By the third section of that act, in express terms, the right to the possession of all the property, &c., of the insolvent, is conferred upon the provisional trustee, with power "to use all legal means for the recovery thereof." Under this act there is no room to doubt that there was full power in the provisional trustees to sue in this case as fully as the permanent trustee, and that limitations began to run against them from the time of their appointment and qualification as such, and when once commenced limitations continued to run against, also, the permanent trustee.
For the reasons assigned we regard the plea of limitations as a flat bar to a recovery in this proceeding, and therefore affirm the decree.
Decree affirmed. 

60 of 187 DOCUMENTS 

STATE, use of DANIEL C. SPRIGG, vs. MARY J. JONES and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 88; 1855 Md. LEXIS 34 

DECEMBER, 1855, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court for Baltimore city.

Debt brought on the 28th of August 1852, by the appellant, on the testamentary bond of Mary Jane Jones, as executrix of Andrew D. Jones.

The declaration sets out as a breach, that Andrew D. Jones was one of the sureties in the guardian's bond of Samuel Jones, Jr., who received a large sum of money belonging to his ward which he failed to pay over to the plaintiff, Sprigg, (who was subsequently appointed guardian in the place of said Samuel Jones, Jr.,) as directed by the orphans court; that on the 10th of April 1852, after the death of Andrew D. Jones, the plaintiff sued out of the circuit court for Baltimore county, in which she resided, a writ of capias ad respondendum against the said Mary Jane Jones, his executrix, to recover this money, returnable on the 3rd Monday of April 1852, which was returned "non est," wherefore a right of action on her testamentary bond accrued to the plaintiff.

The defendants pleaded, that while they admit all the matters and things averred in the declaration, yet they say that after the return of the writ of capias ad respondendum non est as against the said Mary J. Jones, she duly appeared [**2]  in said court to answer it, to wit, on the 2nd of August 1852, being during the same term of the court to which the writ was returnable, and afterwards, on the 12th of August 1852, at the same term, filed her plea to the declaration, of all which the plaintiff had notice; to which plea the plaintiff, on the 30th of November 1852, replied, and that said case upon these pleadings is now pending in the said circuit court for Baltimore county.

To this plea the plaintiff replied, that said circuit court, after the said return of non est, to wit, on the 14th of July 1852, adjourned till the 27th of October 1852, and held no session upon any day between the said 14th of July and the 27th of October 1852, and that after said adjournment and before the day appointed for the session of said court, to wit, on the 2nd of August 1852, the said court not being in session, the said Mary Jane Jones, by her attorney, caused her voluntary appearance to said writ so returned non est to be entered on the docket in the clerk's office of said court; and at another day during said adjournment, to wit, on the 12th of August 1852, she, by her attorney, caused to be entered on said docket in said clerk's [**3]  office the filing of her plea in said suit, and then and there left in the clerk's office the paper called a plea in said cause, and on the 28th of August 1852, the plaintiff sued out of the Superior Court of Baltimore city the writ in this suit and filed the declaration therein, absque hoc, that said Mary Jane Jones duly appeared in said circuit court to said writ of capias ad respondendum as alleged in her plea.

To this replication the defendants demurred generally, which demurrer the court, (FRICK, J.,) sustained, and gave judgment thereon for defendants, from which the plaintiff appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

The act of 1720, ch. 24, which prohibits a suit upon a testamentary or administration bond, before a return of non est to a capias against the executor or administrator, is a remedial statute, and, as such, is to be liberally construed; its design is to make the principal pay instead of the surety.

Under this act an executor may voluntarily appear to the capias at any time during the same term, though after the return of non est, and thus prevent a suit on his bond.

The return of non est gives the right to sue the bond, and if such suit be brought before an appearance by the executor, a subsequent appearance by him cannot arrest it.

The clerk of a court has no right to receive an appearance to a suit and make an entry thereof when the court is not in session.

Where a defendant relies upon an appearance in another case in another court as having been properly entered, the plaintiff cannot reply and aver against the record that the appearance was not properly entered.  

COUNSEL:
Richard T. Merrick for the appellant, argued:

1st. That the act of 1720, ch. 24, subjects the plaintiff's absolute right to sue on the bond to only one condition precedent. He is required to issue a capias against the personal representative in the county of her residence or where letters have been granted, and on the return of non est the right to sue the bond is absolute, and no subsequent appearance, voluntary or in pursuance of an alias, can divest the right to proceed against the sureties on the bond. This act is in derogation of the common law, and, like [**4]  all such legislation, is to be construed strictly. Prior to this law a creditor had the right to sue the bond. This law says he shall not sue until a return of non est to a capias against the executor. Upon the simple return of non est the creditor is restored to his common law right and cannot be divested thereof by any subsequent condition. A writ is said to be returned when it is returned to the place whence it issued. Evan's Pr., 86.

2nd. If a voluntary appearance could divest this right, there was and could be no appearance except in court, and while it was in session, and the appearance alleged is one in the clerk's office during an adjournment, and this suit was brought before the court again met. Any appearance to be valid must be in open court, in order that the party may be required to give bail and security for costs. Evan's Pr., 244, 245, 266, 267. There is an analogy between this case and that of fixing bail, which is regarded as fixed on the day of the return of non est, and if released it must be done in open court. Evan's Pr., 266. On this point see also 1 H. & J., 453, West vs. Hughes. 1 Tidd's Pr., 238, 239. 1 Salk., 8, Stroud vs. Gerrard. Cro. Eliz., 466, Corbet [**5]  vs. Cook.

3rd. The fact that the plaintiff filed a replication to the plea in the suit in the circuit court, being after this suit, cannot affect it, nor could it relate back, but can only be regarded as the acceptance of a voluntary appearance as of its date.

4th. That this is properly a case for a special traverse. All the authorities say that a record may be questioned by a record. 3 Bac. Abr., 371. It is the very case for a special traverse, for in no other way could the question of law be raised.

Benjamin C. Barroll for the appellees, argued:

1st. That the demurrer was properly sustained, because the executrix appeared in the circuit court and pleaded to the nar against her, and that court recognised her appearance by receiving and retaining her plea. The plaintiff also recognised her appearance and plea by the replication thereto, and having done so it is too late in the suit on her bond to say that the appearance and plea are nullities. The act of 1720 was intended to apply to a case in which the executrix does not in fact appear to the suit. If she appears and pleads, and gives the plaintiff notice, and he replies to her plea, such a case is within the reason [**6]  and spirit of the act. Stephen on Plead., 22 to 26. The act never designed that a plaintiff should at the same time prosecute his claim against an executrix and also against her bond. The basis of the right to prosecute the bond is the inability to prosecute the original debtor. This act is for the remedy of a mischief and is to be construed according to its spirit and design, and not according to its letter. 2 G. & J., 365, State vs. Boyd. 4 G. & J., 152, Canal Co. vs. Rail Road Co. 1 Md. Rep., 17, Milburn vs. The State. The authority cited on the other side from Evan's Pr., 266, is overruled by the case of Dunbar vs. Conway, 11 G. & J., 94. The appearance here was properly entered. 1 Tidd., 264. Stephen's Plead., 25. In 2 Smith's Lead. Cases, 512, the very point was made that the court was not in session, and was overruled.

2nd. The replication or special traverse in this case is not well pleaded; you cannot aver against the record, you are estopped from so doing. Stephen's Plead., 181. 1 Chitty's Pl., 618, 619. 2 Strange, 684, Helbut vs. Held. Ibid., 817, Palmer vs. Ekins. 1 Wilson, 85, Bradburn vs. Taylor. 16 Johns., 55, Green vs. Ovington. 3 Bac. Abr., 370 to 374, title,  [**7]  Error. 2 Smith's Lead. Cases, 512.  

JUDGES:
The cause was argued before LE GRAND, C. J., TUCK and MASON, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*91]  LE GRAND, C. J., delivered the opinion of this court.
This is an appeal from the decision of the Superior Court of Baltimore city, sustaining the demurrer of the appellee to the replication of the appellant to the plea of the appellee, under the following circumstances:
This proceeding commenced under the act of 1720, chapter 24, entitled, "An act to restrain the rigor of prosecutions on 

 [*92]  administration or testamentary bonds." As the act is short, we incorporate it, that our opinion may the more distinctly appear. Its preamble and enactment are, as follows:
"Whereas it is represented by some of the justices of the provincial court, that a most oppressive and pernicious practice is introduced of putting testamentary and administration bonds in suit in the provincial court for the non-payment of small debts recovered in the county courts, without ever suing out writs of fieri facias or other executions to affect the estate of the deceased in the executors' or administrators' hands, OR without any insufficiency of such [**8]  executors or administrators, whereby the act, entitled, an act to restrain the ill practices used by sheriffs in taking goods by fieri facias and selling them by venditioni exponas, is entirely evaded so far as it relates to executors and administrators, and the person and sureties of such executors and administrators are affected by such suing the said bonds, instead of the effects of the deceased; for prevention whereof for the future:
"Be it enacted," &c., &c., "That it shall not be lawful for any creditor or creditors to prosecute any such administration or testamentary bond for any debt or damages due from or recovered against any testator or intestate, or their effects, before a non est inventus on a capias ad respondendum be returned against the executor or administrator, or a fieri facias returned nulla bona by the sheriff of the county where such executor or administrator lives, or where the effects of such deceased lies, or such other apparent insolvency or insufficiency of the person or effects of such executor or administrator, as shall, in the judgment of the provincial court that hears the cause, render such creditors remediless by any other [**9]  reasonable means save that of suing such bonds, on pain that such person or persons that shall cause such bonds to be sued contrary to the true intent and meaning of such act, shall be condemned in full costs of suits, to be adjudged by such provincial court to the defendant or defendants that shall be so sued, against the person or persons that shall cause the same to be sued, and shall award execution thereof as usual in other cases.
"And be it further enacted, as aforesaid, That it shall and 

 [*93]  may be lawful for the defendant or defendants in such suits to give this act and the special matter in evidence without specially pleading the same; any law, statute, usage or custom to the contrary notwithstanding."
The plaintiff in this action, on the 28th of August 1852, commenced an action of debt, in the Superior Court of Baltimore city, against the defendants, upon the testamentary bond of Mary J. Jones, executrix of Andrew D. Jones. The declaration is in the usual form, setting out the breaches. The defendants pleaded specially, substantially as follows: that whilst they admit the matters and things charged and averred against them in the declaration, they say, that after [**10]  the return of the writ of capias ad respondendum "non est" as against Mary J. Jones, by the sheriff of Baltimore county, as alleged in said declaration, the said Mary Jane Jones duly appeared in the said court to which the said writ was made returnable, and at the same term thereof, to wit, on the 12th day of August, the said Mary filed her plea to the said declaration, of all which plaintiff had notice, and afterwards, on the 30th day of November 1852, filed its replication to the plea, and that the case, on such pleading, is now pending, &c. To which plea the plaintiff replied, that after the return of "non est," on the 14th day of July 1852, the court adjourned until the 27th day of October of the same year, and when the appearance and plea of the defendant, Mary J. Jones, was made, the said court was not in session. To this replication the defendants demurred and the court sustained the demurrer, from which decision is this appeal.
On behalf of the appellant it is contended, that a return of "non est" as against an administrator, under the act of 1720, ipso facto, gives the right, never thereafter to be questioned, to sue the administration bond. In this opinion [**11]  we do not concur. In the case brought to our view by the pleadings in this one, it appears, that although Mary J. Jones had been returned non est, nevertheless she appeared at the same term and pleaded, and that her plea was replied to by the plaintiff in this action, and that the suit is still depending.
Apart from all considerations growing out of the general 

 [*94]  law, we think, under the act of 1720 itself, the appellant has clearly no case. That act was designed, if there ever was one, as a remedial statute, and as such ought to be liberally construed. It was passed--to use its language--to do away with a "most oppressive and pernicious practice;" in other words, to prevent the property of sureties being taken to satisfy the debts of the principal, when such principal had sufficient property to satisfy them. And although it authorises the institution of a suit against the sureties on a testamentary bond after the return of a non est against the administrator, it does not, therefore, necessarily follow, that the administrator cannot appear voluntarily in the court to which the writ is returnable during the term, or on the same day, but [**12]  at a later hour of that day, on which the sheriff makes his return.
Before the adoption of the present constitution of the State it was the uniform practice of sheriffs to have their amercements stricken out when the party was produced, if at any time during the term. It was all the party had a right to demand. The body of the defendant was produced to answer. And surely under a proceeding commenced under an act passed to "restrain" the "rigor" of proceedings, it is not, and cannot be a too liberal construction, to allow to sureties the privilege which would have been granted to the principal. The purpose of the act is transparent. It is nothing more than this: to make the principal pay instead of the surety. In the case before us the appellant is in no way damaged. Had Mrs. Jones been returned "summoned" on the first day of the term to which the capias was returnable, instead of non est, the appellant would be in no better condition than it is now--her appearance during the term, and pleading, and its replication, gives to the State all the advantage which either justice or a fair construction of the act of Assembly entitles it. A reference to the authorities [**13]  cited in argument would show conclusively, that the appearance of Mrs. Jones was in sufficient time. We have forborne to notice them, because the very act under which this proceeding is professedly had, is too plain, in our opinion, to admit of a serious controversy as to its true meaning, liberal and just spirit.

 [*95]  The replication relies on the fact that Mary J. Jones appeared to the suit against her at a time when the court was not only not in session, but had adjourned from a day preceding to one succeeding the entry of the appearance. We do not think such an appearance can be entered. The clerk has no power to receive the appearance and make the entry when the court is not in session. But if there was any such irregularity it should have been corrected by a proper proceeding in that case. The defendant relies on the appearance having been properly entered, and the plaintiff cannot, as we think, aver against the record. Although the defendant may appear voluntarily, yet if the suit on the bond shall be commenced before the appearance is entered the plaintiff cannot be thereby barred of its right to prosecute that suit. The return of non est gives the right to sue [**14]  the bond, and when that writ is issued the appearance cannot arrest the proceeding.
Judgment affirmed. 

61 of 187 DOCUMENTS 

MAYOR AND CITY COUNCIL OF BALTIMORE, Garn. of JOHN T. BRASHEARS, vs. BASIL ROOT, use of JAMES ARMSTRONG.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 95; 1855 Md. LEXIS 35 

DECEMBER, 1855, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court for Baltimore city.

Attachment on a judgment against Brashears at the suit of Root, laid in the hands of J. J. Graves, register of the city of Baltimore. It was admitted, that at the time of trial there were in the hands of the register funds of the corporation due Brashears, for services as a police officer of said city, sufficient to pay the judgment upon which the attachment issued. The court below, (FRICK, J.,) sustained the attachment, and from that judgment the garnishee appealed.  

DISPOSITION:
Judgment reversed and no procedendo ordered.  

HEADNOTES:

Funds in the hands of the register of the city of Baltimore due by the city for the salaries of city officers, are not, upon grounds of public policy and convenience, liable to be attached by the creditors of such officers.

Municipal corporations are parts of the State government exercising delegated political powers for public purposes, and the rule exempting funds in the hands of one State officer due another from attachment, applies equally to the officers of such corporations.

The members and officers of public municipal corporations are officers of the government for the administration or discharge of public duties.

The act of 1825, ch. 114, sec. 2, authorising attachments on judgments to be laid in the hands of any "person or persons whatever, corporate or sole," does not include municipal corporations; they are excepted by reason and necessity.

In construing statutes, the intention of the makers must be regarded, and what is within such intention is within the statute though not within the letter, and what is within the letter but not within the intention is not within the statute.

The fact that the officer whose salary was attached could have sued the city therefor, does not authorize his creditor to attach the claim.

Because a claimant may sue, it does not follow that his creditor can attach the claim in every case, although as a general rule it may be so.  

COUNSEL:
Grafton L. Dulany and Benjamin C. Presstman for the appellant, argued, that the judgment below was erroneous, because the wages or salary of a public officer in the hands of the disbursing agent of a municipal corporation are not attachable in law. 3 How., 550, State of Maryland vs. Balto. & Ohio Rail Road Co. 12 G. & J., 438, State, use of Washington County, vs. Balto. & Ohio Rail Road Co. 9 Wheat., 738, Osborn vs. United States Bank. 13 Pet., 499, Wilcox vs. Jackson. 7 Monroe, 444, Divine vs. Harvie. 7 Mass., 259, Chialy, et al., vs. Brown, 3 Barr., 368, Bulkley vs. Eckhert, et al. These cases show that it is a [**2]  well settled principle, that those who exercise sovereign authority cannot be impeded and obstructed in the discharge of their duties, by attachments laid in their hands by the creditors of the parties to whom they are to disburse salaries or funds for public services. The public interests would be injured by such an invasion of the duties of public officers, who are created and exist solely for the public. The great doctrine in all such cases is that of inconvenience, and the cases go upon the ground, that if such attachments were allowed, they would hinder and delay the successful operations of government. Our attachment laws do not say that they shall extend to municipal corporations, and they are exempted unless there is a special clause embracing them.

T. Yates Walsh for the appellee. Are the wages of a police officer of the city of Baltimore liable to be attached to enforce the payment of his debts? The affirmative of this proposition it is my duty and purpose now to maintain. And first, let us remark, that this officer could have sued the corporation for these wages if they had been withheld. The whole argument on the other side proceeds upon the theory, that the sovereignty [**3]  of the city exempts her from the process of attachment, and yet the admission is, that Brashears, her subordinate, could have brought her before the court and recovered judgment for his claim. She cannot assume the purple for her own protection, but is to be allowed to throw it as a shield around the person of an unjust debtor. Such is the gross inconsistency involved in the argument on the other side.

I maintain, on the contrary, that whenever the original debtor can be sued by the original party, such debtor is liable to the process of attachment. The cases cited on the other side do not at all militate against this position. The cases in 13 Pet. and 9 Wheat. establish but this, that the funds in the hands of the agents of the federal government are in fact in the possession of the government. That government cannot be invoked to litigation by any contractor with whom she has dealt, and therefore she cannot be forced to assume the relation of a suitor by any third party claiming such contractor's rights. The case in 7 Mass. seems directly to concede, that if there was a right of suit by the garnishee against the trustee, the claim would be liable to the trustee's process. In [**4]  the case in 3 Barr., the money was in the hands of the commissioners as agents of the State, and the teacher himself could have brought no suit for it. No authority can be found for the assertion, that where there is a right of action by an original claimant against a debtor, such debtor cannot be made a garnishee in attachment. The sovereign can never be brought into his own courts; and money in the hands of a sheriff or other executive officer cannot be attached. The reasons of the first proposition are sufficiently obvious, and those of the other are well expressed by the Court of Appeals, in the case of Farmers Bank of Delaware vs. Beaston, 7 G. & J., 424 and 428, where the court distinctly intimate, that the exemption of the funds in the hands of the sheriff is because they are in fact and in law under the protection of the court.

But it seems to me hardly necessary in this case to rely upon any thing save the charter, the organic law of the city of Baltimore. By a reference to this, we may avoid the necessity of deciding upon the rights resulting from the division and delegation of sovereignties. The State might, by its organic law, and it may be said by an act of ordinary [**5]  legislation, allow itself to be sued. And if so, all the incidents attaching to a defendant would belong to her new relation. It was clearly competent for the legislature, when the charter was given to the city of Baltimore, to qualify the sovereign powers, which, for the sake of the argument, I admit were conferred upon her. And what was the qualification? Baltimore town is erected into a city by the name of the city of Baltimore, and the inhabitants thereof constituted a body politic and corporate by the name of the Mayor and City Council of Baltimore, and as such, shall have perpetual succession, and by their corporate name may sue and be sued, implead and be impleaded, grant, receive and do all other acts as natural persons. Now in this connection, let us look to the attachment law of 1825, ch. 114, sec. 2, allowing attachments on judgments to be issued against the goods, chattels and credits of the defendant in the hands of the plaintiff, or in the hands of any other person or persons, corporate or sole. Now how can any considerations of public policy at the hands of the judiciary interfere with the force of language like this? The act of 1795, ch. 56, did not by terms extend [**6]  to corporations. The language of the Court of Appeals, in Somerville vs. Brown, 5 Gill, 420, seems to establish the principle, that the terms of the statutes relating to attachments are to be strictly enforced. Judge Dorsey, in that case, says, "in rendering credits the subject of attachment, all that the legislature designed to effect thereby in a case like the present was, to substitute as it were the attaching creditor to the rights of his debtor creditor, and to enable the former to recover that which the latter would have been entitled to recover had no attachment been issued." And again, "the design of the act of Assembly was simply to provide the means by which the attaching creditor could as effectually recover the credit as could the debtor creditor had no attachment been interposed." The majority of the court declare in that case, in effect, that the attachment binds every description of debt. What was the salary of this police officer? A debt. Was the money in the hands of a party liable to be sued? Most clearly. The legislature who passed the act of 1825 well knew the character of all the corporations that had been brought into existence by the State. They make no exception,  [**7]  and it is not, I humbly submit, for the courts under any plea of public policy to add to their language. Considerations of public policy are not for the courts but for the legislative branch of the government. The debt due by Brashears, I have a right to insist, was founded upon moral and legal considerations. I have a right to infer it was due for services and assistance necessary for his comfort, if not for his livelihood. All debts are presumed to be contracted under circumstances which call for payment at the hands of honest men. And when these considerations of public policy, as they are called, are pressed before the proper department, its constituents will hesitate long before giving immunity to fraud against the rights of the confiding creditor.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON, TUCK and MASON, J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*99]  ECCLESTON, J., delivered the opinion of this court.
The present attachment was laid in the hands of J. J. Graves, the city register, who, at the time, as register, held money due by the Mayor and City Council of Baltimore to Brashears, the defendant, for his salary as a police officer. The judgment below sustained the attachment, [**8]  and whether that decision is correct or not is the question for our consideration.

 [*100]  It has been repeatedly held, that money due by the government to its officers or agents for services rendered by them as such, whilst it remains in the hands of the government or in the keeping of its disbursing agents, is not liable to be attached or seized by the creditors of those having such claims upon the government. This is certainly true in regard to those who hold appointments directly from State authority. The opposite theory would be calculated to produce serious interruptions in the course of public business, and hinder and delay, if not entirely prevent, in some instances, the accomplishment of very important measures, depending for their successful termination upon the prompt and regular supply of the funds on which the officers or agents have to rely. Whilst treating of this subject in Divine vs. Harvie, 7 Monroe's Rep., 444, the court say:
"It would be a mortifying circumstance to see a member of the legislature rendered unable to pay his sustenance, while attending on its session, because a creditor, who never dealt on the credit of the fund, should, by injunction,  [**9]  detain his compensation, on which he obtained credit with his host."
In Chealy et al., vs. Brewer & Trustee, 7 Mass. 259, the treasurer of the county held $ 21.25, which was due to Brewer for services rendered by him as a juror. Under a statute of the State the plaintiffs made an effort to have this money applied to the satisfaction of their claim against Brewer; insisting that the treasurer was to be considered as his trustee under the statute. But the court held, that a public officer having money in hand to pay a demand, which one has on him merely as a public officer, cannot, for that cause, be adjudged his trustee. And the court say, "A contrary decision would be mischievous, as will appear from this single consideration: that it would suspend, during the pendency of an action, a possibility of settling the accounts of the officer, who should be summoned as the trustee; and it may be added, that it would unreasonably compel him to attend courts in every county in the commonwealth to answer interrogatories."
In Bulkley vs. Eckert et al. 3 Pa. 368, Bulkley had a judgment against Ulp and Eckert, on which 

 [*101]  an attachment issued.  [**10]  This writ was laid in the hands of J. Paul, who being a school director of a township in the county, and treasurer of the board of school directors, had in his custody, as treasurer, the public money to be applied to the support of the schools in the township. Ulp, one of the defendants, had been a teacher in one of these schools, and for his services as such there was money due him, but neither of the defendants had any other claim upon the garnishee. The decision in both courts was adverse to the claim of the attaching creditor, upon the ground that money in the hands of the treasurer, in his official character, could not be legally attached. The appellate court speak of his situation as being similar to that of a sheriff or prothonotary, having money in his hands as a public officer, which has been determined not to be subject to the process of attachment. The injurious effects upon the regular arrangement and administration of public business, by allowing such funds to be attached, are well described by Mr. Justice Sergeant, who, in delivering the opinion of the court says, "Great public inconvenience would ensue if money could be thus arrested in the hands of officers, and they [**11]  be made liable to all the delay, embarrassment and trouble that would ensue from being stopped in the routine of their business, compelled to appear in court, employ counsel, and answer interrogatories, as well as take care that the proceedings are regularly carried on, and bail to return duly given. If a precedent of this kind were set there seems no reason why the State or county treasurer, or other fiscal officers of the commonwealth, or of municipal bodies, may not be subjected to the levying of attachments, which has never been attempted nor supposed to come within the attachment law. We do not, therefore, think this is such a debt as is contemplated by that law."
We do not understand the counsel for the appellee as contending that money due to a State officer for services, whilst it remains in the custody of a fiscal agent or officer of the State, can be attached. If the law will not permit it to be done in such a case, what good reason is there in support of such a principle, which does not also apply with perfect propriety to 

 [*102]  county officers and those of municipal corporations? City charters are granted by the legislature for the purpose of carrying on the machinery [**12]  of government within certain limits. And the power conferred in them to appoint fiscal agents and police officers, and to provide compensation for their services, are essentially necessary for carrying into effect the object and design of such charters as create corporate powers, which are, in reality, but branches of the State government having delegated limited authority. Chancellor Kent says, on page 275 of the 2nd Vol. of his Commentaries: "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 Regents of the University of Maryland vs. Williams, 9 G. & J. 365, the court say: "A public corporation is one that is created for political purposes, with political powers, to be exercised for purposes connected with the public good in the administration of civil government; an instrument of the government subject to the control of the legislature, and its members, officers of the government, for the administration or discharge of public duties, as in the cases of cities, towns," &c. And again it is said: "The corporation of the [**13]  University has none of the characteristics of a public corporation. It is not a municipal corporation. It was not created for political purposes, and is invested with no political powers. It is not an instrument of the government created for its own uses, nor are its members officers of the government, or subject to its control in the due management of its affairs."
As municipal corporations are parts of the State government exercising delegated political powers, for public purposes, the rule which prevents an attachment from being levied upon a claim of one State officer on funds in the hands of another, applicable to its payment, must apply with equal force to a case like the present. If an argument against the right to attach, based upon inconvenience, can have an influence in any case, it surely should do so where the officers of a large city are, necessarily, very numerous.
The appellee's counsel, however, contends that the attachment 

 [*103]  is clearly authorised by the act of 1825, ch, 114, sec. 2, which provides for an attachment against the goods, chattels and credits of a defendant in a judgment, "in the hands of the plaintiff, or in the hands of any other person or [**14]  persons whatever, corporate or sole." This he thinks renders not only private corporations, but those of a public municipal character also, liable to such process. But we do not agree with him. There is no necessity to give such a construction for the purpose of giving effect to the law, as there are institutions on which it may operate, without carrying it to the extent insisted upon by the appellee.
The argument from inconvenience, which, exclusive of the act, prohibits or denies the right of attachment, we think will sanction the construction that the legislature did not design to include municipal corporations. Although the language of the law of Kentucky, which was under consideration in Divine vs. Harvie, is very general and comprehensive, yet its general terms were not considered sufficient to entitle a creditor of an officer or employee of the State to demand payment of his claim out of a sum of money allowed the employee in the ordinary appropriation bill. There the public inconvenience exerted considerable influence upon the decision.
In Chialey, et al., vs. Brewer & Trustee, the court were called on to construe a statute under which the plaintiffs sought to enforce [**15]  the payment of their claim against Brewer, by demanding payment of the county treasurer out of money in his hands due to Brewer as a juror. There the injury to the public arising from sustaining such a proceeding is referred to as worthy of much consideration by the court in giving an interpretation to the statute.
In Pennsylvania the law relative to domestic attachments, passed in 1807, by its 2nd section, provides, that the officer to whom the process is directed "shall attach all the lands, goods, chattels and effects of the defendant or defendants, in whose hands soever the same can be found." And the act passed in 1836, on the same subject, prescribes the form of the writ; in which command is given to the sheriff to attach all and singular the goods and chattels, lands and tenements of the 

 [*104]  defendant, "in whose hands or possession soever the same may be." The 4th section then directs, that the writ shall contain a clause requiring the officer "to summon the garnishee, or person in whose hands any of the defendant's money or other effects may happen to be." This language is certainly very general, and looking at it in regard to its common import and meaning, would seem [**16]  to authorize an attachment to be laid on the property and effects of a defendant in the hands of any person having the same, whether the parties, or either of them, were officer or not. And yet we find the courts deciding, in Bulkley vs. Eckert, et al., that the fiscal officers of the State or county, or of municipal bodies, are not subject to the levying of attachments, and have never been supposed to come within the attachment law. Now, if in that case the treasurer of the board of school directors of a township having money in his custody to be applied to the support of the schools, is not, according to the proper construction of those laws, a person in whose hands any money or effects of the teacher are to be found, although for services rendered by the teacher there was money due him, and the necessity for guarding the public against the evils resulting from a different theory, induced the construction given in that case, there is just as much propriety, from necessity, in the present instance, for holding, that although the act of 1825 gives authority to levy an attachment in the hands of any person or persons, corporate or sole, nevertheless officers of a municipal [**17]  corporation are not subject to the provisions of that act. The principle seems to be well settled, that without this act such officers would not be liable to process of this sort. That necessity which established this principle, and which likewise justified the Pennsylvania courts in so restricting the general language of their statutes as not to include even the treasurer of the board of school directors for a township, will not permit us so to construe our law as to sustain the plaintiff's claim. Reason and necessity we think fully justify the construction that the act does not include but excepts cases of this sort. In Dwarris on Statutes, 728, in 9 Law Lib. 63, it is said: "In law all cases cannot be foreseen or expressed; the object of interpreting laws by what is called 

 [*105]  equity, is to supply, as far as possible, this deficiency, by a recurrence to natural principles of justice. It is the same with cases excepted by reason and necessity out of the prescribed rules. As relates to this branch of interpretation last considered, when cases fall out which should not be determined by the literal rule, and therefore excepted out of it, the expressions of Grotius [**18]  are strictly applicable: "Fit autem, ea correctio, non tollendo legis obligationem, sed declarando legem in certo casu, non obligare." And in the case of the State, use of Mayor & City Council of Balto., et al., vs. Boyd, 2 G. & J. 365, the court say: "Statutes are sometimes extended to cases not within the letter of them, and cases are sometimes excluded from the operation of statutes, though within the letter; on the principle that what is within the intention of the makers of a statute, is within the statute, though not within the letter; and that what is within the letter of a statute, but not within the intention of the makers, is not within the statute; it being an acknowledged rule in the construction of statutes that the intention of the makers ought to be regarded."
In Hawthorn vs. City of St. Louis, 11 Mo. 59, it was decided that under the provisions of the statute of that State, to be found in the Revised Code of 1835, page 254, a public municipal corporation could not be summoned as garnishee, on account of a sum due to an officer of the corporation as part of his salary, although it had been held that private corporations [**19]  might be "proceeded against by garnishment." Hawthorn caused the city of St. Louis to be summoned as garnishee of Clark, who was recorder of the city, the plaintiff being an execution creditor of Clark, to whom the city owed a balance on account of his salary. Because the city was "a public municipal corporation, created for the public benefit," the court held it not to be subject to the rules governing private corporations, such as banks, insurance companies, and other similar corporations. They then say: "It should not, therefore, be compelled to stand at the bar of all the courts in the State and participate in the judicial controversies carried on between debtors and creditors. Whilst these contests would be going on the public interest would suffer, by abstracting 

 [*106]  from their corporate duties the time and attention of the officers, and occupying them in contests about which the corporation had no interest. And however desirable it may be to creditors to enforce against the officers of the corporation their just demands, by the means resorted to in this case, yet we think that public policy forbids the imposition of such a liability upon the corporation."
Neither in [**20]  the Massachusetts or the Pennsylvania case are the officers held to be excluded from the operation of their attachment laws, because those laws are considered as having reference to persons as individuals, and not to corporations. And in the Missouri decision the liability of private corporations is distinctly recognized. In all those cases we find the exemption of officers from attachments placed upon considerations of public policy, having in view the necessity of preventing serious impediments to the prompt and efficient discharge of official duties; just such considerations as should exclude the present parties from the operation of the act of 1825, by construing its language as not including corporations of a public municipal character.
The counsel for appellee says, that under the city charter the defendant, Brashears, could have sued the corporation for his claim, if his salary had been improperly withheld: and being a claim for which he had a right of action, it was a credit subject to attachment. Admitting, however, that Brashears might have maintained an action against the corporation, still the right of the appellee to attach the claim is not relieved from the objection [**21]  to it, based upon considerations of public policy. Because a claimant may sue, it does not follow that his creditor can attach the claim in every case, although as a general rule it may be so. There is no intimation in the Pennsylvania case that the school teacher could not have sued the treasurer of the board of school directors. And although in Hawthorn vs. The City of St. Louis the liability of the city to be summoned as garnishee was denied, yet there can be no doubt that Clark, the recorder, had a right to sue the corporation for the amount of his salary then due. That this is true may be seen by reference to the decision in Carr vs. The 

 [*107]  City of St. Louis, 9 Mo. 191. There the plaintiff claimed fees due from the corporation to him, as recorder of the city, and his right to recover was sustained. See also article 1, section 2, of the amended charter of St. Louis, approved February 15th, 1841, and article 1, section 2, of "An act to reduce the law incorporating the city of St. Louis, and the several acts amendatory thereof, into one act, and to amend the same," approved February 8th, 1843.
Under the belief that the claim of Brashears was [**22]  not liable to attachment, we must reverse the judgment below.
Judgment reversed and no procedendo ordered. 

62 of 187 DOCUMENTS 

BERNARD U. CAMPBELL, Attorney and Trustee of EMILY L. HARPER, vs. WASHINGTON BOOTH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 107; 1855 Md. LEXIS 36 

DECEMBER, 1855, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court for Baltimore city.

This is an appeal from a judgment quashing a writ of scire facias upon motion. The facts are briefly as follows:

On the 19th of September 1843, an action was docketed by consent in Baltimore county court, by the appellant as plaintiff, against the appellee and John B. and Richard B. Fitzgerald, partners, trading under the firm of John B. Fitzgerald & Co., as defendants, upon their joint and several promissory notes in favor of J. J. Speed, trustee of Emily L. Harper, and on the same day judgment was confessed in favor of the plaintiff for $ 1600.85, with interest from the 13th of October 1842, and costs, subject to a deduction of $ 402.53 when paid, (and which was subsequently paid,) it being the sum awarded in the auditor's report in the case of John B. Fitzgerald an insolvent debtor, and subject to the release of said insolvent under the insolvent laws. In the docketing of this suit Charles Z. Lucas acted as the attorney for the plaintiff, and J. J. Speed and J. Hanan as attorneys for the defendants.

On the 21st of October 1843, a fi. fa. was issued on this judgment returnable on the 1st of January 1844, which was returned [**2]  by the sheriff: "Laid as per schedule." The schedule shows that the property levied on consisted of several lots of ground in the city of Baltimore, valued at $ 4680.

On the 11th of June 1844, the following papers and receipts were filed in the case: 1st. A letter dated the 28th of May 1844; from Charles Z. Lucas to George M. Gill, in which the writer states: "I am authorised by B. U. Campbell, Esq., attorney of Emily L. Harper, to release the judgment obtained by consent, on September 19th, 1843, against R. B. Fitzgerald, upon his paying the per centum heretofore offered by him, (which I believe was 20 per cent.,) upon the amount of the judgment, ($ 1600.85,) with interest from October 13th, 1842; and upon your giving me in writing Mr. Speed's agreement, that no advantage will at any time be taken by him in any manner of this compromise with Capt. F. I hope these terms may meet your approval." 2nd. The following receipt, dated June 7th, 1844, signed by Charles Z. Lucas, attorney for Bernard U. Campbell: "Received of George M. Gill, attorney of R. B. Fitzgerald, $ 348.03, and $ 6.25 costs, the same being in full of judgment against said R. B. Fitzgerald at suit of Bernard U. Campbell,  [**3]  attorney of E. L. Harper, rendered at September term 1843, in Baltimore county court;" and 3rd. A receipt from the sheriff for $ 10, as "sheriff's costs in the above case." On the same day the following entry was made on the docket in said case: "11th June 1844, receipt of plaintiff's attorney for $ 348.03, and $ 6.25 costs, in full of judgment against R. B. Fitzgerald, and receipt of sheriff for $ 10, his costs, filed."

On the 6th of September 1851, the plaintiff sued out a scire facias upon this judgment against all the defendants, which was returned "nihil" as to the others, and "made known to Washington B. Booth," who appeared and moved to quash the writ for the two reasons stated in the opinion of this court, which motion the court, (FRICK, J.,) sustained, and gave judgment for the defendant, from which the plaintiff appealed.  

DISPOSITION:
Judgment reversed and procedendo ordered.  

HEADNOTES:

Defences to a scire facias, that there was an outstanding fi. fa. in full force when the sci. fa. issued, or that the judgment was satisfied before issuing the writ, cannot be availed of upon motion to quash, but can only be taken advantage of by plea.

The mere taking of property under a fi. fa. is not of itself equivalent to payment, and does not amount to a satisfaction of the judgment.

Irregularities apparent upon the face of a scire facias may be taken advantage of by motion to quash, but objections involving questions of fact only, or dependant partly upon matters of record and partly upon matters in pais must be pleaded.

Payment of a less sum than is due on a judgment, though received in full thereof, cannot operate as a discharge or satisfaction of the judgment.

Where two or more parties are jointly bound the claimant may release one, and reserve his remedy against the others, with their consent.

An entry upon the docket of the filing of the receipt of the plaintiff's attorney for part of the sum due, in full of the judgment against one of the defendants, is not an entry of satisfaction, nor can it operate as a release of the judgment.

Such entry is not the act of the court but of the clerk, merely noticing the filing of the receipt as usual in regard to papers filed in a cause.

Where an entry of satisfaction made by the clerk, by order of the plaintiff or his attorney, under the act of 1840, ch. 96, is relied on as a defence, the law must be strictly complied with.  

COUNSEL:
T. Parkin Scott for the appellant, argued:

1st. That the levying of the fieri facias was not in law a satisfaction of the judgment, and that the return of the writ and the subsequent arrangement between the parties show that that levy was abandoned. 5 G. & J., 109, Sasscer vs. Walker. 2 Gill, 486,  [**4]  Hardesty vs. Wilson. If the writ had not been returned the burden of proof would have been on the appellant to show that the judgment had not been satisfied, but here the writ was returned and the levy abandoned. Again, one obligor cannot plead that the goods of his co-obligor were taken in execution. Such is the case here. Booth, one of the original defendants, is seeking to take advantage of the levy upon the lands of his co-defendant, which he cannot do. 2 Saunder's Pl. & Ev., 47, note (a,) 72 (aa.) The fi. fa. we insist therefore was not outstanding when the scire facias issued, but had been returned before.

2nd. That this was not an attempt to have two outstanding executions upon the same judgment at one and the same time, but simply an effort to revive a judgment that it might be executed. 7 G. & J., 357, Mullikin vs. Duvall.

3rd. That the partial payments made were not received or intended to be in extinguishment of the judgment, but only in relief of one of the parties with a salvo. There is no evidence that Speed ever made any agreement to give a release, and if he did, that it was ever executed. Besides, Speed acted as counsel for these defendants, and the agreement [**5]  to be made by him that he would take no advantage of the compromise with one of the defendants, may be very well construed into a reservation of the plaintiff's remedy against the other defendants. The whole proceedings show that there was only a compromise of the judgment so far as Capt. Fitzgerald was concerned, and not of the whole judgment. The entry on the docket is not an entry of satisfaction of the judgment, but simply a receipt in full of the judgment as against Capt. Fitzgerald. Payment of part is not satisfaction of the whole. The defendants were equally liable as partners, and promised jointly and severally to pay the notes on which the original judgment was obtained. In support of these positions, see 2 H. & J., 324, Hughes vs. O'Donnell. 5 G. & J., 356, Clagett vs. Salmon. 5 Gill, 196, Hardey vs. Coe. Ibid., 217, Gurley vs. Hiteshue. 7 Md. Rep., 108, Jones vs. Ricketts.

4th. That the grounds of defence taken to the scire facias cannot be availed of on motion, but can only be taken advantage of by plea. 48 Eng. C. L. Rep., 634, Holmes vs. Newlands.

George M. Gill for the appellee, argued:

1st. That before the issue of a scire facias the fi. fa. and levy [**6]  under it ought to have been countermanded or disposed of, for whilst a fi. fa. is levied and outstanding, the plaintiff cannot legally issue a scire facias. The taking of property under a fi. fa. is not of itself equivalent to payment, and the plaintiff might have countermanded the writ and restored the property, but until he did so he could take out no other process. 5 G. & J., 109, Sasscer vs. Walker. 3 Do., 384, Turner vs. Walker. 1 H. & McH., 407, Waters vs. Caton. 3 Gill, 246, Baldwin, use of Owings, vs. Wright, et al. 23 Wend., 501, Green vs. Burke. 4 McLean, 133, Corning vs. Burdick. Coxe. N. J. Rep., 118, Stille vs. Wood. 3 English, 388, Anderson vs. Fowler. In 2 Harr. Ent., 526, is the form of a plea to a scire facias, that the sheriff had caused to be levied a fi. fa. upon the property of the defendant. See also 5 H. & J., 77, Purl vs. Duvall; Evan's Pr., 372, and Act of 1829, ch. 158. But it is said the defendant should have plead this defence, and that a motion to quash the writ is not the proper remedy. To this objection we reply that a scire facias is not a new case, but a continuation of the original judgment. It is not a new suit, but its object and effect is to revive [**7]  the old judgment. The case is analogous to that of attachments, which are quashed on motion in all cases where it is apparent on the face of the record that the proceedings are erroneous. Wherever upon the face of the record the error is apparent a motion to quash is the proper remedy. Evan's Pr., 238. It is true we might have pleaded this defence, but this does not preclude us from making the motion to quash.

2nd. The judgment in this case being against partners, satisfaction by one is a satisfaction by all, and a release to one is a release to all. Smith on Mercantile Law, 67. 4 Adol. & Ellis, 675, Nicholson vs. Revill. 6 Term Rep., 525, Clark vs. Clement.

3rd. The payment of a less sum than the whole debt will not, per se, work a satisfaction, though such lesser sum be paid and received as satisfaction, but where there is something collateral to show the possibility of benefit to the party relinquishing, this will be sufficient. Thus if a lesser sum be paid before it is due, or at another place than that limited in the condition, it is a good satisfaction. 5 East, 232, Fitch vs. Sutton. So if a note of a third person is received. 11 East, 390, Steinman vs. Magnus. So if [**8]  there be inconvenience to the defendant in procuring a surety. 20 Johns., 78, Boyd vs. Hitchcock. 6 Cranch, 253, Shieehy vs. Mandeville. So if the debtor, in addition to the agreement to pay part of the debt, gives to the creditor any thing which in judgment of law can be considered a benefit to him, and the creditor accepts it as a satisfaction of the whole, it is a good accord. Forsyth on Comp., 17. Here the proposition by the plaintiff to the defendant and partner, R. B. Fitzgerald, was to pay a certain per centage and to obtain the agreement in writing of Mr. Speed, (the first trustee of the plaintiff,) that he would take no advantage of the compromise. This proposition and the receipt showing its acceptance and performance of the conditions are both on the same paper, bear very nearly the same date, were filed in the cause on the same day, and on that day also the entry on the docket is made of satisfaction of the judgment in full. This was a release to R. B. Fitzgerald, and if to him, then also to the other defendants.

4th. The entry on the docket of the 11th of June 1844, shows that the receipt of the plaintiff's attorney, as in full of the judgment against R. B. Fitzgerald,  [**9]  had been filed in court. This entry showing satisfaction, remained unchanged until the 6th of September 1851, and then without any change, or motion for a change; the application for a scire facias against all the defendants, including R. B. Fitzgerald, is made to the clerk who issues the writ. This was an error, and the scire facias could not properly go until the docket entry showing satisfaction had been first altered, even if it could be altered at so late a day.

4th. The defendant, R. B. Fitzgerald, not only paid the amount agreed to be received in satisfaction and obtained the agreement in writing of Speed, but in addition thereto paid the sheriff's costs of $ 10, which was beyond the agreement, and he as defendant was not bound to pay in the then state of the case. Taking both receipts, the docket entries and the lapse of time, before any attempt is made to change these entries or treat them as nullities, there was conclusive evidence of satisfaction by R. B. Fitzgerald and of a release to him. The release to one releasing all, the original judgment was discharged and no scire facias could be issued.  

JUDGES:
The cause was argued before LEGRAND, C. J., ECCLESTON, TUCK and MASON,  [**10]  J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*112]  ECCLESTON, J., delivered the opinion of this court.
In the court below the defendant made a motion to quash the writ:

 [*113]  First, because it appears that a fieri facias had been issued which was levied upon certain real estate, and had not been countermanded nor in any way disposed of, but continued in full force and operation when the writ of scire facias issued.
Secondly, because the judgment on which the present writ issued was satisfied before the issuing of the writ.
The court sustained the motion by ordering the sci. fa. to be quashed; from which decision the plaintiff appealed. And he now says, the execution was not outstanding when the sci. fa. issued nor was the judgment satisfied. He also contends, that the grounds of defence relied upon could not be available under such a motion, but could only be taken advantage of by plea.
A question of this sort arose in the case of Holmes vs. Newlands, 5 Adol. & Ellis, N.S. 367, in 48 Eng. Com. Law Rep. 366. There a fi. fa. issued, which was returned nulla bona. Afterwards an alias fi. fa. was obtained and also a ca. sa. The latter [**11]  of these two writs was set aside for want of a return of the former. Subsequently, a scire facias being sued out, the defendant obtained a rule calling on the plaintiff to show cause why this writ should not be set aside on account of the previous proceedings. The court discharged the rule because the sci. fa. could not be set aside in that summary manner, but such facts when relied on in defence should be pleaded. The case clearly shows, that where an outstanding execution, whether returned or not, is the ground of defence, the party must plead it to make it available. And this is the rule in England, where it seems to be held, that a levy without a sale and no money is paid, under some circumstances, is a satisfaction of the judgment. If there a plea must be resorted to, we think the present motion cannot be sustained upon either ground relied on by the defendant.
The case of Holmes vs. Newlands is also reported in 1 Davison & Meriv. 642, and a branch of it is to be found in 5 Adolp. & Ellis, N. S., 634.
In Sasscer vs. Walker's Ex'rs, 5 G. & J. 102, Chief Justice Buchanan says: "The mere taking the property under the fieri facias was [**12]  not itself equivalent to payment, and did 

 [*114]  not amount to a satisfaction of the judgment." This principle is not intended to be impugned in any degree by our reference to Holmes vs. Newlands for the purpose of sustaining the position, that the court below were wrong in deciding the present motion to quash in favor of the defendant. It is deemed proper to make this remark, because the opinion of Lord Denman in that case, so far as relates to the effect of a levy or seizure under a fi. fa., may seem to be at variance with the principle announced in 5 G. & J.
 Philpot vs. Manuel, 5 Dow. & Ry. 615, is an authority in support of the principle adopted in Holmes vs. Newlands, by discharging the rule because a plea was necessary.
Irregularities apparent upon the face of a sci. fa. may be taken advantage of by motion, and should it be conceded there are irregularities depending exclusively upon matters of record, but not appearing on the face of the writ, which may be made the ground of a motion to quash, yet whenever objections to the writ involve questions of fact only, or depend partly upon matters of record and partly upon matters in  [**13]   pais, then such objections should be presented by plea; otherwise, a plaintiff might be deprived of his right of trial by jury upon issues in fact, which the court is never disposed to do except where it has been sanctioned by practice or by previous decisions. Believing that both objections now relied upon may, when fully disclosed by pleading, present issues in fact proper for the consideration of a jury, we think the motion to quash was not the proper mode of defence.
For the purpose of showing satisfaction of the judgment in support of the second ground of objection to the sci. fa., reliance is placed upon the compromise made with R. B. Fitzgerald, which it is said discharged him, and thereby his codefendants were also discharged. The evidence relating to which consists of the letter, dated the 28th of May 1844, from plaintiff's attorney to the attorney of R. B. Fitzgerald; the receipt from the former to the latter, dated the 7th of June 1844, for $ 348.03, and $ 6.25 costs; the filing of those two papers in court, on the 11th of the same month, together with the sheriff's receipt for $ 10 costs, and the entry made the 

 [*115]  same day on the docket in the following [**14]  words: "Receipt of plaintiff's attorney for $ 348.03, and $ 6.25 costs, in full of judgment against R. B. Fitzgerald, and receipt of sheriff for $ 10, his costs, filed."
Although the receipt states the amount paid to be in full of the judgment against R. B. Fitzgerald, yet as that amount is less than the sum due, the payment and receipt, unaided by any thing further, could not operate as a discharge or satisfaction of the judgment, even if R. B. Fitzgerald had been the sole defendant. This principle we need not stop to sustain by argument, because it has been fully recognised by numerous decisions in this State, and especially in the late case of Jones vs. Ricketts, 7 Md. 108, and the cases there referred to. But the appellee's counsel says, that in addition to the payment of the money, R. B. Fitzgerald, or his attorney for him, was required by the terms of the arrangement, as proposed in the letter, to give the plaintiff's attorney, in writing, Mr. Speed's agreement, that no advantage would at any time be taken by him in any manner of the compromise; that the required agreement was given, is fully established by the speedy payment of the money and the receipt;  [**15]  and that a compliance with this part of the arrangement, superadded to the payment under the contract, released R. B. Fitzgerald, which operated as a release of all the defendants in the judgment. And if wrong in this view of the subject, the appellee insists that the circumstances just alluded to, when considered in connection with the filing of the papers and the entry made upon the docket, which entry was permitted to remain without any effort to have it corrected up to the date of the sci. fa., are sufficient to sustain the second ground of objection to the writ.
It is of no importance whether the appellee is right or not, in assuming that the circumstances relied upon do prove the giving of Mr. Speed's written agreement. If the evidence does not show it was given, of course the agreement can have no influence upon the subject. But let us see what is the effect of that instrument, considering it as having been executed and delivered. The record shows that Mr. Speed was attorney for the defendants when the judgment was confessed. 

 [*116]  That being the case, and not having the agreement before us or any proof showing what were its terms or its design, except what is to [**16]  be derived from the letter; in this very unsatisfactory state of the evidence, we are disposed to consider Mr. Speed's agreement as one entered into by him, as attorney for the defendants, that no advantage would "at any time be taken by him in any manner of this compromise" with one of the defendants; and that the object and design of the plaintiff in obtaining the agreement was, for the purpose of reserving and protecting his right to recover from the other defendants the balance of the judgment remaining unpaid, after deducting the amount to be paid under the compromise. Whether this view of the agreement may or may not be shown to be erroneous by further evidence on the subject, it is impossible for us at present to form any correct conjecture. If Mr. Speed executed the agreement as attorney for the defendants, and the design of the instrument was such as we have stated, then, so far from its operating to any extent as a release or discharge of the defendants, other than R. B. Fitzgerald, it was a reservation of the right of the plaintiff to hold them responsible, notwithstanding the compromise. To which reservation these defendants are to be considered as assenting, through their [**17]  attorney, Mr. Speed. And it cannot be doubted, that where two or more persons are bound, jointly, the claimant may release one and reserve his remedy against the others, with their consent. The subject of releasing one party and reserving the remedy against others who are responsible under the same contract, is very fully treated of in Yates vs. Donaldson, 5 Md. 389. We also refer to that portion of the opinion of the court of Queen's Bench, in Price vs. Barker, 30 Eng. Law & Eq. Rep. 157, which relates to the effect of releasing one of several parties, bound as principals, and reserving the right to proceed against the others.
Should it be suggested, that as attorney, Mr. Speed had no authority to enter into such an arrangement, we need not enquire whether the suggestion is true; for if it is, then the plaintiff's attorney could not bind him by the compromise, and consequently it could not release the defendants.

 [*117]  The entry on the docket, in addition to the other circumstances, the appellee's counsel seems to consider as a complete discharge or satisfaction of the judgment, even if exclusive of the entry, the proof in the case does [**18]  not amount to satisfaction. But we do not see how it can be so. We have said the payment and receipt, standing alone, do not amount to a release, and they cannot do so if Mr. Speed's written agreement was executed and delivered to the plaintiff's counsel in the manner and with the design we have stated. The entry is nothing more than a mere statement of the fact, that the receipt of the plaintiff's attorney had been filed, which professes on its face to be in full of the judgment as against R. B. Fitzgerald. If, before filing and making the entry, the receipt was not in law a release or satisfaction, how could the mere filing, and the entry on the docket of such filing, impart to the paper any greater effect or influence upon the rights of the plaintiff than it possessed by virtue of its execution and delivery by the plaintiff's attorney to the defendant, or his attorney? This is not an entry of satisfaction in the ordinary mode, under the sanction or order of the court. Nor can it be regarded as satisfaction of the judgment entered by a clerk, by order of the plaintiff or his attorney, under the act of 1840, ch. 96, which act should be strictly complied with when it is to be made [**19]  a ground of defence. For without such a compliance, if not with it, the rights of plaintiffs in judgments will be exposed to considerable danger. The present paper is not an order to enter satisfaction, neither is it a release under seal, but merely a receipt for a less sum than was due, stating the same to be in full of the judgment against one defendant. We do not regard the entry as an act of the court but of the clerk, merely noticing the filing of the receipt, as usual in regard to papers filed.
The entry itself shows the receipt to be for a sum less than the judgment and as being in full only in regard to R. B. Fitzgerald, and therefore certainly not designed by the plaintiff or his attorney as an order to the clerk to enter the entire judgment satisfied. The filing of such a receipt and the entry of the filing upon the docket by the clerk, cannot convert it into a release. If it was not one before, it was not one subsequently.

 [*118]  As the judgment will be reversed because the writ could not be quashed upon the present motion, we refrain from expressing any opinion in regard to several points discussed in argument, for the reason, that when the case is fully [**20]  disclosed by pleadings and evidence, it may present a very different aspect from what it now does.
Judgment reversed and procedendo ordered. 

63 of 187 DOCUMENTS 

FRANCIS H. EDELIN vs. EDWARD J. SANDERS, Exc'r of WILLIAM SANDERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 118; 1855 Md. LEXIS 37 

DECEMBER, 1855, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

Debt, brought by the appellant, on the 30th of October 1849, upon an alleged bond of the appellee's testator in favor of the plaintiff for $ 2000, dated the 11th of December 1838 and payable on or before the 1st of July 1840, without interest until that time. The defendant, as executor, under leave of the court, pleaded non est factum without oath, upon which issue was joined.

1st Exception. The plaintiff gave in evidence the bond sued on, (which appears in the record as perfect on its face, without any appearance of erasure,) and his possession thereof at the bringing of this suit; and then proved by William B. Stone and other witnesses the facts stated in the opinion of this court, and also that there was a controversy between defendant's testator and the plaintiff about the negroes referred to, as the plaintiff claimed them to be in the same secret trust, which trust the testator always denied; that a proposition was made by some of the parties, that a bond should be executed by the testator and left in the hands of a third party, as an escrow, as security that the testator would not sell the negroes or dispose of them;  [**2]  but this proposition failed, and witness does not know whether any paper was prepared to carry out such proposition. Also, that said testator was the brother of said Rebecca Boarman and uncle to the plaintiff's wife, and that both the bond to the plaintiff and that to Rebecca Boarman correspond with the time, as regards their payment, when the purchaser of said real estate was to begin to pay interest to the testator. Also, that the testator suffered the plaintiff and Mrs. Rebecca Boarman to remain in possession and use of the negroes mentioned up to the time he replevied them from the plaintiff. The defendant then offered in evidence a record of a replevin suit, in Charles county court, by the defendant's testator against the plaintiff, for certain negroes therein specified, begun on the 13th of January 1844, and setting out the recovery of said negroes by the plaintiff in that suit; and also, a record of an action of debt in Charles county court by the defendant in this case, as executor of William Sanders, against the plaintiff, begun on the 30th of May 1850, upon a sealed note of the plaintiff in favor of said William Sanders for $ 500, dated the 3rd of April 1840, and payable [**3]  on demand, upon which judgment was rendered in favor of the plaintiff in that case for the full amount of the note. To the admissibility of each of these records as evidence in this case, the plaintiff excepted, but the court, (FRICK, J.,) overruled this objection and permitted the records to go to the jury as evidence. To this ruling the plaintiff excepted.

2nd Exception. In addition to the testimony in the first exception the defendant proved, that a short time after the death of Sanders witness had a conversation with the plaintiff, in which he spoke of his note to Sanders for $ 500, saying he did not intend to pay it as it was not Sander's money, but was a portion of the money for the sale of land which his (plaintiff's) wife was entitled to, but he said nothing to witness about the bond in suit. The plaintiff then offered proof of his general character for integrity. The defendant then offered to read the will of William Sanders, his testator, in which he devises to the plaintiff's wife and Rebecca Boarman the negroes recovered by him in the replevin suit mentioned in the first exception. To the admissibility of this will the plaintiff objected, which objection the court [**4]  overruled, and admitted the will in evidence. To this ruling the plaintiff excepted.

3rd Exception. The plaintiff then offered the following prayers:

1st. It is not competent for the defendant in this case to impeach or question the consideration of the note sued on, and the only matter for the jury to consider under the pleadings is, whether the defendant's testator executed and delivered the note as claimed by the plaintiff, and if the jury find such execution and delivery the plaintiff is entitled to recover, unless the jury further find, that said note has been altered by the plaintiff or by his procurement in some material particular after such execution and delivery.

2nd. If the jury shall believe from the evidence, that the single bill in suit was made by William Sanders, the defendant's testator, payable in blank, and was so delivered to the plaintiff, then the plaintiff is entitled to recover in this action.

3rd. If the jury believe from the evidence, that the single bill in suit was executed by the defendant's testator, payable to some other obligee than the plaintiff, and the name of such obligee was subsequently erased and the name of the plaintiff was [**5]  substituted as payee with the knowledge of the defendant's testator, the plaintiff is entitled to recover in this case.

4th. If the jury believe that the note in suit was delivered to the plaintiff by the defendant's testator, and that the name of the payee was left blank at the time of such delivery, but the same was intended by said testator to be filled up with the name of the plaintiff and for his benefit, then no alteration or erasure in the name of the payee would vitiate it, even if the same was made by the plaintiff, provided the jury believe that as altered it contains the name of the plaintiff as payee.

5th. That the possession of the single bill in suit by the plaintiff is prima facie evidence of the sealing and delivery of the same by the obligor to the plaintiff, provided the jury find that the said single bill is subscribed with the signature of the defendant's testator in his own proper handwriting.

6th. If the jury find from the evidence, the execution and delivery of the single bill in suit by the defendant's testator as and for the obligation of the testator, then the plaintiff is entitled to recover, notwithstanding the other facts offered in evidence [**6]  by the defendant.

The defendant then asked the following prayer:

If the jury shall find from the evidence, that the single bill, upon which suit is brought, was drawn by William B. Stone, the witness, payable to some other person than the plaintiff, and was executed and delivered, (if the jury shall find the same was ever delivered,) in that form by William Sanders, the obligor; or that the same, when so executed and delivered, was in blank, and shall find in the one case the same was afterwards altered by the insertion of a new payee, or in the other filled up with the name of the plaintiff, that then the plaintiff is not entitled to recover, unless the jury shall further find from the evidence, the subsequent adoption or recognition of said single bill by Sanders, the obligor.

The court rejected the defendant's prayer, and also the first, second and sixth prayers of the plaintiff, and granted the plaintiff's third and fourth prayers. The plaintiff's fifth prayer the court refused as it was offered, but granted and accepted it with this further explanation, that if the jury shall find that the said note was in blank as regards the payee when it came to the possession [**7]  of the plaintiff, and that it was afterwards filled up, or altered, or erased in regard to the name of the payee after being filled up, without its being so intended by the obligor at the time, or afterwards adopted or assented to by him, that then the said prima facie evidence is rebutted and the defendant is not bound by such delivery.

Both parties excepted to each of these several rulings which was against him, and the verdict and judgment being in favor of the defendant the plaintiff appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

The general plea of non est factum imposes on the plaintiff the onus of proving both the execution and delivery of the bond.

Proof of execution and possession is prima facie evidence of delivery, and in the absence of all proof on the other side will entitle the obligee to a verdict.

The seal imports a consideration and the latter as such cannot be inquired into under the plea of non est factum, but the obligee may give in evidence anything which goes to show the bond was originally void at common law, as lunacy, fraud, coverture; or that it has become void subsequent to execution and before suit, as by erasure, alteration, &c.

When there is nothing in the record to show it this court cannot assume that a bond was erased or altered after delivery, and can have no judicial knowledge of the fact if it existed.

If upon inspection the bond appeared to have been altered the fact should be noticed in the exception either by agreement or by asking the opinion of an expert in handwriting his opinion as to its appearance.

Where there is proof that a bond has been altered facts tending to show fraud on the part of the obligee, by showing his relations and dealings with the obligor, are admissible under the plea of non est factum.

The will of a testator is not admissible in evidence for the executor in an action against such executor, because to allow it to be given in evidence would be to permit a party to testify in his own case and in his own behalf.

Where there is no evidence on which the hypothesis of a prayer could be based it must be rejected.

The name of the obligee is a material part of a bond, and as a general principle delivery in blank is an insufficient delivery, unless recognized after the blank is filled up.

Where a prayer on the part of the plaintiff requires the jury to find all that is essential to the plaintiff's right to recover the addition of mere surplusage will not vitiate it.  

COUNSEL:
Vivian Brent and R. T. Merrick for the appellant, argued:

1st. That records from Charles county court, in the first exception, were not admissible in evidence. There was no attempt to prove a connection between the bond in suit and the particular slaves for which the replevin suit was instituted; and if the bond was given for the slaves which were subsequently recovered as against the bond and the contract out of which it grew, yet to admit the judgment of another court upon the validity of that contract and bond, virtually declaring both fraudulent and invalid, to go to the jury, is to allow the adjudication of that other court to [**8]  determine the particular matter litigated in the court before which the parties are and to whose judgment they are entitled, independent of the judgment of any other tribunal. If the bond was given for the slaves in dispute in the replevin suit, and these slaves were returned by the party's own will or under the judgment of the court, and by virtue of such return paid and liquidated the bond or any part of it, that return cannot be given in evidence in this case. 9 G. & J., 361, Key vs. Knott & Wife. The consideration of a bond cannot be inquired into except on the ground of fraud, and then only when the fraud alleged is in the consideration. 1 Chitty's Pl., 483, 484, (a.) Again, there is no proof to show that the negroes recovered in the replevin suit were the same as those conveyed by the bill of sale spoken of by the witnesses. We therefore say, that the record in that suit was irrelevant to this case and inadmissible. The second record is of a suit for a debt in Charles county court, instituted since the present suit in Baltimore county court, and no connection is pretended between the two. The fact that the defendant recovered a judgment against the plaintiff in another court,  [**9]  cannot be admitted to show that the plaintiff has no claim on the defendant. It can establish nothing further than that such a judgment was rendered and is entirely irrelevant to the issues joined in this action. If one debt could be set off against the other, it was the defendant's duty to plead the set-off, because the present suit was instituted prior to the suit in Charles county.

2nd. That the will of the testator, admitted in evidence in the second exception, is not competent evidence for his executor in an action against that executor. The will is but the declarations of the party himself as to his title and possession of the negroes, which are clearly inadmissible. There is no conceivable ground upon which it could be admitted, unless it should have been supposed that will was necessarily a dying declaration. If the testator were living, he would be the defendant in this action and certainly would not be a competent witness in his own case, and yet justice would be more surely answered by allowing him, in that event, to testify in his own behalf, for the plaintiff would then have the benefit of a cross-examination and the security given by the sanction of an oath, both [**10]  of which he is now denied but to which he is entitled, and both of which are tests of truth designed to exclude all evidence not warranted by them. 1 Starkie on Ev., 14. This evidence was admitted to go to the jury under the judicial sanction of the court below, and this court cannot say it did the plaintiff no harm, for they cannot determine what weight or influence it had with the jury.

3rd. As to the prayers contained in the third exception: We say:--1st. That in an action on a single bill of which the plaintiff is in possession, proof of the defendant's signature is prima facie evidence of its due execution and delivery, though the validity of the instrument is disputed by a general non est factum. The seal imports consideration, and possession is prima facie evidence of delivery. 9 G. & J., 361, Key vs. Knott & Wife. 1 H. & J., 323, Clarke vs. Ray. 4 H. & J., 241, Miller vs. Honey. 8 G. & J., 511, Pannell vs. Williams. 6 Pet., 137, Sicard, et al., vs. Davis. 1 H. & G., 419, Union Bank vs. Ridgely. But it is said there is an erasure or an alteration of this bond, which throws the onus of proof upon the plaintiff to show that it was properly made; that the bond has suspicious [**11]  marks about it. But where is this erasure, this alteration, these suspicious marks? There is no such proof in the record, nothing to bring them to the notice of this court, if they exist. The materiality of an alteration is a question for the court, and conceding there was an alteration, there is no proof that it was in a material matter. But even if there is an alteration, the burthen is not on us to show that it was properly made, but upon the party seeking to avoid the sealed instrument to show that it was improperly made. An interlineation in a deed, without any thing against it, will be presumed to have been done before delivery. 1 Kebble, 22, Trowel vs. Castle. Fitzgibbons, 214, Fitzgerald vs. Fauconberge. 2 Starkie on Ev., note 377. 16 Sergt. & Rawle, 44, Heffelfinger vs. Shutz. 5 H. & J., 41, Wickes vs. Caulk. The basis of this presumption is, that the law always presumes in favor of innocence, for an alteration of a bond is a criminal offence, rendering the party liable to indictment. And if it appears that certain blanks in the bond have been filled up in a handwriting other than that in which the bond is written and other than that of the obligor, such blanks will be presumed [**12]  to have been filled up before delivery or with the consent of the obligor since delivery, in the absence of proof to show the fraudulent intent of the plaintiff. 6 G. & J., 255, Byers vs. McClanahan. 1 Maine Rep., 338, Hale vs. Russ. 13 Do., 386, Gooch vs. Bryant. 12 Viner's Abr., 58. 9 Cranch, 36, Speake vs. United States. 3 Gill, 337, Fiery vs. Miller. But under any theory of this case, the plaintiff was entitled to his sixth prayer. There were no facts offered by the defendant to rebut the prima facie case of the plaintiff; and whatever facts may have been offered, they could not justify the rejection of this prayer, which simply asks, that the plaintiff may recover if the jury shall believe that the single bill in dispute was delivered by the obligor to the obligee as and for the obligation of such obligor. This necessarily implies a delivery in its present shape and as it is offered in evidence, and the plaintiff had a right to have this question submitted in a clear and unembarrassed shape to the jury.

T. Parkin Scott and Wm. Schley for the appellee, argued:

1st. That issue having been joined upon the plea of non est factum, and delivery being essential to constitute [**13]  the writing sued on the bond of the defendant's testator, if the plaintiff relies on the presumption of delivery from the fact of possession, then to rebut that presumption the defendant may offer in evidence any facts or circumstances from which a rational well constructed mind can infer that the writing was not delivered by the testator as his bond. 7 G. & J., 29, 42, Cole vs. Hebb. 1 Md. Rep., 11, 15, Milburn vs. The State. Ibid., 474, Waters vs. Dashiell.

2nd. That though want of consideration is no defence to an action of debt on a bond under any form of pleading which admits the writing sued on to be the defendant's bond, yet under the plea of non est factum the want of consideration is a circumstance admissible in evidence to rebut the presumption of delivery from mere possession, and more especially where the plaintiff attempted and failed to prove any consideration, either valid or valuable, to induce the belief that defendant in fact executed and delivered the writing as his bond to the plaintiff. 1 H. & G., 416, 418, 419, Union Bank vs. Ridgely. 5 G. & J., 303, 304, Davis vs. Calvert. 9 Cranch, 37, Speake, et al., vs. The United States. Under this plea the question [**14]  is not upon the dry execution, but upon the valid execution of the deed.

3rd. That in the absence of positive proof of delivery of the writing as his bond, any facts tending to show that there was no probable cause or good reason for its delivery are admissible, under the plea of non est factum, to rebut the presumption of delivery from mere possession. This suit was not brought until the bond was more than nine years due, and not until after the death of the alleged obligor. Whether the record in the replevin suit was admissible depends not only on the issue, but upon the preliminary proof of Stone and the other witnesses. Stone speaks of a bill of sale and of the proposition to give a note to be deposited as an escrow, as security that the testator would not sell the negroes. Now it was important for the defendant to disprove the secret trust as to the negroes, to rebut the inference attempted to be set up of such trust as a consideration for the bond. To do this the record in the replevin suit shows that Sanders asserted his title to the negroes and maintained it. Again, the plaintiff himself went into proof of the consideration of the bond. Any fact therefore rebutting this [**15]  proof on the part of the plaintiff was admissible. If any attempt was made to use the record for an improper purpose, the court would have restrained it upon a prayer framed for that object. As to the other record, it shows that Edelin was indebted to Sanders and that he might have set off this bond against that action. This non action on the part of the plaintiff in not thus setting off this bond in bar of that suit in his own county where the suit was instituted, is a circumstance which is entitled to weight. We say therefore that these records tend to show a want of probable cause, or any good consideration or reason for the delivery of the writing sued on as the bond of the testator; that they are circumstances from which the presumption of fraud may arise, and were admissible also as rebutting evidence. 13 Pick., 75, Powers vs. Russell. 6 Md. Rep., 295, Townshend vs. Townshend. 7 Do., 601, 608, Pegg vs. Warford.

4th. The question presented by the second exception as to the admissibility of the will of the testator is one of some difficulty. The question however is, whether the will was admissible for any purpose. It shows that the testator disposed of the negroes in a manner [**16]  inconsistent with the idea of a secret trust, and that no one contested this disposition. Again, it was admissible to explain the theory of the escrow. But we say this exception is disposed of by the point that the will, if inadmissible, did no harm to the plaintiff, and the judgment therefore will not be reversed for the error of admitting it. The plaintiff had the full benefit of all the evidence in the case from his third and fourth prayers which were granted by the court. The admission of irrelevant testimony will not authorise a reversal, unless it appears it did or might have done the appellant harm. 1 Gill, 60, Mulliken vs. Boyce. 9 Gill, 1, Dakin vs. Pomeroy. Ibid., 56, Ramsay vs. Glass. Ibid., 120, Anderson vs. Garrett. Ibid., 156, Clements vs. Smith. 12 G. & J., 484, Doyle vs. The Commissioners of Balto. County. 5 Do., 159, Md. & Phenix Ins. Co. vs. Bathurst.

5th. As to the several prayers embraced in the third exception: The first prayer of the plaintiff is defective for various reasons. You may question the consideration of the bond. If there was a total failure of consideration mingled with fraud, it may be given in evidence under the plea of non est factum. Any fact [**17]  which shows that the deed is not the deed of the party is admissible as a circumstance to go to the jury. Again, the prayer says the only question for the jury is to consider whether the testator executed and delivered the note "as claimed by the plaintiff." What does this mean? Does it mean as alleged in pleading or as proven in evidence? In this particular the prayer is uncertain and calculated to mislead the jury. Again, the bond was altered and erased, and it bore evidence of this on its face. The prayers of the plaintiff himself all concede this fact, and this court therefore must treat it as appearing on the record. This erasure and alteration was a suspicious circumstance, which throws the burthen of accounting for it on the plaintiff. Buller's N. P., 267. 2 Croke, 626, Markham vs. Gonaston. 14 East, 568, Weeks vs. Maillardet. 11 Coke's Rep., 27, Pigot's case. The prayer requires the alteration to be made by the plaintiff, whereas the cases just cited show that if it be made by a stranger and is material, it equally avoids the deed. In this particular also the prayer is defective. Where there is an alteration apparent on the face of the note, the onus is thrown on the plaintiff [**18]  to show that it was made with consent of the parties, and that it was not improperly made. 25 Eng. C. L. Rep., 395, Taylor vs. Mosely. 5 Bing., 183, Henman vs. Dickinson. 1 How., 111, United States vs. Linn, et al. 1 Metcalf, 224, Davis vs. Jenney. 9 Cranch, 28, Speake, et al., vs. The United States. 1 Pet., 561, Steele vs. Spencer. 2 Brock., 64, United States vs. Nelson & Myers. 6 G. & J., 254, Byers vs. McClanahan. The second prayer excludes all other questions from the jury except the delivery in blank, and asserts that such delivery is good, but this proposition is contrary to the whole current of decisions. This and all the other prayers on the part of the plaintiff, rejected by the court below, utterly ignore the fact of alteration and erasure apparent on the face of the bond, and for this reason were properly rejected.  

JUDGES:
The cause was argued before LEGRAND, C. J., ECCLESTON, TUCK and MASON, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*128]  LE GRAND, C. J., delivered the opinion of this court.
This was an action of debt, brought by the appellant, in Baltimore county court, against the appellee, as executor, upon an alleged bond of his testator for $ 2000, dated the 11th of December 1838,  [**19]  and payable on or before the 1st of July 1840. The suit was not brought until more than nine years after the bond became due and payable. On leave of court the defendant pleaded non est factum without oath.
In this state of the pleadings the plaintiff proved by a witness that the cause of action, with the exception of the date, name of the payee and the signature of the maker, was in his handwriting; that the signature was in the proper handwriting of the testator of the defendant, but he was unacquainted with that in which the name of the payee was written. He had no recollection whatever of having prepared the paper, and only knew the fact at the time of the trial from his recognition of his handwriting. The plaintiff further proved by the same 

 [*129]  witness, that about the date of the single bill sued upon, it was agreed between the plaintiff and defendant's testator, and Mrs. Rebecca Boarman, that the purchase money of certain real estate, sold by said testator for $ 2000, should be divided between plaintiff and Mrs. Boarman, so as to give her one-third part thereof; that the reason of said agreement was, that the land had been deeded many years before by Benedict L.  [**20]  Boarman to said testator, and the plaintiff claimed that it was so deeded in secret trust for the benefit of the grantor's wife, and of his only child, the wife of the plaintiff, but said testator denied said trust and declared that he so agreed as an act of generosity, so far as plaintiff's wife was concerned. The note payable to Mrs. Boarman for $ 666.66 2/3, bearing date the same day, and in the same form as that sued upon, was also offered in evidence. It was also given in evidence that Benedict L. Boarman was largely indebted at the time of the execution of the deed to the testator; that there was also a bill of sale executed by the said Benedict, (about the same time as his deed for his lands,) to said testator, for certain of Boarman's negroes. Defendant's testator denied all secret trusts both in regard to the land and negroes. The defendant then offered in evidence the records of two suits in Charles county court, brought by the defendant's testator against the plaintiff. To the admissibility of these records the plaintiff objected, and the reception of them constitutes his first bill of exceptions.
The second exception of the plaintiff was to the admission on the part of [**21]  the defendant of his testator's will, whereby it appeared that he claimed the right to dispose, as of his own, the property alleged by the plaintiff to have been conveyed to him in secret trust.
The third exception applies to the prayers granted and refused both on the part of the plaintiff and defendant.
Before noticing each of the exceptions, we deem it proper to state some of the principles of law, which, in our judgment, must control the decision of this case.
The plea on which issue was joined was that of a general non est factum. Whatever the law may be elsewhere, in Maryland it imposes on the plaintiff the onus of proving both 

 [*130]  the execution and delivery of the bond. Proof of execution and possession is sufficient evidence, prima facie, of delivery, and in the absence of all proof on the part of the obligor, would entitle the obligee to a verdict. The seal importing a consideration, the latter, as such, cannot be inquired into under this plea; but notwithstanding this, the obligee may give in evidence "any thing which goes to show that the instrument of writing was originally void at common law, as lunacy, fraud, coverture, &c., or that it has become [**22]  void subsequent to the execution and before the bringing of the suit, as by erasure, alteration," &c.  Union Bank of Md. vs. Ridgely, 1 Har. & Gill 324.
In the case now before us, the plaintiff, by the witness Stone, proved the execution of the instrument sued upon, and having it in his possession, was entitled to recover on it in this action, unless it could be assailed on some of the grounds to which we have alluded. This we did not understand the counsel for the appellee to question; but they contended, that inasmuch as the paper bore on its face evident marks of erasure and alteration, they were entitled to introduce the testimony admitted in the court below and to which the appellant excepted. Judging from the frame of the prayers and the course of argument of counsel, we infer the cause was tried in the court below on the allegation, that the bill exhibited on its face marks of erasure and alteration; and it was in reference to this hypothesis, doubtless, that the testimony contained in the first and second exceptions was introduced. But unfortunately for the appellee, there is nothing appearing in the record going to show in the slightest [**23]  particular the instrument had been subjected to any alteration, and therefore, so far as this court is concerned, it would be entirely gratuitous to assume it had undergone any change after its delivery. Whatever may have been the appearance of the paper at the trial, when, no doubt, it was submitted to the inspection of the jury and by them pronounced upon, there clearly is nothing before us to show it was not perfectly fair on its face. We can only decide the case according to the record, and if the party failed to have it put in a proper form, he must abide the consequences. If, in 

 [*131]  point of fact, it was obvious on inspection that the paper had been altered, it was easy to have it noticed in the exception, either by an agreement to that effect or by calling to the stand an expert in handwriting, and asking his opinion as to its appearance. Had this been done, and had the witness testified that the paper appeared to have been altered or any portion of it erased, we are of opinion the testimony in the first bill of exceptions, which was excepted to on the part of the plaintiff, would have been admissible as tending to show it had not been delivered in its then state.  [**24]  This evidence, however, it is proper to say, can only be admissible on the supposition, that it tends to show fraud on the part of the appellant, by showing his relations and dealings with the testator of the appellee. A witness on the stand could as readily give his opinion on the subject of alteration or erasure as could a juror in the jury box. We are of opinion, however, that under no state of circumstances was the will of William Sanders competent testimony. To allow it to be given in evidence, would be but to permit a party to testify in his own case and in his own behalf. As the case is presented to us on this record, we must reverse the ruling of the court both on the first and second exceptions.
As to the third exception: We think the court properly rejected the prayer offered on the part of the defendant. So far as this record shows, there is nothing in the case from which the jury could infer the hypothesis of the prayer. There is nothing from which they could infer, either that the single bill was delivered in blank or that it was delivered when payable to some other person than the plaintiff. As we have before stated, we have no judicial knowledge of the suspicious [**25]  appearance of the paper, if such in fact existed. We are also of opinion, that the court properly rejected the second prayer of the plaintiff. Independently of the question of law involved in it, there was no evidence of which to predicate it. The name of the obligee is a material part of the deed, and delivery in blank is an insufficient delivery unless recognised after the blank is filled. This is the general principle. There are some exceptions to it, but none of them applicable to a case like the one before us. We also think the court erred in 

 [*132]  granting the third and fourth prayers of the plaintiff. There was no testimony to support them; nothing to show the single bill was delivered in blank, nor that there had been any erasure of the name of the original obligee and the substitution of that of the plaintiff, with the consent of the testator of the defendant.
We are of opinion, that the first, fifth and sixth prayers of the plaintiff, as offered by his counsel, ought to have been granted. Although there is nothing in the testimony to support the latter part of the first prayer, this circumstance does not vitiate it. It requires the jury to find all that is essential [**26]  to the plaintiff's right of recovery. All that part of the prayer which follows the word "unless" is mere surplusage.
The other three prayers merely assert propositions which are recognized in all the cases, and which we did not understand counsel for the appellee to dispute. Their objection to them rested upon the theory, that they ignored the fact of alteration or erasure after the execution and delivery of the paper. Viewing this case as it is exhibited to us in the record, the qualification of these prayers, as insisted upon by counsel for the appellee, cannot be maintained for the reasons which we have already assigned.
Judgment reversed and procedendo awarded. 

64 of 187 DOCUMENTS 

GEORGE T. JENKINS vs. ELLIS B. LONG and WILLIAM W. BYRNE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 132; 1855 Md. LEXIS 38 

DECEMBER, 1855, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Court of Common Pleas for Baltimore city.

Assumpsit by the appellant against the appellees. The declaration counts upon the special contract set out in the opinion of this court; and also contains a count for work and labor, and the common money counts. Plea non assumpsit.

Three exceptions were taken by the plaintiff to the rulings of the court below, (MARSHALL, J.,) all of which are fully stated in the opinion of this court. The verdict and judgment were in favor of the defendants and the plaintiff appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

By a written contract the defendants agreed to pay the plaintiff a salary of $ 1000, payable in monthly instalments of $ 50 each, "if he sells for them, to such parties as they shall approve, $ 40,000 during the year, and for all sales above that amount, (deducting bad and doubtful debts,) two per cent. additional." The defendants were also to have the right to dismiss him at any time before the end of the year "by giving him a month's notice to that effect." HELD:

That the equitable construction of this contract is, that if defendants dismiss the plaintiff before the end of the year the latter is entitled to compensation in proportion to the amount he was to have received for the whole year, including both the contingent compensation of two per cent. and the proportionate part of the $ 1000, provided his sales for the fraction of the year were at the rate of $ 40,000 per annum, deducting bad debts.

In construing contracts it is legitimate to suppose new and different aspects of the case from those which have actually arisen, in order to ascertain whether the rule of interpretation adopted makes every phase which the case might assume harmonise with each other.

Where a special contract to pay a certain sum for services for a year provides that the defendant may dismiss the plaintiff at any time during the year upon giving a month's notice, and the latter is so dismissed; the contract is not violated or rescinded, and the plaintiff must recover upon it, and cannot resort to a quantum meruit.

Evidence in a quantum meruit is admissible if the contract has been violated or abandoned by the defendant, or terminated by consent of both parties after it has been partly performed.

Evidence under a quantum meruit can only be resorted to where the special contract from having been either violated or rescinded is not sufficient to meet the case.

Where a contract has been fully executed, and nothing remains to be done but the payment of the money, the amount due may be recovered in indebitatus assumpsit, and in such case it is not necessary to declare upon or set out the special agreement.

But where the contract remains in full force it must, by virtue of its own terms, constitute the evidence of the agreement itself, even where the plaintiff relies alone upon the common counts; and no other evidence is admissible. 

COUNSEL:
Benjamin C. Barroll for the appellant, argued:

1st. That the evidence contained in the first exception was admissible as being applicable to the count for work and labor. That the defendants having, by their own act, terminated the contract by discharging the plaintiff from their service, and having thus put it out of his power to perform his contract to its full extent it was at his election to go before the jury upon the quantum meruit. 1 Greenlf. on Ev., secs. 277, 287, 288. 7 H. & J., 133, Owings & Piet vs. Low. 2 Md. Rep., 38, Bull vs. Schuberth. 6 H. & J., 38, Watkins vs. Hodges, et al. Ibid,  [**2]  81, Speake vs. Sheppard. 9 Gill, 288, Rodemer vs. Hazlehurst. 2 Fairfield, 348, Jewett vs. Weston. And further, that the evidence was admissible as affording light to the court by which the true construction of the written contract could be better discerned. See sections from Greenlf., cited above, and 1 Mason, 12, Piesch vs. Dickson.

2nd. As to the construction of the contract raised by the second and third exceptions the appellant insists, that its true construction is, that the plaintiff is entitled to claim compensation pro rata, according to the amount of goods sold by him and not according to time as set forth in the defendant's prayer granted by the court below. The contract divides itself into two distinct branches; 1st. It states, that if Jenkins sells to the specified amount of $ 40,000 he is to receive $ 1000, which is equivalent to two and-a-half per cent. on the $ 40,000. And this he is to receive without regard to the ultimate payment by the purchasers. And the mode of payment is specified, viz., an advance of $ 350, and the balance in monthly instalments of $ 50 each. 2nd. Then with regard to the excess of sales over the $ 40,000. Upon such sales he is to receive [**3]  a commission of two per cent. at the end of the year, after deducting all bad and doubtful debts, upon which the commission is not to be paid; the meaning and intention being, it is presumed, that the payment of commissions on such shall be suspended until their quality is definitely ascertained. As the sales did not reach the amount of $ 40,000 the second branch of the contract does not require consideration as to its construction. The contract makes no reference to the ordinary compensation for a clerk or salesman in a store, but has special reference to the customers which Jenkins should bring to the house of the defendants, and beyond this custom which he was to introduce he had nothing to do with the general business of the concern. It was for the profit arising to them from this special custom the defendants contracted to pay $ 1000, (or two and-a-half per cent.,) for the sale of goods to the extent of $ 40,000. The whole tenor of the agreement shows it was a commission on sales, (by way of salary,) they were to pay, such form of compensation being familiar among merchants in large cities. The contract itself uses the term "commissions." The construction contended for by the [**4]  appellant is natural, equitable, and that by which no undue advantage could be taken by either of the contracting parties. The construction contended for by the appellees would place Jenkins wholly in their power; they could discharge him as soon as the spring sales were over, (and the evidence proves they did so,) and then seek to allow him a compensation not based upon the amount of service rendered, as evidenced by the amount of goods sold, but a compensation based altogether upon time. According to their construction of the contract he might, in three months, have sold within a fraction of $ 40,000, been discharged, and be entitled to receive a paltry pittance instead of the $ 1000 for which he had bargained. If Jenkins in five months had sold $ 40,000 worth of goods there cannot be a doubt he would be entitled to claim the $ 1000 stipulated to be paid in the contract, which would be equivalent to two and-a-half per cent., and as he has proved, that in five months he sold to the extent of $ 33,266.50, he insists he is entitled to claim at the same rate of two and-a-half per cent. on that amount, as he was debarred selling the further amount to make up the $ 40,000 by the act of [**5]  the defendants and not by any default on his part.

Oliver Miller and Robert C. Barry for the appellees, argued:

1st. As to the first exception: By the terms of the contract declared upon and offered in evidence by the plaintiff himself, he was to receive a specific sum for the service he was to render, and without attempting to show any violation or rescision of this agreement, he sought to repudiate it altogether and recover upon a quantum meruit, by introducing evidence to establish an implied agreement totally inconsistent in its terms with those set out in the existing special agreement proved by himself, and thereby admitted to be in full force and of binding authority. The rule of law is well settled and without exception, that you cannot imply a contract where you prove an express contract. In West vs. Flannagan, 4 Md. Rep., 56, this court has said: "As a general rule, implied contracts are only sustained in order to supply the place of express agreements, and we know of no case where the latter have been made to yield to the former, unless by the express or implied understanding of the parties that such should be the result. Indeed an express agreement admitted to [**6]  be in full force negatives an implied inconsistent agreement relating to the same subject matter." The fact that the declaration contains a count for work and labor does not affect the operation of the rule. In Cushman vs. Sims, 2 H. & J., 352, the declaration contained the common counts, and the court held, that if there was a special agreement proved the plaintiff could not recover. In Story on Cont., sec. 15, the rule is clearly and strongly stated: "A contract will be implied only when there is no express contract, 'expressum facit cessare tacitum.' If therefore there be an express contract between the parties, the plaintiff in an action to recover the consideration for work and labor done must declare specially thereupon. So long therefore as that contract remains unrescinded he cannot recover the value of his services upon a quantum meruit." See also Chitty on Cont., 24, (Ed. of 1851,) where the same rule is also stated in the same strong language, and the doctrine announced that a party cannot be bound by an implied contract when he has made a specific contract, "even although the latter be avoided by fraud." See also the cases cited by Chitty and Story in support of this general [**7]  rule. But it is said the defendants terminated the contract by discharging the appellant from their service, and having put it out of his power to perform his contract to its full extent, it was at his election to go before the jury upon the quantum meruit. It is undoubtedly true, that if the defendant violates the contract or prevents the plaintiff from carrying it out, (which is equivalent to a violation on his part and a fraud upon the contract,) the latter may recover upon a quantum meruit. But this rule is confined to cases of violated contracts and of fraud. Such is not the case here. In discharging the plaintiff the defendants did not violate the contract, but simply exercised their unquestioned rights under the contract. The plaintiff's recovery for what is due him must therefore be under and not outside of the contract. The cases cited in 2 H. & G., 133; 6 Do., 38, 81, and 2 Md. Rep., 38, are not in conflict with, but sustain all the views expressed above. But it is further said, this evidence was admissible as affording light by which the true construction of the written contract could be better discerned. It is difficult to understand how evidence that the value of plaintiff's [**8]  services for one year was worth from $ 2500 to $ 3000, can throw light upon the construction of a written contract, by which the value of those services for that period was fixed at $ 1000 if he sold $ 40,000 worth of goods, and two per cent. commissions on all sales above that amount. If such evidence can be admitted for such a purpose, it is difficult to understand the use of a written agreement in any case. If there be any ambiguity in the terms of this contract, it is patent upon the face of the instrument itself, and cannot be explained or removed by extrinsic evidence. 4 Md. Rep., 498, Marshall vs. Haney. Nor is it a case in which evidence of usage would be admissible, for such evidence is never admissible to vary or contradict the clear and manifest signification of the terms used by the contracting parties to express their meaning, nor to oppose or alter a general principle or rule of law. 6 Md. Rep., 37, Foley & Woodside, vs. Mason & Son. "A usage of trade cannot be set up in contravention of an express contract." Chitty on Cont., 24, (Ed. of 1851.) We therefore insist that the ruling of the court upon the first exception cannot be reversed, for with such reversal would go [**9]  a reversal of elementary text law.

2nd. The second and third exceptions relate to the construction of the contract in question. Upon these we insist: 1st. That the true construction of this contract is that given to it by the court below in granting defendants' prayer. The plaintiff was to receive a salary of $ 1000 if he sold during the year $ 40,000 to such parties as the defendants should approve, and after selling $ 40,000 he was to receive two per cent. commissions on all sums over and above that amount, all bad and doubtful debts, however, to be first deducted. The $ 1000 salary was to be drawn in monthly instalments. The commission of two per cent. on sums over $ 40,000 was to be paid at the end of the year, when the amount over and above $ 40,000 should be ascertained. There can be no doubt that the appellant was not entitled to receive aught but the $ 1000, if during the entire year he had sold only $ 40,000. It is admitted he sold but $ 33,266.50 up to the 1st of June 1850, when, under the notice given by defendants, in pursuance of a provision of the contract, he left their services. The contingency had not then happened by which the plaintiff was entitled to receive [**10]  any commissions on his sales. He was entitled to draw his salary at the rate of $ 1000 per annum, and no more, because he had not then even sold $ 40,000, which he was bound to sell before he could make any claim for commissions. The sale of $ 40,000 was clearly a condition precedent to the right to receive any commissions. If he was to receive a pro rata compensation on the sales made, without any reference to the time of service or amount sold, then all that part (which is by far the greater and most important portion) of the contract relating to the salary of $ 1000, and the sale of the $ 40,000 is utterly without meaning, and must be stricken from the instrument. We therefore confidently insist that the pro rata proportion of the salary of $ 1000, having reference to the time the plaintiff was in the defendants' service, is all that he can claim, and all that in equity and justice he is entitled to. The above is the construction given to the contract by the court below, and is the most favorable for the appellant which, as we conceive, can possibly be placed upon it. But we insist, 2ndly, that this is more than, upon a strict and legal construction of the contract, the appellant [**11]  is entitled to ask. This court must look at the contract as it stands, and put such a construction upon it as the plain import of its language demands, regardless of any considerations of hardship which such a construction may inflict upon the parties. Now what is the plain import of the language here used? We say the plaintiff can recover neither salary nor commissions, unless he remained in the service of the defendants, at their desire, till the 1st of January 1851, and sold for them $ 40,000 to such parties as they should approve. He did neither. How then can he recover anything under this agreement? The contract is, that the defendants "agree to pay Mr. Jenkins a salary of $ 1000, IF he sells for them, to such parties as they shall approve, $ 40,000 during the year." Is there any difficulty in construing this language? If he sells the $ 40,000 during the year, he is to recive his salary, if not he is to receive nothing. He must perform the condition before his right of action accrues. It is said he was prevented from performing this condition by the act of the defendants. This is true, but it is equally true that in so doing they violated no stipulation of the agreement, but on [**12]  the other hand merely exercised a right which the plaintiff, by the contract, agreed they should have the power to exercise. He was to remain in their service till the 1st of January 1851, if they so desired it, and they were to have the right to dispense with his services at any time previously by giving him a month's notice to that effect. This notice was given and he left in pursuance of it before he had sold the $ 40,000. They were not bound to assign any reason for dismissing him; this was left to their own uncontrolled and arbitrary discretion. It may be said this construction makes the contract a harsh, inequitable and one-sided bargain, and puts the plaintiff entirely in the power of the defendants; but the conclusive answer is, you so stipulated with "your eyes open to the rights and powers conferred by the contract, both upon yourself and the defendants." 4 Md. Rep., 57, West vs. Flannagan. Because a party has entered into an improvident bargain, it is no reason why he should ask relief in a court of law. It was a case of greater hardship in Wagner vs. White, 4 H. & J., 564, where the tenant was held responsible for the rent, though the house was torn down by a mob which [**13]  he could not resist, and yet the court there say, "the defendant has bound himself by express agreement, without any reservation or exception, to pay the rent, and he must stand by his contract. In Rodemer vs. Hazlehurst, 9 Gill, 292, a contract was made which the court called "peculiar and one-sided," by which the right to rescind it, upon three days' notice, was given to one side only, and the court held the plaintiff was released, because the required notice was not given. Here the month's notice was given, and there are no restrictions upon the right of the defendants to dismiss the plaintiff from their service at any time they chose, and without assigning any reason therefor. The only stipulation in the contract that in the least militates against this view, is that which provides that the salary of $ 1000 is to be drawn in monthly instalments, commencing at the end of January. But it is submitted that this clause is controlled and modified by the great and controlling condition, which, undoubtedly, was the consideration moving to the defendants in the execution of the contract, and upon which alone they agreed to pay the salary, viz., "the sale by the plaintiff of $ 40,000 during [**14]  the year;" and that each monthly payment was made subject to the condition, that this part of the contract was to be complied with, and in case of failure so to comply, was liable to be refunded by the plaintiff, or to be recovered from him by defendants in case he should refuse to refund.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and MASON, J.  

OPINIONBY:
MASON 

OPINION:

 [*140]  MASON, J., delivered the opinion of this court.
This is an action of assumpsit, the declaration in which contains a count upon a special agreement, a count for work and labor and the common money counts.
At the trial the plaintiff proved, that in virtue of a written contract, which was afterwards produced, he had been in the employment of the defendants from the 1st of January 1850 to the 1st of June 1850, a period of five months, and during that time had sold for them goods to the amount of $ 33,266.50, which had been duly delivered to the purchasers. He also proved that a written notice from the defendants, dispensing with his services, had been given to him thirty days prior to 1st of June, and that he left their employment in conformity 

 [*141]  with such notice. The plaintiff then gave [**15]  in evidence the written contract between himself and defendants, as follows:
"Memorandum of understanding between Long & Byrne and George T. Jenkins for the year eighteen hundred and fifty (1850.) The first named party agree to pay Mr. Jenkins a salary of one thousand dollars if he sells for them to such parties as they shall approve, forty thousand during the year, and for all sales over and above that amount, (2 p. c.) two per cent. additional, the excess over the one thousand dollars to be paid at the end of the year, when the amount of sales shall be ascertained, and the thousand dollars to be drawn in monthly instalments of fifty dollars per month, commencing at end of January, three hundred and fifty dollars being already advanced on next year's salary. Sales made by Mr. Jenkins personally, and orders from his friends and induced by his influence, (the packing of whose goods are to be superintended by him,) to be considered as constituting the amount of his sales, after deducting all bad and doubtful debts at the end of the year, which, under no circumstances, can the two per cent. commission be paid upon. It being further understood, that George T. Jenkins binds himself,  [**16]  under a penalty of five hundred dollars, to continue in the service of Long & Byrne till the 1st of January 1851, if they so desire it, and that they have the right to dispense with his services at any time previously by giving him a month's notice to that effect, to which agreement both parties pledged themselves, this 14th day of November 1849.
(Signed,)   LONG & BYRNE, by E. B. Long, GEO. T. JENKINS."
The plaintiff then offered to prove by several witnesses his competency and character as a business man, and the value of his services in connection with the dry goods business, (being the business in which Long & Byrne were engaged in the year 1850,) and particularly the value of his services to the defendants from the 1st of January 1850 to the 1st of June 1850. And offered further to prove his services worth for the year 1850 from $ 2500 to $ 3000. But the court refused to allow the testimony to go to the jury and ruled the same incompetent, which ruling forms the matter of the plaintiff's first exception.

 [*142]  The defendants then proved that the plaintiff had received from them $ 650.50; and thereupon the case was closed.
The plaintiff then asked the court to [**17]  instruct the jury, "that the true and legal construction of the contract offered in evidence is, that the plaintiff is entitled to receive for his services a pro rata compensation, to be estimated upon the amount of goods sold by him while in the employment of the defendants." But the court refused so to do and the plaintiff excepted.
The defendants then prayed the court, &c., "that if the jury find from the evidence that the defendants contracted with plaintiff, as set out in the contract, and that plaintiff entered into the service of the defendants on the 1st of January and remained in their service till 1st of June, (five months,) and then left their service in consequence of notice from defendants, in pursuance of said contract, the plaintiff is only entitled to recover in this action at the rate of $ 1000 per annum for the time he was so in defendants' service, and that from such amount must be deducted the amount of defendants' bill filed in this case and admitted by plaintiff to be correct." This prayer was granted and the plaintiff also excepted.
This case depends upon the proper construction of the written contract between the plaintiff and defendants. It is not [**18]  a case where evidence in a quantum meruit would be admissible as if the contract had been violated or abandoned by the defendants, or where it had been terminated even by the consent of both parties after it was only partly performed. Such were the cases of Watkins vs. Hodges, 6 Har. & Johns. 38; Howard vs. Rail Road Co., 1 Gill 311; Rodemer vs. Hazlehurst & Co., 9 Gill 288; Bull vs. Schuberth, 2 Md. 38; Balt. & O. R. R. Co. vs. Resley, 7 Md. 297.
The defendants did not violate the terms of the agreement in dismissing the plaintiff, but in doing so they acted in strict conformity with them. Notwithstanding this dismissal of the plaintiff, it was nevertheless as much a perfectly executed and an entire contract between both parties as if it had continued for the whole year and as if the plaintiff had sold $ 40,000 worth of goods, and it was, therefore, as much the subject of 

 [*143]  a special action. Evidence under a quantum meruit is only resorted to where the special contract, from its having been either violated or rescinded, is not sufficient to meet the case. But [**19]  here such is not the fact. The construction which we place upon this contract makes it ascertain, by force of its own terms, the precise amount of compensation which is due the plaintiff, and therefore there is no necessity to resort to evidence out side of the contract to ascertain, upon a quantum meruit, what that compensation should be or what the services were worth.
The question involved in the first exception is not one of pleading but one of evidence. There is no doubt that where the contract has been fully executed and nothing remains to be done but the payment of the money, the amount due can be recovered in indebitatus assumpsit, and it is not necessary in such case to declare upon or set out the special agreement. But where the contract remains in full force, as in this case, it must constitute, by virtue of its own terms, the evidence of the agreement itself, even where the plaintiff relies alone upon the common money counts, and no other evidence will be admissible.
Surely the defendants were entitled to whatever advantage they may derive from the provision in the contract, which authorises them to terminate it by dismissing the plaintiff after thirty [**20]  days' notice. But if by doing so, the defendants are to be treated as having so far abandoned the contract as to permit the plaintiff to resort to evidence in indebitatus assumpsit instead of the special contract, what better off are they than if no such provision was embraced in the agreement? In other words, the effect upon the defendants would be precisely the same, whether, in dismissing the plaintiff, they violated the contract, or whether, in doing so, they pursued its strict letter and spirit.
We are, therefore, of the opinion, that the evidence embraced in the first bill of exceptions was properly rejected. It sought to substitute an implied agreement in the place of the positive contract between the parties, which, as we shall presently show, though executed, was still in full force and virtue, unrescinded or unviolated by either party.

 [*144]  The equitable construction of this contract is evidently this: If the defendants should think proper, before the end of the year, to terminate the contract and dismiss the plaintiff, the latter would be entitled to compensation for the fraction of the year in proportion to the amount he was to have received for the whole year,  [**21]  and this would include as well the contingent compensation of two per cent. as the proportionate part of the $ 1000; provided, however, that the sales made for the fraction of the year had been at the rate of $ 40,000 per annum. Thus, to entitle the plaintiff to recover for the five months he was in the defendants' service, it must appear that he sold goods in that time to the amount, at least, of $ 16,666.66, which sum bears the same proportion to $ 40,000 that five months bear to one year. This having been shown, he became at once entitled to his share of the $ 1000 in the proportion also of five to twelve, which is $ 416.66 2/3. By the admissions in the record it appears, that the plaintiff, in the five months, sold goods to the amount of $ 33,266.50, which was an excess of $ 16,599.83 over the sum necessary to entitle him to claim compensation. Upon this excess he was entitled to two per cent. commissions, which, provided there were no bad debts, would amount to $ 331.99, which, added to the proportion due on his fixed salary, would make the plaintiff's claim, on the 1st of June 1850, the time he was dismissed, $ 748.65 2/3. Deducting the account of the defendants, which is admitted [**22]  to be $ 650.50, the balance due the plaintiff would be $ 98.15 2/3, with interest. As before said, this sum would be subject to be reduced upon proof that any portion of the sales were bad debts, upon which, by the terms of the contract, he was to have no commissions.
From what we have said, it follows, that the construction of the contract contended for by the appellee, namely, that there could be no recovery in this case, either of any fraction of the fixed salary or the contingent per centum until after an actual sale of $ 40,000 worth of goods had been made, is wholly untenable. The opposite suggestion, that the appellant would be entitled to 2 1/2 per cent. on the sales actually made while they continued below $ 40,000, which is at the rate of $ 1000 upon $ 40,000 is equally unsupported by the terms of the agreement. The 

 [*145]  effect of the latter construction would be to allow the plaintiff a greater rate of compensation for the five months than he would have been entitled to if he had continued in service till the end of the year, and had sold at the same ratio; whereas it is manifest from the terms of the agreement, that the contract, although made for a whole year,  [**23]  nevertheless contemplated a case of a segregation or division of it into fractions of a year, and that the compensation to be allowed for such fraction would be determined by the standard adopted for the whole year.
It is proper in construing contracts, not to confine ourselves to the particular state of case that has arisen under it, but it is legitimate for us to test the correctness of our impressions upon the particular state of facts that may be presented by the record, by supposing new and different aspects of the case, in order to ascertain whether the rule of interpretation adopted makes every phase which the case might assume harmonise with each other.
That the view we have taken of this contract is the correct one, appears manifest to our minds from the following illustrations: Suppose the plaintiff had sold goods, say at the rate of $ 200,000 for the year, the commissions on the excess over $ 40,000, added to his fixed salary, would amount to $ 4200. To avoid the payment of these commissions it would be only necessary for the defendants to give notice, on the 30th of November, for the purpose of dismissing the plaintiff, and thus on the 30th of December, one day only before [**24]  his claim for the full year's compensation would be consummated, he would find himself bereft of the fruits of his labors, (the commissions,) for the previous 364 days of the year, and that too without any default or misconduct on his part. This might be inevitably one of the results of the construction contended for by the appellee.
Again, suppose the defendants should think proper, in two months, to dismiss the plaintiff, and that in that time he had sold $ 40,000 worth of goods, if the construction contended for by him be correct, he would be entitled to $ 1000, whereas by the rule we have adopted he would be entitled to only 

 [*146]  $ 833.33 1/3. If it were otherwise and our rule of construction were not adopted the contract would be without mutuality, and would be susceptible of great injustice.
The contract further provides, that "the thousand dollars to be drawn in monthly instalments of fifty dollars per month." This provision of course rests upon the assumption, that the sales were to be at least at the rate of $ 40,000 per annum; and it furnishes another illustration, that notwithstanding the contract might be terminated before the end of the year, still it was,  [**25]  for the fraction of the year in which it might remain in force, to be regarded as an entire, executed contract.
The construction placed upon this contract, by the court below, being in our judgment erroneous, we must reverse the judgment and remand the cause, in order that the jury, upon a subsequent trial, may be instructed in accordance with the views herein expressed.
Judgment reversed and procedendo awarded. 

CONCURBY:
ECCLESTON 

CONCUR:

ECCLESTON, J., delivered the following separate opinion:
By the terms of the agreement the clerk was to receive as a salary $ 1000, if he sold, to such persons as the defendants should approve, $ 40,000 worth of goods during the year, and two per cent. for all sales above that amount. At the end of five months the clerk was discharged, up to which time he had sold $ 33,266.50, from which no abatement is claimed on account of sales to improper parties. The sales being made within the year, and not exceeding $ 40,000, according to my construction of the contract, and in view of the circumstances disclosed by the record, I think the clerk had a right to claim 2 1/2 per cent. upon $ 33,266.50, because a salary of $ 1000 for selling goods amounting to [**26]  $ 40,000, is at the rate of 2 1/2 per cent. on the latter sum. Of course the defendants should be credited with the payments made by them.
I concur with the majority of the court in reversing the judgment, but not in their construction of the contract.  

65 of 187 DOCUMENTS 

JOSEPH BLIMLINE vs. DAVID COHEN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 147; 1855 Md. LEXIS 39 

DECEMBER, 1855, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Court of Common Pleas for Baltimore city.

Replevin by the appellant, to recover certain goods, merchandise and chattels contained in a store in Baltimore city, which had been mortgaged by the appellant to the appellee, to secure the sum of $ 500. The damages claimed in the declaration were $ 500. The property as appraised in the schedule annexed to the return of the writ amounted to $ 538.05. Pleas, non cepit and property in defendant.

The verdict and judgment were in favor of the defendant upon an instruction granted by the court, (MARSHALL, J.,) that the plaintiff was not entitled to recover, if the jury believe that the goods actually taken and delivered to the plaintiff were then of the value of more than $ 500, to which ruling, as well as to the refusal to grant several prayers offered by him, the plaintiff excepted and appealed. The ground upon which this court based its decision renders it unnecessary to state the questions which were presented by the prayers or the arguments of counsel thereon.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

The 10th sec. of the 4th art. of the constitution giving to the Court of Common Pleas "jurisdiction in all cases where the debt or damage claimed shall be over $ 100, and shall not exceed $ 500," does not confer upon that court any original jurisdiction in actions of replevin. 

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and MASON, J.; by Wilson N. Carr and Wm. Pinkney Whyte for the appellant, and [**2]  Geo. Wm. Brown for the appellee.  

OPINIONBY:
LE GRAND 

OPINION:

 [*147]  LE GRAND, C. J., delivered the opinion of this court.
In the view we have of this case it is not necessary we should examine the various points raised and discussed by counsel. We are of the opinion that the Court of Common Pleas has not any original jurisdiction in actions of replevin. Its jurisdiction is limited and defined by the 10th section of the 4th article of the constitution. That section declares the Court of Common Pleas "shall have jurisdiction in all suits 

 [*148]  where the debt or damage claimed shall be over one hundred dollars, and shall not exceed five hundred dollars." Language similar to this in the old acts of Assembly, giving jurisdiction to justices of the peace, was never considered as conferring on them jurisdiction in actions of replevin, and it was therefore found necessary to pass other acts conferring it in direct terms.
Judgment affirmed. 

66 of 187 DOCUMENTS 

FREDERICK DIETUS vs. FRANCIS J. FUSS, Trustee of GOTLIEB DIETUS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 148; 1855 Md. LEXIS 40 

DECEMBER, 1855, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

Trover by the appellee, as permanent trustee in insolvency of Gotlieb Dietus, brought on the 8th of July 1851, against the appellant, to recover the value of twenty-three cows, four horses, seven hogs, one milk-wagon, and a lot of household and kitchen furniture, which the nar alleges the said Gotlieb was possessed of on the 11th of February 1851, and on the same day casually lost, and which on the same day came to the possession of the defendant by finding, and were converted by him to his own use on the 26th of June 1851. The nar also alleges, that on the 11th of February 1851, said Gotlieb petitioned for the benefit of the insolvent laws, and the plaintiff was appointed his permanent trustee, and filed a duly approved bond as such on the 25th of June 1851. Plea, non cul.

Exception. It was admitted that Gotlieb Dietus petitioned for the benefit of the insolvent laws on the 11th of February 1851, and that plaintiff was appointed his permanent trustee and duly bonded as such on the 25th of June 1851. The plaintiff then proved that said Gotlieb had not obtained his final discharge, and then called several witnesses who proved [**2]  substantially the following facts: that said Gotlieb carried on the milk-business, and his property was appraised, at the instance of the defendant, in March or April 1851, at $ 900 or $ 1000; that not long prior to his application for the benefit of the insolvent laws he was hard pressed for money, borrowed small sums, said his brother, the defendant, had helped him out several times and he was afraid to apply to him again; that in the spring of 1851 he was sued and said he must petition if the judgment could not be superseded; that he carried on his business as usual up to time of his application and was in possession of his stock, &c.; that on the 25th of June 1851, plaintiff made a demand in writing upon the defendant for the property in dispute which was received by him from Gotlieb, and particularly described in a bill of sale from Gotlieb to defendant, dated the 13th of June 1850, to which defendant replied that he would not give it up. He also offered in evidence several notes given by Gotlieb for debts dated in 1850 and 1854.

The defendant then offered in evidence the bill of sale of the property in question (which was duly recorded) from Gotlieb to him, dated the 30th [**3]  of June 1850, in consideration of $ 1000 in hand paid. He then proved by several witnesses, that Gotlieb had been several times in execution on other judgments than that on which when arrested he petitioned; that he carried on his business up to the time of his arrest and was in his milk-wagon when arrested, and on the same morning petitioned; that defendant was a butcher and did not carry on the milk-business. He then proved by Sacks, that on the 28th of January 1851, Gotlieb sold to witness a lot of cows, horses, hogs, milk-wagon, and other property appertaining to his milk concern, for $ 1000, of which $ 400 was paid by the extinguishment of a debt due by Gotlieb to him, which had been running for several years, and for which defendant was security, and the remaining $ 600 was paid to defendant; that defendant was not present at this sale; that at that time Gotlieb had the property in his possession, and shortly thereafter delivered possession thereof to witness and moved from the place, carrying with him the articles he had not sold; that defendant told witness to sell his brother, Gotlieb, cows and he would pay for them.

The plaintiff then recalled a witness, who proved that [**4]  he heard defendant tell the plaintiff, who inquired of him why he had taken so large a bill of sale, as Gotlieb could not owe so much? that he had taken it so that none of the creditors should lose any thing. The plaintiff then offered three prayers, as follows:

1st. If the jury find from the evidence that at the time the bill of sale offered in evidence was made by Gotlieb Dietus he was indebted to several persons, who are yet unpaid, and that after its execution he remained in possession of the property therein mentioned as before, and prosecuted his business as milk-dealer up to a short time before his application for the benefit of the insolvent laws, and that the consideration mentioned in said bill of sale was not bona fide paid as therein stated, in money or in satisfaction of some existing debt due by the grantor to the grantee, or in other equivalent value, and that the contract between Gotlieb and Sacks was made with the privity of the defendant, then the jury may infer that said bill of sale was made to hinder and delay the creditors of said Gotlieb, and if they make such inference, it is fraudulent and void as against the creditors of said insolvent.

2nd. If they [**5]  find the facts stated in the first prayer and draw the inference thereby authorised, and further find that before the institution of this suit the plaintiff was appointed permanent trustee of said Gotlieb Dietus, and gave bond as such, which was afterwards duly approved, and that thereafter he demanded of the defendant the property mentioned in said bill of sale, and that defendant refused to deliver the same, then plaintiff is entitled to a verdict for such amount as the jury may find from the evidence to be the value of the property in question.

3rd. This prayer is fully stated in the opinion of this court.

The defendant then offered the five following prayers:

1st. This prayer contains the proposition which is also fully stated in the opinion of this court.

2nd. If the jury find from the evidence that defendant came into possession of the chattels in question prior to Gotlieb's application for the benefit of the insolvent laws, under the bill of sale of the 13th of June 1850, and that such possession ended prior to said application, in consequence of no act or consent of the defendant, but of the acts of Gotlieb; and further, that at the time of the alleged demand [**6]  and refusal the defendant had not possession or control of said chattels, they must find a verdict for the defendant.

3rd. This prayer is fully stated in the opinion of this court.

4th. If the jury shall find from the evidence that defendant came into possession of the goods and chattels alleged to be converted under a sale or transfer from Gotlieb Dietus prior to his application for insolvency, and that plaintiff, since his appointment as trustee of said Gotlieb, has made no demand of said goods and chattels at a time when defendant had possession or control of them, then, though they believe such sale or transfer was made in contemplation of insolvency, they must find for the defendant.

5th. This prayer is fully stated in the opinion of this court.

The court below, (FRICK, J.,) granted all the prayers of the plaintiff and rejected all those offered by the defendant, and then gave the instruction set out in the opinion of this court. To which instruction by the court, as well as to the granting of each of the plaintiff's and the rejection of each of the defendant's prayers, the defendant excepted, and the verdict and judgment being against him, appealed.  

DISPOSITION:
Judgment [**7]  reversed and procedendo ordered.  

HEADNOTES:

A prayer which leaves it to the jury to infer that a bill of sale was fraudulent and void as to creditors, from the fact, simply, that the grantor, at the time he executed it, was indebted to several persons, whose debts remained unpaid, without submitting to them any question as to the amount of such indebtedness or the extent of the grantor's means, or whether he was in embarrassed or insolvent circumstances, is defective.

Trover cannot be maintained without a conversion either direct or constructive, and which must be proved either directly or by inference.

When the plaintiff fails to prove an actual conversion, he must give evidence of a demand and refusal made at a time when the defendant had the power to give up the goods.

A demand and refusal are only evidence of a prior conversion, which may be explained or rebutted by evidence to the contrary.

Where a party in insolvent circumstances sells property, and his vendee sells or disposes of it after the vendor petitions, or if before petition and while the goods are in his possession the vendor makes a second sale, which the first vendee subsequent to the petition adopts or sanctions, it will amount to a conversion by such vendee without a demand and refusal.

But the mere fact that a party before he petitions makes a fraudulent bill of sale of property, without any proof as to an actual conversion or a demand and refusal, will not justify a verdict in trover in favor of the insolvent's trustee against the grantee.

A prayer that the insolvent trustee could not recover against such grantee, unless the jury believe the bill of sale void under the insolvent laws, is defective, because though not void under those laws, the deed may still be void under the statute of Elizabeth.

The particular day named in the nar, either in reference to the possession of the party whose goods have been converted or to the conversion, is an immaterial averment as to time. 

COUNSEL:
James A. Buchanan and Chas. J. M. Gwinn for the appellant, argued:

1st. That the plaintiff's first prayer is erroneous in this:-- 1st. That it makes the mere fact of an indebtedness of Gotlieb Dietus at the time of the execution of the bill of sale a circumstance from which the jury may infer it was intended to hinder and delay his creditors, without limiting the instruction in such a manner as that the jury should consider the amount of such indebtedness, its proportion to the whole property conveyed, the presence or absence of proof as to his possession of other property sufficient to pay such outstanding demands. 5 Gill, 449, Worthington, et al., vs. Shipley. Under the law of this part of the instruction, if the jury had found an indebtedness on the part of Gotlieb of one dollar, the technical requirement of the instruction would have been satisfied. 2nd. It makes Gotlieb's remaining in possession of the chattels conveyed a circumstance from which the jury may also infer such intent to hinder and delay creditors, when, by the provisions of the act of 1729, ch. 8, sec. 5, the bill of sale having been duly recorded, the grantor's remaining [**8]  in possession was in exact conformity with law and good faith. 3rd. It improperly makes the prosecution of his business by Gotlieb with the articles so legally in his possession up to the time of his application, a circumstance from which the jury may infer an intent to hinder and delay his creditors in executing the bill of sale. 4th. It authorises the jury to find an intent to hinder and delay creditors, if they believe the very pecuniary consideration of $ 1000 was not paid by the defendant to Gotlieb either in its exact sum of money, or in its exact sum in satisfaction of existing debts, or in some other exact equivalent value, which was well calculated to mislead the jury, as it did not leave to them the simple determination of the inquiry, whether the consideration was a valuable one or not, but left them free to find for the plaintiff if defendant had paid any less sum than $ 1000 or was the creditor of Gotlieb in any less sum. 5th. It authorises the jury to find the privity of the defendant to the sale made to Sacks to be a circumstance of fraud, when such sale was right and proper if it had the assent of the defendant, since, by the recording of the bill of sale, the right [**9]  of property in the chattels transferred was vested in him and the right of possession remained in Gotlieb so long as it was not claimed by defendant, and in the disposition of the property with the consent of the defendant, Gotlieb can only be intended to have acted as his proper agent and by his permission. 6th. The question should not have been upon the intent, as it is here inferentially made, with which the defendant took the bill of sale, but upon the intent with which Gotlieb made it and the consideration upon which it was made; for if made without intent to hinder and delay creditors and for a valuable consideration, the assent given afterwards by the defendant to the disposition of the property could not affect the validity of the bill of sale in its inception and execution. 7th. The conduct of the defendant subsequent to the execution of the bill of sale with regard to the disposition of the property conveyed to him, making no part of the res gestae, was not a proper circumstance to be left to the jury as in any sense an indicium of fraud. 3 Md. Rep., 77, Stewart vs. Redditt.

2nd. The plaintiff's second prayer is also erroneous:--1st. Because it is based upon the first [**10]  prayer which we have shown to be defective. 2nd, for the further reason, that it makes the mere fact of demand and refusal evidence of a conversion, although it was in proof the property was not at the time of such demand and refusal in the possession or under the control of the defendant, and never had been in his possession. 3rd. Because in order to make a demand and refusal evidence of a conversion, it must be proved that defendant had at the time of such demand and refusal the possession or control of the property demanded of him. 2 H. Bl. Rep., 135, Nixon vs. Jenkins. 2 Greenlf. on Ev., sec. 644. 11 Mees. & Wels., 362, Edwards vs. Hooper. 9 Barn. & Cres., 764, Jones vs. Fort. 1 Camp., 439, Smith vs. Young. 13 Pick., 294, Vincent vs. Cornell. 3 Metcalf, 6, Leonard vs. Tidd.

3rd. The plaintiff's third prayer is defective, because it assumes that the mere invalidity of the deed to the defendant gave the plaintiff a right to recover in trover, without leaving it to the jury to find whether there had been any actual conversion of the property by the defendant, or any demand made on, and refusal by him, if he had it in his possession; or without leaving them to find whether the [**11]  defendant had ever been in the actual possession of the property so conveyed to him by the bill of sale; and because, in fine, the prayer assumes that a right to the possession of the chattels or to their proceeds was of itself sufficient to maintain trover, whereas, on the contrary, the prayer is not law, because it does not direct the jury to find such demand and refusal or any fact equivalent thereto. Vide cases cited on the second point.

4th. The defendant's first prayer presented the true rule to enable the jury to test the validity of the bill of sale, and should have been granted. 5 G. & J., 377, Hickley vs. Farmers & Merchants Bank. 6 Do., 323, Crawfords vs. Taylor. Act of 1834, ch. 293, sec. 1. 7 G. & J., 170, Dulaney vs. Hoffman. 6 Do., 205, State vs. Bank of Md. Ibid., 363, Union Bank vs. Ellicott. 1 Gill, 412, Cole vs. Albers & Runge. 4 Do., 38, Wheeler vs. Stone. 7 Do., 378, Gardner vs. Lewis. Ibid., 439, Stewart vs. Union Bank.

5th. Our second prayer presented the true law of the case. Vide authorities under the second point, and 6 Barbour, 436, Kelsey vs. Griswold.

6th. The court erred in rejecting our third prayer, for the reason that the defendant could [**12]  not be made liable when the property had been taken from him by Gotlieb before he was insolvent, and before his trustee had acquired any right to the property in question. 12 G. & J., 341, Repp vs. Repp. 11 Mees. & Wels., 362, Edwards vs. Hooper. And for the further reason that the plaintiff, in his declaration, avers that the defendant converted Gotlieb's property to his own use on the 11th of February 1851, and the defendant was not liable if he could show that Gotlieb had taken the property from him prior to February 11th, 1851, when Gotlieb applied for the benefit of the insolvent laws.

7th. Our fourth prayer was also improperly rejected for the reason, that if the jury found the defendant came into possession of the property in the manner stated in the prayer, he could not be guilty of a conversion until it was demanded of him and until he had refused to give it up. And in order to make a demand and refusal evidence of a conversion, the plaintiff must show that at the time it was made the defendant had possession or control of the property demanded. 2 Greenlf. on Ev., sec. 644. 2 H. Bl. Rep., 134, Nixon vs. Jenkins. 13 Pick., 294, Vincent vs. Cornell. 5 Md. Rep., 433, Stewart [**13]  vs. Spedden.

8th. Our fifth prayer should have been granted, for the reason that the plaintiff avers in his declaration that the property in the goods and chattels in question was in Gotlieb, on the 11th of February 1851, when the defendant converted them to his own use, and this must be proved, because a prior conversion is not sufficient. 11 Mees. & Wels., 362, Edwards vs. Hooper. 2 Younge & Jervis, 101, Balme vs. Hutton. 4 Md. Rep., 352, Mayor & C. C. of Balto. vs. Norman.

9th. The court erred in its instruction, because it was calculated to, and doubtless did, mislead the jury; for under it they could find a verdict for the plaintiff if they believed the bill of sale invalid, although they should not have found that defendant was ever in possession of the goods conveyed to him by it, or that he ever converted them to his own use, or though they should believe there had been no sufficient or any demand or refusal, and though they should find the goods had been sold to Sacks without authority from the defendant, or had been, in fact, converted to the use of Gotlieb by the single act of Gotlieb, and because upon this instruction, which is avowed by the court to be the law [**14]  of the whole case, no rule was furnished to the jury by which they could assess the damages in the case. 2 Greenlf. on Ev., sec. 649. 5 Md. Rep., 438, Stewart vs. Spedden. 7 H. & J., 257, Bohn vs. Headley.

10th. That as from the proof there can be no recovery, a procedendo ought to be refused if judgment is reversed. 7 H. & J., 251, Bohn vs. Headley. 6 Md. Rep., 113, Gittings vs. Mayhew. 6 Gill, 191, Emery vs. Gault.

John J. Snyder and David Stewart for the appellee, argued:

1st. That there was evidence to go to the jury, that the bill of sale made by the insolvent to the defendant was not made fairly and bona fide, and the plaintiff therefore could recover the property in trover. 1 Md. Rep., 455, Waters vs. Dashiell.

2nd. That the demand made by the plaintiff upon the defendant for the property in the written demand mentioned, and the unqualified refusal of the defendant to deliver the same was evidence of the previous conversion by the defendant of the property referred to in the demand. 7 Eng. C. L. Rep., 278, Wilton vs. Girdstone.

3rd. That the contract between the insolvent and Sacks, if made with the privity of the defendant, was evidence from which the [**15]  jury might infer, that the bill of sale set up by the defence was made to hinder and delay the creditors of the insolvent, and that there is in the record abundant evidence of such privity on the part of the defendant.

4th. That the rights of the plaintiff have relation back to the date of the application of the insolvent, and that if the bill of sale was fraudulent the defendant is responsible to the plaintiff for any conversion of the property whereby it was withheld from the plaintiff as trustee, though such conversion may have taken place before the day of the demand and refusal. 1 Term. Rep., 157, Thompson vs. Councel. 5 Bingh., 597, Price vs. Helyar. 3 Camp., 396, Wyatt vs. Blades. Smith's Lead. Cases, 237. 6 East, 540, McCombie vs. Davies. 7 Johns., 257, Bristol vs. Burt. 5 Cowen., 323, Reynolds vs. Shuler.

5th. That the sale by the defendant or with his consent, after the application of Gotlieb Dietus for the benefit of the insolvent laws, was an actual conversion, and that a demand and refusal were unnecessary. 5 East, 407, Bloxam vs. Hubbard. 1 Eng. C. L. Rep., 439, Craven vs. Ryder. 14 Do., 222, Yates vs. Carnsew. 4 Blackford, 397, Coffin vs. Anderson. 1 Burr,  [**16]  20, Cooper vs. Chitty. 23 Eng. C. L. Rep., 338, Balme vs. Hutton. 16 Do., 237, Egan vs. Threlfall.

These points we think cover the entire case and demonstrate the correctness of the ruling of the court below in granting the plaintiff's prayers and rejecting those of the defendant; and also vindicate the propriety of the court's instruction, which is not to be regarded as a distinct and separate instruction, but must be taken in connection with the plaintiff's prayers.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and MASON, J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*157]  ECCLESTON, J., delivered the opinion of this court.
The first proposition in the plaintiff's first prayer, relied upon as furnishing evidence, in connection with other matters, to justify the inference, that the bill of sale alluded to was made to hinder and delay creditors, and therefore void, is simply, that when Gotlieb Dietus executed the instrument he was indebted to several persons, who remained unpaid up to the time of trial. There is no question submitted to the jury as to the amount of his indebtedness or the extent of his means, nothing as to whether he was in embarrassed or insolvent circumstances [**17]  further than what might be conjectured from the fact of his having several creditors whose claims were not subsequently paid. The language of the instruction would have been complied with if the jury had believed Gotlieb Dietus' creditors were three in number, to each of whom he owed five dollars, whilst he was worth forty thousand dollars. A prayer containing a proposition so well calculated to mislead a jury should not have been granted.
The second prayer on behalf of the plaintiff presents, not only the facts, but also the inference to be drawn from them, as set forth in the first; and if that is erroneous this likewise must be so.
Before expressing an opinion in reference to the plaintiff's 

 [*158]  third prayer it is proper to notice some of the principles relating to the subject of conversion, for the action of trover cannot be maintained without a conversion. It may be either direct or constructive, and therefore may be proved directly or by inference. When the plaintiff fails in proving an actual conversion it will be necessary for him to give evidence of a demand and refusal having been made at a time when the defendant had the power to give up the goods. A demand [**18]  and refusal are only evidence of a prior conversion, which may be explained and rebutted by evidence to the contrary. 2 Greenl. on Ev., secs. 642, 644.  Edwards vs. Hooper, 11 Mees. & Wels. 363.
In Nixon vs. Jenkins, 2 H. Bl. Rep. 135, goods were sold to the defendant by a party in contemplation of insolvency, and with a design of defeating the claims of his creditors. He committed an act of bankruptcy shortly after the sale, and an action of trover was instituted by his assignees to recover the value of the goods, in which they gave no proof of a demand and refusal. On behalf of the plaintiff it was insisted, that because the sale was fraudulent no demand and refusal need be proved, that being only necessary where the possession was originally lawful, and then the possession was wrongful.
But it was held by the court, "That a demand and refusal were necessary to maintain the action. When the sale was made the parties were competent to contract; there was no unlawful taking of the goods, though the transaction was liable to be impeached by the assignees. They might either affirm or disaffirm the contract, and if they thought proper to disaffirm it [**19]  they ought to have demanded the goods, a refusal to deliver which would have been evidence of a conversion." And in Browne on Actions at Law, 440; the author says, "If a trader, in contemplation of bankruptcy, make a collusive sale or fraudulent preference, the assignees cannot maintain trover without a demand and refusal." In support of which position he refers to 2 H. Bl. Rep. 135; 9 B. & C. 764; and 4 M. & R. 547. See also Stewart vs. Spedden, 5 Md. 433, as to when a demand is necessary.
Although the principle stated by Brown, and recognized in 

 [*159]  the authorities cited by him be true, yet if a vendee, under such a sale, disposes of the property by sale or otherwise, after his vendor has made application for the benefit of the insolvent laws, or if prior to the application, whilst the goods were remaining in the possession of the original vendor, he may have made a second sale of them, and subsequently to the petition the first vendee adopts or sanctions that sale, such conduct will amount to a conversion without a demand and refusal, so far as relates to the sale of the goods so adopted or sanctioned. The authorities referred [**20]  to by the appellee's counsel show this view of the subject to be correct. And surely it would not be promoting the ends of justice to hold, that without a demand and refusal the trustee of an insolvent could not maintain an action of trover against the first vendee under such circumstances, because a demand and refusal, after he had parted with all authority and control over the property, would not make him responsible in trover, as he would have no power to comply with the demand when made.
The third prayer asked the court to instruct the jury, if they should find that when the suit was instituted the plaintiff had been appointed permanent trustee of Gotlieb Dietus, and had given bond as such; and if they should also find, that the bill of sale given in evidence was not made upon the consideration therein stated, and was not made bona fide, that then the said bill of sale was clearly and utterly void, and the plaintiff was entitled to recover what the jury might find to be the value of the property therein mentioned. If we are to consider this prayer as having any reference whatever to the subject of conversion, it must rest exclusively upon the hypothesis, that the bill of sale [**21]  was fraudulent and void, and that the simple execution of it operated as a sufficient conversion to sustain the suit; without requiring that the jury should find anything in reference to the possession of the goods, whether they had been resold or in any way disposed of, or whether there had been a demand and refusal. The bill of sale was made before the grantor filed his petition as an insolvent, and even admitting it was fraudulent, and the jury might have believed it to be so, still that alone, unsupported by any other fact in regard 

 [*160]  to an actual conversion, or to a demand and refusal, would not justify a verdict in trover in favor of the plaintiff. The prayer was therefore erroneous.
The first prayer of the defendant was properly refused. The proposition contained in it is, that the plaintiff was not entitled to recover unless the jury believed the bill of sale had been made by the grantor with a view or intent of taking the benefit of the insolvent laws; and unless they should likewise believe the defendant had actual notice that the grantor was insolvent at the time of executing the bill of sale, and of the intention of the grantor to apply for the benefit of the [**22]  insolvent laws. This was erroneous, because it did not follow that if the bill of sale was not void under our insolvent laws it might not be successfully assailed under the statute of Elizabeth, in the opinion and belief of the jury.
Our reasons for thinking the court did right in refusing the defendant's third prayer will be found sufficient, we think, to show there was no error in not granting his second prayer.
The position taken in the defendant's third prayer is, that if the jury believed the defendant's possession of the chattels in question, at any time prior to Gotlieb Dietus' application for the benefit of the insolvent laws, was with the consent of Gotlieb Dietus; and should also believe that such possession ceased by the act and choice of Gotlieb prior to his application as an insolvent, and that at the time of the plaintiff's alleged demand of the chattels the defendant had not possession of them, the verdict should then be for the defendant.
Although the jury might have believed all the matters to be true which were submitted for their consideration; and although the defendant's possession may have ceased by the act and choice of Gotlieb prior to his petition; nevertheless [**23]  if the jury believed the bill of sale was fraudulent, and that after the petition the sale and delivery of possession made prior thereto by Gotlieb were adopted or sanctioned by the defendant, such acts amounted to a conversion, which rendered a demand and refusal unnecessary. In reference to the circumstances just mentioned, which, if believed by the jury to be true, would constitute a conversion, there is some evidence, but it is not 

 [*161]  our province to say whether the evidence is or is not sufficient to prove them.
Admitting the truth of all the circumstances presented in the prayer, on which the defendant based his right to a verdict, still there is evidence tending to prove other circumstances, which if found by the jury would entitle the plaintiff to a verdict. The prayer was therefore properly refused by the court.
The defendant's fourth prayer was erroneous for the reasons assigned in regard to the third.
In his fifth prayer the defendant asked an instruction to the jury, that the plaintiff was not entitled to recover unless they believed that the defendant had possession of or exercised control over the goods at some time since the tenth day of February 1851. In [**24]  support of the position here taken, the defendant says, the plaintiff avers in his declaration, that the property in the goods was in Gotlieb Dietus on the 11th of February 1851, when the defendant converted them to his own use, and this he assumes must be proved, because a prior conversion is not sufficient. As to the averment in the nar, in regard to the date of the conversion, he is mistaken; the allegation being that the defendant converted the goods on the 26th day of June 1851; but if he were correct in his facts still his prayer would not be so. The particular day named in a nar, either in reference to the possession of the party whose goods have been converted, or in relation to the conversion, is not material, as may be seen by reference to two forms of nars, in trover, by assignees of bankrupts, to be found in 1 Saund. Pl. & Evi. 205, 206.
The defendant's counsel relied with much confidence upon the case of Edwards vs. Hooper as sustaining their views; but that decision did not turn upon the materiality of any particular day named in the nar. The statement of the assignees' right of property instead of merely stating their right of action [**25]  rendered it necessary to prove that the conversion was after the plaintiffs became assignees. But there was no discussion, either by counsel or judges, as to the materiality of the precise days stated in the nar. This decision does not contradict what 

 [*162]  is said by Saunders, nor do the other cases cited on the subject.
The statement in the nar, that on the 11th of February 1851, Gotlieb had possession of the goods, and on the same day they came to the possession of the defendant, by finding, we consider immaterial averments in regard to time, and that the court were right in refusing to grant the fifth prayer of the defendant.
According to the record it appears the plaintiff offered three prayers, which were all granted; then the defendant submitted five prayers, which were all refused. The language of the record at this point, (after having set forth the prayers,) is, "And the court rejected all the said prayers of the said defendant, and instructed the jury, that the sole question for them was, as to the validity of the bill of sale from Gotlieb Dietus to the defendant; that if they should find the said bill of sale not to have been made bona fide the plaintiff [**26]  was entitled to recover what they should find to be the value of the property, but if they should find that the bill of sale was made in good faith their verdict should be for the defendant." This instruction, as also the granting of the plaintiff's prayers, and the rejection of those of the defendant, were all excepted to by him.
Notwithstanding what had previously taken place the jury might well have been misled, when informed voluntarily by the court, in very explicit terms, that the sole question for them was, as to the validity of the bill of sale, with direction to find a verdict for the plaintiff, if they believed that instrument to have been fraudulent, but if made in good faith then their verdict should be in favor of the defendant. From this the jury might very readily have supposed it was their duty to decide in favor of the plaintiff if they believed the bill of sale was fraudulent, without making any enquiry in regard to a demand and refusal, or to an actual conversion at any time. Taking this view of the instruction we must consider it erroneous, after what has been said on the subject of conversion in reference to the plaintiff's third prayer.
But the appellee's [**27]  counsel say this direction to the jury is not to be considered as standing by itself; on the contrary it 

 [*163]  must be looked at in connection with the plaintiff's prayers previously granted. Admitting this to be so, still the instruction will receive but little aid from such connection, inasmuch as we have decided that each of the plaintiff's prayers is erroneous.
We affirm on the defendant's prayers but reverse on those of the plaintiff, and also on the last instruction given by the court.
Judgment reversed and procedendo ordered. 

67 of 187 DOCUMENTS 

THOMAS Y. CANBY vs. GEORGE A. FRICK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 163; 1855 Md. LEXIS 41 

DECEMBER, 1855, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Court of Common Pleas for Baltimore city.

Assumpsit by the appellee against the appellant, to recover for services rendered by the plaintiff to the defendant in the sale of a farm. Plea, non assumpsit.

1st Exception. The testimony and the prayer of the plaintiff, to the granting of which the defendant excepted, are fully stated in the opinion of this court.

2nd Exception. This was taken by the defendant to the refusal of the court (MARSHALL, J.,) to grant an instruction, that there is no evidence of any contract between the plaintiff and defendant, and the former is, therefore, not entitled to recover.

3rd Exception. The defendant asked an instruction, that if the jury believe the plaintiff was not a land-broker at the time of the occurrences given in evidence, and that defendant did not employ the plaintiff in the sale to Evans, then the plaintiff is not entitled to recover; which the court refused to grant, and the defendant excepted and appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

A prayer that the jury, in estimating the sum to be allowed the plaintiff for his services, "should be guided by the custom in such like cases," is defective, because it assumes the existence of such custom.

A judgment will not be reversed because of a failure to grant a prayer which ought to have been granted, when all the advantage the appellant could have derived from such prayer was given him in a prayer granted at the instance of the appellee.

A party who is neither a land broker nor had been employed by the defendant, has no right of action for services rendered in the sale of the defendant's land.  

COUNSEL:
Wm. A. Talbott for the appellant, argued:

1st. That there was no evidence from which the jury could infer that the plaintiff was employed by the defendant [**2]  to find a purchaser for the land in question. The evidence shows that the plaintiff's whole action was at the request of and for the purchaser.

2nd. That the introduction of a purchaser to the defendant, unless at his request or by his authority, did not entitle the plaintiff to compensation, and no implied assumpsit was created thereby. 3 Md. Rep., 201, Beale vs. Creswell.

3rd. That no custom was sufficiently proved which entitled the plaintiff to recover, the proof showing that the plaintiff not being a land-broker, did not come within the alleged custom, and if proved it is not a reasonable custom which this court will sustain. 6 Md. Rep., 47, Foley & Woodside, vs. Mason & Son.

4th. That the court erred in the instruction granted, because it assumes that a custom had been proved and does not leave the fact to be found by the jury. 6 G. & J., 70, Crawford vs. Berry. 3 Md. Rep., 161, Gaither vs. Martin. Ibid., 294, Lewis vs. Kramer. 4 Do., 242, Balto. & Susq. R. R. Co. vs. Woodruff. 7 Do., 300, Balto. & Ohio R. R. Co. vs. Resley.

5th. That there was no evidence from which the jury could infer a contract between plaintiff and defendant, and the defendant's first [**3]  prayer should have been granted.

6th. The defendant's second prayer should have been granted, because the plaintiff could only recover, either from having been employed by the defendant in the sale or under the custom applying to land-brokers.

Wm. Shepard Bryan for the appellee.

The prayer of the plaintiff embodies a clear legal proposition. Let us examine its different parts. The first section is, in effect, that if defendant employed the plaintiff to find a purchaser for the land, and the plaintiff found a purchaser, he is entitled to recover. For if the plaintiff introduced a person to whom, in consequence of that introduction, the defendant was enabled to dispose of the land, and did dispose of it, he introduced a purchaser. Can any argument assert that introducing a purchaser is not finding a purchaser? We refer to 34 Eng. C. L. Rep., 267, Wilkinson vs. Martin. 32 Do., 641, Murray vs. Currie. The next portion of the prayer is, in effect, that if no sum was agreed upon, (or, which is the same thing, if no sum was proved,) the jury must allow a reasonable sum. This is very clear. Then "in estimating this sum, they should be guided by the custom in such like cases.  [**4]  " That is, they should be guided by what was usually paid--by the market price, so to speak. The customary price--the usual price--the market price--the price established by usage or custom in such cases, are equivalent expressions. The court do not instruct the jury as to the existence of any custom, nor could the jury have so understood it. The evidence applicable to this portion of the instruction was, that the "usual charge" was so much. Most clearly, the instruction leaves it to the jury to find from the evidence what this customary or usual charge was, or custom or usage about charging, in whatever way the idea may be expressed. Just as much so as if it said, "they should be guided by whatsoever they shall find the usual charge to be." The court do not even tell the jury they should give the usual sum, but merely, in estimating what a reasonable sum amounts to, they should be guided by what is customarily paid. This was something to assist them in their investigation.

If the prayer then was correct as a legal proposition, the next question is, whether there was evidence to support it. And certainly there was. Evans says, "defendant said he did not know what amount plaintiff [**5]  was going to charge him, and desired witness to see Frick and get him to make the charge light," &c. And on cross-examination says, "he would swear that Canby agreed to pay plaintiff's commissions." It cannot be seriously denied, that this was evidence to be submitted to the jury of a contract between the parties, even if there were no other. If the above views be correct, the defendant's first prayer was properly rejected.

In the second prayer of the defendant, the jury are directed to make two inquiries:--First, whether the plaintiff was a land-broker. Secondly, whether he had been employed by the defendant. The first of these inquiries was totally irrelevant. It could make no possible difference whether the plaintiff was a land-broker or not. There is nothing in the law to prevent persons other than land-brokers from making contracts of this kind. The second inquiry proposed had been already submitted to the jury by the plaintiff's prayer. The court, therefore, properly rejected it. But this is not the only objection to the prayer. Whatever may be the astute criticism of the learned counsel upon the language, it is clear that its obvious meaning is that it was incumbent on [**6]  the plaintiff to prove:--First, that he was a land-broker. Secondly, that he made a contract with defendant. If this were not the intention in drawing the instruction, it is difficult to see why the clause about the land-broker was inserted. It surely cannot be supposed that the jury were obliged to consider a question which was to have no bearing on their verdict. No ingenuity can make it appear that it was not the design of the prayer that the jury should regard the two questions contained in it as decisive of the cause.  

JUDGES:
The cause was argued before LE GRAND, C. J., TUCK and MASON, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*166]  LE GRAND, C. J., delivered the opinion of this court.
This action was instituted to recover for services rendered by the appellee to the appellant in the sale of a farm. It was proved by Mr. Evans, that in the year 1852, he purchased of appellant a farm for the sum of $ 10,000. The appellee took the witness to appellant to introduce him, a week or ten days before the purchase was consummated. In the early part of the negotiation, the appellant made it a part of his agreement, that the witness should pay to the appellee his commissions. This was not assented to, and [**7]  the appellant "agreed to pay plaintiff's (appellee's) commissions."

 [*167]  It was proved by Thomas J. Gott that he is a land-broker, and that the usual charge by such brokers for making sales is a commission of two per cent.; some charge two and-a-half, or get it where it is offered; and also, that there is a custom in Baltimore, that if a broker takes a purchaser to a seller and introduces him, he is entitled to his commission from the seller when the sale is made: this custom extends to a class of persons whose business is buying and selling land, and known in Baltimore as land-brokers. The appellee is not a land-broker, but a clerk in the office of the Baltimore Cemetery Company.
The only testimony offered on behalf of the appellant was, that on a certain day, appellee called at his counting-room and inquired if he had a farm to sell, and if so, what he asked for it. The appellant replied he had, and would take for it $ 20 per acre for five hundred and forty acres; appellee then said, he knew a gentleman who wanted it.
On this state of case, the appellee asked the following instruction, which was granted by the court:
"That if the jury shall believe that the plaintiff [**8]  was employed by the defendant to find a purchaser for a tract of land called Bailey farm, belonging to the defendant, and that the plaintiff did introduce to the defendant a person who, in consequence of that introduction, the defendant was enabled to dispose of said tract of land, and did dispose of it, that then the plaintiff is entitled to recover. And that if the jury cannot ascertain from the evidence the amount of compensation agreed to be paid to the plaintiff by the defendant, they should allow him a reasonable sum for his services, and in estimating this sum, they should be guided by the custom in such like cases."
Two objections are urged to this prayer:--first, that there is no evidence from which the jury could infer the plaintiff was employed by the defendant; and second, that the prayer took away from the jury the finding of the custom, in such like cases, which they were told they should be guided by; in other words, assumed the existence of a custom in like cases.
The first objection, in our opinion, is not tenable. The evidence on the part of the defendant was confined entirely to a single interview between him and the plaintiff. There may 

 [*168]  have [**9]  been others, and the other evidence in the case was sufficient to authorise the jury so to infer. The purchaser distinctly states, that in the early part of the negotiation, the defendant insisted he should pay the commissions of plaintiff. Why this, if he did not consider himself under an obligation to pay them? Again, the same witness is equally positive the defendant distinctly "agreed to pay plaintiff's commissions." Evidence could not be more unequivocal. We think the second objection well taken. The proof of custom--waiving, for the sake of the argument, all inquiry as to its sufficiency, even as to a particular class--the plaintiff was by the proof shown and conceded on all sides not to be embraced in it. The only use which could be made of it was to enable the jury to form some idea of the rate at which similar services are compensated, not, however, because of the custom, but as a fact tending to show that services of a particular kind were esteemed in the community of a certain value. It would not be binding on the jury, but would be a fact to which they would have the right to look in making up their judgment. The prayer in taking from the jury the finding of the [**10]  fact was error, and by assuming its existence, in the absence of all other testimony on the subject of the value of similar services, was clearly defective under the decisions of this court.  Balto. & Susq. R. R. Co. vs. Woodruff, 4 Md. 242, and the cases there referred to. What we have said in regard to the prayer of the plaintiff disposes of the first prayer of the defendant. It was properly rejected. The second prayer should have been granted. For if the plaintiff was neither included within the class known as land-brokers nor had been employed by the defendant, he had no right of action. Had, however, the plaintiff's prayer been free from the defect to which we have alluded, we would not have reversed the judgment because of a failure to grant defendant's second prayer, inasmuch as the plaintiff's prayer gave him all the advantage he could have derived from his second prayer.
Judgment reversed and procedendo awarded. 

68 of 187 DOCUMENTS 

WILLIAM G. W. WHITE vs. ALEX. B. DAVIDSON, THOMAS HARRISON, BENJAMIN F. HARRISON, CARTER A. HALL, THOS. W. HALL and BEVERLY C. SANDERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 169; 1855 Md. LEXIS 42 

DECEMBER, 1855, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

Assumpsit by the appellant against the appellees. The nar contains the usual money and insimul computassent counts. Plea, non assumpsit. A bill of particulars was furnished on demand, stating that plaintiff's claim is founded on a written promise to indemnify him if he would become security of Henry Carter in an injunction bond to James M. Carlisle and others, dated the 22nd of June 1846, made to plaintiff by Joseph H. Bradley, the solicitor and agent of defendants, and by authority of defendants to Bradley, and is accompanied by particular items of costs, and amounts paid Carlisle by plaintiff on account of a judgment recovered against him on this bond, amounting to $ 3726.32.

1st Exception. The facts of the case as proved in evidence are sufficiently stated in the opinion of this court. The plaintiff then offered six prayers, in substance as follows:

1st. If the jury find that defendants, or their respective firms, were creditors of Carter and Washington, and they, or any member of their respective firms, were privy to the employment of Bradley as counsel to secure their claims, and that Bradley so employed, advised [**2]  the filing, and did file the bill of injunction in the name of Henry Carter, with the privity and consent of defendants, and that to obtain the requisite security upon the injunction bond in that suit, Bradley, as such counsel, prevailed upon plaintiff to become such security, upon the assurance that the creditors whom he represented as counsel would indemnify him, then such assurance so made by Bradley to plaintiff is legally binding on defendants,--(rejected.)

2nd. If the jury find that Sanders and Hall, or either of them, were the agents of defendants, and that they authorised Sanders to employ Bradley to obtain the injunction mentioned, and that Bradley, with the approbation of Sanders, acting for these creditors, drew up a paper assuring plaintiff that he would be indemnified for going on the injunction bond, and that in consideration of this he did become security on the bond, then defendants are bound by the acts and promises of their agent and attorney, Bradley,--(granted.)

3rd. If the jury find that Sanders, assuming to act for the Baltimore creditors of Carter and Washington, employed Bradley as their counsel to file an injunction bill in the name of, and by arrangement [**3]  with, Henry Carter, for their benefit, and also to settle with one Patterson his claim under a deed of trust as stated in evidence, and that Sanders did, at the time of so employing Bradley, authorise him to write the letter to plaintiff, requesting him to become security on the injunction bond, and in consequence thereof plaintiff did become such security, then he is entitled to indemnity against the defendants, provided the jury further find that defendants, or any member of their respective firms, did, subsequently, and with a knowledge of such employment, contribute their respective proportions of Bradley's fee in the premises, and their proportion towards the settlement of Patterson's claim according to said arrangement made through Sanders, and with a knowledge that the same was effected by him, and it is no defence in this case that defendants had not previously authorised Sanders, or were not aware of the agreement made by Bradley with plaintiff under the sanction of Sanders, (rejected.)

4th. (This prayer was abandoned by the appellant in this court, and therefore need not be stated.)

5th. If the jury find that defendants were creditors of Carter and Washington, and [**4]  desired to secure their claims by legal proceedings to annul the deed of trust to Carlisle, and that Sanders, assuming to have full power from them to act in the premises as their agent, went to Washington, and, under the advice of Bradley as counsel, made an arrangement with Henry Carter, by which Sanders caused an injunction bill to be filed with a view to benefit defendants, and, with a view to obtain the necessary security on the bond required in that suit, was privy and consented to the writing of Bradley's letter to plaintiff, and that in consequence thereof and the promise of indemnity therein plaintiff became such security, and that at the time of so acting Sanders and Davidson, trading as Davidson and Sanders, were creditors of Carter and Washington, then both Sanders and Davidson are liable to indemnify plaintiff against loss as such surety in this suit, if the jury find a joint liability to plaintiff between them and their co-defendants. And if the jury further find that at the time of his procuring Bradley to file said bill, Sanders promised that the creditors would pay him a fee, and further arranged through Bradley that defendants would retire a note in bank by the substitution [**5]  of another note, which they would pay as part and parcel of the arrangement made by Sanders to secure their claims, and upon his return to Baltimore Sanders reported to his co-defendants that he had employed Bradley as counsel for them, and that Bradley had filed the bill and obtained the injunction for their benefit, and for so doing, as well as his future management of the suit, they were to contribute to his fees, and that Henry Carter was to be released by them from all liability for the debts of Carter and Washington to them, but that said Carter had furnished the security on the injunction bond; and further reported said arrangement in reference to the note, then his co-defendants had notice from that time that Sanders had assumed to act in the premises as their agent upon his own judgment and discretion, and especially in reference to the institution of the suit and employment of counsel. And if the jury further find that, with full knowledge of the representations of Sanders so made to them, defendants agreed to, and did, recognise his said agency in their behalf, and for that purpose did perform what he had undertaken they should perform in respect to the counsel fees and [**6]  note, and then and there agreed and consented that Sanders should continue to act as their agent in respect to the future management of said suit, and that Sanders, with their consent and privity, afterwards wrote the letters to Bradley read in evidence, and continued to act and was recognised by them as their agent until the dissolution of said injunction, then from the time of their so continuing Sanders as their agent, his co-defendants are chargeable with all notice which Sanders had of the promise of indemnity contained in Bradley's letter; and if the jury further find that Sanders had at the time of being so continued as agent, and recently before then, by his previous acts, authorised Bradley to write said letter, which Sanders fully recollected, then it is not competent for his co-defendants to repudiate their liability on their promise of indemnity in that letter, if the jury find that before the termination of Sanders' agency, and after his continuance therein, by consent of his co-defendants, there was sufficient and reasonable opportunity for them to have notified plaintiff that they repudiated the promise of indemnity to him, and that they failed so to do,-- (rejected.  [**7]  )

6th. If the jury find all the facts stated in the preceding prayer they ought to find therefrom, that his co-defendants have, with full knowledge of the material facts connected with Sanders' agency in their behalf, agreed to ratify and adopt his agency in the premises; and if they find that his co-defendants so ratified his agency in part with such knowledge and the further knowledge, that he had been acting as their agent upon his own judgment and discretion, then they are responsible for his contracts and undertakings at the time of transacting them within the scope of said agency, notwithstanding at the time of such partial ratification they may have relied on his erroneous statements in respect to some of the terms of the arrangement so made by him in their behalf,--(rejected.)

The defendant then offered prayers in substance as follows:

1st. If the jury believe there was an arrangement between Carter and defendants in regard to legal proceedings to be instituted by Carter to set aside a deed of trust made by his former partner, and that the terms of this agreement were, that Carter should file an injunction bill and furnish the security upon the injunction bond,  [**8]  upon condition that defendants should release him from their claims against him as creditors, and that after this agreement the plaintiff became surety in the bond without any further agreement between defendants and him or Carter, the plaintiff is not entitled to recover,-- (granted with consent of plaintiff.)

2nd. That under the bill of particulars filed in this case the plaintiff can only recover upon the promise in writing referred to therein,--(granted with consent of plaintiff.)

3rd. That the plaintiff cannot recover unless the jury find the letter to him, set up as the foundation of this suit, was duly authorised by all the defendants, or subsequently ratified by them after notice of the same, or was authorised by some and ratified by the rest after notice,--(granted.)

4th. That the mere relation of counsel or attorney without any special authority, gave Bradley no power to write this letter so as to bind defendants or any of them to any contract of indemnity contained in it,--(granted.)

5th. That this letter is insufficient in law to bind the defendants, and therefore the plaintiff cannot recover,--(rejected.)

6th. If the jury find that plaintiff became [**9]  the surety of Carter in the bond referred to, and on the 2nd of February 1854, executed and filed in this case a release to Carter from all liability or responsibility to him by reason of such suretyship, then the plaintiff is not entitled to recover,--(rejected.)

To the several rulings of the court, (FRICK, J,) as indicated in this exception adverse to him, each party excepted.

2nd Exception.--The defendants objected to the admissibility in evidence of what passed at the interviews between Bradley and Sanders and Hall, and to the competency of Bradley to testify in relation thereto, and to the letters to him from Sanders, upon the ground that what passed at such interviews and said letters, were privileged communications between client and attorney; and also to the competency of Bradley, upon the ground that he was interested in the event of this suit, all which objections the court overruled and defendants excepted.

3rd Exception.--The plaintiff offered in evidence a copy of the injunction bond referred to, attested by a certificate of the clerk of the circuit court of the District of Columbia, under the seal of said court, "that the annexed is a true copy of the original [**10]  bond filed in the case of Henry Carter vs. James M. Carlisle, et al." The attestation of the clerk was also certified to by the chief judge of said court. The defendants objected to this copy being read in evidence upon the ground that the same appeared to be a part of a record, and that part of a record, however authenticated, should not be permitted to be read in evidence; and also that said copy was not legally certified or authenticated. These objections the court overruled and defendants excepted.

The verdict and judgment were in favor of the defendants and the plaintiff appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

The employment of an attorney to prosecute an injunction suit does not confer on him, ex necessitate, the right to bind his clients to indemnify a third party who becomes surety on the injunction bond.

An attorney as such may submit a cause to arbitration, and if he makes a compromise bona fide which works no considerable hardship the courts will be slow to disturb it, and will refuse when it has been acquiesced in with full knowledge of the facts.

Where an agency created and defined by a written instrument is delegated to three it cannot be executed by one, and the agents cannot delegate their authority to another.

Where a party without authority assumes to act as agent for others, the latter are not bound, unless on full knowledge they recognised and adopted his acts.

The issuing of an injunction does not necessarily require a bond, for that is a matter resting in the discretion of the judge who is to order it.

If a partner without authority therefor, agrees to indemnify a surety on an injunction bond in a suit prosecuted for the benefit of the firm of which he is a member, his act does not bind the firm unless his co-partners subsequently acquiesced therein.  

COUNSEL:
Robert J. Brent for the appellant, argued:

1st. The plaintiff's first prayer was erroneously rejected. Bradley was unquestionably the counsel of these defendants in the injunction suit. They all contributed pro rata to the payment of his retaining fee, and in all respects and at all times followed his advice as such counsel, to promote the purposes of that suit. The paper of the 19th of June 1846, signed by the firms comprising all these defendants, clearly shows, that they had all placed their claims under his legal advice and control, and he was to exercise plenary [**11]  judgment and discretion, whether the proceedings should be in the name of the creditors or of Carter. In pursuance of this authority he states that he filed the bill in the name of Carter, and as a necessary means to that end, promised indemnity to the security on the injunction bond, and at the time he did so Sanders was privy and assentlng for those who were acting with him in the common purpose of prosecuting under his advice and through his professional agency their affiliated and associated rights as creditors. He also proves, that Thomas W. Hall authorised him to procure security for Carter's bond and to promise indemnity in behalf of the creditors. Thomas W. Hall was a member of the firm consisting of the two Harrisons and himself, and as this agreement was with a view to the recovery of a claim due to that firm, we hold, upon the implied authority of each partner, to bind the firm to this agreement, irrespective of all other considerations, that it is conclusive upon these three defendants. One partner can release a debt. 4 G. & J., 310, Smith vs. Stone. He can bind the firm by any act in relation to their partnership claim. 7 H. & J., 28, Coursey vs. Baker. Ibid, 213, Barger [**12]  vs. Collins. 2 Pick., 285, Marsh vs. Gold. If one partner, within the scope of the partnership authority, commits a fraud, it is equally in law the fraud of all the partners. 1 Parsons on Cont., 62. For the like reason the agreement of Sanders binds his co-partner, Davidson. Here then are five defendants, all of whom, either personally or by their co-partners, expressly authorised Bradley to make this contract of indemnity. The other defendant, Carter A. Hall, was one of the committee on behalf of the creditors, but states that he did not take an active part therein, and denies that he assented to any agreement about the security. But he and all the defendants concede, that Bradley was their counsel, feed by them, as such filed the bill for their benefit and with their privity in Carter's name. On this, and independent of any express authority, we contend, that as a means to the common aim and object of the defendants their counsel had a right to procure the requisite sureties in the injunction bond, and for that purpose to bind them to indemnity, and this whether they knew it or not. 2 Greenlf. on Ev., sec. 141. 2 McCord's Ch. Rep., 409, Smith vs. Bossard. 1 Pick., 462, Adams vs.  [**13]  Robinson. 3 Md. Ch. Dec., 395, Kent vs. Ricards. 7 Cranch, 436, Holker vs. Parker. 1 Dallas, 164, Somers vs. Balabrega. 1 Overton, 299, Blount vs. Foster. 8 Shepley, 558, Rice vs. Wilkins. 1 Am. Com. Law Cases, 4. 17 Ohio, 460.

Where there is a community of design, and the combined action of many for the attainment of a specific object, the rule of law makes all responsible for the action of any one of the confederates in furtherance of the general purpose of all, and upon this principle alone the authority given by Sanders and Hall, or either of them, to Bradley, the selected counsel of the defendants, is to be considered as the authority of all, especially when it is seen that the injunction in the name of Carter, which was sought for, could not be obtained without security on the bond of Carter. 1 Greenlf. on Ev., sec. 174, note 3. 2 Starkie on Ev., 29, 31, 205. 9 Eng. C. L. Rep., 414, Perham vs. Raynal. 5 G. & J., 144, Owings & Piet vs. Low. In such case the declarations of one are the declarations of all acting with him. 2 Barn. & Ald., 673, Sandilands vs. Marsh. 1 Starkie's Rep., 81, Nicholls vs. Dowding. If plaintiff pays money for a debtor to his creditor upon an agreement [**14]  to indemnify plaintiff by mortgage and to assign judgments, the plaintiff is an agent and may recover the money paid. 12 G. & J., 36, Hall vs. Creswell. If C becomes bail for a debtor at the request of B, and on B's promise to indemnify him, B is liable, on his parol promise, which is original. 1 Pet., 476, De Wolf vs. Rabaud. 2 Do., 170, Townsley vs. Sumrall. 12 Mass., 297, Perley vs. Spring. 17 Johns., 114, Chase vs. Day. If a guarantor promises, before delivery, absolutely to pay, the statute of frauds does not apply. 2 Saund. on Pl. & Ev., 54. 1 Esp., 121, Croft vs. Smallwood. 2 Ld. Raym., 1087, Buckmyr vs. Darnall, also reported in 1 Salk., 27. And it seems, that if before delivery defendant verbally promises absolutely to pay, he is liable, though the party for whom he promises may be also liable. Manuscript case of Wolfolk vs. Baltzell in the Court of Appeals in 1839, 1 Gill, 260, Conolly vs. Kettlewell. The distinction is whether the promise is to pay absolutely or only secondarily on default. It is always for the jury to whom the credit is given. 2 Saund. on Pl. & Ev., 547. Wherever the promise is not within the statute indebitatus assumpsit lies. 7 H. & J., 392, Elder vs.  [**15]  Warfield. There is in this case a sufficient consideration for the promise of indemnity. 1 Saund. Pl. & Ev., 179. But here we have a written indemnity in behalf of the creditors, signed by Bradley, their agent, and his authority may be proved by parol. 2 Saund. Pl. & Ev., 551.

2nd. The next question arises on the refusal of the court to grant the plaintiff's third prayer. This prayer is designed to maintain the legal sufficiency of the evidence, if believed, to show the liability of the defendants for the authority given by Sanders to Bradley, and under which he made the contract of indemnity to the plaintiff. If the three defendants constituting the committee named in the agreement of June 1846, instead of Sanders, had authorised Bradley to give this indemnity to White, and had not disclosed their written authority and the terms of it to White, there can be no doubt that the principals for whom they acted would be bound on the indemnity promised, because they had authorised the committee to indemnify the surety of Carter under the advice of Bradley, and for so doing had promised indemnity to the committee. Even a special agent to do a thing may bind his principal at the time [**16]  by a warranty or promise of imdemnity, if not expressly forbid to do so, upon the principle, that every thing is supposed to be comprehended in the authority which is necessary to effectuate the object in the best manner. Paley on Agency, 210. 1 Parsons on Cont., 50, 51. But this written authority, so far from denying to the agents the power to promise indemnity in behalf of their principals to the surety of Carter, expressly promises them indemnity if they personally incur responsibility to such surety. It contains the strongest implied authority to contract directly for the principals, and incur primarily for them a liability which they agreed indirectly to assume. But we draw a still stronger inference from this paper. It is subscribed by the three firms of which the six defendants were members, and the three agents named in it are three of these defendants; these agents are, therefore, both principals and agents in that paper. We show, therefore, by this paper as against all these defendants, that they and their firms contemplated giving indemnity to the sureties of Carter, and that they were willing themselves to authorise the very thing to be done which was done by the advice [**17]  and procurement of their counsel and with the privity of Sanders, acting as a substitute for the original committee of three. In such a case, very slight evidence of the authorised substitution of Sanders to act in place of the three original agents who failed to act conjointly, would be sufficient; and we insist, that if such substitution is proved, that the substitute is to be taken, prima facie, to have all the powers conferred upon the three for whom he is substituted. So far as Carter A. Hall is involved, we have his explicit admission that he recognised Sanders, and ratified his arrangement with Carter upon the representation made by Sanders that Carter was to furnish the security. He also admits that he declined to act on the committee, and acquiesced in the acting of Thomas W. Hall and Davidson. It would be to sanction a constructive fraud now to allow, after such acts of acquiescence and laches, and after his direct sanction of the agency of both Thomas W. Hall and Sanders, and of Bradley, the counsel for the creditors, to turn round and repudiate the solemn contract made by his own counsel, with the privity of both Hall and Sanders; and this especially after he had, as a [**18]  creditor, taken all the benefit he could by the injunction suit, based on the bond signed by the appellant, which suit he knew was brought, and which he sanctioned by paying his proportion of Bradley's fee and of the note given to retire the prior lien of Patterson, as arranged by Bradley and Sanders. After such acts, shall it be tolerated in morals for him, at this late day, to repudiate the contracts made in his behalf because not informed or falsely informed by his own agent of a particular stipulation? But independently of an express indemnity, we contend, that upon all these facts, if White was told the suit was for the benefit of the creditors and that Carter was to be released, as shown on the face of the written indemnity, then he would have a right to recover on an implied assumpsit as against all these creditors, upon the principle, that he was in fact their security and went on the bond at their request and for their benefit, and that on such a state of facts the law would not, in the absence of a special contract, imply a right to recover against Carter, the nominal principal in the bond. It was, in effect, their suit, prosecuted by their counsel and for their benefit,  [**19]  and upon their agreement to release Carter in consideration of the use of his name as nominal complainant. 2 Pet., 613, Chirac vs. Reinecker.

This prayer rests also on the distinct principle, that the subsequent ratification of the act of Sanders in employing Bradley as counsel to obtain this suit, by contributing money through Sanders towards the fee of Bradley and the Patterson claim, with full knowledge of Sanders having so claimed to act for them, and of all the material acts done by him, is equivalent to a previous authority, and that it is no defence to show that they were, at the time of such ratification, unaware of the agreement made by Bradley with the plaintiff, under the sanction of Sanders. An agent may be constituted by ratification with knowledge of material facts, and it is equal to a previous authority. Story on Agency, secs. 133, 134, 135, 138, 139, 140, 249, 253. 28 Law Lib., 74, 82, 86, 91, 111. 2 Kent's Com., 616. 7 East, 164, Hovil vs. Browning. 9 Cranch, 161, Clark vs. Van Riemsdyk. Sanders and Bradley were both continued as agents after the co-defendants were informed and ratified what was told them, and nobody else transacted the business but Sanders.  [**20]  Under this sanction of his acts and the continuing authority to superintend the suit, notice of this contract of indemnity to Bradley and Sanders is notice to their principals from the time they constituted them their agents, and they cannot deny such notice any more than their agents could. Ambler, 439, Le Neve vs. Le Neve. 2 Strange, 1183, Scrimshire vs. Alderton. 1 Esp., 290, Cowen vs. Simpson. 2 Eq. Cases Abr., 685. 3 Merivale, 210, Toulmin vs. Steere. 1 Term Rep., 12, Fitzherbert vs. Mather. 4 Do., 66, Willis vs. Martin. 1 Ves., Sen., 62, Maddox vs. Maddox. 13 Ves., 121, Hiern vs. Mill. There is no difference between actual and constructive notice in such a case. Ambler, 626, Sheldon vs. Drummond.

3rd. The fifth prayer of the appellant ought to have been granted, as in its first part it simply establishes a joint liability between the two co-partners, Davidson and Sanders, for the acts of Sanders in respect to their partnership claim, and then proceeds to charge the other defendants with constructive notice of the contract of indemnity made with the plaintiff from the time that they recognised Sanders as their agent in superintending and managing the injunction suit, and [**21]  thus became bound by the previous notice fastened on their agent, Sanders. We consider that this prayer is fairly deducible from the doctrine above discussed, in relation to constructive notice to the principal, of what is known by his agent in respect to the res gestae of his agency. The plaintiff's sixth prayer is for the same reason maintainable, and stands upon grounds equally secure, as it raises legitimate inferences from the facts stated in the fifth prayer. The defendants' third and fourth prayers cannot be maintained if the principles above discussed by us are approved by this court, as they virtually negative all right in the plaintiff to recover on this evidence.

4th. In regard to the appellees' exceptions, we insist there was no error in the court's rulings on these points. Their first exception was correctly decided, because Bradley was a competent witness and committed no breach of professional confidence in giving the testimony, because he was also an agent, and as such a party to the transaction, and therefore White is entitled to all the facts bearing on the question of his authority. 1 Greenlf. on Ev., secs. 244, 245. 8 Car. & Pay., 596, Regina vs. Avery. 2 Nev.  [**22]  & Man., 310, Ripon vs. Davies. 5 Man. & Gr., 271, Shore vs. Bedford. 5 Barn. & Adol., 502, Griffith vs. Davies. Peake's Cases, 108, Duffin vs. Smith. The evidence being admissible for any purpose, as to prove the retainer of counsel or the authority to make the offer of indemnity, or any part of the evidence being legally admissible, the general objection to the whole cannot be insisted on in this court. 3 Gill, 220, Budd vs. Brooke. Their second exception shows on its face very clearly that the attested copy of the injunction bond was read by consent of parties. And so also, we contend, the appellees' prayers were correctly refused.

Wm. A. Talbott and Geo. Wm. Brown for the appellees, argued:

1st. That the employment of counsel to secure the claims of the defendants against Carter and Washington, and the filing by such counsel of a bill for injunction, did not confer an authority on the counsel to bind the defendants by any assurance of indemnity to the plaintiff, and the appellant's first prayer was therefore properly rejected, inasmuch as it did not require the jury to find that the counsel gave such assurance with the privity and consent of the appellees, or any subsequent [**23]  ratification by them, and the appellees' third and fourth prayers were properly granted as containing the law of the case. That an attorney, by virtue of his retainer as such, cannot bind his client to any such obligation as to indemnify a surety on an injunction bond, see 4 Gill, 20, Doub vs. Barnes. 21 Conn., 245, Derwort vs. Loomer. 2 Greenlf. on Ev., sec. 141. 13 Metcalf, 413, Shores vs. Caswell, et al. 15 Verm., 320, Vail vs. Jackson. Kyd on Awards, 45. Bradley was an agent for a special purpose, and he could not bind his principals beyond the terms of his special authority, which must be strictly pursued. Smith's Mercantile Law, 58, 60, in 17 Law Lib., 36, 37. 5 Johns., 58, Nixon vs. Hyseroot, and note (e,) on page 59. 7 Johns., 393, Gibson vs. Colt. 5 Hill, 634, Birckhead vs. Brown. No necessity, however pressing, would authorise the agent to exceed his authority. 7 Mees. & Wels., 596, Hawtayne vs. Bourne. But suppose he had express authority, how is it proved? The paper of the 19th of June 1846, was a joint authority to three, which could not be exercised by one or two. Smith's Mercantile Law, 60.

2nd. That whatever may be the appellant's remedy against Sanders, he cannot [**24]  recover in this action against these appellees, even though the jury should find all the facts stated in his third prayer, because the co-defendants never empowered Sanders to bind them, and never had notice that he had so bound them. Their subsequent acts did not ratify his previous acts, except in so far as those acts had been communicated to them, and this prayer assumes as matter of law from the facts stated in it that Sanders' acts were recognised by his co-defendants, whereas such recognition was a question for the jury. 8 G. & J., 323, Steam Packet Co. vs. Dandridge. 3 Pet., 81, Bell vs. Cunningham. 9 Do., 629, Owings vs. Hull.

3rd. That a knowledge by Sanders of all the facts stated in the appellant's fifth prayer was no notice to his co-defendants, and their subsequent recognition of his employment of counsel, and having taken legal proceedings, was in no way a recognition of his authority to bind them, because, as appears from the testimony of Hall and Davidson, he stated to them that Carter had furnished the security on the bond, and in consideration of his so doing they were to release Carter, pay counsel fees and contribute to the Patterson debt. 8 G. & J., 323. 9 [**25]  Pet., 629.

4th. That the fifth and sixth prayers of the appellant were properly rejected, because they do not leave the jury to find that Bradley wrote the letter to the appellant on which the suit is founded, but assume that the letter was written and that it was received by the appellant. 6 G. & J., 70, Crawford vs. Berry. 3 Md. Rep., 294, Lewis vs. Kramer. 7 Do., 297, Balto. & Ohio Rail Road Co. vs. Resley.

5th. That if the ruling of the court be erroneous, there can be no procedendo because of the release by the appellant to Carter. The appellees, if liable to the appellant at all, were so for the default of Carter, and had against him at law a claim for whatever sum they might be compelled to pay the appellant. Carter was equally liable to the appellant, and the release discharges him from responsibilities to appellant, and thus discharges the appellees who were his sureties to the appellant. 2 Md. Rep., 286, Scott vs. The State. Theobald on Principal & Surety, 114, 115, 252, 253, in 1 Law Lib., 67, 68, 150. Burge on Suretyship, 160, 161, 348, 352, 353.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON, TUCK and MASON, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*183]  LE GRAND,  [**26]  C. J., delivered the opinion of this court.
The record in this case shows the following state of facts: A mercantile firm, under the style and name of Carter & Washington, in the city of Washington, D. C., were indebted to merchants in the city of Baltimore. Washington, by transfer, as it was alleged, had conveyed the joint assets to secure the payment of his own debts to the exclusion of those of his partner, Carter. The creditors of both, in the city of Baltimore, being desirous of having the property appropriated to the payment of the debts of the firm, appointed a committee in the following words, to superintend and guard their interests:
"We, the undersigned creditors of Carter & Washington, agree to contribute, ratably, our proportion of all expenses incurred, (agreeably to the amount of our claims,) in any legal or other proceedings which have or may be taken by A. B. Davidson, C. A. Hall and T. W. Hall, in reference to the assignment and bill of sale made by R. C. Washington, for the benefit of B. F. Gardner and Franklin Gardner; and we do hereby further agree to indemnify them against all loss for any liabilities assumed, or security given by them or by Henry Carter, of [**27]  the late firm of Carter & Washington, in any further proceedings which may be taken by him or them, under the advice of their counsel, J. H. Bradley, Esq., of Washington. Given under our hands this 19th day of June 1846.
Signed,   HARRISON & CO.,
DAVIDSON & SANDERS,
HALL, TAYLOR & CO.,
CAMPER & BRUFF,
MARRIOTT, MARYE & CO.,
W. H. HARRISON & CO.,
SPILKER & ALBERTI."
In pursuance of this authority Sanders and Thomas W. Hall went to Washington, assuming to act on behalf of their own firms, and as representatives of the other creditors of Carter and Washington, to advise with counsel and take measures to oppose the deed of Washington. They employed Joseph H. Bradley, Esq., as counsel, to file a bill for an injunction and to set aside the deed. Hall returned to Baltimore, leaving 

 [*184]  Sanders in Washington. Bradley procured the appellant to go on the injunction bond. The injunction was subsequently dissolved, suit instituted on the bond, and a judgment obtained against the appellant for upwards of three thousand dollars.
Mr. Bradley testifies that he requested the appellant, White, to go on the bond, but he positively refused to do so, unless he had some written evidence [**28]  of indemnity. Bradley then informed him that both Hall and Sanders had distinctly agreed, that if such security could be got, the creditors whom they represented would indemnify the security; that on the same day, White being in the office of the witness, the latter then, in the presence and with the privity and consent of Sanders, wrote the following letter:

"MR. W. G. W. WHITE,
Dear Sir:--If the judge grants the injunction to-day, Mr. Carter will have to give security of course. It is very important that none of the creditors should join in the bond, for I may want to make them or some of them witnesses. I have their authority for saying, that if this thing is done they will release Carter, and indemnify any one who goes his security. The penalty in the bond will probably be two thousand dollars, or possibly $ 5000, but the risk cannot be any more than the loss on the postponed sale of goods, and the interest on their value and the expense of keeping them. Under these circumstances I have suggested to Mr. Carter to ask you and Dr. Gunton, as the friend of Mr. Davidson, (or some other gentleman here,) to join him in the bond."
In reply to certain interrogatories propounded [**29]  to Thomas W. Hall and others on behalf of the appellant, he states in substance, that he, in company with Mr. Davidson, visited Washington city, and there endeavored to get Carter to take legal measures to have set aside the deed of Washington, and, as an inducement, promised to procure a release from his firm and that of Davidson & Sanders, of all liability for what he was indebted to them. That Sanders, who was then the partner of Davidson, went to Washington without any appointment from the creditors of Carter & Washington constituting him their agent, for the purpose of taking the place of his partner, the said Davidson. He also denies that any arrangement 

 [*185]  in regard to the injunction or security obtained for it was assented to by him or his colleagues, Messrs. Davidson and Carter A. Hall, other than that of which the creditors were informed by Sanders, to wit: that Carter should file the bill and find the security, provided the creditors would release him unconditionally and pay the fee of Mr. Bradley.
The answer of Carter A. Hall and that also of Alexander B. Davidson explicitly denies the authority of Sanders to bind the creditors as he sought to do, according [**30]  to the testimony of Bradley.
This statement of the facts is sufficiently full to present the questions of law arising out of the case.
The theory of the appellant's case is simply this:--he claims to be indemnified for his loss because of the recovery had against him on his bond: first, because of a specific contract to that effect; and second, that the employment of Bradley, as counsel, to file a bill for an injunction necessarily carried with it authority to do all things essential to its procurement, and, if to such end, a bond was indispensable, he had the right to promise an indemnity to any one who should become security on it, which would be binding on those whom he represented.
As to the first proposition: It involves a question of fact only, to wit, the existence of the contract. Bradley states that Thomas W. Hall and Sanders authorized it; Hall on the other hand denies it. From Sanders we have no response except that which is detailed in the answers of the two Halls and Davidson. Mr. Bradley states that Thomas W. Hall, at an interview had between him, witness and Sanders, "produced a paper and said they were authorized by the creditors who signed that paper to [**31]  come to Washington and employ said Bradley to enjoin the sale, which was advertised to take place." He did not, however, "read said paper or see the names signed to it." The only written authority to any one to superintend and manage the rights and interests of the Baltimore creditors, of which there is any evidence, is that bearing date the 19th day of June 1846. This must have been the one produced by Thomas W. Hall, and had Mr. Bradley examined it he would have seen it conferred no authority 

 [*186]  whatever on Mr. Sanders to employ counsel, or in any other manner to intermeddle with the business. Unless the parties, sought to be held liable, distinctly authorized him to act, anything he might do would not bind them, unless, on full knowledge, they recognized and adopted his act. There is no proof whatever in the record that they have adopted the act of Bradley in writing to the appellant, and promising him indemnity with the consent and privity of Sanders, as testified to by Bradley. So far from it they expressly deny Sanders ever communicated to them any such promise as that spoken of by Mr. Bradley. In this state of case if the defendants be responsible at all, it must be [**32]  because the employment of Bradley, as counsel, conferred on him, as such, the right to bind them to hold any one who might be obtained as security on the injunction bond harmless from all loss which might result from the dissolution of the injunction, or because the action of Sanders and Hall, as testified to by Bradley, is binding on the firms of which they were partners. A consideration of these propositions necessarily assumes that the jury would believe the testimony of Mr. Bradley instead of that of Mr. Hall, which is in conflict with it.
Assuming then the facts to be as testified to by Mr. Bradley, we are of opinion that the defendants, either in whole or part, are not responsible to the appellant. The employment of counsel does not confer on him, ex necessitate, the right to bind his clients to indemnify a third party who may become security in the progress of the suit. The power of an attorney is very extensive, but it is not equivalent to that of his client. As such, it has been doubted, to say the least of it, by high authority, whether he may make a compromise, although he may submit a cause to arbitration. Holden and others, vs. Parker, 7 Cranch's Reports,  [**33]   434. It is true, if the compromise be bona fide and work no considerable hardship, courts will be slow to disturb it, and they will refuse to do so when it has been acquiesced in with a full knowledge of the facts. In the case before us, there is no evidence the facts were ever communicated to the defendants; so far from it, those of them who have been examined expressly deny all knowledge of the 

 [*187]  agreement between Bradley and appellant, with sanction and privity of Sanders. It did not necessarily follow, that the issuing of an injunction required a bond; that was a matter resting in the discretion of the judge who was to order it, and if he did require it and security could not be obtained without an assurance of indemnity, the client should have been so notified.
We do not think the action of Hall and Sanders, as testified to by Bradley, binding on the firms of which they were members, unless they subsequently acquiesced in it. There is not only no proof they ever did so, but on the contrary, the evidence is distinct and uncontradicted, that they neither authorised or subsequently ratified what was done by Mr. Bradley in so far as his engagement with appellant is [**34]  concerned.
The question involved in the case is not, strictly speaking, one of the authority of a partner to bind his co-partners, but one of agency. Mr. Bradley was distinctly notified the agency had been created and defined by a written instrument. Had he consulted it, as, perhaps, it was his duty, he would have seen that the agency had been delegated to three persons and not to one. A power to three cannot be executed by one of them; nor is there anything clearer or better established, than that an agent cannot delegate his authority to another, the maxim being delegatus non potest delegare.
There is no necessity for our examining in detail the prayers, inasmuch as the views we have expressed plainly indicate our opinion to be, that in the case made by the record the plaintiff cannot recover. We think, however, there can scarce be a doubt, that on the facts contained in it, an action could be maintained against Mr. Sanders and a recovery had against him.
Judgment affirmed.
NOTE BY THE REPORTER.--The case of Woolfolk vs. Baltzell, referred to in argument in this case, was an action of assumpsit by Jacob and Charles Baltzell against Woolfolk, brought in [**35]  Baltimore county court, in 1834. The fourth count in the nar charges, that defendant, in consideration that plaintiffs, at his request, would sell goods to one Hutchinson on credit, undertook and promised the plaintiffs to guarantee the payment, eventually, to them of the amount of the bill for such goods, and that relying on this promise of defendant, the plaintiffs did sell goods to Hutchinson to the amount of $ 1187.36, for which he failed to pay, &c.

 [*188]  1st Exception. The plaintiffs offered in evidence the bill of goods sold by them to Hutchinson, on the 16th of February 1832, amounting to $ 1187.36, at the bottom of which was the following guaranty, signed by the defendant, Woolfolk: "I hereby guaranty, eventually, the payment of $ 1187.36, amount of Mr. Hutchinson's bill of this date." They also offered in evidence Hutchinson's promissory note to them for this sum, payable in six months, and then offered to prove that Woolfolk, before the goods were sold to Hutchinson, agreed to endorse Hutchinson's note for the amount of the purchase, and that the goods were sold on this assurance; but that afterwards the plaintiffs, at Woolfolk's request and on his assurance [**36]  that he did not design thereby to change his responsibility, consented to accept the guaranty above stated, and also that Woolfolk admitted Hutchinson's death and the insolvency of his estate. The defendant objected to this proof, on the ground that it went to set aside or materially vary the written agreement alleged to have been entered into at the time the goods were sold, but the court, (MAGRUDER and PURVIANCE, A. J.,) overruled the objection and the defendant excepted.
2nd Exception. The defendant prayed the court to instruct the jury, that the plaintiffs are not entitled to recover:--1st, because the promise and undertaking of the defendant was a promise to answer for the debt or default of another, and the agreement, or some memorandum or note thereof upon which the action is brought, is not in writing, signed by the party now sought to be charged therewith; and 2nd, because if the said promise and undertaking is in any manner or under any circumstances binding on the defendant, yet the plaintiffs are not entitled to recover unless they had used all due diligence and proper means to collect the same from Hutchinson, and there is no evidence that they did so. This prayer [**37]  the court refused and the defendant excepted.
3rd Exception. The defendant prayed the court to instruct the jury, that the plaintiffs are not entitled to recover in this action upon the evidence under either count, which instruction the court gave as to all the counts except the fourth, as to which they overruled the objection of the defendant and decided that there was evidence to go to the jury upon this count. To this ruling the defendant excepted.
The verdict and judgment were in favor of the plaintiffs and the defendant appealed. The judgment was affirmed by the Court of Appeals at its June term 1839.  

69 of 187 DOCUMENTS 

THOMAS J. FLACK vs. MARIANNE GARLAND, Exc'r of NATHANIEL GARLAND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 188; 1855 Md. LEXIS 43 

DECEMBER, 1855, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Equity Side of the Circuit Court for Baltimore city.

The bill in this case was filed by the appellant, for an injunction to restrain execution upon a judgment recovered against him in 1843, by the appellee's testator and his then partner, Elwell, whom the testator survived. The allegations of the bill are fully stated in the opinion of this court. The answer of the executrix denied the facts on which the equity of the bill rested.

The testimony chiefly relied on to support the complainant's case is that of the two Masons, composing the firm of Mason & Son. The son testifies that their firm was a creditor of Flack at the time of his failure, which they subsequently settled by receiving fifty cents in the dollar; that Garland came to their store several times and said he was a creditor of Flack, that they had better take fifty cents in the dollar, as they never could get any more, and it was partly through Garland's influence that witness took the fifty cents in the dollar after a conversation with his father; that their settlement with Flack took place July 8th, 1846, and the conversations with Garland in the latter part of 1845 or the beginning of 1846, in [**2]  front of their store on the pavement, or in the store.

Mason, the father, testifies that he had repeated conversations with Garland about their respective claims against Flack; that Garland told him he had agreed to take fifty cents in the dollar; that Flack had nothing they could get hold of, and he had a conversation with Mr. Hinkley, his lawyer, and they agreed it was the best that could be done and advised witness to go and see Hinkley, which he did; that at the time of the last conversation with Garland witness had not concluded what to do, but he called and saw Hinkley, and afterwards saw his son, and they agreed to take the fifty cents, not seeing any possibility of getting any more; that Garland and he were holding out until the last conversation took place, in which Garland said that he understood that many of the creditors had agreed to take fifty cents and some less. In answer to additional interrogatories this witness states, "at the time I saw Garland I found he had concluded to take fifty cents. He having held out the longest I concluded to do the same. I knew Garland many years and had great confidence in his judgment, and as he had concluded to do it I concluded [**3]  to do the same. I did not tell Mr. Garland I had concluded to do it. This was the last conversation I had with Garland." In reply to a cross-interrogatory, he also stated that he was influenced in some degree by Garland in taking the fifty cents, and should have delayed longer unless Garland had concluded to take it.

On the part of the defendant a witness proved that he was present at a conversation between Garland and Flack, early in July 1846, in relation to the former's claim against the latter, in which Flack stated he was about to settle with Mason, and that Mason had informed him that Garland wanted to settle his claim at fifty cents in the dollar. "Garland replied it was false; he had told Mason no such thing, and desired Flack to go then and bring Mason into his presence and let him say so to his face."

The court below, (KREBS, J.,) dissolved the injunction upon final hearing, and from the order of dissolution the complainant appealed.  

DISPOSITION:
Decree affirmed with costs.  

HEADNOTES:

Where a debtor sets up an agreement with his creditor to compound his claim by paying a certain sum in cash or notes at a specified time, as a bar to the creditor's claim, he must show compliance with his part of the agreement either by paying, or offering to pay, in conformity with its terms, before he can rely upon the composition. 

COUNSEL:
John Stewart and Charles F. Mayer for the appellant.

The doctrine on which this bill is filed is eminently one of good faith. It is that where one creditor has persuaded or induced another to [**4]  accept a compromise, that he shall not himself afterwards reject his own proposal and demand more than what he has induced others to accept. The testimony fully establishes the allegations of the bill implicating Garland as a party to the composition, and now to allow him or his executrix against the terms of the composition to enforce the judgment for more than one-half the demand, would be a fraud upon Flack and upon Flack's creditors. To bind the appellant to the composition, it is sufficient to show that otherwise a fraud would be operated upon the Masons, who, by Garland's avowed accessions to the composition, were led to accept it and relinquish one-half of their demand. In support of these positions we rely upon the following cases: 3 Eng. C. L. Rep., 411, Wood vs. Roberts. 22 Do., 89, Good vs. Cheesman. 2 Term Rep., 763, Cockshott vs. Bennett. 3 Do., 551, Jackson vs. Duchaire. 4 Do., 166, Jackson vs. Lomas. 11 Mees. & Wels., 492, Horton vs. Riley. 1 Bos. & Pull., 286, Stock vs. Mawson. 3 Anstruther, 910, Fawcett vs. Gee. 5 Bing., 432, Knight vs. Hunt. 7 Gill, 379, Gardner vs. Lewis. 13 Ves., 586, Jackman vs. Mitchell. 15 Do., 52, Sadler vs. Jackson. 12 Pet., 178, Clarke vs.  [**5]  White. 2 Camp., 383, Bradley vs. Gregory. 3 Do., 174, Boothby, et al., vs. Sowden. 1 Peere Wms., 751, Pollen vs. Huband. Foster on Composition, 1 Lib. Law & Eq., 1. 16 Ves., 372, Mackenzie vs. Mackenzie. 19 Law Lib., 114. Story's Eq., sec. 191. Prac. in Chan., 310. 1 Coxe, 287. 8 B. Monroe, 599, Cutter & Co., vs. Reynolds.

John H. B. Latrobe for the appellee: Measured by the evidence the case put by the bill dwindles down to that which is made by the testimony of the two Masons, and rests upon the only two allegations which the appellant has attempted to sustain by proof:--1st, that Garland agreed to compound the judgment, and 2nd, that his representing to the Masons that he had done so, so far influenced them in following his supposed example as to bring this case within the decisions which make such conduct on the part of a creditor a bar to the recovery of his claim in full.

1st. Now as to the first of these points, it is clear that Garland's agreement by itself did not bind him to receive less than the full amount of his claim. The leading case of Cumber vs. Wane, in Smith's Lead. Cases, 146, in 19 Law Lib., 111, and the cases there cited, settle this. Upon this point [**6]  argument is unnecessary. There was no consideration to uphold an agreement, either to take a less sum or to exchange the superior security of a judgment for a claim on open account or promissory note.

2nd. The only considerations to support such an agreement is to be looked for in what took place between Garland and the Masons. Assuming it to be true, for the argument, that Garland told Mason he had agreed to compound, was this, even if followed by Masons doing the same in his reliance on Garland's judgment, such an agreement between Garland and the Masons as furnished the consideration that supported the agreement between Flack and Garland? None of the cases have gone this length. The most prominent are given in the notes in Smith's Lead. Cases, to Cumber vs. Wane. In Wood vs. Roberts, 3 Eng. C. L. Rep., 411, there was an express agreement between two creditors, amounting to "if you will then I will." In Steinman vs. Magnus, 11 East, 390, there was a regular agreement in writing between the debtor and his creditor. In Good vs. Cheesman, 22 Eng. C. L. Rep., 89, there was also a regular agreement in writing to grant a release on terms. So also in Norman vs. Thompson, 4 Wels., Hurls.  [**7]  & Gordon, 755. In the cases cited on the other side from 13 and 15 Ves., 2 and 3 Camp., and 12 Pet., there were in all of them special agreements to which the creditors were parties, and whereby, binding themselves to each other, they furnished the consideration which otherwise, under the authority of Cumber vs. Wane, would have been wanting. Putting the broadest construction upon the testimony of the Masons it amounts to no more than this, that Garland told them what he had proposed to do, leaving them to follow his example or not as they pleased. It is idle to say there was any agreement between Garland and the Masons, such as existed in the cases referred to where the parties either made a special contract or signed a release of the debtor, because, as the elder Mason testifies, he did not even tell Garland in their last conversation on the subject what he had concluded to do.

But even if we are wrong here and there was such an agreement between Garland and the Masons as furnished a consideration for the agreement between Flack and Garland, and assuming such an agreement, still, under the circumstances, the appellant could not avail of it because of the want of a tender of [**8]  performance on his part. If any agreement was made it was in July 1846. If there was any agreement it was to pay cash or give four months' notes. The scire facias did not issue till January 1850. In the interval there was no tender of either money or notes, and this alone is fatal to the appellant. 2 Maule & Selw., 119, Cranley vs. Hillary. 12 Pet., 191, Clarke vs. White. It cannot be said that this is a case where tender was unnecessary because it was known it would be refused; because the bill dwells on the friendliness of the relations of the appellant and Garland in his lifetime, and he survived the alleged composition quite long enough to have received either the notes or the money. In truth nothing was said about a tender until the bill for injunction was filed.

But we say the Masons are in error in their recollections of what took place with Garland, and have magnified ordinary conversations about a common debtor into an agreement to compound. And again we say that the appellant is here asking specific performance of an agreement, the consideration of which was a supposed agreement between him and Garland, and being in equity should come with clean hands if he is to find [**9]  relief here. In other words, his right to have the injunction perpetuated must rest upon the fact that the Masons settled with him under an agreement with Garland that he would do the same, or having understood from Garland that he would do so, and yet Flack having ascertained from Garland that he would not compound, completed the composition with the Masons without informing them of the fact. If this was so, then his silence was a fraud upon the Masons, and he can have no standing here. Or if he informed the Masons of Garland's refusal and they settled notwithstanding, then such settlement ceases to afford a consideration for the agreement, which it is the object of the present bill to set up, admitting it in every respect to be otherwise satisfactorily made out. The appellant is in a dilemma and may select the horn he prefers. We contend therefore:

1st. That as between Flack and Garland alone, admitting the agreement as alleged, it was without consideration and void.

2nd. That looking to what took place between Garland and the Masons, there was no such agreement between them as could furnish a consideration to support the alleged agreement between Flack and Garland.

3rd.  [**10]  Even admitting that such agreement was supported by a sufficient consideration, there was not such tender of performance on the part of Flack as authorises it to be set up as a bar to the recovery by Garland of the entire indebtedness.

4th. That there was, however, not only no such agreement between Garland and the Masons, but that, even admitting the declarations of Garland in regard to his willingness to compound, the Masons were not influenced by them, but acted on their own judgment in the matter.

5th. That in point of fact Garland made no such declarations as are sworn to by the Masons, and that they are mistaken in their recollection, as appears from the testimony in the record.

6th. That, if for no other reason, Flack is not entitled to the relief prayed by his bill, because he either was guilty of fraud in concealing from the Masons Garland's denial of what they alleged he had stated, or, if he told them and they compounded notwithstanding, their conduct destroyed the consideration, such as was necessary to support the alleged agreement between Flack and Garland to compound.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and TUCK, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [**11]  
 [*194]  LE GRAND, C. J., delivered the opinion of this court.
The bill in this case prays an injunction (which by the Superior Court of Baltimore city, where the bill was filed, was granted) against a judgment of Baltimore county court recovered against the appellant, Flack, by Nathaniel Garland, of whom the appellee is executrix. The judgment was rendered for a debt due by Flack to Garland and Elwell, of whom Garland was survivor. The bill alleges that Flack failed in business in the year 1842; that after some time had passed, during which he was endeavoring, having the confidence of his creditors, to make most available for their satisfaction the means left to him, he finally proposed to his creditors a composition, by which on paying fifty cents in the dollar he was to be released from his liabilities, determining and declaring 

 [*195]  that if such composition should fail to be effected, he would seek release by application for the benefit of the insolvent laws. The bill states that among his creditors, whose good will he thus had, was Garland, who, although during the suspense of the appellant's affairs before the composition was projected, had obtained judgment, yet [**12]  had taken that step with no adverse purpose, but merely to preserve the highest evidence of his claim. The bill states that after judgment was thus had by Garland, (which was rendered in the year 1843,) he, (Garland,) in the year 1846, and at the period when the composition referred to was in train, acceded to it and agreed, like the rest of the appellant's creditors, to accept the one-half of the amount of his claim in satisfaction of it; to be paid on demand made by Garland, in money, or by the appellant's note at four months. The appellant states that, by Garland so acceding to the composition, all his debts being provided for, he forbore applying for the benefit of the insolvent laws, and again embarked in business;--but that meanwhile Garland died, without receiving or applying for the composition money; and that his executrix, the appellee, unmindful of the adjustment thus binding her testator, was about to issue execution upon the judgment. The bill further states that Garland went forth among the other creditors to solicit and urge them to come into the composition, representing to them that he had acceded to it--stating that fact to persuade them to follow his example.
The [**13]  proceedings in the cause show that the judgment was obtained at January term 1843; and that on the 5th January 1850 a scire facias was issued, on which there was a fiat, and then an appeal to this court, where the judgment was affirmed at December term 1852.
The only testimony in the cause which can be regarded as tending, in any degree, to show that Garland had agreed to the composition alleged in the bill, or, that by his persuasion or statements, he induced others to assent to such an arrangement, is that of the Messrs. Masons. This testimony is very far from being decisively conclusive of the question when the other testimony is considered in connexion with it. But, be 

 [*196]  this as it may, it is not important to the decision of the case we should pronounce on its efficacy, for, even were it conceded that the composition had been clearly made out, yet the complainant would not be entitled to the relief which he seeks. By its terms the appellant was to pay the sum agreed to be accepted, either in cash or in notes, at four months. It is not pretended he did either, nor that he ever made an effort to do so. He did nothing so far as this record discloses until June 1853,  [**14]  when he filed his bill praying that the execution of the judgment might be enjoined. For several years he did nothing; he neither paid the money, delivered the notes, or offered to pay the money or to deliver the notes. We therefore think, on his own showing, that he has no equity. In the case of Green & Trammell, vs. Trieber, 3 Md. 11, this court said, when speaking of arrangements similar to the one relied upon here, that "the debtor offers his property to his creditors in payment of their claims, or for distribution according to such priorities as he may prescribe. Payment being the proposed object of the assignment, it must not contain any provision to defeat or hinder this purpose, beyond such reasonable delay as may be incidental and necessary to the proper execution of the trust." Every composition, in its very nature, contemplates payment in conformity with its terms. In the case now before us, if any was agreed upon, the appellant has wholly failed to perform his part of the contract. If he wished to avail himself of an arrangement for his benefit, he should have performed his part of it, or, at least, offered to do so. His failure to comply is a complete [**15]  answer to his present complaint.
Decree affirmed with costs. 

70 of 187 DOCUMENTS 

ROBERT PURVIANCE, JR., Permanent Trustee of WILLIAM BOSLEY, vs. WILLIAM W. GLENN and others, Exc'rs of JOHN GLENN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 202; 1855 Md. LEXIS 45 

DECEMBER, 1855, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Court of Common Pleas for Baltimore city.

This is an appeal from an order of the court below, sitting in insolvency, passed under the following circumstances:

Bosley petitioned for the benefit of the insolvent laws and John Glenn was appointed his permanent trustee in March 1828. In July 1853 Glenn died, and in October of that year Purviance, the appellant, was appointed permanent trustee in his place, and shortly thereafter filed his petition in the court below against Glenn's executors, in which he states substantially, that Glenn received large sums of money and property belonging to the insolvent's estate, but died without having settled the trust or in any way accounted for the property so received by him. The petition then prays that the executors may render an account of all moneys and property received by their testator as such trustee, and that the same with interest may be paid and delivered to the petitioner.

The answer of the executors admits that considerable property of Bosley passed into the hands of their testator as his trustee, but alleges that said Glenn was the attorney and representative of the largest portion of Bosley's creditors,  [**2]  and was able and willing at all times to meet their demands, and that if any balance remained in his hands it was because in his multiplied engagements the trust remained unadjusted, he having never been required by the parties interested to close it; and because, as petitioner well knew, their testator claimed a large portion of the fund as his own, by virtue of an agreement between him and the creditors. The answer further alleges the willingness of respondents to account for the fund and pay over whatever may be due the petitioner if the court should assume jurisdiction of the matter, but it insists that though the court has power to control and direct trustees of insolvents it has no summary jurisdiction over the representatives of trustees; and that inasmuch as respondents have defences and claims upon the trust fund which can only be properly heard and determined in a court of equity, they except to and deny the jurisdiction of the Court of Common Pleas, and ask that the petition be dismissed.

To this answer the petitioner excepted as insufficient for various reasons, which need not be stated. The court, (MARSHALL, J.,) ordered the petition to be dismissed; "the court thinking [**3]  that they have no jurisdiction over the executor in this case, but that he must be proceeded with as other debtors of the insolvent estate, at law or equity." From this order the petitioner appealed.  

DISPOSITION:
Order affirmed, with costs.  

HEADNOTES:

The insolvent courts have no jurisdiction to compel the executors or administrators of deceased trustees to account in these courts for the trust estate.

These courts have exclusive jurisdiction in the distribution of insolvents' estates and may proceed in a summary way against the trustees for default or neglect of duty.

In regard to the particular classes of trusts confided to them, these courts, in the exercise of a special authority, proceed upon principles of equity without being courts of equity.

The trustee of an insolvent may proceed to collect the property of the insolvent in courts having jurisdiction of the subject matter, as in other controversies, but when collected he must account for and distribute it in the insolvent court.

These courts proceed under special powers conferred by acts of Assembly, and the authority invoked must be shown to be within the limited jurisdiction.  

COUNSEL:
T. Parkin Scott for the appellant, argued:

1st. That the county court, under the late, and the Court of Common Pleas under the present constitution, has the sole and exclusive authority and jurisdiction to appoint trustees of insolvent debtors; and also the sole and exclusive authority and jurisdiction to administer and distribute the assets of an insolvent's estate. 4 G. & J., 394, Glenn vs. Karthaus. 5 Gill, 179, Alexander vs. Ghiselin. 7 Do., 170, Carter vs. Dennison. Ibid, 398, Gardner vs. Lewis. 9 Do., 240, Powles vs. Dilley. 1 Md. Rep., 143, Pierson vs. Trail. Ibid, 471, Waters vs. Dashiell. 2 Do., 17, Glenn vs. Gill. 3 Do., 463, Manahan vs. Sammon. To enable the courts to exercise the authority and jurisdiction thus given they must have power over trustees appointed by them, and also over their assignees in fact and in law. Acts of 1805, ch. 110, secs. 4, 10. 1819, ch. 84, sec. 8. 9 Gill, 240. The Court of Common Pleas is limited in jurisdiction [**4]  as to subjects, but has exclusive and unlimited jurisdiction in regard to the matters confided to it. Cons., art. 4, sec. 10. We therefore say the order appealed from must be reversed and the case sent back for an account and delivery of assets as prayed in the petition.

2nd. But it is objected that the appellees have defences and claims upon the trust fund which can only be properly heard and determined in a court of equity, and that they have a claim in virtue of an agreement between Glenn and the creditors. But the court of chancery, as the cases cited show, has no jurisdiction to settle the claims of creditors, and that must be done before Glenn's proportion of those claims can be ascertained. And assuming for the argument, that he has a claim, a court of equity could not adjust it without assuming jurisdiction of the insolvent's estate, which it is forbidden to do. 1 Md. Rep., 143, 471. 2 Do., 17. 3 Do., 463. Again, conceding that the account between the estate of the insolvent and the executors of the deceased trustee ought to be adjusted according to the practice and principles of courts of equity, it is settled law that the courts to which jurisdiction in insolvency is [**5]  exclusively given must proceed and determine according to equity. They must surrender the property to the present trustee and then come in with their claim. 7 Gill, 172. Ibid., 398. Until the present trustee knows what property was sold by the late trustee, and what claims were collected by him in his lifetime, and until he has possession of the title-papers, books and accounts of the insolvent, he cannot reasonably proceed to execute and complete the trust.

F. K. Howard and S. T. Wallis for the appellees, argued:

1st. That the Court of Common Pleas, sitting in insolvency, is a court of limited jurisdiction, clothed with no powers except those specially given by acts of Assembly; which acts have not in any case extended the summary jurisdiction of the court beyond the person of a delinquent trustee, leaving the remedies of his successor and of creditors to be exercised against his representatives after his decease through the ordinary courts of law and equity. The 10th sec. of the act of 1805, ch. 110, giving summary powers to the court, confines itself exclusively to existing trustees. The act of 1819, ch. 84, sec. 8, is confined to provisional trustees failing to comply.  [**6]  4 G. & J., 394, was the case of a provisional acting trustee refusing to give up the assets, and was clearly a case for summary proceedings. See also acts of 1832, ch. 203, sec. 3; 1833, ch. 173, secs. 5, 6, and 1835, ch. 235. The concession that suit may be brought at law on the trustee's bond yields, the point that the jurisdiction of the insolvent court is not exclusive.

2nd. That the jurisdiction contended for by the appellant would involve the settlement of the deceased trustee's estate in the insolvents' court, and the exercise of the powers of the orphans court, as well as the general jurisdiction of equity over the estates of decedents. No such extraordinary jurisdiction was ever contemplated by the legislature in giving the insolvents' court the right of making distribution according to equity. Acts of 1836, ch. 133, sec. 2. 1798, ch. 101, sub-ch. 14. 1820, ch. 174, sec. 3. 1831, ch. 315, sec. 7. 1 H. & G., 96, McCulloh vs. Dashiell. 7 Gill, 172. 4 Md. Rep., 529, Dent vs. Maddox. 6 Do., 347, Lowe vs. Lowe. All the authorities cited on the other side to this point are cases of distribution, and in that particular the insolvents' courts follow the courts of equity.  

JUDGES:
The [**7]  cause was argued before LE GRAND, C. J., ECCLESTON and TUCK, J.  

OPINIONBY:
TUCK 

OPINION:

 [*205]  TUCK, J., delivered the opinion of this court.
We are of opinion that the petition of the appellant was properly dismissed, for the reason stated by the Court of Common Pleas.
It is very clear, as shown by the appellant's counsel, that 

 [*206]  the Court of Common Pleas has exclusive jurisdiction in the distribution of insolvents' estates in the city of Baltimore, and that it may proceed in a summary way against trustees, under the circumstances mentioned in the acts of Assembly referred to on this point. But it does not follow, that these powers may be exerted against their executors or administrators for the purpose of compelling them to account in that court for the trust estate. This action of the court against the trustee is based on some alleged default or neglect of duty in his capacity as such, which cannot be imputed to his executor or administrator. The latter derives no authority from the insolvents' court, is not under its control nor accountable to it, any more than the trustee is to the orphans court.
Although trusts are peculiarly the subject of equity jurisdiction, this [**8]  particular class of trusts has been confided to courts of common law, in regard to which, in the exercise of a special authority, they proceed upon principles of equity without being courts of equity.  Carter vs. Dennison, 7 Gill 157. We must not mistake this control of the court over the trust funds, for the power of the trustee to institute proceedings in the proper tribunals for the purpose of collecting them together. Property belonging to the insolvent may be in different places, or suits in equity may be necessary to vacate assignments; in all which cases it is manifest, that the trustee can proceed only in the courts having jurisdiction over the subject matter, as in other controversies. But when the suits are terminated, the funds must be accounted for in the court from which the trustee derives his authority. So exclusive is this jurisdiction, that where a bill was filed in equity to vacate a fraudulent deed and the deed avoided, that court was not allowed to retain the case and grant complete relief by distributing the proceeds, nor even to the extent of making sale of the property by a trustee of its own appointment, but the case was left to the power [**9]  and action of the trustee in insolvency. Jamison vs. Chesnut, Ante, 34. The prevention of confusion and possible conflict of jurisdictions is one of the reasons assigned for confining the settlement of these trusts to one and the same tribunal. 5 Gill 138. Waters vs. Dashiell, 1 Md. 455. This consideration 

 [*207]  applies with equal force in restraining these courts from drawing within their special jurisdiction matters more properly cognizable in other courts, and thereby, as incident to the duty of making distribution of the insolvent's estate, possessing themselves of the power to marshall the assets of deceased trustees, when the laws have appointed different tribunals for the settlement of their estates.
If the estate be insolvent, (and we do not think the principle is affected by the admission of assets in this case,) the common law court, sitting in insolvency, cannot ascertain the amount due by it on account of the trust without investigating the whole personal estate, determining questions of priority and making a ratable dividend among the creditors. This, it is argued, can be done as readily as a plaintiff's proportion of assets [**10]  is ascertained in suits at law. Probably, looking to the different manner of taking the account, it may be accomplished with greater justice to the parties than in a suit at law; but we must pay regard to judicial systems as we find them established. At law, relief is granted in the exercise of common law powers by courts of general jurisdiction, in which administrators have always been impleaded; whereas, these courts, in matters of insolvency, proceed under special powers conferred by acts of Assembly, and the authority invoked must be shown to be within the limited jurisdiction.  Bowie vs. Jones, 1 Gill 208. Besides, if this proportion of assets can be determined by the court, sitting in insolvency, as in cases at law against the executor or administrator, why may not the proceeds of the real estate be made applicable there also, as in suits in equity when the personal estate is insufficient? Indeed, if the appellant's present pretensions be acknowledged as within the purview of the exclusive jurisdiction of the Common Pleas, as a court of equity, pro hac vice, it would seem to be quite as appropriate that it should determine the claimant's dividend of the [**11]  proceeds of the realty as to call for an account of the personal assets. Executors and administrators are liable only in respect of their relation to the personal estate, and on the same principle the heirs and devisees would be responsible as representing the real assets, and therefore subject to be called on to make good 

 [*208]  thereout any deficiency of the fund primarily liable for the payment of debts. But it is manifest, that these courts have no such jurisdiction over the real estate of a deceased debtor.
It may be, as urged on the part of the appellant, that defences will be relied on by the appellees, if sued elsewhere, by which the claim may be defeated altogether. On this point we intimate no opinion. But if the remedy is gone by lapse of time, the fault is not with the present trustee. The creditors had ample redress under the acts of Assembly against the former trustee for any supposed default, and cannot now offer this suggestion as a ground for clothing the Common Pleas with powers not granted by the constitution and laws.
Order affirmed, with costs. 

71 of 187 DOCUMENTS 

FREDERICK ROLOSON vs. DAVID CARSON, JR.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 208; 1855 Md. LEXIS 46 

DECEMBER, 1855, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

Assumpsit by the appellant against the appellee, to recover for damages sustained by reason of the alleged defective and unworkmanlike manner in which defendant had built a warehouse under an agreement with the plaintiff, in consequence of which the warehouse fell down. Plea, non assumpsit, with an agreement that either party may give in evidence any matter which he could rely on by any form or mode of pleading.

1st Exception. The plaintiff offered in evidence the agreement, by which the defendant contracted to build a warehouse for the plaintiff, adjoining that now occupied by him and corresponding with the same, for $ 2500. "The buildings now on the premises to be taken down, as also the south gable-end wall of old warehouse, all of the bricks to be properly cleaned and piled ready for use. The joist of old building to be stayed and shored up to receive the girders, which is to be used in the place of the wall." He then proved by Harris, that after a part of the warehouse fell down, the plaintiff and defendant mutually agreed to refer the matter to witness and John Nant, to ascertain the cause of the damage, and at whose [**2]  expense it should be repaired or who was liable for the damage done; that they met on the premises, in the presence of the parties, and called in Mr. Curley to their assistance; that the three examined the premises, heard the statements of both parties, held three or four meetings, at all of which, except that at which the witnesses were examined and that at which the award was made out and signed, both plaintiff and defendant were present; that the agreement under which the warehouse was built was produced by the plaintiff at the second or third meeting; that at one of the meetings, five witnesses were examined at the instance of the plaintiff; that neither of the parties was present at the examination of the witnesses, but written questions were left by the plaintiff with the arbitrators to be propounded to the witnesses; that afterwards, the arbitrators met and made out the award, which was offered in evidence and set out in full in the opinion of this court.

Much testimony was then offered by both parties chiefly as to the strength and proper construction of an old foundation wall which defendant claims he built upon by direction of plaintiff, who instructed him to allow the [**3]  old wall to remain. The plaintiff alleged and offered evidence that the old wall was strong enough, and that defendant built upon it in an improper manner. On the other hand, defendant offered in evidence that the old wall was badly built and that the fall was occasioned thereby. It was also proved, that at a meeting of the arbitrators, held before the award was made, an affidavit of the defendant was sent in by him, which was received and considered by the arbitrators, but one of them states it had no influence in forming his judgment; that plaintiff was not present at this meeting, nor was any previous notice given to the parties to attend.

The plaintiff then, to prove the damage sustained by the fall of the building, offered to prove there was a quantity of pork and other provisions belonging to the firm of plaintiff and one Littig, who held possession of the premises at the time of the accident as tenants of the plaintiff, injured thereby; but it being admitted there was another suit on the docket by this firm against the defendant for this damage, the court, (FRICK, J.,) on motion of defendant, rejected the evidence so offered, and to this ruling the plaintiff excepted.

2nd [**4]  Exception. The plaintiff having excepted to the ruling of the court in regard to a question propounded to a witness, his counsel proceeded to write his exception, and with the sufferance of the court, the examination of the witnesses, meanwhile, was suspended. But after waiting fifteen minutes, the court ordered the examination to be proceeded with, against the objection of plaintiff's counsel, who had not completed the writing of his exception. The court announced, that as there was associate counsel for the plaintiff, the examination of the witnesses must be proceeded with, and the counsel could write his exception at any time before the verdict was rendered and the court would sign it. To this ruling the plaintiff excepted.

3rd Exception. This exception was taken by the plaintiff to the refusal of the court below to grant his six prayers, all of which are sufficiently stated in the opinion of this court.

The verdict and judgment were in favor of the defendant and the plaintiff appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Mistakes committed by the arbitrators in drawing incorrect inferences or forming erroneous judgments or conclusions from facts, will not vitiate their award.

A mistake that will vitiate an award must be gross and manifest, and of some fact by which the arbitrators were deceived and misled.

The courts have by a long course of decisions manifested a strong inclination to sustain the judgments pronounced by arbitrators.

It is not necessary that the parties should have notice of or be present at the meeting of the arbitrators at which the award is made up and signed.

Arbitrators, like jurors, have the privilege of consultation in private for the purpose of making their award.

A prayer that an award is void because the arbitrators, without previous notice to, and in the absence of, the other, read an ex-parte affidavit of one of the parties, "though the jury believe it had little or no influence on the minds of the arbitrators," is defective, because it would have justified the jury in vacating the award for what they believed had no effect upon the decision.

A more liberal and reasonable interpretation of awards is now adopted than formerly; every reasonable intendment will be made in their favor, and a construction given to them that will support them, if possible, without violating the rules adopted for the construction of written instruments.

A prayer that an award was void because of improper conduct of the arbitrators, without leaving to the jury to find any facts constituting the misconduct, is erroneous.

A prayer that an award is void because not in accordance with the submission as proved by one witness, is defective, there being other witnesses who testified in regard to the terms of the submission.

Where the appellant has received no injury from an erroneous ruling of the court below, the case will not be sent back under a procedendo.

Under the act of 1834, ch. 233, sec. 11, the court has a discretion as to what time the exceptions shall be prepared or signed, provided they are completed prior to the verdict, and the exercise of such discretion is not a subject of revision on appeal.

As a general rule, the most appropriate time to prepare an exception is immediately after the decision excepted to is made.  

COUNSEL:
Vivian Brent for the appellant, stated, that the main questions in this case arise under the third exception relating to the validity and effect of the award,  [**5]  but that he desired, however, an expression of this court's opinion upon the second exception. He then argued the questions arising upon the third exception.

Before considering the law of awards as applicable to the prayers contained in this exception, I desire to submit some authorities as to the legal merits of the plaintiff's right to recover damages on the facts detailed in the statement of evidence. Defendant was the agent of the plaintiff for hire to build the house, and he was in the business or profession of house-builder. The rule in such case is, that he is bound to have competent skill and is liable for loss occasioned by his ignorance, neglect or want of skill. Paley on Agency, 5, 10, 76, 77, 78. 14 Mass., 282, Taft vs. The Inhabitants of Montague. The very undertaking to build for hire is a representation that he had the requisite skill and judgment, and would use that skill and judgment, and his breach of contract may be given in evidence to reduce his claim for compensation or as the foundation of a cross-action. 3 Starkie's Rep., 6, Duncan vs. Blundell. 1 Camp., 38, Farnsworth vs. Garrard. 1 Car. & Pay., 352, Moneypenny vs. Hartland, et al.; also same case in 2 [**6]  Car. & Pay., 378. And even where the specific price is agreed on and the employer has encouraged the agent in the improper work the employer has a remedy by cross-suit. 3 Starkie on Ev., 1770. 2 Saund. Pl. & Ev., 962. But it will be said on this that Roloson substituted his own judgment and adopted the stone wall as a foundation. On this point see the case of Duncan vs. Blundell cited above. But no subsequent acts of Roloson can control or change the meaning of the contract. 6 H. & J., 418, Key vs. Parnham. 1 H. & G., 74, Ringgold vs. Ringgold. 10 G. & J., 279, Vincent vs. Chapman. If Roloson accepted the old stone wall and gave no specific instructions where or how to place the columns it was then left to the skill and competent judgment of the builder, and he should have examined the mortar and the sides of the wall and placed the columns most judiciously, and secured them with proper plates and distribution of pressure as shown in the evidence. Again, it is for the jury to say how much the accident was referable to the bulging of the south wall. Moreover there is no proof of the exercise of the personal skill or judgment of Carson. The columns were placed and sighted by White in [**7]  his absence and without instructions, and we have White's own admissions in evidence. Carson is responsible for the want of skill and care of his agents. 2 Kent's Com., 279. 6 G. & J., 291, Steam Co. vs. Hungerford. See further, as to damages by way of deduction from the stipulated price, Thornton vs. Place, 1 Moody & Rob, 218.

The award sought to be impeached by the prayers under review is clearly obnoxious to the objections taken in those prayers. The principles of law on this subject are well established, and each of these prayers ought to have been granted. In England it is clear that no award can be impeached for misconduct of arbitrators except by bill in equity, unless made a rule of court. 8 East, 344, Braddick vs. Thompson. 1 Saund. Rep., 32, Birks vs. Trippet, note (a.) 59 Law Lib., 156. But even there you may, by pleading, invalidate the award by matter on its face. 11 East, 191, Fisher vs. Pimbley. Or by pleading extrinsic matters. 9 Eng. C. L. Rep., 54, Cargey vs. Aitcheson. Or that there was no award, and support it by showing fraud in the submission. 18 Eng. C. L. Rep., 242, Sackett vs. Owen. But even in England this whole doctrine is favorably expounded for the [**8]  impeachment of awards, by Mr. Saunders quoting Mr. Philip on Evidence. 1 Saund. Pl. & Ev., 186. And where nothing can be done under the award but by suit, the court will leave all objections to be decided in the suit. 1 Bac. Abr., 376. 7 Term Rep., 74, Pedley vs. Goddard.

But be that as it may, no such rule has ever prevailed in Maryland, and there being no reason in it, we are free to follow our own practice, which is the simplest and most convenient. Where the award sets forth the facts as here, and draws erroneous inferences of law on the facts, it is vacated at law. 2 H. & McH., 478, Oliver vs. Heap. It is expressly decided, that any irregularity in the arbitrators is a defence in Maryland, (9 G. & J., 11, Shriver vs. The State,) contrary to the English law as laid down in 63 Law Lib., 371. And want of notice is fatal in Maryland, (3 Gill, 49, Bullitt vs. Musgrave,) not so at law in England. We therefore consider that the irregularities or improprieties of arbitrators are available at law in Maryland, as by bill in equity, especially where they amount to legal fraud. Courts of law relieve negatively against frauds. 6 H. & J., 255, Lamborn vs. Watson. Therefore we use the following [**9]  decisions: 1 H. & J., 361, Goldsmith vs. Tilly. 3 Gill, 49, Bullitt vs. Musgrave. 9 Gill, 175, State vs. Williams. 6 H. & J., 95, Heuitt vs. The State. Mistake of fact will vitiate the award where the fact appears on the face of the award and the mistake appears aliunde by evidence. 59 Law Lib., 164. 2 Story's Eq., sec. 14. 2 Vernon, 705, Corneforth vs. Geer. 5 Sergt. & Rawle, 51, Large vs. Passmore. 4 Dallas, 284, Williams vs. Paschall. 1 H. & J., 361. 2 H. & McH., 478, Oliver vs. Heap. Kyd on Awards, 327. 3 H. & McH., 118, Tillard vs. Fisher. But here is a mistake in law apparent on the face of the award as based on the facts assumed. The meeting at which the award was made and agreed upon is as essential as any other meeting, and no notice of that is proved. Caldwell on Arbitrations, 206. 6 H. & J., 406, Rigden vs. Martin. Watson on Awards, 73. 3 Gill, 49. Notice is always necessary or the award is void. 3 Gill, 49. 7 Gill, 497, Emery vs. Owings. Again, the conduct of the arbitrators in receiving the affidavit of Carson touching the contract vacates the award. (63 Law Lib., 172, 173, 177. 1 Dallas, 161, Hollingsworth vs. Leiper. Ibid., 187, Chaplin vs. Kirwan. 6 Ves., 70, Walker [**10]  vs. Frobisher. 9 Do., 67, Fetherstone vs. Cooper. Watson on Awards, 170. 8 Taunt., 694. In re, Hick et al. 4 Dallas, 232, Falconer vs. Montgomery. 2 Halst., 428, Harker vs. Hough,) although they swear it had no influence. 63 Law Lib., 175, 176.

Henry P. Brooks and Levin Gale for the appellee, stated, that the decisions of the court below in the first two exceptions need not be discussed, because even if wrong they are not causes for reversal as the appellant has received no harm thereby. They then argued:

1st. That the award offered in evidence in this case not being submitted by rule of court, in pursuance of the acts of Assembly relating to submission of causes pending in courts, the same cannot be inquired into or set aside in this case, unless there is obvious mistake apparent on the face of the award, and that there is no such mistake and therefore all the prayers offered by the plaintiff were properly rejected. The mistake that will vitiate an award must be a plain and obvious one upon its face, and not a mistake in the judgment of the arbitrators. It has always been the law, that nothing dehors the award can be given in evidence to defeat it. 2 Story's Eq., sec. 1452.  [**11]  63 Law Lib., 434. 51 Do., 107. 59 Do., 155. 3 Johns., 368, Barlow vs. Todd. 2 Do., 62, Newland vs. Douglass. 3 Monroe, 439, Southard vs. Steele. 18 Ala., 174, Strong vs. Beroujon. 5 Halst., 7, Shuland vs. Wood. 13 New Hamp., 72, Rand vs. Reddington, 11 Missouri, 624, Finley vs. Finley. 13 Ill., 454, Pottle vs. McWorter. 13 Verm., 484, Emerson vs. Udall. 1 Hill, 319, Dater vs. Wellington. 6 H. & J., 13, Cromwell vs. Owings. 9 Gill, 172, State vs. Williams.

2nd. The plaintiff's second prayer was properly rejected. For even if the award can be inquired into it was immaterial whether the plaintiff was present or not at the meeting at which the award was made, written and subscribed, the arbitrators having the undoubted right to make up their opinion and sign the award in the absence of the parties. Indeed it is difficult to understand how they could consult and decide properly in the presence of the parties. This prayer is confined exclusively to the meeting at which the award was made up and signed, and no other question in regard to notice can be raised in this court as none other was presented below. The authorities all say that notice of the publication of an award is not necessary.  [**12]  63 Law. Lib., 436. 59 Do., 89.

3rd. The third prayer was properly rejected. For even if the award can be inquired into, the fact that defendant submitted his affidavit to the arbitrators in reference to a matter in dispute does not vitiate the award as it did not affect their decision. 1st. Notice was given to the plaintiff before the award was made, and he did not object nor withdraw his submission, which he could then have done. He should not be allowed to wait until he ascertained which way the award was made, and object only in the event of the award being against him. 21 Eng. C. L. Rep., 371, Matson vs. Trower. 12 Penn. State Rep., 134, Graham vs. Graham. 4 Term Rep., 589, Hall vs. Lawrence. 40 Eng. C. L. Rep., 648, Bignall vs. Gale. 63 Law. Lib., 175. 6 Ves. 72, Walker vs. Frobisher. 4 Dallas, 271, Passmore vs. Pettit. 2nd. The plaintiff was guilty of the first fault, if it was a fault, by submitting his own statement or letter to the arbitrators. 9 Ves., 67, Fetherstone vs. Cooper. 3rd. The prayer itself assumes that no influence was had on the judgment of the arbitrators by the affidavit, and if so no wrong was done by it. This is a different question from the question [**13]  whether you can inquire whether it had any effect. For although it might be true that the court, on principles of policy, would not enquire whether a matter, which was improper, had or had not any effect on the judgment of the arbitrators, yet if the plaintiff choses to assume in his prayer that it had no effect he cannot be permitted to ask a reversal for a matter which was entirely barren of results. 6 Ves., 72. 9 Gill, 61, Ramsay vs. Glass.

4th. The fourth prayer was properly rejected, because there was no mistake of fact made by the arbitrators. It is also erroneous in this, that it submits to the jury the question, whether the arbitrators were mistaken in any of the facts set out on the award, whereas to vitiate the award the mistake must appear on the face of the award and must be a self-evident mistake, such as a miscalculation or the like; or it must be admitted by the arbitrators, that they had made a mistake, and that but for that mistake they would have determined otherwise. The fact that the court or the jury do not agree with the arbitrators in their opinion, or think they were wrong in their conclusion, is not sufficient to vacate the award. 51 Law Lib., 46, 47.  [**14]  63 Do., 242 to 246. 6 Metcalf, 131, Boston Water Power Co. vs. Gray. 11 How., 349. Benchall vs. Marsh. 2 Gallison, 69, Kleine vs. Catara. 6 H. & J., 12, Cromwell vs. Owings. 5 Md. Rep., 361, Ebert vs. Ebert.

5th. The fifth prayer was properly rejected. The assumption that the award held the defendant exempted from liability alone or entirely, on the ground mentioned in this prayer, is not true in fact, the award not professing to set out all the grounds for the decision given. Even if true it is not erroneous in point of law and not inquirable into. An error of law to vacate an award, if it can be vacated at all for such cause, must be a plain and obvious mistake on a point of law, unmixed with facts, and where no equitable considerations could enter into the subject to be decided. 2 Gallison, 69, Kleine vs. Catara. 25 Verm., 316, Spaulding vs. Warren.

6th. There is no evidence to support the facts assumed in the sixth prayer, and if there was, our argument, on the preceding prayers, shows that this one also was erroneous. Again, it assumes facts which should have been left to the jury. It assumes fraud without submitting the question to the jury, or hypothetically assuming [**15]  any facts to base the objection of fraud upon.

Orville Horwitz for the appellant in reply, argued:

1st. As to the right to inquire into the validity of the award in this way, there is a distinction between references under rule of court and submissions out of court. 1st. In cases of references the award returned to court must be set aside on motion when every defence or objection avails that would avail in equity. In 1 H. & J., 364, Goldsmith vs. Tilley, the court say: "Every ground of relief in equity against an award is equally open in this court." 2nd. In actions brought on awards or on bonds for submission, or where the award is introduced as a defence there the practice in Maryland is to hear the objections at law. 2 H. & McH., 478, Oliver vs. Heap. 3 H. & J., 383, Walsh vs. Gilmor. If, when declared on, they can be resisted, a fortiori can they when offered as a defence? Suppose the award in this case had been pleaded, could we not have assailed it?

2nd. How are awards to be considered? They ought not to be held more sacred than the verdicts of juries. 1 Dallas, 315, Williams vs. Craig. There are two grounds for setting aside an award; either matter apparent on [**16]  the face or matter dehors. 1st. As to matter apparent on the face. What will suffice? Mistake of fact apparent on the face. 1 H. & J., 364. 9 Gill, 175, State vs. Williams. The conclusion that "the wall had not been well built," is a wrong conclusion of fact. The defect might have arisen from any other source. Mistake of law will also suffice to vacate the award. The obligation of the contractor is to make the foundation sufficient, and not merely to pay attention to the building during its progress. As to duties of agent see Paley on Agency in 28 Law Lib., 5, 10, 76, 78. 14 Mass., 282, Taft vs. Inhabitants of Montague. 2 Car. & Pay., 378, Moneypenny vs. Hartland, et al. He must not rely upon another's information, but must look for himself. 1 Car. & Pay., 352, Moneypenny vs. Hartland, et al. 3 Starkie's Rep., 6 Duncan vs. Blundell. So that the implication of law would be that he should see that the foundation was sufficient. But the contract expressly provided for the taking down of the south gable-end wall and made it his duty to supply its place. The award proceeds upon the double error of law; that if he made a mistake in his judgment he was relieved; and again, upon the idea that [**17]  the duty was to superintend diligently. If it appears on the face of the award that there is evidence not pertinent or legal relied on by the arbitrators, it will be set aside. Peck, (Tenn. Rep.,) 275. 2nd. As to matters dehors. Want of notice of last meeting is fatal, for Roloson was thereby deprived of the opportunity of examining McCoy. 1 H. & J., 362, Selby vs. Gibson. 6 H. & J., 406, Rigden vs. Martin. 3 Gill, 49. Bullitt vs. Musgrave. 63 Law Lib., 172. The reading of an ex-parte affidavit by the arbitrators vitiates the award. 4 Dallas, 272, Passmore vs. Pettit. 1 Dallas, 161, Hollingsworth vs. Leiper. 7 Gill, 498, Emery vs. Owings. 63 Law Lib., 173, 174, 176. If the contract has been misconstrued, it being in writing, the court will correct the error. 5 Sergt. & Rawle, 52, Large vs. Passmore. Again, the award does not cover the submission, but only decides part of the matter in controversy, and for this reason is defective. 5 G. & J., 412, Armstrong vs. Robinson. 6 H. & J., 10, Cromwell vs. Owings.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and TUCK, J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*218]  ECCLESTON, J., delivered the opinion of this court.
The questions of most [**18]  importance in the cause are those which relate to the award, we therefore intend directing our attention to them first; although they are presented by the plaintiff's prayers, numbered from two to six, inclusive, which are to be found in the third and last bill of exceptions.
In England, when an award made under a reference in pais is sued upon, or is used in defence, in a court of law, it cannot be impeached for matters dehors the award. And when the injured party wishes to relieve himself from such an instrument, by proof aliunde, he must file a bill in equity to set it aside. In the suit at law he is confined to errors apparent on the face of the award. Not only is it so in England, but likewise 

 [*219]  in many of the States of this Union, as will appear from the authorities referred to by the counsel for the appellee under their first point.
Portions of the plaintiff's evidence intended to impeach the validity of the award should have been rejected in the court below, if objected to as inadmissible, because dehors the award. But what those portions are need not now be inquired into; because, even considering the evidence as in the cause, still we think the [**19]  prayers of the plaintiff were rightfully refused by the court. And this renders it unnecessary to ascertain to what extent, if any, the English rule in regard to the impeachment of awards, similar to the present, has been altered or modified in Maryland.
The award in controversy is in the following language: "The undersigned, Samuel Harris and J. Nant, having been appointed arbitrators by Frederick Roloson of the one part, and David Carson, contractor, of the other part, both of the city of Baltimore, to settle a matter of difference between them respecting the building of an addition to said F. Roloson's warehouse, situate on the west side of N. Paca, between Fayette and Lexington streets, which building or addition to said house, when near being finished and taken possession of by said Roloson, fell down in part, from the fact that the old stone wall which was to remain, and which wall was supposed by all parties to be good and sufficient to support all the weight for which it was intended, gave way or crushed under the iron columns, which caused the damage, showing very plainly that the wall had not been well built. The arbitrators named above, at their second meeting, called in [**20]  James Curley, and after hearing all the statements of both parties respecting the cause, &c., also examined, under oath, five witnesses called by Mr. Roloson, some of whom had worked upon the building, and others frequently saw the work while in progress; and all of the five witnesses testified that said Carson had paid proper attention to the work from first to last. We therefore, as arbitrators, say, after hearing all the evidence produced in the case, and from our own observation, after a careful examination of the building, that D. Carson is not in any way in fault 

 [*220]  and not liable for any part of the damage, it being one of those things which human wisdom could not foresee.
SAMUEL HARRIS,
JOHN NANT,
JAMES CURLEY."
From this we understand the arbitrators as intending to say, in effect, that the wall which fell was to remain, and was supposed by all parties to be good and sufficient to support all the weight for which it was intended; that the external appearance of it indicated no unsoundness or imperfection, but by the fall the internal defectiveness of the structure became manifest, although previously concealed from human observation; that the damage resulted from [**21]  such concealed defect which caused the falling of the wall; and as that wall, by agreement, was not to be taken down, but to stand as it was, the arbitrators came to the conclusion that Carson was not in fault and not liable for the damage.
Whether the old wall, by contract, was to stand, and whether its external appearance exhibited such a state of soundness as to indicate its entire sufficiency to sustain the weight designed to be placed upon it, disclosing no evidence of any internal defect whatever, the parties supposing it good and sufficient for what it was intended; and whether the falling of the wall was caused by its concealed defect, and not a want of proper care or skill, in the manner of placing the iron columns upon it, were matters in regard to which the conclusions of the arbitrators were formed from the evidence, in connection with their own personal observation. From the nature and character of the circumstances presented for consideration and decision by the referees, if they committed errors or mistakes in their conclusions upon the facts, they were mere errors of judgment, and not gross mistakes which could defeat the award. It is not every error or mistake which [**22]  can avail for such a purpose. On the contrary, by a long course of decisions, courts have manifested a strong inclination to sustain the judgments pronounced by arbitrators. Mistakes committed by them in drawing incorrect inferences, or forming erroneous judgments or conclusions, from facts, will not vitiate their 

 [*221]  awards; but when mistakes are relied upon for that purpose they must be gross and manifest. In Knox vs. Symmonds, 1 Ves., Jr. 369, where the court, from the character of the proceeding, were at liberty to look, not only to the award, but also to the evidence aliunde, Lord Thurlow says: "To induce the court to interfere there must be something more than an error of judgment, such as corruption in the arbitrators, or gross mistake, either apparent on the face of the award or to be made out by evidence; but in case of mistake, it must be made out to the satisfaction of the arbitrator, and that if it had not happened he should have made a different award." This remark is quoted with approbation in Burchell vs. Marsh, et al., 17 How. 344. And in that case the Supreme Court also say: "Courts should be careful to avoid a wrong use of [**23]  the word 'mistake,' and by making it synonymous with mere error of judgment, assume to themselves an arbitrary power over awards."
From its peculiar applicability to the subject before us we are induced to make a quotation from the opinion of Ch. Justice Shaw, in Boston Water Power Co. vs. Gray, 6 Metcalf 181, where he says: "The mistake or accident, therefore, must be of some fact which deceived and misled the arbitrators, and not a mistake in drawing conclusions of fact from evidence or observation." That mistakes which are but errors of judgment will not invalidate awards, may be seen by reference to Cromwell vs. Owings, 6 H. & J. 10, and Ebert's Exc'rs vs. Ebert's Adm'rs, 5 Md. 353. And in delivering the opinion of the court in Goldsmith vs. Tilly, 1 H. & J. 361, Ch. J. Chase says: "The court will not unravel the matter and examine into the justice and reasonableness of what is awarded."
Without meaning to say whether we should have drawn the conclusions which the referees did, we feel no hesitation in saying, that after looking, not only to the award, but also to the proof in the cause, we see no just reason for supposing [**24]  they did not believe they were doing what justice demanded of them. And in Burchell vs. Marsh, et al., where the award was open to a full examination, under a bill in equity, filed 

 [*222]  for the purpose of setting it aside, the court use this language: "If the award is within the submission and contains the honest decision of the arbitrators, after a full and fair hearing of the parties, a court of equity will not set it aside for error, either of law or fact. A contrary course would be a substitution of the judgment of the chancellor in place of the judges chosen by the parties, and would make an award the commencement, not the end, of litigation."
The plaintiff's second prayer, but the first stated in the record, is: "If the jury find from the evidence that the award read in evidence was made, written and subscribed by the arbitrators, at a meeting at which plaintiff did not attend and of which no notice was given to him, the plaintiff, then the said award is no bar to a recovery in this case, unless the jury are further satisfied from the evidence that the said award, after being notified to the plaintiff, was acquiesced in and assented to by him."
If the law of this [**25]  prayer is correct, then an award is void, unless ratified after notice of it is given, provided the party opposed to it is not present at, or notified of, the final meeting of the arbitrators, held simply for the purpose of making their decision, writing out and signing their award, although they may have previously heard all the allegations of the parties and examined all the evidence. When jurors retire to their chamber for the purpose of forming a verdict the parties are excluded, so that there may be a free and unbiassed deliberation as to what the verdict ought to be. Why have not arbitrators the same privilege of secret consultation and interchange of views, in regard to their final decision of the matters submitted to them? Impartial justice requires it should be so. If then arbitrators must be allowed the privilege of consultation, in private, for the purpose of making their award, what possible benefit can result from requiring the parties to have notice or knowledge of such an intended meeting? Not considering it necessary the parties should have notice of, or be present at, a meeting of that description, we think the court did right in refusing the prayer.
The third prayer [**26]  assumes the award to be void in consequence 

 [*223]  of the arbitrators having read the defendant's affidavit without previous notice to the plaintiff, and in his absence, even if the jury believed the affidavit had no influence on the minds of the arbitrators. The prayer is in the alternative, "although the jury may believe that the said affidavit had little or no influence on the minds of the arbitrators," and therefore if the instruction had been given the jury would have been justified in deciding against the award, on account of the affidavit being read, although they believed it produced no effect upon the decision of the referees. That would be allowing an award to be defeated for what is known to have exerted neither beneficial nor injurious influence on the rights of either party. Whilst it might be very proper to set aside an award because the arbitrators had read an ex-parte affidavit of this sort, and a court would not consider such an objection to the award as removed, even were the arbitrators to testify that the affidavit had no influence on their decision, still such a principle does not sanction the propriety of a prayer which assumes that the affidavit [**27]  had no effect upon the award. Such a proposition would be equivalent to saying the mere reading of such a paper will defeat an award, although the parties have agreed that it produced no possible effect.
The proposition stated in the fourth prayer is, that if the jury should find from the evidence the arbitrators were mistaken in the facts, or any of them, recited in the award, as the grounds on which they so awarded, and that without such mistake they would not have so decided, then the award is no bar to the plaintiff's claim. After a full consideration of the evidence we see no proof on which such a prayer could be granted: no evidence, in our opinion, legally tending to prove such a gross palpable error or mistake, in any of the facts recited by the arbitrators, as the grounds on which they made their decision, which could defeat the award. If the evidence has any tendency to show mistake, it can amount to nothing more than mistake or error of judgment on the part of the arbitrators, in drawing conclusions or inferences from the evidence and their own observation.
The fifth prayer is: "That the award read in evidence 

 [*224]  undertakes to acquit and exonerate the defendant [**28]  from liability on the ground alone, as stated therein, that both parties supposed the stone wall to be good and sufficient, and the same proved defective, which was the cause of the falling of the building, and the award is therefore void for mistake in law, of the arbitrators, appearing on the face of their award, in this, that the facts stated in the award do not, in law, warrant the conclusion, as the arbitrators supposed they did, that the defendant is free from liability to the plaintiff." In the very commencement of this prayer there is an error. Instead of the award undertaking to acquit and exonerate the defendant from liability, on the ground alone, that both parties supposed the wall good and sufficient, and the same proved defective, which caused the falling of the building, the award contains the important statement, that the wall referred to in the prayer "was to remain." Not that the arbitrators thought it was to remain, because both parties supposed it good; but after speaking of the new building, they say, it "fell down, in part, from the fact, that the old stone wall which was to remain, and which wall was supposed by all parties to be good and sufficient to [**29]  support all the weight for which it was intended, gave way or crushed under the iron columns, which caused the damage." Here it is first said the wall was to remain, then follows the statement of the further fact that the wall was supposed by all parties, &c. Moreover, when in conclusion the arbitrators speak of their own observation or examination of the building, and of having heard all the evidence produced in the case, and say "that D. Carson is not in fault and not liable for any part of the damage, it being one of those things which human wisdom could not foresee," it is evident the award does not undertake to exonerate and acquit the defendant from liability, on the ground alone stated in the prayer. Of course it should not have been granted.
By the sixth prayer the court were asked to instruct the jury, "that the paper offered in evidence and purporting to be an award is void for the following reasons:
1st. Because there is a mistake of fact apparent on its face.
2nd. Because there is a mistake of law apparent on its face.

 [*225]  3rd. Because of the improper conduct of the arbitrators.
4th. Because it is not in accordance with the submission as proved by Mr.  [**30]  Harris."
The first reason confines the court to the award itself; and if there is any mistake of fact on its face, we cannot see any which can be considered more than an erroneous judgment or inference. The second reason assumes there is a mistake of law apparent on the face of the award. Whether the court could so instruct the jury must be ascertained by looking to the award itself, without resorting to extrinsic evidence for the purpose of showing a mistake, the assumption being that on its face the award shows it.
We have already stated what we understand to be the meaning of the award in regard to the grounds on which the arbitrators exonerated the defendant from liability, and we think that conclusion upon those grounds was not an error or mistake in law, authorizing the court to instruct the jury that the award is void, because on its face there is an apparent mistake of law. In Ebert's Exc'rs vs. Ebert's Adm'rs, it is said: "A more liberal and reasonable interpretation of awards is now adopted by the courts than formerly existed, as to awards. Every reasonable intendment will be made in their favor, and a construction given to them that will support them, if possible,  [**31]  without violating the rules adopted for the construction of instruments." In support of this reference is made to Caton vs. MacTavish, 10 G. & J. 192 at 193. 11 Law Lib. 53, 61, 63.
The third reason relies upon the ground of improper conduct in the arbitrators. The award furnishes no proof of such misconduct, and if any existed it could only have been shown by the evidence. The prayer did not ask the court to inform the jury what facts were sufficient to establish misconduct, leaving the jury to decide whether such facts had been proved; but the court were called upon to say the award was void because of the improper conduct of the arbitration. The granting of such an instruction would have violated the right of the jury to decide questions of fact. In the fourth reason the plaintiff assumed the award to be void, because it was not in accordance 

 [*226]  with the submission as proved by Mr. Harris. The testimony of this witness was not the only proof in regard to the terms of the submission. Mr. Nant also testified on that subject, and therefore the court were right in refusing to say the award was void because it was not in accordance with the submission [**32]  as proved by Mr. Harris.
Believing, as we do, the award to have been a good defence against the plaintiff's claim, and that even if the other decisions of the court below, to which exceptions were taken, are erroneous, the case ought not to be sent back under a procedendo, it is unnecessary to inquire whether those decisions are correct or not. Indeed we understood the counsel on both sides as agreeing that if the judgment was not reversed upon the plaintiff's prayers in regard to the award, the other questions presented by the record were of no importance so far as this case is concerned. They desired the court, however, to express an opinion upon the question raised by the second bill of exceptions, in regard to the refusal of the court to suspend the examination of the witnesses until the plaintiff's counsel had finished writing his exception.
The act of 1834, ch. 233, sec. 11, provides that bills of exceptions must be signed before the verdict is rendered, if the party requires it. Under this act the court has a discretion as to what time the exceptions shall be either prepared or signed, provided they are completed prior to the verdict; and consequently the action of the [**33]  court in this instance, in regard to directing the cause to be proceeded in, by the examination of witnesses, against the objection of the plaintiff's counsel, who was writing the exception, we think is not subject to revision on appeal. We will, however, say, that in our opinion, as a general rule, the most appropriate time for, and most likely to avoid delay in, preparing an exception, is, immediately after the decision which is to be excepted to, when the facts are fresh in the recollection of court and counsel, and the witnesses are in attendance, affording an opportunity of re-examination, if a controversy should arise in reference to any portion of the testimony.
Judgment affirmed. 

72 of 187 DOCUMENTS 

WILLIAM H. KEIGHLER and others, vs. WILLIAM J. WARD and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 254; 1855 Md. LEXIS 49 

DECEMBER, 1855, Decided 

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

This appeal was taken from an order of the court below quashing the return to a writ of sequestration under the following circumstances:

The appellants obtained a decree in the court of chancery on the 13th of May 1851, against Royston Betts for $ 21,111.26, under a bill filed in that court on the 16th of January 1849, and on the 6th of September 1851, filed their petition in the case, setting out the decree and the failure of Betts to pay the same, and praying for the writ of sequestration to enforce payment thereof. On the same day the writ was issued by order of the chancellor, and on the 15th of the same month was laid in the hands of William J. Ward and the agents of certain fire insurance companies, and return made accordingly.

Afterwards, on the 22nd of April 1853, the appellants filed another petition, in which, after setting out the decree, the issue, service and return of the sequestration, and insisting that thereby the moneys and effects of Betts in the hands of Ward and the insurance companies became subject to the payment of the decree, states, that since the return the said corporations have paid all the moneys of Betts,  [**2]  in their hands, to Ward, who is about to apply them to other purposes, pretending they were not in his hands at the date of the service of the writ, whereas petitioners are advised said moneys were in the hands of the corporations at the time of such service and were paid over to Ward with notice thereof, and are bound in his hands as fully as they were in the hands of the corporations; but to conclude all questions on the subject they pray that another writ of sequestration may be issued, to be also laid in the hands of Ward; and that on service thereof he may be required to show forth in certainty what moneys and effects of Betts are in his hands, and how and when he received them, and to bring the same into court to be applied to the decree. The chancellor on the same day ordered the suit to issue as prayed, and directed Ward to answer the petition on or before the 17th of May following. The writ was accordingly issued and laid in the hands of Ward on the 27th of April 1853, and also in the hands of the Franklin Fire Insurance Company on the 29th of the same month.

On the 17th of May 1853, Ward appeared and filed his answer, in which, after admitting the decree and the issue [**3]  and service of the writ as stated in the petition, he files and submits a copy of a deed of trust from Betts to him, and of his report as trustee thereunder, made to the Superior Court of Baltimore city, and the order of said court directing notice to the creditors of Betts, and the notice given conformably thereto, which report exhibits a full account of his trust and the residue remaining in his hands for distribution. He also admits service of the second writ of sequestration, and refers to his said report as giving in detail the disclosures required by the order of the chancellor, and asked for in the petition. He states that the original writ of sequestration issued after the execution of the deed of trust from Betts to him, and such being the case he submits that his course, preparatory to distribution, in pursuance of the deed, was right and proper, and that such distribution ought to be made, and asks, if requisite, that a hearing may be granted him in the premises before final action thereon by the chancellor.

The report referred to in this answer, and filed with it, shows a balance of $ 3986.58 in the hands of the trustee for distribution under the deed of trust. The [**4]  deed of trust from Betts to Ward, also filed with this answer, bears date the 29th of January 1851, and conveys to Ward "all the right, title, claim, demand and interest" of Betts, in and to certain described insurance policies issued in favor of Betts, on which suits were then pending in the Circuit Court of the United States for the Maryland District, and to the money payable and recoverable thereunder in trust to receive and apply the same, first, to pay the expenses and counsel fees in the suits on the policies then pending; secondly, to pay the trustee's commission of eight per cent.; thirdly, to pay $ 3000, with interest, to a named creditor in New York, "and the residue to divide, without preference, among all the other creditors of said Betts who may come in and release, as hereinafter stated, according to their respective claims, without priority or preference save as by law established; provided, however, that each of said creditors claiming or receiving any thing, dividend or distributive share under the provisions of this deed or out of said trust fund, shall simultaneously therewith execute and deliver to said Betts, his heirs and representatives, a good and sufficient [**5]  release of all claim or demand of any nature against said Betts, which could or might be made because of said claims; and that in case of the refusal of any of said creditors so to release, the distributive share or shares of the party so refusing shall be divided proportionably among the other creditors so assenting."

Afterwards, on the 27th of February 1854, Ward made a motion in the case to quash the writ of sequestration, and the return thereof so far as relates to him: 1st. Because the same, was improvidently issued. 2nd. Because he has no property or effects of said Betts in his hands bound by said writ. 3rd. Because he had no property or effects in his hands, when said writ issued, to which said Betts had any claim, and has not since had any such property or effects. And 4th. For other reasons apparent on the face of the proceedings.

On the 9th of March 1854, the chancellor, (JOHNSON,) delivered an opinion in the case, which is reported in 4 Md. Ch. Dec., 87, and passed an order directing the return to the writs, so far as the same relates to or affects Ward, to be quashed. From this order the complainants appealed.  

DISPOSITION:
Decree reversed and cause ordered to the Circuit [**6]  Court of Baltimore city the costs to be paid out of the estate.  

HEADNOTES:

The writ of sequestration is in full force in Maryland, both as a mesne process against a party in contempt and as a judicial writ to enforce the performance of a decree, and in its latter office is analogous to an execution at law.

The 4th sec. of the act of 1818, ch. 193, dispenses with demand or notice of the decree before issuing process thereon required by the previous act of 1785, ch. 72, sec. 25, and applies to process of sequestration as well as other writs.

Jurisdiction once rightfully asserted by a court of equity, and which would lead to a settlement of all the questions which might arise out of the subject matter in controversy, will exclude all jurisdiction over it by other courts for similar purposes.

But proceedings in equity, which contemplate giving force and efficacy to a deed, will not prevent the deed from being assailed as fraudulent in another court, or by another proceeding in equity.

Choses in action, under certain circumstances, may be sequestered; if the party in whose hands the chose is admits the debt to be due, and is willing to pay it over under the order of the court, it is subject to sequestration, but not otherwise.

Where the party in whose hands the chose is denies that it is due to the decree-debtor, and sets up a deed of trust, under which he claims title, and avers it to be valid, the court will not, upon return to the writ of sequestration, inquire into the validity of such deed and determine whether it be fraudulent or not.

It is the resistance of the party holding the chose that defeats the proceeding by sequestration, and not the grounds upon which the resistance rests.

But where a party levies a sequestration upon such a chose in action he acquires thereby an inchoate equitable lien or priority to the fund contingent upon the result of the question, whether the deed is void or not.

In such case the return to the writ of sequestration should not be quashed, but the court should protect the inchoate equitable lien or priority thus acquired, by retaining the case until, by other proceedings, the validity of the deed can be determined.  

COUNSEL:
Thos. S. Alexander and John V. L. McMahon for the appellants, argued:

1st. That the deed of trust from Betts to Ward was fraudulent and void as to the appellants, the creditors of Betts:--1st, because it exacts releases of the creditors and at the same time does not profess to be, and is not shown or pretended to be, a conveyance of all the debtor's property. Being a deed of specifics, it is void on its face; it must stand or fall as it thus appears, and you cannot go into outside testimony to show that it does embrace the whole property of the grantor. But if it can be helped out by extrinsic evidence, the onus is upon the parties claiming under the deed, and they have offered no such proof in this case. 3 Md. Rep., 48, 51, Sangston vs. Gaither. Ibid., 12, 34, 35, Green & Trammell, vs. Trieber. 2nd. Because it does not merely prefer the releasing creditors to those not releasing, but excludes the latter from all benefit and substantially reserves the surplus to the debtor. 17 Verm., 310, Hall vs. Denison. Ibid., 390, Dana vs. Lull. 17 Ala., 549, West vs. Snodgrass. 3rd. Because it limits no time for its acceptance.  [**7]  

2nd. It is said the writ of sequestration in this case improvidently issued, because no notice of the decree had been given, as required by the act of 1785, ch. 72, sec. 25. But the petition for the writ alleges, that Betts had full knowledge of the decree and refused to perform it, and notice, therefore, appears on the face of the petition. No exception was taken by Ward either to the writ or the return; no point was made in the court below as to the regularity of the writ, and no question of that kind is now before this court. But if there was there is nothing in it. The 4th sec. of the act of 1818, ch. 193, dispenses with notice and demand before issuing process, required by the 25th sec. of the act of 1785, ch. 72, and this refers to all process which could be issued under the act of 1785. The writ, therefore, being regularly issued, we say, that on the case before the chancellor at the time of quashing the return, the appellants' right to their sequestration against the trustee, Ward, involved no question as to the right thus to reach the unpaid debts or choses in action of Betts, and thus to determine the rights and liabilities as between Betts and his debtors, the insurance [**8]  companies, but merely the question, whether, after Betts' said debtors had paid over what was due by them to Betts' trustee under his said deed, this process would lie to affect the funds in the hands of said trustee thus received, and claimed and held by the trustee under no other title. The fund was not a chose in action due Betts, but money paid over by him to Ward. The case, therefore, presents no other right or title as against the appellants' right thus to obtain and appropriate the funds in Ward's hands as Betts' property, as regards them, except the title given by Betts to Ward by that deed, and this deed being in law fraudulent as to the appellants, the law finding it to be so treats the property as if no such deed had been made. 3 Md. Rep., 409, Spindler vs. Atkinson. Ibid., 45, Sangston vs. Gaither. 7 Do., 380, American Exchange Bank vs. Inloes. The question then is, can we get this money by process of sequestration? As to this we insist, that the sequestration issued in execution of the appellants' decree was proper process to reach any funds or moneys of Betts in the hands of Ward, and the only question, therefore, is, whether the appellants are by law permitted, under [**9]  that proceeding, to deny the validity of the deed, and thus necessarily to show that the funds in Ward's hands are still the property of Betts as it regards the appellants; and lastly, that under that process against the trustee, the holder and representative of the title granted by that deed, and upon his answer admitting the funds in hand and setting up that title under the deed, the appellants were entitled in that proceeding to impeach the title set up under that deed as fraudulent and void as to them. In attachments at law against such a trustee, the right of the attaching creditor under that process to impeach the deed as fraudulent as to creditors, and thus to obtain condemnation of the property or funds in the hands of the trustee, has been recognised and sanctioned in this court, and therefore, a fortiori, does it exist under this the analogous but more comprehensive process of execution of a court of equity. In England, where sequestration issues on final decree, it is in the nature of process of execution. There all process of execution in equity was founded upon contempt, and the writ of sequestration is one of such processes. 2 Daniel's Ch. Pr., 1244, 1253. 8 Bac. Abr.  [**10]  , (Bouv. Ed.,) 629, 630. Where the debt is admitted to be due, all the authorities say that the writ lies to affect the choses in action of the decree-debtor. So money in hand admitted to be due. Tothill, 175. 2 Daniel's Ch. Pr., 1255, 1256, 1260, 1261, 1262, and the cases there cited. This, indeed, was admitted by the chancellor in his opinion. 4 Md. Ch. Dec., 91. 1 Beavan, 263, Wilson vs. Metcalfe. But the title may also be inquired into. A writ of sequestration may be levied on property fraudulently aliened, and if the fraudulent alienation be set up as a defence, it may be inquired into upon the return of the writ. 2 Daniel's Ch. Pr., 1266, 1268 to 1272, and the cases there cited. 25 Cond. Eng. Ch. Rep., 461, Empringham vs. Short, was the case of fraud in fact in regard to deeds, and Vice-Chancellor Wigram declared, that he had not the slightest doubt of the jurisdiction to try the question, and ordered it to be tried. Such is the English law on the subject. Now what is the Maryland law? It is said the writ is obsolete in this State. The act of 1785 recognises, adopts and modifies it so as to make it the most comprehensive of equity processes. It might with as much propriety be [**11]  said that this act of Assembly is obsolete. This law puts it beyond all doubt that it is a writ of execution. It was intended to reach by it something more than could be reached by a fi. fa., for it speaks of personal estate and "effects" as including something more than visible, tangible property. And moreover, this act gives the chancellor the power to order it as an immediate execution. For the American authorities on this subject, see 1 Hoffman's Ch. Pr., 158, note 1. 1 Edw. Ch. Rep., 340, White vs. Geraerdt. 12 Metcalf, 363, Grew vs. Breed. 11 Paige, 603, Hosack vs. Rogers. That Ward is the only party necessary to be brought before the court in order to assail the deed, see 4 Barbour, 237, Russell vs. Lasher, and cases there cited.

3rd. That by the proceedings the appellants had under their sequestrations as process of execution, acquired at least an inchoate equitable right to priority of payment of their decree out of the funds in the hands of the trustee, which the court below ought to have respected and protected as fully as priorities acquired by the ineffectual levy of executions at law to affect equitable interests, and that even if conceded, (as it is not,) that under [**12]  this process and the trustee's answer setting up as his only title this deed alleged to be fraudulent on its face, the court below could not adjudicate finally on that title, still it erred in quashing the return and thereby destroying the appellants' priority, and should, on the contrary, have preserved it, by directing such other proceeding in equity or at law as might be deemed necessary to the proper adjudication of that title, and by retaining the sequestration to await the issue of that proceeding. 10 G. & J., 251, Harris vs. Alcock. 2 Md. Ch. Dec., 260, Gill vs. McAttee, et al. 1 Edw. Ch. Rep., 340, White vs. Geraerdt. 8 Bac. Abr., (Bouv. Ed.,) 629, 630. 25 Cond. Eng. Ch. Rep., 461, Empringham vs. Short. 27 Maine, 539, Sargent vs. Salmond. 3 Paige, 320, Clarkson vs. De Peyster.

4th. That the trustee's report to the Superior Court of Baltimore city, and the order of the court thereon, were no bar to the further continuance of the sequestration against the trustee, and did not justify the court below in quashing it. 7 Md. Rep., 380, American Exchange Bank vs. Inloes.

Wm. A. Talbott and George W. Dobbin for the appellees, argued:

1st. That the deed from Betts to [**13]  Ward is not on its face a void instrument, but may be supported by proof that it conveys all the property of the grantor; that it reserves nothing to the grantor, and gives to the creditors the whole time till the payment of the dividend under it to accept its terms, and is therefore beneficial to them. The intent to defraud must be gathered from the face of the instrument. The statute itself requires this intent. Upon the face of this deed there is no such intent. The fact that it does not upon its face convey all the property of the grantor may make it voidable, but does not make it void. There is no principle of law and no decision that makes it void. The fact that no time is limited in it for acceptance of its terms, is no objection, for the law presumes that the trust will be executed in a reasonable time. On this point we refer to 3 Md. Rep., 48, Sangston vs. Gaither. Ibid., 12, Green & Trammell, vs. Trieber.

2nd. That the writ of sequestration is a process of contempt, used to enforce obedience on the part of recusant parties to mesne process or final decree of the court of chancery, and that having compelled the submission of the recusant by depriving him of the possession [**14]  and enjoyment of his property, the law proceeds to execute its final decree by the appropriation of the property thus in possession to the satisfaction of the decree; that the efficacy of the writ depends entirely upon the power of taking into possession the property of the person against whom it is issued, and it has no application therefore to a chose in action, when the person against whom the action exists denies the right and withholds the possession. Mr. Alexander, in his Book on Chancery Practice, says that this writ is obsolete in Maryland, and there never has been any instance of its having been obtained before the present case. Prior to the year 1839 all process in England to enforce decrees was process of contempt. Then for the first time process of execution was given. The process of sequestration was peculiarly a process of contempt. It did not issue to the sheriff, but to four persons named by the plaintiff, who are to enter and take the property and keep it till the party purges himself of the contempt. It has no return day, but exists as long as the party stands out in contempt. Such was the law in England prior to the passage of the new rules in 1839. As soon as our [**15]  legislature passed the act of 1785, giving the fi. fa. and ca. sa., from that moment this writ commenced to become obsolete. That act speaks of it as a writ of contempt. It may issue and be levied upon choses in action in certain cases. Where the holder admits that the property belongs to the decree-debtor it may properly lie. But where the holder denies title and claims the property himself, and refuses to give it up, in such cases we say it does not lie. There has been no case adduced in which a disputed chose has been the subject of the writ or could be affected by it. In support of these views we refer to 2 Daniel's Ch. Pr., 1248, 1249, 1255, 1256, 1 Hoffman's Ch. Pr., 158, note 1. 1 Barbour's Ch. Pr., 70, 71. 2 Simons, 55, Johnson vs. Chippindall. 3 Swans., 309, Francklyn vs. Colhoun. 1 Beavan, 269, Wilson vs. Metcalfe. 4 Ves., 735, Simmonds vs. Kinnaird. 1 Ball & Beatt., 387, McCarthy vs. Goold. 1 Ves., 198, Dundas vs. Dutens. 1 Ves., Sen., 180, Wharam vs. Boughton. The act of 1785 does not convert the writ from a process of contempt to one of execution; this act speaks throughout of clearing the contempt whenever this suit is spoken of. As to the point that the appellants have [**16]  acquired an inchoate right by the ineffectual levy of the writ, the case of Burns vs. Robinson, 7 Irish Eq. Rep., 188, is a sufficient reply. This case very distinctly says there is no right acquired by the party at whose instance the writ issues. Equity will only aid an ineffectual levy where the levy has been made upon the thing itself, but by this writ the party acquires no such right.

3rd. That the writ of sequestration being a process of contempt, it is not within the meaning of the act of 1818, ch. 193, sec. 4, which dispenses with demand of a compliance with a decree prior to issuing process of execution, and no notice of this decree having been given as required by the act of 1785, ch. 72, sec. 25, the writ issued improvidently.

4th. That this case does not fall within the reason of the American Exchange Bank vs. Inloes, 7 Md. Rep., 380, which determines that the pendency of an equity proceeding to administer the trust, will not prevent an attaching creditor from attacking the validity of a deed of trust, as the attachment is a new suit appropriate to try the issue of the validity of the deed, whilst this is an attempt to engraft on the execution of final process [**17]  a new, complicated and important inquiry involving the interests of parties not before the court.

5th. Because the sheriff's return is not conformable to the exigency of the writ which commands the sheriff to "collect, take, and get into his hands, the goods, chattels and personal estate, and detain and keep the same," &c., and the law, unlike the attachment law with reference to garnishees, furnishes no means by which to reach a chose in action in the hands of one who is unwilling to bring the money or thing into court.  

JUDGES:
The cause was argued before ECCLESTON, TUCK and MASON, J.  

OPINIONBY:
MASON 

OPINION:

 [*263]  MASON, J., delivered the opinion of this court.
The questions involved upon this appeal have never before, as we are aware, arisen in any court in Maryland. They relate to the nature, office and applicability, of the writ of sequestration, as a part of our equity jurisprudence. We have no doubt that this writ is in full force in this State, both as a mesne process against a party in contempt, as well as a judicial writ to enforce the performance of a decree, and in its latter office may be said to be analogous to an execution at law. The process of sequestration came with [**18]  our chancery system from England, and has since been fully recognised and adopted by our legislation, as appears from the act of 1785, ch. 72, sec. 25. The circumstance, that it has never been resorted to in practice in this State, does not, on that account, render it inoperative or powerless. In Bacon's Abr., 8th Vol., 630, 

 [*264]  it is said of this writ that it has "become the common process in courts of equity, and may be said to be two-fold; that is, it issues either as a mesne process on the defendant's default in not appearing, or not answering, after the whole process of contempt hath spent against him; or it issues as a judicial process in pursuance of a decree, and to enforce the performance of it; and it is the execution and life of a court of equity; and as it is the fruit of a long suit it is to be favored, and in this case it is said to be analogous to an execution at common law."
Unless we can discover a purpose on the part of our legislature, as developed by our act of 1785, to alter the character and office of this writ, and the practice under it, as shown by the English authorities, we must look for the general principles regulating the subject to [**19]  the adjudged cases and elementary works in England. How far then have the English doctrines in regard to sequestration been affected or altered by our act of Assembly, is to be our first inquiry.
The 25th sec. of the act of 1785 requires as a condition upon which this writ, as well as all other process upon decree, shall issue, that notice shall first be served upon the defendant of the passage of the decree, by an attested copy thereof; and by the 26th section it is provided, "that in all cases in chancery the process of commission of rebellion, and sergeant-at-arms, shall be omitted as unnecessary." These, we believe, are the only two statutory modifications made in the law which we need notice; and by the act of 1818, ch. 193, sec. 4, the demand or notice of the decree, as required by the previous act, has been dispensed with, and the party obtaining the decree is entitled to process thereon, without such demand or notice, and this embraces the process of sequestration as well as other writs.
Of one thing we are certain, that there is nothing in the provisions of either of the acts referred to which at all affect the questions involved in the present appeal. They are to be determined [**20]  therefore upon English authority.
There appears to be no objection taken to any of the proceedings in this case prior to the decree of the 13th of May 1851, 

 [*265]  against the defendant, Betts. The case stands then upon the concession that those proceedings are regular, and that Betts is justly indebted to the complainants in the amount of the decree.
Upon this decree a writ of sequestration was issued on the 22nd of April 1853, and at once laid in the hands of W. G. Ward and the Franklin Fire Insurance Company, who, as was alleged, held certain moneys and effects of Betts, the defendant, which were subject, by this process, to be made available towards the satisfaction of the decree. Ward filed his answer, setting up a deed of trust from Betts to him, his report as trustee under said deed to the Superior Court of Baltimore, and the order of that court for notice to creditors, &c. He states that the writ of sequestration issued after the deed from Betts was executed, and he submits that he proceeded regularly in the Superior Court, and that the distribution of the trust estate ought to be made under the direction of that court; he also avers, that he has no property  [**21]   or effects of Betts in his hands bound by or subject to said writ. For these reasons he moved that the return of the writ be quashed. The chancellor did accordingly quash the return to the writ of sequestration, and from that decision the present appeal was taken.
In the argument of this cause the five prominent questions discussed, were:--1st. Did not the jurisdiction rightfully assumed by the Superior Court of Baltimore over the trusts, as set out in the deed to Ward, appropriate to that court the settlement of the questions raised on this appeal, to the exclusion of the court of chancery? 2nd. Is the process of sequestration, in any of its aspects, applicable to a case like the present? 3rd. But if so, as Ward denies in his answer, that the choses in action sought to be reached were Betts', would this proceeding be effectual to test the question of title to those choses in action? 4th. Whether the deed of trust was valid and vested a good title in Ward, as against all parties claiming subsequent to its execution? And 5th. Whether by virtue of the decree and the proceedings under the sequestration, the complainants acquired any inchoate equitable priority upon [**22]  

 [*266]  the funds in the hands of Ward, which upon a subsequent proceeding might be made available in payment of their decree, provided they cannot be reached under the present proceeding?
The first question is abundantly answered by the decision of this court, in the case of the American Exchange Bank vs. Inloes, 7 Md. 380. A court of equity cannot, by taking hold of a case for one purpose, draw to itself an exclusive jurisdiction over every other discordant question which might arise out of it. It is true that a jurisdiction once rightfully asserted by a court of equity, and which would lead to a settlement of all the questions which might arise out of the subject matter in controversy, will exclude all jurisdiction over it, by other courts, for similar purposes, and the reason of this, which is to prevent a number of conflicting proceedings about the same thing, is wise and just. But that a proceeding like this one pending in the Superior Court, which contemplated giving force and efficacy to a deed, can be said to draw within its ample folds the considerations of questions which assail the very existence of the deed itself, is a proposition not for one [**23]  moment to be entertained.
The second question we have already determined, to the extent of saying, that the writ of sequestration was in force in Maryland. But it is contended, that under no circumstances are choses in action, such as stock, debts, &c., subject to sequestration. This was, no doubt, at one time held. 8 Bacon's Abr., 632. But a different or modified doctrine now prevails, and it may be said to be the result of the best adjudged cases in England, that choses in action, under certain circumstances, may be sequestered. The chancellor's views upon this particular point are correct. It may be stated as a settled point, upon strict authority, that if the party in whose hands the chose is admits the debt to be due to the defendant, and is willing to pay the same over under the order of the court, it becomes thereby subject to sequestration, but not otherwise. 2 Daniell's Chan. Prac., 1261. 1 Hoffman's Chan. Prac., 157. White vs. Geraerdt, 1 Edw. Chan. Rep. 340.  Johnson vs. Chippindall, 2 Sim. 55. 1 Beavan 369.
This then leads us to the third inquiry, whether Ward's 

 [*267]  denial of his liability to Betts defeats [**24]  the writ? Clearly, by this denial, the case is made to fall within the general principle just stated, that there can be no sequestration against a party denying his indebtedness, unless it may be shown by some further proceeding that the objection is untenable, as will be more fully explained hereafter. The appellants seek to except this case from the operations of the general rule, upon the ground, that as Ward has thought proper to exhibit a deed in support of his title to the property, which upon its face, as is alleged, is void for fraud, therefore the law will treat the property as if no deed had been executed. This objection simply resolves itself into the general proposition, that choses in action held by fraud are subject to sequestration, notwithstanding the party holding them denies the charge and resists the proceeding, and thus resistance, resting upon such a ground, is held to be an exception to the general rule, that choses in the hands of an unwilling party cannot be sequestered. We cannot discover any authority or good reason for such a proposition. The general principle is doubtless designed to avoid such collateral proceedings and inquiries as would unavoidably [**25]  result from such resistance. What questions are more fraught with difficulty or attended with more protracted controversies than questions arising out of allegations of fraud? And this is abundantly illustrated by the question of fraud raised upon this appeal. It has elicited a most able and prolonged argument, and if the zeal manifested by the counsel be any index of their real convictions upon the subject, they must have been sincere in maintaining the conflicting positions assumed by them, and thus we have a clear case of controversy presented to us, which, if we were now to decide upon this collateral inquiry, we would upturn the established doctrines and practice upon the subject. It is no answer to our objection to say, that because we can see from the case made, (if such were the fact,) that Ward has no title, therefore the sequestration must go against him. Such a view might apply to nearly every case, or would make the question depend upon the degree of difficulty which each case would present, while the law says that the resistance must defeat the proceeding, and not the grounds upon which the resistance 

 [*268]  rests. The appellants say the deed is void [**26]  upon its face, and the appellee denies it; if we were to look into the deed for the purpose of determining this point, we would be simply settling the question, and what more could we do in regard to any other controversy that might arise out of such a proceeding? The authorities seem to leave the determination of this question, whether to abide the sequestration or not, entirely with the party affected by it. If he may resist the writ without assigning any reasons for doing so, is it not unreasonable that he should be worse off for having assigned insufficient or bad reasons?
The fourth question, as to the validity of the deed, after what has already been said, ought not to be decided upon the present appeal. To do so would be to disregard what we have laid down under the previous head as the proper rule upon the subject.
The fifth and last ground taken in argument relates to the supposed inchoate equitable lien created by this proceeding upon the funds in the hands of Ward. This is a most important proposition, and to some extent a new and unsettled one. Daniell, (2 Vol. 1262,) says, that the question, "whether, when the party in possession of the chose in action [**27]  refuses to admit, or disputes his liability, the court will authorise the institution of proceedings, either at law or in equity, for the purpose of enforcing the sequestration against such party, is a point which still appears to remain uncertain." See also Simmonds vs. Kinnaird, 4 Ves. 735. White vs. Geraerdt, 1 Edw. Ch. Rep. 336.
From the analogy of the case of Harris vs. Alcock, 10 Gill & John. 226, and upon general principles of equity and justice, we are disposed to believe and do so accordingly decide, that the complainants have acquired, by virtue of the sequestration, an equitable lien or priority to the funds in controversy, contingent however upon the result of the question, whether the deed of trust from Betts to Ward is void or not.
The complainants having had a valid, equitable claim against Betts sought to enforce the same in the only court having ample jurisdiction over the subject, and having done so obtained a decree in chancery for the amount due them. In order 

 [*269]  to obtain, by due course of law, the fruits of their decree, they resorted to the only legal process suited to the emergencies of their [**28]  case, namely, the writ of sequestration, which was laid upon property or effects in the hands of Ward, which belonged, as was alleged, to Betts. The efficacy of this writ is defeated, under a well settled principle of law, by Ward, who denies that the property is Betts', and in support of this denial relies upon the deed of trust. The complainants thus find the estate of Betts, or a large portion of it, which they consider, both in law and equity, bound for his debts, transferred beyond their reach, by means of what they allege to be a fraudulent conveyance. What is to be the consequence of this condition of things, provided the deed should turn out to be void? Are the complainants to lose the fruits of their vigilance, which, in every court, is preserved and protected, not from any laches, delay or mistake on their part, in pursuing their proper, legal remedies, but from a technical, and perhaps untenable objection, which could not have been averted, made by one, who, at best, is but a mere third party or stranger to the proceedings? Can it be said that these parties must abandon and lose all benefit resulting from this proceeding, shown to be regular and proper, up to the time [**29]  of this objection, because of the interposition of such an objection on the part of Ward? If the remedy of these complainants had been at law, and they had obtained a judgment instead of a decree, an attachment by way of execution would have reached the funds in the hands of Ward, and notwithstanding any objection he might make the validity of the deed would have been inquired into, and if found void the funds would have been summarily condemned. Are we now to say that there are remedies at law in cases where there are none in equity? Without this equitable lien, which is contended for by the appellants, they would be either remediless or would be driven to a slow and tedious proceeding, instituted expressly to vacate the deed, which would result equally to the benefit of all creditors, while, in the mean time, more fortunate, though not more wise or vigilant creditors, would probably, by means of attachments, or otherwise, sweep away the debtor's whole estate.

 [*270]  The court of chancery could therefore properly have retained this case until such other or additional proceedings could be had, at law or in equity, as the exigencies of the case might require, by which the question [**30]  of the validity of the deed could be settled. Until this was done the court ought not to have quashed the return to the sequestration, but on the contrary, we think, that the appellants had, under their process of sequestration, which, in this case, was in the nature of an execution or attachment at law, acquired, at least, an inchoate equitable lien or priority, which the court ought to have protected until the final termination of the whole controversy. If the deed should be declared void, and the funds in the hands of Ward decided to belong to Betts, they should be distributed with reference to the priority or preference acquired by the complainants by virtue of their process of sequestration.
In the foregoing opinion we have said enough to dispose of the several questions as presented upon the present appeal. All questions arising out of the deed should be left, as we have said, open for future consideration upon proceedings hereafter to be instituted to test its validity.
Decree reversed and cause ordered to the Circuit Court of Baltimore city. The costs to be paid out of the estate.
ECCLESTON, J., delivered the following separate opinion:
Although the recent [**31]  English decisions have held that a chose in action may be made subject to the payment of a decree in equity, under a writ of sequestration, yet, in my opinion, the English and American authorities show it to be true, as a general rule, that the process of sequestration will be defeated if objected to by the person charged with being indebted to the defendant in the decree. In this case, however, the objection made by Ward is based upon the assignment or conveyance in trust, made to him by Betts, which instrument is alleged to be fraudulent and void.
A court of equity has long been considered the proper tribunal for deciding whether a conveyance is void for fraud. And as the instrument on which Ward bases his objection to the 

 [*271]  sequestration has been alleged to be fraudulent, I think the chancellor should have retained the writ for the purpose of having the question of fraud settled; so that in case of a decision adverse to the validity of the conveyance the sequestration might then be available to the complainants, because of the removal of Ward's objection by a court having competent and appropriate jurisdiction in reference to matters of fraud.
Under [**32]  the English practice certain preliminary steps were necessary for putting a defendant in contempt before a writ of sequestration could be issued against him; but by our acts 1785, ch. 72, sec. 25, and 1818, ch. 193, sec. 4, these preliminary steps are dispensed with; and therefore the present writ was not irregular for want of them.
Entertaining these views I think the order of the chancellor should be reversed and the cause remanded for further proceedings.  

73 of 187 DOCUMENTS 

HENRY CLINE and ROBERT FRANCIS, vs. WILLIAM D. MILLER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 274; 1855 Md. LEXIS 51 

DECEMBER, 1855, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

Assumpsit, by the appellants against the appellee, on an acceptance of defendant on a draft drawn by one Andrew Birmingham in favor of plaintiffs. The declaration contains the common counts only. Plea, non assumpsit.

Exception. The facts of the case are fully stated in the opinion of this court. After the evidence was closed, the defendant asked the court to instruct the jury, that by the terms of the acceptance offered in evidence, defendant was only bound when the houses, referred to in the order accepted, were plastered, to give to plaintiffs his or his firm's note, at six months, for the balance then due the plaintiffs, not exceeding the amount of bricks specified in the order, as an accommodation note to be provided for by the plaintiffs at maturity, unless, in the mean time, whilst said note was running to maturity, the said houses be completed by said Birmingham, in which event said accommodation note was to become a real one; and if the jury shall find from the evidence that he tendered such accommodation note to the plaintiffs, or either of them, on condition they would sign the receipt given in evidence, and that [**2]  they declined receiving the same on that condition, and that the houses were not completed by Birmingham before the institution of this suit, then the plaintiffs are not entitled to recover upon any of the counts in their declaration. This prayer the court, (FRICK, J.,) granted, and the plaintiffs excepted and appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

A contractor mortgaged the lots, on which he was about to erect certain houses, to defendant, to secure advances for the purchase of materials for their erection, to be made by the latter in instalments as the houses progressed to completion. He then gave an order upon defendant, in favor of plaintiffs, for bricks to be furnished by them, payable out of these advances in four instalments, the third of which was payable when the houses were plastered, and the balance when they were completed by the contractor. Defendant accepted this order on condition, that when the houses were plastered he was to give his note for the balance then due the plaintiffs, at six months, "for their accommodation." The bricks were furnished to the contractor upon the basis of this order and acceptance. The two first instalments were duly paid, and when the houses were plastered, the instalment then due, instead of being paid by a note at six months, was paid in cash, deducting five per cent. Defendant then for the balance tendered his note at six months, provided plaintiffs would sign a receipt that it was given for their accommodation, and that they were to pay it unless the houses were completed by the contractor. This they refused to do and sued upon the acceptance. The contractor never did complete the houses. HELD:

That by this acceptance the note to be given was a note for the accommodation of the plaintiffs, in the legal and technical sense of that word, to become the real note of defendant only in case the houses were completed by the contractor, and this contingency never having occurred, the plaintiffs could not recover.

A payee may refuse a conditional or qualified acceptance, yet if he takes such an one when offered, he can only claim payment according to the condition or qualification.

As between the original parties to a bill or note, the total or partial want or failure of consideration may be relied on as a defence, and a partial failure avoids the note only pro tanto.

Where this court can see from the admitted facts of the case that the appellants have no cause of action, a procedendo will not be ordered, though the prayer excepted to may be wrong.  

COUNSEL:
Orville Horwitz for the appellants, argued:

1st. That the words, "for their accommodation," in the acceptance, mean for the convenience of all parties, including Miller, and not simply that Miller was to give an accommodation note, in the legal, technical sense of that term. The circumstances of the case fully justify this construction. The original order was to pay $ 250 in cash when the houses were plastered. This condition was varied by the acceptance, and instead of this cash payment, he pays by a note at six months. This was for Miller's accommodation and was the consideration upon which he was to give a note for value, and not an accommodation note.

2nd. The fact that when the houses were plastered Miller paid Cline & Francis, instead of $ 250 in cash, the sum of $ 237.50, equivalent to a note at six months, at a discount of [**3]  five per cent., clearly shows that Miller himself construed these words of the acceptance to mean a note for value for the accommodation of all parties, and not simply an accommodation note.

3rd. The materials furnished by Cline & Francis were bricks, which went into the houses to secure Miller for his advances, and this enhancement of his security was the consideration for his giving his note. It cannot be said, therefore, that there was no consideration for this note, for both the fact that the materials furnished went into the houses and thus enhanced Miller's security for the advances and the extension of six months on the cash payment when the houses were plastered, furnished ample consideration for a note for value.

4th. Again, this was an order drawn upon a fund in the hands of Miller. He had then in his hands, due Birmingham, more than $ 3000 when this order was drawn and accepted. His obligation to pay it is, therefore, upon this ground alone, clear. Again, the acceptance was good for the amount due when the houses were plastered, and being good for part, is good for the whole. Byles on Bills, 224, 226.

John H. Ing and Thomas W. Hall, Jr., for the appellee,  [**4]  argued:

1st. That the words, "for their accommodation," in this acceptance, have a well defined and settled meaning when used with reference to bills of exchange and promissory notes, in accordance with which established signification in commercial usage they must be taken to have been used by Miller, and to have been understood by the parties.

2nd. That an accommodation note is one drawn or endorsed, without consideration, by the accommodation drawer or endorser, to enable the party accommodated to raise money on it or otherwise to make use of it. Byles on Bills, 100, 323. In this case Miller had contracted with Birmingham to advance on certain houses certain sums, at stated periods, in the progress of the buildings, the last advance to be made when the houses "were fully completed and finished." His liability to make these advances was therefore dependent and conditional. The houses never having been completed by Birmingham Miller was released from all liability to make the fourth advance, which, under his contract, was payable only in the event and at the date of their completion. The order accepted by Miller was to pay the appellants certain sums in instalments "out of [**5]  the above named advances." If, therefore, in consequence of the non-completion of the houses no liability of Miller ever accrued to pay the last advance, neither was there any liability on his part to pay the appellants the balance claimed in this action, payment thereof, by the terms of the order, being expressly made dependent on the same contingency as that of the advance out of which it was to be made. Any note therefore drawn by Miller in favor of the appellants, before the completion of the houses, would have been wholly without consideration on his part, and as between the parties an accommodation note. A fortiori must such be the case where it was expressly stipulated that the note so to be given to the appellants should be "for their accommodation." The materials furnished do not constitute any consideration as between the parties to this suit so as to make a note, given by Miller on account of a balance due for such materials, for that reason a note for value and not an accommodation note, because in fact the materials were furnished, not to Miller but to Birmingham, and the liability of the former to pay for them grows out of the fact of his acceptance of Birmingham's order,  [**6]  and must be expressly limited by the terms and conditions of that order and acceptance.

3rd. That the obvious intention of Miller, to be inferred, as well from all the circumstances of the case as the use of the words, "for their accommodation," was to accommodate the appellants; that is by substituting for a future and uncertain cash payment, contingent on the future completion of the houses by Birmingham, a present loan of the name and credit of Miller, to enable the appellants, for their accommodation, to raise money thereon, necessarily with the implied understanding, that if the houses never were finished the note should be provided for at maturity by the parties accommodated. The receipt demanded by Miller and the prayer granted by the court below were therefore equally justified by a proper view of the rights of the parties and the facts of the case. The words "for their accommodation" do not signify for the convenience of all parties, Miller included, but for the accommodation or convenience of the appellants exclusively. The words of the the acceptance, (which must be construed together,) are, "I will give my note or my firm's note for the balance then due Cline & Francis [**7]  at six months for their accommodation," and can by no construction be understood to imply a note for Miller's accommodation. The fact that when the houses were plastered, Miller, instead of paying $ 250 in cash, (then actually due,) paid $ 237.50, equivalent to a note at six months, at a discount of five per cent., affords no foundation for the inference that thereby Miller has himself construed the words in the acceptance in favor of the appellants, but on the contrary their acceptance of this $ 237.50 in satisfaction of their demand at that time, and their omission, (the houses being then plastered,) to claim a similar liquidation of "the balance then due them," affords a strong inference that they did not consider themselves entitled to any other than an accommodation note for such balance, and that they then acquiesced in the construction evidently insisted on by Miller, that they were entitled to a "note for value" only for the third instalment of $ 250 and not for the balance, the payment of which was made dependent on the completion of the houses.

4th. That upon a fair construction of the terms of the order of Birmingham and the acceptance of Miller, considered as it properly [**8]  and necessarily must be, in connection with the terms and conditions of Miller's contract with Birmingham, set forth in the mortgage, independently of the use of the words, "for their accommodation," and on the theory of a general and unqualified acceptance of the order by Miller, the non-completion of the houses by Birmingham, operated as a complete release of all and every liability on the part of Miller to pay the appellants the balance sued for in this action. It cannot be said that the money to pay this balance is in the hands of Miller by virtue of his contract with Birmingham, contained in the mortgage, because by the express limitation of Birmingham's order, as accepted by Miller, this balance was payable exclusively out of the fourth instalment to be due "when the said houses are completed by me," (Birmingham.) In fact the houses never were so completed. Birmingham never became entitled to the fourth instalment out of which this balance was to be paid; and even if Miller had in his hands, (which cannot be inferred,) any balance of the first three instalments he had no right, under the order, to appropriate it to Cline & Francis beyond $ 750 as against Birmingham or his assigns.  [**9]  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON, TUCK and MASON, J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*279]  ECCLESTON, J., delivered the opinion of this court.
On the 26th of November 1851, Andrew Birmingham executed a mortgage to William D. Miller to secure certain advances agreed to be made by Miller for the purpose of aiding and assisting Birmingham in the erection of ten houses, on certain lots of ground in Baltimore, the same day leased by Miller to Birmingham. Those advances were to be $ 400 on each house, provided they were completely finished by Birmingham. The security intended by the mortgage being dependent upon the progress of the houses to completion, it was stipulated that $ 75 on each should be paid by Miller when the second story of joists should be laid, $ 100 when the roofs should be put on, $ 125 when the houses should be plastered, and $ 100 when the same should be fully completed and finished. The whole sum of $ 4000 thus to be advanced was to be expended in the purchase of materials for, and in defraying other expenses necessarily incurred by Birmingham in, the erection and construction of the buildings. The appellants, Cline & Francis, (who were brick-makers,  [**10]  ) received an order 

 [*280]  from Birmingham on Miller, dated the 29th of November 1851, in the following words:
"Mr. William D. Miller,--Please pay Messrs. Cline & Francis for two hundred and fifty thousand bricks, more or less, to say, for the run of kiln six dollars and fifty cents per thousand, and fifteen dollars for front brick per thousand, to be paid out of advances made to me on ten houses to be built in Gay street, between Caroline and Dallas, that is to say, twenty-five dollars on each house when the second floor of joists are laid, and the same amount on each when roofed in, and the same amount on each when plastered, and the balance to be paid when the said houses are completed by me. It is also understood they are to furnish me the paving brick at $ 6.50 per thousand.
ANDREW BIRMINGHAM."
On which order was endorsed the following acceptance: "December 10th, 1851. Accepted with the condition, that when said houses are plastered I will give my note or my firm's note for the balance then due Cline & Francis, not exceeding the amount of bricks specified herein, at 6 months, for their accommodation.
WILLIAM D. MILLER."
On the basis of this order and acceptance the [**11]  appellants furnished to Birmingham, prior to the 1st of August 1852, bricks to the amount of $ 1751.37. On the 13th of March 1852, the first instalment of $ 250, or $ 25 on each house, was paid under the order; and the second instalment of the same amount was paid on the 23rd of April in the same year. On the 21st of July following, and after the ten houses were all under roof and plastered, payment of the third instalment was made under the following circumstances: It was suggested that the sum of $ 250 was not then payable in cash, but that Cline & Francis were only entitled to a note for the same at 6 months, whereupon they made an abatement of 5 per cent. or $ 12.50. The receipt given for this payment is, as follows:
"Received, July 23rd, 1852, amount of 3rd instalment of $ 250.00, of W. D. Miller, on the within order.
"$ 250.00
"500. 12.50
"237.50
CLINE & FRANCIS."

 [*281]  On the 24th of August 1852, the note of the defendant, at six months, dated the 13th of the same month, for the balance then due the plaintiffs for bricks, was tendered to them by the defendant. Which note was offered on the condition that the plaintiffs, or one of them, would sign a receipt acknowledging [**12]  the note was given for their accommodation; and that if at its maturity the houses should not be completed by Birmingham, then they, the plaintiffs, were to take up and pay the note, they having no claim on Miller for the payment of the note, until the houses should be completed by Birmingham, but that when so completed then the note was to be paid by Miller, and not otherwise. The plaintiffs refused to sign the receipt, and instituted this suit on the 6th of January 1853. The houses never were finished by Birmingham, and the defendant denies that he is responsible to the plaintiffs.
The original contract for the bricks having been made between the plaintiffs and Birmingham, and it being admitted that they were supplied by the former to the latter, "on the basis of said order and acceptance," the liability of Miller, if any exists, must rest upon the order and acceptance; and the words "for their accommodation," at the conclusion of the acceptance, have given rise to the controversy.
The terms on which the defendant proposed giving his note not having been acceded to by the plaintiffs, none was given; and this suit is based upon the acceptance alone, the nar containing no special [**13]  count but the common counts in assumpsit. The dispute is whether the plaintiffs can recover the fourth or last instalment mentioned in the order; the other three, it is admitted, have been paid, and no claim is made for either of them.
The plaintiffs insist there was such consideration for the acceptance as shows it not to be what the law considers accommodation paper, that an accommodation note in its legal sense was not designed, but the word accommodation simply meant for the convenience of the parties. In support of this view it is said, that by the contract between Miller and Birmingham, and by the terms of the order, when the houses should be plastered the former was to pay two hundred and 

 [*282]  fifty dollars in cash, whereas by the acceptance he was to give a note at six months, when the houses were plastered, for both the last instalments. By this he gained a credit of six months instead of paying cash, and that was a consideration for promising to give an absolute note, including the last or contingent instalment, depending upon the completion of the houses. But it must be recollected, that at the date of the acceptance all the payments were contingent, none absolutely [**14]  due, and might never become so. If the order had been accepted in its own terms the defendant would never have been responsible for the last instalment, as the houses never were finished by Birmingham.
And it does not seem to be a reasonable supposition, that the credit of six months upon $ 250 induced the defendant to agree to bind himself, unconditionally, to pay nearly $ 1000, when, previously, his only responsibility rested upon a contingency which might never happen, and when in the instrument, by which he bound himself to the plaintiffs, it is expressly said, he did so "for their accommodation." As the original agreement was, that the advances should be made to Birmingham, the defendant was under no legal obligation to the plaintiffs until he accepted the order.
Although a payee may refuse to take a conditional or qualified acceptance, yet, if such an acceptance is offered and he takes it, he can only claim payment according to the condition or qualification. Chitty on Bills, 287, 288, 301, 302, 303, (Ed. of 1842.) Byles on Bills, 149, marginal page. Story on Bills, 240. The plaintiffs agreed to the terms proposed in this instance by taking the acceptance, which [**15]  stipulated that the note to be given to the plaintiffs should be "for their accommodation. In proper grammatical construction the word "their" relates to "Cline & Francis." The defendant having given such an acceptance, and the plaintiffs having consented to receive it, by the express agreement of the parties, the note to be given was to be a note for the accommodation of the plaintiffs. In view of the language employed, and especially when considered in connection with the order and circumstances in the cause, it would require a very forced construction 

 [*283]  to say that the word "accommodation" was not designed to be used in its legal or technical sense, but that inasmuch as the defendant was to get six months' credit on $ 250, he was to bind himself, unconditionally, to pay nearly four times that sum, instead of remaining only responsible upon a contingency, and therefore the acceptance only meant the note was to be given for the convenience of all the parties. It would seem to be rather a singular mode of providing for the convenience of the defendant, whilst the accommodation of the plaintiffs would be very evident, as they were to get a note at six months for the $ 250,  [**16]  and the larger sum previously depending upon an uncertain contingency.
The mortgage shows that Birmingham was lessee of the lots and designed erecting the buildings as his own. For the purpose of aiding him in doing so, Miller agreed to advance or lend him $ 4000, to be paid in four instalments. To secure the repayment of the loan the mortgage was executed, and the efficacy of the mortgage as a security for the money depended upon the erection and completion of the houses. For that reason the advances, from time to time, were made to depend upon the progress of the buildings, and the last was not to be made until the houses were completed by Birmingham. Until that was done, he had no right to demand the last instalment. The order shows it was drawn in reference to the contract disclosed in the mortgage. Instead of the order being accepted, payable in its own terms, the acceptance was as already stated. Now under these circumstances it would seem reasonable to suppose, that in saying the note which was to be given should be for the accommodation of Cline & Francis, it was intended they should be accommodated with the name and credit of Miller, or of his firm, by a note at six months,  [**17]  which might be discounted in the market, thereby obtaining the use of the money at once instead of waiting for the houses being finished; but designing at the same time, that as between the parties the note should be accommodation paper for the purpose of preventing Miller's contingent liability from being converted into an absolute responsibility. If such was not the meaning of the words, "for their accommodation," and so intended by the 

 [*284]  parties, those words were perfectly useless, meaning nothing but what would have been effected by the acceptance without them. But by giving them the construction we have indicated they have their usual legal signification, and whilst giving them effect in accordance with their legal import, they will be so interpreted as to be consistent with what may very fairly be considered as designed by the parties, especially in regard to the last instalment, which is now the only one in contest.
The result shows, in dollars and cents, what was the value of the six months' credit on the third instalment of $ 250. Miller cashed it for $ 12.50. If then the plaintiff's interpretation of the acceptance be correct, the defendant was induced to convert [**18]  his uncertain liability for the last instalment into a positive obligation to pay it in six months, for the very moderate consideration of $ 12.50. And this is not all, because by such an arrangement, the payment ceasing to depend upon the completion of the houses, the motive on the part of Birmingham to finish them, so carefully provided for in the original contract and also recognised in the order, would no longer exist. And if Miller, by his acceptance, was bound to pay the last instalment to the plaintiffs whilst the houses were unfinished by Birmingham, the security for the repayment of the money under the mortgage would not be equivalent in value to what was originally designed, by making this advance to depend upon the completion of the buildings. No doubt money will produce very strange effects sometimes, but it is scarcely possible that a man of even ordinary business intelligence, much less one of large experience and shrewdness, would, for five per cent. on $ 250, make a surrender of such important rights, so securely protected, as we are asked to believe was done by this defendant.
But the plaintiffs insist, that as the third instalment was no longer contingent after the [**19]  houses were plastered, for the note which was to be given, so far at least as that was concerned, there was a consideration, and to that extent the note could not be accommodation paper, and if not, it could not be so for any portion of it. In other words, they say that a note or bill of exchange, which, as between the original parties, is 

 [*285]  binding in part on account of consideration to that extent, cannot be accommodation paper for the residue. But if binding in part, it is likewise so in toto. This we understand to be the view of the plaintiffs' counsel, whilst relying upon the authority of Byles on Bills, 226, in 16 Law Lib. 141, who, in giving a definition of an accommodation note, described it as being without consideration. But the writer was not considering the precise point now before us, and his definition in its general application is correct. We think, however, an examination of the authorities will show they do not sustain the doctrine contended for by the plaintiffs' counsel.
Barber vs. Backhouse & others, Peake's Nisi Prius Cases, 61, was an action on a bill of exchange. Brown, one of the defendants, had suffered judgment by default, the other [**20]  defendant had paid £  5, 9 s., into court. For the residue of the bill they contended they were not liable. The £  5, 9 s., paid into court was the amount of the plaintiff's bill for business done as an attorney for all the defendants; the remainder of the claim was for business done for Brown only, who had drawn the bill on the partnership and accepted it unknown to the other defendants.
Law for the plaintiff contended, that the payment of the money into court admitted the bill was good for part, and if good in part it was good in toto; but Lord Kenyon thought otherwise, and the jury found a verdict according to the opinion of the court. At the next term, Mr. Law said he was perfectly satisfied with the decision.
In Darnell vs. Williams, 2 Stark. Rep. 166, the payee sued the acceptor on a bill of exchange for £  19, 5 s. It was proved, that after the bill became due the defendant paid £  10 upon it and took the bill away with him. The defendant proved, that when the bill was tendered to him for acceptance he said he had agreed to accept a bill for £  10 only, but that the plaintiff having urged him to do it as an accommodation to him, the plaintiff, he had accepted [**21]  the bill. The sum of £  10 had been paid into court. Lord Ellenborough held: "That although with respect to third persons the amount of the bill might be £  19, 5 s., yet as between these parties it was an 

 [*286]  acceptance to the amount of £  10 only, and the plaintiff was nonsuited."
In Story on Prom. Notes, sec. 190, it is said, that the total or partial want or failure of consideration may be insisted upon as a defence or a bar between any of the immediate or original parties to the contract. And in the same section the author says: "If there be a partial want or failure of consideration, it avoids the note only pro tanto." See also Story on Bills, secs. 184, 187, and the notes, and Byles on Bills, 98, 99.
In Chitty on Bills, 70, it is said: "The defendant may show that he received no consideration, or none that was in point of law adequate, and thus may entirely defeat the action or reduce the claim." See also Mulliken vs. Boyce, 1 Gill 60.
According to the principles recognised in these authorities, although it may be, that after the houses were plastered the acceptance would have bound the defendant to the extent of $ 250, because [**22]  there was consideration to that amount, and if that sum had not been paid it might have been recovered from him, still it does not follow, that he could not have defended himself successfully against the fourth instalment in consequence of the houses not being completed.
Even supposing that in consequence of the contingent liability of Miller for the last instalment there was not a want of consideration, yet as it is admitted the houses never were finished by Birmingham, there is a failure of consideration, and that is a good defence against the present claim under the acceptance.
The bricks furnished by the plaintiffs were sold and delivered to Birmingham, not to Miller, consequently that transaction did not, originally, constitute any consideration as between the parties to this suit. Nor do we see that the evidence shows any responsibility at any time from the defendant to the plaintiffs, except what the order and the acceptance created. Inasmuch, therefore, as the order provides for the payment of the last instalment when the houses should be completed by Birmingham, which is consistent with the original contract between him and Miller, and which provision was made for [**23]  the security 

 [*287]  and protection of the latter in regard to the advances he was to make; and it is admitted that the houses never were finished by Birmingham; and the acceptance is with the condition that the note to be given should be for the accommodation of the plaintiffs, we do not think there is any legal obligation on the defendant to pay the last instalment.
The claim of the plaintiffs is based upon the order and the acceptance. The order, in express terms, makes the fourth payment to depend upon the completion of the houses. The acceptance, in providing that a note, including the amount of this payment, should be for the accommodation of the plaintiffs, seems designed for the very purpose of preserving the responsibility of the acceptor in its contingent character, and the contingency on which he was to pay not having occurred, the plaintiffs have no right to demand payment of him.
In our opinion, it is shown very clearly by the plaintiffs' proof, in connection with the facts admitted, that they have no cause of action against the defendant; it is, therefore, unnecessary to enquire into the correctness of the decision below in regard to the defendant's prayer, because [**24]  whether right or wrong, the case would not be sent back under a procedendo. We will therefore say--
Judgment affirmed. 

74 of 187 DOCUMENTS 

JOHN H. ING and JOHN J. MILLS, Adm'r of WILLIAM P. MILLS, vs. THE STATE, use of MARTIN LEWIS and CHARLES MCCOY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 287; 1855 Md. LEXIS 52 

DECEMBER, 1855, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

Debt, in the name of the State, for the use of the appellees against the appellants upon an appeal bond. The condition of the bond and the pleadings in the case are fully stated in the opinion of this court. While the cause was under rule rejoinder to the replication assigning breaches, the record states that upon motion, and in pursuance of the act of Assembly in such case made and provided, and by consent of parties, "the whole matter in variance between the said parties was referred to William A. Talbott," who made the award, which is also fully stated in the opinion of this court. To this award the defendants filed various exceptions, of which the following only were relied upon in argument in this court:

1st. That the award does not set forth what was the nature of the decree mentioned in the condition of the appeal bond, nor adjudge and show the damages in nature and extent sustained by reason of a breach of that condition, and does not state the amount payable in discharge of the penalty of the bond is for such damages.

2nd. That if any amount could be awarded in the case against the defendants, there could, at [**2]  the utmost, be but the amount stated in the replication as the amount of damages and costs ($ 37.71) adjudged by the Court of Appeals, which amount should be the sum to be stated in the award, as that on payment of which the judgment for the penalty of the bond should be released.

3rd. That it does not appear by the award, nor by any of the pleadings in the cause, that Lewis and McCoy, for whose use the bond is sued, had any interest whatever in the decree appealed from, or had suffered, or could have suffered, any damage by the appeal, or how they were damaged in the premises or how connected with the decree, but the contrary appearing, inasmuch as the only parties named in the condition as interested therein are others than said Lewis and McCoy.

4th. That there is no sufficient replication whereon any award could be made or any judgment of the court be rendered.

All these exceptions the court below, (FRICK, J.,) overruled, and gave judgment in conformity with the award, from which the defendants appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Where a case is referred under the act of 1778, ch. 21, and an award made by the referee, no reasons are good on caveat to such an award except those specified in the 9th section of that act, or those apparent on the face of the award.

In case of bonds given to the State the uniform practice in this State has been to institute the suit in the name of the State, and to endorse on the writ and declaration the names of the parties for whose use and benefit it is prosecuted.

In such cases, though the judgment is always entered up for the amount of the damages laid in the declaration, yet it is accompanied by a release, (which constitutes a part of it,) on payment of the sum awarded by the jury, court or referee, as the case may be.

The party for whose use the suit on such a bond is instituted is in fact regarded as the real plaintiff, though the State, technically speaking, is so.

It is incumbent on the party suing on such a bond to show that he has an interest in it before he can recover in a regular trial prosecuted to verdict.

Where a cause is referred under the act of Assembly, all matters are within the submission which could be introduced by amendment of the pleadings, and the reference waives the necessity for averring such matters in the declaration or other pleadings.

The referee has nothing to do with the particular issue joined in court, nor is it of any importance whether any issue be joined previous to the reference; the reference is a reference of the whole case to be tried on its merits. 

COUNSEL:
Thos. W. Hall, Jr., and Chas. F. Mayer for the appellants, argued:

1st. That this suit is to be treated as if brought directly in the [**3]  name of Lewis and McCoy, and they must show themselves interested in the bond and damaged by the appeal, and that the averments of the pleadings must thus connect them with the bond to authorise any award in their favor, which has not been done in this case. Act of 1835, ch. 380, sec. 7. 1 G. & J., 231, Kiersted vs. The State. 2 H. & G., 71, Wood vs. Fulton, et al. Ibid., 277, Laidler vs. The State. 6 H. & J., 336, Beall vs. Lynn. Ibid., 95, Heuitt vs. The State. 1 H. & J., 361, Goldsmith vs. Tilly. 8 G. & J., 359, Boteler, et al., vs. The State. Only the parties to the suit recited in the condition of the bond as that on which the appeal was taken are entitled to the benefit of the bond, and Lewis and McCoy are not there recognised as parties.

2nd. At least the award should have introduced Lewis and McCoy as beneficially entitled under the bond, and should have shown how they became interested in it and to what extent damaged by the appeal. But the award gives the recovery for damage to the State, if the party damaged can be interpreted to have been at all provided for by the award, and if the award can be considered in effect as determining any thing more than that the obligors [**4]  became indebted to the State by the bond, and that the indebtment being debitum in presenti, judgment for the debt must pass for the State. Certainly no more is affirmed by the declaration, and the award by its terms used responds to merely the declaration and grants only what the declaration claims. It is unquestionable, however, that the State cannot, under the condition of the bond, be the damaged party, and it is only with the damage and the sufferers that the suit or the award had to deal. 3 H. & McH., 357, Whetcroft vs. Dorsey.

3rd. The replication for the ground-work of a breach recites a different case, as affirmed by the Court of Appeals, from that to which the condition of the bond limits itself, while it still omits any reference to the present plaintiffs, Lewis and McCoy, as the actually interested parties. Without a due replication there was no basis for an award, and in such suits as this the replication is an expansion of the declaration, or effectively a new declaration. If there be pleadings they must be resorted to for describing the claim. 5 H. & J., 61, Morgan vs. Blackiston. 6 Do., 10, Cromwell vs. Owings. 2 H. & G., 82, Birckhead vs. Saunders. 6 H. & J.,  [**5]  138, Karthaus vs. Owings. 5 G. & J., 65, Mackall vs. Jones. 11 Do., 160, State vs. Gaither. 3 Do., 377, 388, Turner vs. Walker. 11 Do., 470, Newcomer, et al., vs. Kline 8 Gill, 74, Merrick vs. The Trustees of the Bank of Metropolis.

4th. If the replication be deemed of any avail to warrant an award for Lewis and McCoy, (as which this award seeks to operate,) no larger damages than the $ 37.71, specified in the replication as the damages and costs, could, at the utmost, have been legally awarded by the referee. 6 H. & J., 134, Karthaus vs. Owings. 7 Do., 339, Laurenson vs. The State. But it is said this award is a verdict, and as such cures the defect in the pleadings. But the rule is that a verdict cures a title defectively stated, but not a defective title, (2 Tidd, 950; 1 Pet., 67, Minor vs. The Mechanics Bank,) and no recovery whatsoever, as has already been urged, was under any circumstances practicable under the peculiar condition of the bond, which precludes liability where indemnification has not been made. 11 G. & J., 457, Newcomer, et al., vs. Kline. Hurlstone on Bonds, 9 Law Lib., 108.

F. K. Howard and S. T. Wallis for the appellees, argued, that the court properly [**6]  refused to set aside the award:

1st. Because there was no allegation or proof of any such fact as invalidated the award, nor was there any error in law apparent on the face thereof. The act of 1798, ch. 21, sec. 8, specifies the reasons for which an award made upon a reference by order of court under that act, and no reasons can be relied on except such as are there specified, and errors apparent upon the face of the award. 3 H. & McH., 121, Dorsey vs. Jeoffray. See also upon this point 10 G. & J., 192, Caton vs. McTavish. 1 H. & J., 364, Goldsmith vs. Tilley. 6 Do., 10, Cromwell vs. Owings. Ibid., 95, Heuitt vs. The State. Ibid., 403, Rigden vs. Martin. 5 Md. Rep., 361, Ebert vs. Ebert. Act of 1826, ch. 200, sec. 17. The form of the award is that prescribed in the books of forms, are in the case of Fisher vs. The State, 1 H. & J., 416.

2nd. Because there was no such defect in the pleadings as prevented the court from rendering a valid judgment thereon. Judgment might have been properly entered against the defendants by default prior to the reference, they never having rejoined to the replication. After the reference and award it is too late to object to errors of pleading,  [**7]  and judgment was properly entered on the award, as it might have been had a verdict been rendered instead of an award, or a default actually entered prior to the reference. For these positions see 1 Chitty's Pl., 673. 3 H. & McH., 388, Dorsey vs. The State. 3 H. & J., 115, Tyson vs. Rickard. 1 H. & G., 6, Vandersmith vs. Washmein. 11 G. & J., 487, Ragan vs. Gaither. 8 Gill, 75, Merrick vs. Bank of Metropolis. 4 Md. Rep., 521, Price & Martin, vs. Thomas & George. 10 Mass., 263, Forseth vs. Shaw. 4 Pick., 454, Coffin vs. Cottle. 9 Gill, 281, Clammer vs. The State. 2 G. & J., 441, Karthaus vs. Owings. 5 Gill, 280, Frantz vs. Smith. 7 Md. Rep., 195, Burgess vs. Lloyd. 1 Cushing, 457, Merrill vs. Gold. 16 Maine, 219, Adams vs. Hill. 2 Aiken, 325, Batchelder vs. Hanson. 10 Verm., 216, Eddy vs. Sprague. 2 Green. N. J. Rep., 334, Hazen vs. Addis. 5 Munf., 14, Ligon vs. Ford. 15 Penn. State Rep., 22, Ward vs. Stevenson. 1 Pet., 67, Minor vs. Mechanics Bank. A submission to arbitration is a waiver of all errors in pleading. 2 H. & G., 281, Laidler vs. The State.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and MASON, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*292]  LE GRAND, C. J., delivered [**8]  the opinion of this court.
This was an action on a bond, instituted in December 1852, in the name of the State of Maryland, for the use of Lewis and McCoy, against Ing and William P. Mills, on an appeal bond, dated April 8th, 1852, a certified copy of which was filed with the declaration. The bond was given in a certain cause depending in Baltimore county court, sitting in equity, wherein William D. Miller was complainant, and John Colfer, Samuel Ortlip and Jacob Dorsey were defendants, and was conditioned thus: "if the said John H. Ing shall hold all parties to the proceeding (the said cause in equity) harmless from all loss sustained by said appeal in case the same be not prosecuted with effect, or if the decree should be affirmed, then the said bond to be and remain in full force and virtue, otherwise of no effect."
There are no breaches set out in the declaration. It was replied to by the plea of general performance. The replication sets out, as the only breach of the condition, that before the institution of this suit, it was on the decree and the appeal "in the said writing obligatory mentioned, in such manner proceeded between the said John H. Ing and the said parties to the [**9]  said cause in equity, in the Court of Appeals for the western shore of Maryland, held at Annapolis, the 12th of June 1852, by the said Court of Appeals, that the said decree of said county court was in all things affirmed and ratified, 

 [*293]  and it was considered and adjudged by the said Court of Appeals, that the said appellees to the said suit should recover against the said John H. Ing the sum of thirty-seven dollars and seventy-one cents, for costs and damages in that behalf laid out and expended, by pretence of prosecuting the said writ of appeal and upon the premises, as by the record thereof in said Court of Appeals remaining, more fully appears; and the said plaintiff avers that the said John H. Ing did not prosecute the said writ of appeal with effect, and that the said decree was affirmed, and that the said John H. Ing did not hold all the parties to the proceeding harmless from all loss sustained by the said appeal, and that the said John H. Ing hath not paid the damages and costs awarded by the Court of Appeals aforesaid."
While the case was under rule rejoinder, it was, "according to the act of Assembly," referred by order of court to William A. Talbot, Esq., who,  [**10]  upon the 26th of October 1854, returned into court his award, which is as follows, (omitting the titling of the cause:) "I, William A. Talbott, appointed referee by the Superior Court of Baltimore city in this case, having given due notice to the parties of the time and place of hearing their respective allegations and proofs, and having heard and duly considered their said allegations and proofs, do award and determine that the said defendants are indebted to the said plaintiff in manner and form as the said plaintiff hath declared against them. And I do further award and determine, that the judgment for the plaintiff be entered in the said cause for the debt and damages in the declaration and costs, to be released on payment of the sum of nine hundred and seventeen dollars, and thirty-two cents, with interest from this date, and costs."
To this award several exceptions were filed on behalf of the appellants, which were overruled by the court. Most of these exceptions were abandoned in this court and others relied upon in argument.
The form of the award of the referee is in strict conformity with that given in the 1st Vol. of Evans' Harris, 20. The reference was under the act [**11]  of 1778, chapter 21, the 8th section of which authorizes the court to enter up judgments 

 [*294]  upon awards; and the 9th section of the same act declares: "That such award shall remain seven days in the General Court during their sitting, if returned to the General Court, or four days in the respective county courts during their sitting, if returned to any county court, after the return thereof, before any such judgment shall be entered up; and if it shall appear to the justices of the court to which any such award shall be returned, within the respective times aforesaid, that the same was obtained by fraud or malpractice in, or by surprise, imposition, or deception of, the arbitrators, or without due notice to the parties, or their attorney or attorneys, it shall and may be lawful for the said court to set aside such award and refuse to give judgment thereon."
In the case of Dorsey vs. Jeoffray, 3 H. & McH. 121, it was determined by the Court of Appeals, that no reason was good on caveat but those mentioned in the act of Assembly, or which were apparent on the face of the award.
In the case now before us it is not pretended the award [**12]  is assailable on any of the grounds enumerated in the act of Assembly; and, therefore, if it be invalid, it must be so because of something apparent on its face. If the award alone be examined then there is, clearly, nothing irregular or defective in it. This we did not understand the counsel for the appellants to question. The point of their argument was, that the award should be taken in connection with the pleadings in the cause, and that if it were so regarded it would appear:
1st. That the persons for whose use the judgment was entered had no interest; and--
2nd. That in any event there could be no award or judgment beyond the amount of costs mentioned in the replication to the plea of the appellants.
In reply to the first objection it is but necessary to observe, that for a great length of time it has been the uniform practice in this State, in cases like and similar to the present, to institute the suit in the name of the State, causing the names of the parties for whose benefit it is prosecuted to be endorsed on the writ and declaration. Although the judgment is always entered up for the amount of damages laid in the declaration, 

 [*295]  yet it is accompanied by [**13]  a statement, which, in fact, constitutes a part of it, that it is to be released on the payment of the sum awarded by the jury, court or referee, as the case may be.
Such a practice enables the party, for whose use the suit is instituted, by a proper assignment of breaches of the bond and proof, to recover the amount of damage he has sustained by the breach. He is, in fact, regarded as the real plaintiff, although the State, technically speaking, is so. The 7th section of the act of 1835, chapter 380, provides, that when any county court, as a court of equity, shall require bond, with or without security, to be given in any case, and the parties concerned therein shall be numerous, or it shall for other reasons appear proper to the court to take bond in such form, such bond may be taken in the name of the State as obligee, and be sued by any person interested as public bonds may; and even prior to the passage of the act of 1835, the Court of Appeals held, in 1 Gill & Johnson 231, that the uniform practice for twenty years allowed persons interested to bring suits on bonds taken in the name of the State, although the acts of Assembly, under which they are required [**14]  to be executed, contain no specific provision for making them to the State, or give to the party, in language, the right to sue. These references are sufficient to show the suit was properly brought. There is no doubt that it is incumbent on the party suing on the bond to show he has an interest in it before he could recover in a regular trial prosecuted to verdict.
Whether, in the present aspect of the case, it is important the interest of the cestui que use should have been distinctly set out in the replication, and whether, if not, the referee was limited by the submission to the amount of costs mentioned in the replication, are questions to be disposed of on the authority of adjudged cases.
There is no doubt a verdict will cure many defects in the pleading, and so will an award under rule of court.  Vandersmith vs. Washmein, 1 H. & G. 4. Dorsey vs. State, use of Ann Dorsey, 3 Harris & McHenry 388. In this last case the record showed that the writ issued in debt; that the cause 

 [*296]  was referred and an award returned by the arbitrators; upon which award judgment was entered for the sum awarded. It did not appear that any declaration  [**15]   was filed in the case. On writ of error the General Court affirmed the judgment of the county court. In Merrick vs. The Trustees of the Bank of Metropolis, 8 Gill 59, the court, adopting the language of authorities, say, "cured by verdict means, that the court will, after verdict, presume or intend that the particular thing required to sustain it was proved at the trial;" again, "after verdict, a defective allegation in the declaration cannot be taken advantage of, though it might furnish good cause of demurrer." In the case of Merrill vs. Gold, 1 Cushing 460, Shaw, C. J., says, "the court are inclined to the opinion, according to the argument of the plaintiff, that, by the reference of a cause by a rule of court, in the usual form, all technical exceptions to the form of the declaration, and the strict rules of proceeding, are waived by the mutual consent of the parties on which the rule is founded, and by which the case or cause of action is referred and embraced in the submission." The Judge continues, "and perhaps the question, whether any matter is or is not within the submission, is well tested by another, to wit, whether the  [**16]   same matter could be introduced by way of amendment, either by varying an existing count or filing a new one, because if it is simply another mode of stating the same cause of action it is admissible, otherwise not." Now regarding the replication in this case, as it undoubtedly is, but a practicable continuation of the original declaration, there certainly cannot be a doubt on the mind of any one that it would have been competent to the plaintiff to have amended it by the averring of the facts which are deemed necessary to have been in it by the counsel for the appellants; and if this could have been done under the decision last referred to, the submission waived, or did away with all necessity for the averments insisted upon. And in the case of Eddy vs. Sprague, 10 Vt. 216, the Supreme Court say: "It has never been considered, under the English statute or at common law, that the arbitrator had anything to do with the particular issue joined in court, or that it was of any importance whether any 

 [*297]  issue was joined previous to the reference. It is customary there to enter up a verdict for the plaintiff for the full amount of the damages claimed [**17]  in the declaration, subject to the award of the arbitrators, to whom the case is referred." In the same decision it is said: "If the declaration or other pleadings are defective the defendant cannot, on that account, move in arrest of judgment. If the case is referred, standing on the plea of a release, it is competent for the arbitrator to try 'the case' on any other issue. The declaration is important only in order to determine the extent of the submission, and with this view, a copy of it is, in practice, usually attached to the rule issued by the clerk. But it was never known that any other part of the pleadings was copied into the rule, which is the authority for the referees to proceed. It is clear then that the reference of a cause, by rule of court, is not, with us, considered a reference of the particular issue joined in court. It is a reference of the whole cause to be tried on the merits."
In a very careful examination of all the cases referred to by counsel, and due consideration of the arguments addressed to us, we have been unable to discover aught in conflict with the doctrine which we have stated from the authorities referred to. We consider the referee, under [**18]  the submission, had the right to decide the case on its merits, and that whatever defect there may have been in the pleadings, if any, was waived by that reference. There appearing no error on the face of the award, nor any allegation of misconduct on the part of the referee, as specified in the act of 1778, there is nothing left to us but to affirm the judgment.
Judgment affirmed. 

75 of 187 DOCUMENTS 

EDWARD W. SALMON, Permanent Trustee of JAMES BOON, vs. JOHN W. PIERSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 297; 1855 Md. LEXIS 53 

DECEMBER, 1855, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Court of Common Pleas for Baltimore city, sitting in Insolvency.

In this case the auditor allowed the claim of the appellee against the insolvent estate of Boon. The trustee excepted, on the ground that if there be any claim whatever on the part of Pierson, it is one arising after the application of Boon for the benefit of the insolvent laws. Testimony was taken, and this exception was overruled by the court, (MARSHALL, J.,) and the claim allowed. From this order the trustee appealed.  

DISPOSITION:
Appeal dismissed.  

HEADNOTES:

In cases in insolvency, the right of appeal is given only to persons aggrieved by the decision of the court below, and the trustee has no right to object to the claims of creditors, and to appeal from an order allowing such claims, where the creditors themselves acquiesce.

He may appeal where the decision complained of affects the interests of all the creditors by diminishing the estate out of which they are to be paid, or where he is defeated in attempts to augment that fund by the recovery of property or money which he thinks belongs to the creditors.

If he has an interest as trustee in reference to his allowance for commissions and expenses, or as a creditor of the insolvent, he has an equal right, with others, to object to the distribution and to appeal.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and TUCK, J.; by Charles H. Pitts for the appellant, and T. Parkin Scott for the appellee. The arguments of counsel, which related solely to the merits of the claim, need not be reported, as this court dismissed the appeal, upon the ground that the trustee had no right to appeal.  

OPINIONBY:
TUCK 

OPINION:

 [*298]  TUCK, J., delivered the opinion of this court.
The right of appeal from decisions in insolvency is granted, by the act of 1849, ch. 88, only to persons aggrieved by the action of the court below. If the appellant does not come within this designation, the appeal must be dismissed.
The trustee of an [**2]  insolvent represents the creditors, and may appeal, under the laws upon that subject, where the decision complained of affects the interests of all the creditors, as for example, by diminishing the estate out of which they are to be paid, or where he is defeated in attempts to augment that fund by the recovery of property or money which he thinks belongs to the creditors. But his relation to the estate does 

 [*299]  not authorise him, under this act of Assembly, to object to the claims of creditors, who may, if they please, litigate, inter sese, as actors in reference to the same subject matter. It is his duty to protect all alike, which is quite inconsistent with any pretension to contest with one or more for the benefit of the others. If he has an interest, as trustee, in reference to his allowance for commission and expenses, or as creditor of the insolvent, he has an equal right, with others, to object to the distribution and to appeal. But what interest can he set up to continue litigation here, after a decision below to which the parties really interested do not appear to have objected? As mere custodian of the funds, he cannot interplead, as it were, in this unnecessary [**3]  manner, to the expense and diminution of the estate, too often inadequate to pay the just claims upon it.
We are aware that this case is supposed to be analogous to that of a trustee in chancery, who, it was said in Ellicott vs. Ellicott, 6 G. & J. 35, may appeal from an order distributing the proceeds of sale. In that suit, however, the appellants, the trustees, were heirs at law and personally interested in the proceeds of sale; and although the decision of the court was not placed on that ground, the circumstance distinguishes that case from the present. Besides, it does not appear, that in the case of Kent vs. Alexander, Trustee of Mullikin, referred to and relied upon in the opinion, any point or question was decided as to the right of appeal; and in fact, that record shows that the exception to the auditor's account was made by Kent, a claimant against the estate, and that the appeal was taken by him because his claim was rejected. At a later period, the Court of Appeals, in Balch vs. Zentmeyer, 11 G. & J. 267, where the appellant was a trustee in chancery contesting the claim of the appellee, appear to have considered the question [**4]  as not conclusively settled. They say, "in making this affirmance, however, we desire to be considered as expressing no opinion on the right of the trustee, in his own name, to prosecute this appeal in behalf of parties present in court and litigating their claim by their solicitor." In the present case the creditors had filed their claims, and if they acquiesced in the audit, we cannot discover that the trustee can, with legal propriety, 

 [*300]  object in their behalf, not being himself aggrieved by the decision below, to which description of persons the right of appeal is confined by the act of Assembly. Under the circumstances of the case, the costs will be paid out of the trust estate.
Appeal dismissed. 

76 of 187 DOCUMENTS 

WILLIAM B. NELSON vs. JOHN W. PIERSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 300; 1855 Md. LEXIS 54 

DECEMBER, 1855, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Court of Common Pleas for Baltimore city, sitting in Insolvency.

In this case the appellant preferred a claim against the insolvent estate of James Boon of $ 100, for professional services rendered the trustee in relation to the trust. The proof in regard to the claim is stated in the opinion of this court. To the allowance of this claim the appellee, another creditor, excepted. The court, (MARSHALL, J.,) allowed the claim to the extent of $ 25, for services rendered the insolvent in preparing his insolvent papers, and referred the case back to the auditor with directions to allow the claim to this extent only, upon proper proof, remarking that he "did not think it admissible, as a principle, that a trustee should employ counsel in all cases, and especially should retain a permanent counsel, whether required absolutely or not." From this decision Nelson appealed.  

DISPOSITION:
Cause remanded.  

HEADNOTES:

A trustee in insolvency cannot employ a professional adviser and charge his compensation to the estate; but where the assistance of counsel is required in prosecuting or defending the interests of creditors, compensation therefor is properly payable out of the funds.  

JUDGES:
The cause was submitted to the court, LE GRAND, C. J., ECCLESTON and TUCK, J., without argument.  

OPINIONBY:
TUCK 

OPINION:

 [*300]  TUCK, J., delivered the opinion of this court.
We agree with the Court of Common Pleas, that a trustee in insolvency cannot employ a professional adviser and [**2]  charge his compensation to the estate. But where the assistance of 

 [*301]  counsel is required in prosecuting or defending the interests of the creditors, they are properly payable out of the funds.  Young's Appeal, 8 Gill 285. The proof shows, that there were many cases before justices of the peace, to all or some of which the appellant attended professionally. We think when the case was remanded to the auditor for further proof of claims, liberty should have been allowed to the appellant to make good his claim, by showing the extent and character of his services and the value thereof. The record will be remanded under the act of 1849, ch. 88, that further proceedings may be had according to the views here expressed. The costs should be paid out of the estate.
Cause remanded. 

77 of 187 DOCUMENTS 

WILLIAM HAMILTON and A. ROBINSON, vs. CHAS. ROGERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 301; 1855 Md. LEXIS 55 

DECEMBER, 1855, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Court of Common Pleas for Baltimore city.

Trespass vi et armis, brought on the 18th of July 1854, by the appellee against the appellants for entering the plaintiff's store house and seizing and taking therefrom certain goods described in the declaration. Plea, non cul.

1st Exception. The plaintiff offered in evidence a mortgage to him from Joseph D. Worley, dated the 6th of June 1851, reciting that Worley is indebted to Rogers in the sum of $ 5314.80, being for the purchase money of the stock in trade and property conveyed by the mortgage for which he had given his promissory note, payable in ten days, and to secure which the mortgage is executed. It then conveys to Rogers "all the stock and materials" in certain stores in the city of Baltimore, "consisting of saddles, trunks, harness, saddlery, hardware tools, leather and other materials, together with all renewals of and substitutions for the same or any part or parts thereof; the object of this conveyance being to include, not only the articles at present in said stores, but whatever may be at any time therein, in the course of said Worley's business, so long as said note in whole or in part remains due [**2]  and unpaid; together with the household furniture in the house occupied by said Worley." The mortgage further states, that Worley had put Rogers in possession of all the property thereby conveyed, by delivering to him "one saddle, one bridle and one chair, at the sealing and delivery of these presents, in the name of the whole premises." The mortgage was to be void on payment of the promissory note above mentioned, according to its tenor, and until default in payment thereof the property was to remain in possession of Worley, the mortgagor.

The plaintiff then offered to examine Worley as a witness, but defendants objected to his competency. The plaintiff then filed two releases, one from Rogers releasing Worley and all the property conveyed by him to his trustee in insolvency, from all claim on account of the balance of the debt still due, secured by the mortgage; and the other from Worley assigning to Rogers all claim to the property described in the nar and in the mortgage, and to all damages which may be recovered in this suit. The defendants still objected on the ground that he was interested in the result of the suit, but the court, (MARSHALL, J.,) overruled this objection [**3]  and the defendants excepted.

2nd Exception. The plaintiff asked a witness what each set of harnesses, which defendant, Robinson, took from plaintiff's store, was worth at retail prices? To this question defendants objected, but the court overruled the objection, saying, that evidence as to retail and wholesale prices might be given, and that the jury might judge as to what price they would allow if at all. To this ruling the defendants excepted.

3rd Exception. The facts proved in this exception are fully stated in the opinion of this court. After all the evidence was closed the defendants asked the following instructions:

1st. If the jury find from the evidence, that the deed from Worley to Rogers was made with the view and for the purpose and intent to hinder, delay or defraud the creditors of Worley it is void, and plaintiff cannot recover.

2nd. If they find that Worley, on the 6th of June 1851, was unable to pay his debts and insolvent, and that on the 22nd of July 1854, he petitioned for the benefit of the insolvent laws; and at the time he made said deed he had no reasonable expectation from being exempt from execution or liability, for or on account of his [**4]  debts, except by applying for the benefit of the insolvent laws, then the plaintiff is not entitled to recover, provided the jury believe that Rogers had notice of the insolvency of Worley.

3rd. That if they find that none of the goods so levied on by the officer were in the store of Worley on the 6th of June 1851, in specie, or in such manner as could be, by the defendant, Robinson, identified as those in the store on that day, and that other goods were introduced by Worley, with consent of the plaintiff, into the store since that day, and worked up with those in the store previously, and that said first mentioned goods were not pointed out to the officer by the plaintiff or any one for him, then the plaintiff is not entitled to recover against defendants in this form of action.

4th. If the jury find that the goods levied on by the officer, as stated in the evidence, were not in the store on the 6th of June 1851, in specie, or in the form in which they were at the time they were so seized on by the officer, or in such a manner as by him to be identified, and that all or most of the materials used in making them were purchased by Worley on his own credit, after the making [**5]  of said deed, to wit, some time in 1854, then the plaintiff is not entitled to recover for any of said property except that in the store on the 6th of June 1851, and that the burthen of proof is on him to show that any goods for which he seeks to recover in this action were in the store at the time of making said deed.

5th. That said bill of sale conveyed no goods except those in the possession of Worley at the time of the making thereof, or such goods as he had some right or claim to at the time he executed it, and that any goods purchased by him afterwards are not affected thereby, and that before the plaintiff can recover he must show that the goods levied on were the property of Worley on the 6th of June 1851, or that he had some right or claim thereto on that day.

(The only evidence in the record to show that any of the goods levied on were in the store on the 6th of June 1851, is that of Dempsey, who states, "that some of the buckles used in the manufacturing of the goods so levied on may have been in the store on the 6th of June 1851; that the buckles used in making a trunk that would cost from $ 9 to $ 16 would cost from 12 1/2 to 25 cents.")

The court granted [**6]  the first prayer and refused all the others as presented, but granted the fourth with this modification added: "or that the goods supposed not to have been in the store at the time of the execution of said mortgage were purchased by the proceeds of sale of such goods as were in the store at said time." For the rejection of the second prayer the judge assigned as a reason, "that notwithstanding the jury might believe all that is stated in that prayer, the plaintiff might recover, as the only person who could set aside the deed because of the reasons stated in said prayer would be the trustee of the insolvent." The learned judge also assigned the following reasons for rejecting the third prayer as presented, and the fourth and fifth prayers:

"There is so large an amount of property involved in transactions like the one now in question, and so many estates have been controlled in their distribution by instruments of similar import to the mortgage under consideration, that if I really doubted its validity I should be disposed to sustain the deed notwithstanding, and leave it to the Court of Appeals to determine at once the question, without affecting the community with protracted [**7]  doubts upon an important usage. I feel, fortunately for myself, as much confidence in the decision I have made as a man should feel in a question upon which the profession is much divided, and courts of different countries have differed. The question is, whether this mortgage be void as to such goods as were brought into the store as 'renewals' or 'substitutions' of the original mortgaged stock, so far forth as the jury should find from the evidence such renewals or substitutions to have been made by the mortgagor with the proceeds of sale of the original mortgaged stock. It is contended, that at law no man can convey that to which he has no right, either 'actual' or 'potential.' The cases in 4 Metcalf, 306; 10 Metcalf, 488; 2 Cushing, 300; 7 Adol. & Ellis N. S., 850; 1 Man., Gran. & Scott, 385, assert this as a common law principle, undoubtedly, but they do not apply the principle, if I understand those cases, to property acquired by the mortgagor with the consent of the mortgagee, and in conformity with the original agreement, by a reinvestment of the proceeds of the original mortgaged property. I will remark, moreover, that some doubt at least is thrown upon those cases, as to the [**8]  abstract principle asserted by them as common law in Maryland, by the case of Hannon vs. Robey, 9 Gill, 440. The deed in that case was from a father to two sons, of one-half of such personal property as he might die possessed of. The court say, page 443, 'it is impossible to regard the deed as a testamentary paper.' After referring to 9 Gill & Johns., 77, and 7 Har. & Johns., 147, in answer to objections taken to the deed, as such, the court go on to say, page 446, 'nor do we find any authority to forbid the transfer of such personal property, subsequently acquired, as the grantor may leave at his death.' With a court of subordinate jurisdiction this case must exert great power, although in seeming opposition to those which I have just cited, whatever disposition the Court of Appeals may make of the question. For the matter now under discussion, this principle may be conceded against the case of Hannon vs. Robey. What I have to decide is, whether property, the proceeds of that originally and expressly mortgaged, acquired by barter or sale, with the consent of the mortgagee and in pursuance of the original agreement, can stand within the mortgage provisions. The cases cited in denial [**9]  of this proposition concede, that there is no objection in law to the conveyance of 'a potential title,' as of growing crops, the future fleeces of a flock, of tithes, &c., &c. In Maryland it has been decided, that the offspring of a female slave held by the mortgagor, by agreement, and born before the right of possession was lost by the mortgagor, was bound to the mortgagee of the mother by the condition of the mortgage. If an analogy be conceded between these cases and the one now under adjudication, it is easy to harmonize the decisions referred to in support of the present mortgage with those adduced in opposition to it. Otherwise, I think there is to be found a conflict of judicial opinions difficult to reconcile, and embarrassing from the weight of authority on either side. I shall notice briefly now the cases which seem to me to declare affirmatively the principle involved in this enquiry. In 6 Man. & Gra., 248, 249, two of the judges seem to me to intimate clearly, that had the covenants of the deed been such as those in the present case, and such as they supposed had been designed by the grantor, they should have been sustained. In 14 Pick., 502, 505, a party made a pledge [**10]  of property to secure a debt, and among other property, pledged such bricks as he then had made, and such as he should thereafter make in the prosecution of his business. He was to continue in possession of the property, with power to sell, &c. The lien of the creditors having the pledge was held good against other creditors. In Cross on Liens, a case is reported, (Appendix, 408,) the principles of which I cannot distinguish from those in the present controversy. A contractor agreed with his principals, that as a security for such advances as they should make him towards the completion of his undertaking, they should have a lien on the tools, materials, &c., that he then had or should thereafter place upon the described premises. He used the materials, removed them, replaced them by others, and altogether changed the elements of the security, yet the original agreement was held to bind all the property in the agreed predicament at the moment the contingency presented itself. In 20 Maine, 408, I find the court determining the question here involved, it seems to me precisely and without reserve, in support of the deed. In two cases, reported in 2 Story's Rep., the late Judge Story sustained [**11]  in equity liens created by agreement upon property not then owned by the mortgagor. The cases are Fletcher vs. Morey, 555, and Mitchell vs. Winslow, 630. These cases are supposed to decide such liens good in equity, but bad in law. I do not so understand them; on the contrary, I understand the distinguished judge to rule such agreements valid at law and equity, whenever it may be within the scope of a legal tribunal to enforce them: I refer more particularly to the case of Mitchell vs. Winslow, 630, of 2 Story. In the argument of his case, it is true the judge says he may admit all that is alleged against the deed at law, citing the common law principle asserted in the cases I have heretofore referred to, and that he may, for the sake of the argument, admit the deed bad at law, and still he proceeds to show that it might be, and was, good in equity. (See pages 636, 638.) In the further prosecution of his argument, however, I understand Judge Story to review this concession thus made, for the sake of the argument, and to deny its propriety. In pages 645, 646, &c., I understand him to say, that at law he can see no valid objection to this power to sell and to substitute other property [**12]  for that specifically mortgaged; and in support of this position, he refers to the above cases in 14 Pick., 20 Maine, and in the Appendix of Cross on Liens, as sustaining at law the principles for which he had been contending in equity. In Maryland, so far as I know, this case is undecided, whether in the Court of Appeals or in the subordinate tribunals. It has been but once, I believe, presented to the Court of Appeals, (in Hudson vs. Warner & Vance, 2 Har. & Gill, 428,) and then the court declined to decide the question. It has been decided in 9 Gill, 201, that an action for money had and received will lie in favor of the mortgagee against an assignee of the mortgagor for the benefit of his general creditors. Now, if the proceeds of the property be converted into money by the mortgagor with the consent of the mortgagee, and then, with like consent, invested in other property for the purposes of the mortgage, and the right and intention of this commutation of property be notified to all the world in the mortgage duly recorded, I cannot, I say, understand why, under such circumstances, the deed should not be capable of legal enforcement, supposing it to be free from other objections.  [**13]  "

To each of these rulings adverse to them the defendants excepted and appealed.  

DISPOSITION:
Judgment reversed and procedendo refused.  

HEADNOTES:

A clause in a mortgage of goods in a store, providing for "all renewals and substitutions for the same, the object being to include, not only the articles then in the store, but whatever may be at any time therein, in the course of the mortgagor's business," cannot convey subsequently acquired goods so as to give the mortgagee a right of action at law against a party seizing them.

To make an assignment valid at law the thing which is the subject of it must have an actual or potential existence at the time of the grant or assignment.

Where the mortgagee sues for the taking of goods so mortgaged the onus is on him to show that the goods seized were on the premises at the date of the mortgage.

To enable him to recover to the extent of the goods on the premises at the date of his mortgage he must show that they were known to the defendant so to have been on the premises, or he must point them out as such to the officer making the seizure.

Where the property mortgaged is commingled with that subsequently acquired by the mortgagor it is presumed to be done with the mortgagee's permission, and if it be so intermixed as to prevent separation or identification the rights of third parties cannot be affected thereby.  

COUNSEL:
P. M'Laughlin for the appellants.

After the defendants had shown that any property was purchased and placed in the store, after the execution of the mortgage, the burthen of proof then rested with the plaintiff, to show the particular goods affected by the mortgage. 1 Starkie on Ev., 363. Hudson vs. Warner & Vance, 2 H. & G., 416, 428.

The fifth prayer of the defendants is in reference to the power of Worley to assign by a present conveyance, goods in which he had no interest at the time of the making of the conveyance, and which then had no existence. Whatever may be the rule on this subject in courts of chancery, bankruptcy, and insolvency, it has been settled at law in England, from the earliest period to the present, without a single dissenting voice of which we have any knowledge, that the goods, the subject of the sale, must at the time have an existence, and that the vendor must have some interest therein. It is said in Bac. Ab., title Grant, D: "A man cannot grant all the wool that shall grow upon his sheep that he shall buy afterwards,  [**14]  for there he hath it not actually or potentially." Grantham vs. Hawley, Hob., 132, Com. Dig., title Grant, D. In Lunn vs. Thornton, 50 Eng. C. L. Rep., 379, the same question was presented to the court, in an action of trover, by the assignor against the assignee. The goods were described in the deed, which was dated 4th August 1843, and the following words added: "Or which should, at any time thereafter, be in, upon or about his dwelling at Stoney Stratford, aforesaid." In the month of October following, under color of the deed, the assignee seized all the goods on the premises mentioned--part of which were not on the premises or in the plaintiff's possession at the time of the execution of the deed, but were afterwards acquired by the plaintiff, and were on the premises at the time of the seizure. Tindall, C. J., says, (page 386:) "That the principle contention on the part of the plaintiff was, that the facts of the case brought it within the exception in Lord Bacon's rule: that the bringing of these goods on the premises of the plaintiff, where they were seized, at a time subsequent to the execution of the bill of sale, was the new act done by the plaintiff, which gave to the declaration [**15]  contained in the bill of sale effect."--"The new act upon which Lord Bacon relies, appears in all the instances he puts, to be an act done by the grantor, for the avowed object and with the view of carrying the former grant into effect. Lord Bacon's language is: 'There must be some new act of conveyance to give life and vigor to the declaration precedent.'"

Very soon after the above decision, came, in 1845, the decision of the case of Gale vs. Burnell, 53 Eng. C. L. Rep., 850, between the mortgagee and an execution creditor. The mortgage was made by Allen to Gale, on the 1st of January 1843, and after describing certain property, contains the following words: "And other things which are now, or which may at any time during the continuance of this security be, in and about the said premises, as his and their proper goods and chattels." After the condition there is this clause: "It shall be lawful for the said Gale, his, &c., peaceably and quietly to receive and take into his and their possession, and thenceforth to hold and enjoy all and every the said household goods, &c., and sell and dispose of the same and every part thereof," &c. Lord Denman, C. J., (at page 861,) in pronouncing [**16]  the judgment of the court, says: "We think it clear that this is a present conveyance from Allen to the plaintiff," &c. At page 862, he says: "We are of opinion," &c., "that the deed could not operate as an assignment of the goods to be brought upon the premises." See also Robinson vs. Macdonell, 5 Maule & Selw., 228. From these and other authorities referred to by them, it is believed that this prayer contains the law on this subject as understood at the time of the American Revolution, and as understood and administered in England in courts of law up to the present time. And if so, the same law is binding on us. Mayor & City Council vs. Williams, 6 Md. Rep., 235, 264, 265.

We shall now proceed to examine what is the settled rule, if any has been settled on this subject, in other States of this Union, for although the question has been twice presented in this State, there is no express adjudication of it. It came before the appellate court of Massachusetts in 1845, in the case of Winslow vs. The Merchants Ins. Co., 4 Met., 306, which was an action of trover, for a steam engine, two boilers and fixtures, a blowing cylinder pipe, a trip-hammer and fixtures. The facts of the case [**17]  are, that Pond, on the 24th of May 1836, made a mortgage to the defendants of a lot of ground in Hawley street, which contained the following language: "With all and singular the machinery, tools, goods, chattels, and other property therein contained, together also with all the machinery, engines, tools, apparatus and other property, whether fixtures or otherwise, now being and remaining on the premises, and all such other machinery, engines, tools, and other property, as is now contemplated to be in said building," with a covenant to mortgage any other goods that might be placed therein. On the 18th October 1837, Pond gave the plaintiffs a mortgage, in which the mortgaged property was thus described: "All and singular the goods, wares, stock, iron, tools, manufactured articles and property of every description, being situated in or about the shop or building now occupied by me in Hawley street, in the city of Boston." Some of the goods which were taken by the defendants were placed in the house after the execution of the first, and before the execution of the second mortgage, and which were owned by the mortgagor at the time of making the first mortgage. The opinion of the court was [**18]  delivered by Shaw, C. J. At page 316, he says: "Articles contemplated to be placed therein, without any schedule, enumeration or specification whatever, is a description far too indefinite and uncertain to constitute a lien on the articles afterwards to be placed in the building." And again the court says: "The stipulation of the mortgagor to execute other instruments of hypothecation when the articles should be put in and made certain, was a good executory contract, binding on the contractor personally, and for a breach of which he might have been liable in damages, but not an executed contract constituting a lien, de facto, upon articles not then bound by the mortgage." The same question came before the court again, at October term 1845, in the case of Jones vs. Richardson, 10 Met., 481. Action of assumpsit on an award. The plaintiff was deputy sheriff, and levied on certain goods as those of Addison Richardson, at the suit of several of his creditors, and delivered the goods so levied on the defendant for safe keeping; on demand the defendant refused to return them, but claimed them under a mortgage from Richardson, dated September 7th, 1842, in which the goods mortgaged were described [**19]  as: "The whole stock in trade of said Addison, as well as each and every of the merchandise which the said Addison this day bought of Timothy Walker, constituting said Addison's stock in trade, in the shape the same is and may become in the usual course of the said Addison's trade and business as a trader." In October term 1846, Wilde, C. J., delivered the opinion of the court, and, at page 487, says: "Only a part of the goods was owned by the mortgagor until after he made the mortgage." At page 488, the court says: "That a person cannot grant or mortgage property of which he is not possessed, and to which he has no title, is a maxim of the law too plain to need illustration: a man cannot grant or charge that which he hath not." At page 493, the court says: "That by the Rev. Stat., ch. 74, sec. 5, it is enacted," &c. This act is almost verbatim with our act of 1729, ch. 8, sec. 5, and then says: "Now it is clear, we think, that the record of the mortgage is no sufficient notice of a legal incumbrance as to subsequently acquired property, because, by law, no such property could be sold or conveyed thereby; and it could furnish no notice that any property would be afterwards purchased,  [**20]  or if purchased, that any act would be done to ratify the grant in that respect; as to such property, therefore, the mortgage could not be valid."

This point came before the same court for adjudication in October term 1848, in the case of Barnard vs. Eaton, 2 Cushing, 294. This was a case of the mortgagee against the assignee of the insolvent, on a petition praying that the mortgaged property might be sold, and the proceeds applied to the payment of his debt, and that he might be admitted as a creditor for the deficiency. The mortgage describes the property mortgaged as, "All and singular the goods, wares and merchandise, consisting of dry goods, crockery, hardware, groceries, provisions, &c., then in the store occupied by the mortgagor in South Reading, and also, all the goods which then were, or might be afterward, substituted for those the mortgagor then possessed." The opinion of the court is delivered by Shaw, C. J. At page 303, he says: "A mortgage is a present transfer of title, although conditioned and defeasible; it can therefore only bind the property capable of being identified at the time it is made, and whatever may be the agreement of the parties, it cannot bind [**21]  property afterwards to be acquired by the mortgagor." Again the court says: "If therefore at the time when this claim was made none of the goods were capable of being identified, the mortgage must fail, not because it was void in its origin, but because there is no subject to which it can now apply."

There can be no parol ratification of an instrument under seal. Stetson vs. Patten, 2 Greenlf., 359. An execution creditor stands in the same position as a purchaser. Divver, et al., vs. McLaughlin, 2 Wend., 596. In 2 Kent, 468, it is laid down that the thing sold must have an actual or potential existence, and be specific or identified, and capable of being delivered. See also Story on Sales, sec. 184. In 2 Story Eq., sec. 1040, it is said: "To make an assignment valid at law, the thing which is the subject of it must have an actual or potential existence at the time of the grant or assignment." See also McCarty vs. Blevins, 5 Yerger, 195. Forman vs. Proctor, 9 B. Monroe, 124.

The learned judge who decided this case in the Court of Common Pleas, referred to several authorities which he supposed supported the view of the law of the case as taken by him, upon which we desire to [**22]  remark, that the case in 9 Gill, 440, was decided upon the view of the peculiar position in which parties to the deed stood to each other. The reasoning of the court, at page 444, would lead to the conclusion, that the deed in that case would not be sustained, situated as this is. The question as to the effect of the mortgage on property to be acquired in future, did not rise in the case in 6 Man. & Gran., 248. In the case in 14 Pick., 502, the mortgagor owned the clay from which the brick were to be made, therefore it differs entirely from the case at bar, and is within the rule laid down in Bacon's Abr. and Com. Digest. The case referred to in Cross on Liens, is a case in bankruptcy, as is also the case in 2 Story's Rep. The case in 20 Maine would appear to support the judge's view, but there is a case, in 21 Maine, 86, Goodenow vs. Dunn, in direct opposition to the view taken by the judge, of the law laid down in 20 Maine. The case referred to, of the offspring of the slave, was decided on the principle, that the natural increase of property, mortgaged or sold, belongs to the mortgagee or vendee, and is foreign to this question. The case in 9 Gill, 201, merely decides the familiar [**23]  principle, that a party against whom a tort has been committed, in the taking and selling of his goods, may waive the tort, and sue for the proceeds of the sale.

Coleman Yellott for the appellee, argued, that the mortgage was valid and operative to pass the subsequently acquired goods. He cited the cases and relied upon the argument of the court below as presenting the true view of the authorities, and insisted that the rigid rules of the common law upon this point must yield to commercial usage and convenience of modern times.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and TUCK, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*314]  LE GRAND, C. J., delivered the opinion of this court.
This is an action of trespass vi et armis, and involves a question of very great importance. It arises in the following manner:--one Joseph D. Worley of Baltimore city, purchased of Charles Rogers, the appellee, a stock of goods for $ 5314.80, and on the same day executed a mortgage bill of sale on said stock to secure payment of the purchase money in ten days. The mortgage, in addition to the usual provisions, contained also the following: "together with all renewals and substitutions [**24]  for the same, or any part or parts thereof: the object of this conveyance being to include, not only the articles at present in said stores, but whatever may be at any time therein, in the course of said Worley's business."
Worley remained in possession until July 22nd, 1853, when he applied for the benefit of the insolvent laws, the mortgage to Rogers remaining due and unpaid. On the 8th of July 1854, the appellant, Hamilton, having a judgment against Worley, caused a fi. fa. to be levied upon the stock of goods then in Worley's possession; and Robinson, the other appellant, by virtue of this fi. fa., as constable, seized and removed a portion of said stock. On the 18th of July, the appellee instituted his action of trespass vi et armis against the appellants to recover damages for the seizure of said goods.
Worley was examined as a witness, and on cross-examination testified--when speaking of the goods in the store at the time of the seizure by Robinson--"that all the goods were manufactured and placed in the store within six months previous to the time on which they were so taken; that the most of the materials from which they were manufactured were purchased by [**25]  him after the making of said deed; that the materials thus manufactured were nearly all purchased with the proceeds of the sales of goods in the store at the time of making said deed." It was also proved by another witness, named Dempsey, "that the said goods so levied on were all manufactured within six months previous to the making of the 

 [*315]  levy; that the materials from which they were made, except the buckles, were purchased since the 6th of June 1851."
The important and practical question suggested by this state of case is, does such a clause, in a mortgage of goods and chattels, as that recited, give, at law, a right of action to the mortgagee against any one interfering with the goods acquired by the mortgagor subsequently to the execution of the mortgage? The question was considered but not decided by the Court of Appeals in Hudson vs. Warner & Vance, 2 Harr. & Gill 428, and in Preston & Hepburn vs. Leighton, 6 Md. 88. It is evident, however, from his opinion, to be found in the record, that the learned judge who decided it below, in this case, gave to it the attention which its importance demanded. Differing from him in opinion, it [**26]  is proper we should indicate the grounds of that difference, as well by a reference to the authorities on which he relied as to others.
It is laid down in Comyn's Digest, tit. Grant D, that "a man cannot grant a thing which he has not." So in Bacon's Abr., tit. Grant D, "a man cannot grant all the wool that shall grow upon his sheep that he shall buy afterwards, for there he hath it not actually or potentially." The thing sold must have an actual or potential existence. 2 Kent 468.
And Story in 2 Equity Jurisprudence, section 1040, says, "to make an assignment valid at law, the thing which is the subject of it, must have an actual or potential existence at the time of the grant or assignment." The learned judge concedes that the cases in 4th Metcalf, 306; 10th Metcalf, 488; 2 Cushing 300; 7th Adolphus & Ellis N. S., 850; 1st Manning, Granger & Scott, 385, assert this to be the common law principle, but they do not, in his opinion, apply the principle to property acquired by the mortgagor with the consent of the mortgagee, and in conformity with the original agreement by a re-investment of the proceeds of the original property.  [**27]  
It should be observed, that there is not any evidence in the record that the proceeds of the property in the store, at the date of the mortgage, were invested in the goods levied upon by the appellants, by the mortgagor with the avowed object of benefitting the mortgagee.

 [*316]  This fact, in a certain aspect of the case in view of some of the decisions, might have some influence. The rights of the appellee depend entirely upon the language of his deed.
It is suggested, that two of the judges in the case of Tapfield vs. Hillman, et al., 6 Manning & Granger 245, intimate clearly, that had the covenants of the deed been such as those in the present case, and such as they supposed had been designed by the grantor, they should have been sustained. That was the case of an assignment, by way of mortgage, (to secure the payment of a sum of money loaned,) from a lessee to his lessor, of furniture and stock in trade, in, about, upon and belonging to an inn, with a power, upon non-payment, to enter into, possess, hold and enjoy, the inn for the residue of the assignor's term therein, and "to take, possess, hold and enjoy, all the goods, chattels, effects and premises." On the [**28]  day before the expiration of the plaintiff's tenancy the mortgagees entered upon the premises, under color of the mortgage deed, and seized the whole of the effects, including stock in trade and other property which were not on the premises at the date of the deed.
As we understand the language of the judges, their purpose in the particular case was to interpret the words actually used in the mortgage, and in the view they had of it, it was wholly unimportant to inquire whether or not, at law, goods subsequently acquired by the mortgagor could be made liable by any words which might have been inserted in the deed. It is true, Tindall, Ch. J., says, that "if the intention of the parties was, that the security should extend to subsequently acquired property, that intention ought to have been clearly expressed;" and also, "that it would have been very easy to have so framed the power of entry as to make it extend to all effects upon the premises at the time that such power should be enforced, had such been the intention of the parties." The court were of the opinion that the language of the deed only covered the effects upon the premises at the time of its date, and it was not [**29]  therefore required of them to deal with the question involved in the case before us. Indeed the counsel engaged did not press it, the only allusion in the argument to 

 [*317]  it was, that "it was far from being clear, that an assignment can be made to comprise property which is not in existence at the time." "But that point" did "not arise," for the deed did not profess, neither did "it convey the slightest intimation, that the parties meant to include property which might be subsequently acquired." Looking at the facts of the case as presented by the report, we incline to ascribe the language which we have quoted, from Tindall, Ch. J., to a desire to show that the words of the deed did not, nor was it intended they should, cover subsequently acquired property. If this were so there was no necessity to inquire into the law applicable to the other question. The case was decided in 1843. At Hilary term 1845, the case of Lunn vs. Thornton, 1 Manning, Granger & Scott, 379, was decided. In the course of the argument the expressions we have cited from the case of Tapfield vs. Hillman, were declared to be extra-judicial. The deed in Lunn vs. Thornton not only covered [**30]  the effects on the premises at the time of its execution, but also all "which should at any time thereafter remain and be" thereon. The case was very fully and ably argued by counsel, and decided by Tindall, Ch. J., after a thorough review of the cases and principles applicable to it. He distinctly holds, that subsequently acquired goods are not covered by such a deed. He thus plainly states the facts and the question arising out of them:--"the goods," says he, "in dispute, were not goods 'remaining and being on the premises' at the time of the execution of the deed of bargain and sale, but were goods which had become the property of the plaintiff, and had also been brought upon the premises subsequently to the execution of that instrument, and were remaining thereon at the time of the seizure under the bill of sale. Under these circumstances, it was contended by the defendant's counsel, that the bill of sale covered these goods as being goods remaining and being in or upon the dwelling-house at the time of the seizure; and the question is, whether the property in these goods passed under this bill of sale. It is not a question whether a deed might not have been so framed as to [**31]  have given the defendant a power of seizing the future personal goods of the plaintiff as they should 

 [*318]  be acquired by him, and brought on the premises in satisfaction of the debt; but the question before us arises on a plea which puts in issue the property in the goods and nothing else; and it amounts to this, whether, by law, a deed of bargain sale of goods can pass the property in goods which are not in existence, or at all events which are not belonging to the grantor at the time of executing the deed." This he resolves in the negative, especially where nothing has been done by the grantor other than the acquisition of goods. He quotes from Bacon's Maxims, Reg. 14: "Licet dispositio de interesse futuro sit inutilis, tamen potest fieri declaratio praecedens, quae sortiatur effectum, interveniente novo actu;" (although the grant of a future interest is invalid, yet a declaration precedent may be made which will take effect on the intervention of some new act;) and then says, that Lord Bacon adopts the first branch of the maxim, namely, that a disposition of after-acquired property is altogether inoperative, a proposition of law that is to be considered [**32]  as beyond dispute; and only labors to establish the second branch of the maxim, namely, that such disposition may be considered as a declaration precedent, which derives its effect from some new act of the party after the property is acquired. The defendant contended, that the facts of the case brought it within the exception in Lord Bacon's rule; that the bringing of the goods on the premises of the plaintiff, where they were seized, was the new act done by the plaintiff, which gave the declaration contained in the previous bill of sale, its effect. In reply to this view the court say, "the new act which Bacon relies upon appears, in all the instances which he puts, to be an act done by the grantor for the avowed object and with the view of carrying the former grant or disposition into effect." He quotes Lord Bacon thus: "there must be some new act or conveyance, to give life and vigor to the declaration precedent;" and then adds, "which evidently imports more than the simple acquisition of the property at a subsequent time, which, if sufficient, would render the rule itself altogether inoperative; but points at some new act to be done by the grantor in furtherance of the [**33]  original disposition." After this decision, and that of Gale vs. Burnell, 7 Adolphus & Ellis, N.S., 862, 

 [*319]  which is in strict conformity with it, the dictum in the case of Tapfield vs. Hillman, if supposed to be in conflict, ought, on the point now before us, to have but little influence.
It is supposed, however, that Justice Story, in two cases to be found in 2 Story's Rep., that of Fletcher vs. Morey, at 555, and that of Mitchell vs. Winslow, at 630, intimates, if he does not in fact distinctly hold, that such deeds are good and valid both at law and in equity. We do not so understand him. Both those cases were in equity, and the whole reasoning of the judge was to show, that whatever might be the rule at law, nevertheless equity will attach its jurisdiction wherever the parties, by their contract, intend to create a positive lien or charge, either upon real or upon personal property, whether then owned by the assignor or contractor, or not; or if personal property, whether it is in esse or not; that it attaches in equity as a lien or charge upon the particular property as soon as the assignor or contractor acquires a title thereto against [**34]  the latter, and all persons asserting a claim thereto under him, either voluntarily or with notice, or in bankruptcy. With this doctrine we have nothing to do in the present instance. This is a case at law, and if we correctly comprehend the distinguished jurist, he plainly announces his concurrence with the views we have already expressed. At page 638 of the report of the case of Mitchell vs. Winslow, et al., 2 Story's Rep., he says, "it may be admitted to be true, what, indeed, seems to be the result of the authorities cited at the bar, as well as of others equally entitled to respect, that to make a grant or assignment valid at law, the thing which is the subject of it must have an existence, actual or potential, at the time of such grant or assignment, and that a mere possibility is not assignable." Again, in drawing the distinction between law and equity he remarks, "courts of equity do not, like courts of law, confine themselves to the giving of effect to assignments of rights and interests, which are absolutely fixed in esse. On the contrary, they support assignments, not only of choses in action, but of contingent interests and expectancies, and [**35]  also of things which have no present actual or potential existence, but rest in mere possibility only."

 [*320]  The case of Macomber vs. Parker, 14 Pickering 497, was decided on a principle in no manner involved in this case. The plaintiffs there were the owners of the yard and clay of which the bricks were made. So soon as the bricks were manufactured they were placed in the kilns of the plaintiffs, in other words, delivered to them, and in pursuance of the terms of the contract between the parties, eo instanti, their lien attached. The court say: "Now we hold it to be clear, that the plaintiffs had a right to retain Evans' part of the bricks under this contract. It was expressly agreed by Evans that they should have such a right. **** Every brick, as it was formed, may well be considered as delivered to the plaintiffs in part execution of the contract."
Looking to the maxims of the common law and the decisions of courts, both in this country and in England, we are clearly of the opinion, that this action cannot be maintained for the taking of the subsequently acquired goods. If, for the convenience of the community, or for the benefit of [**36]  trade and commerce, it be deemed important that the rules of law in this particular should be altered, the legislature is the proper branch of the government to which application should be made for that purpose. As the law now is, there can scarcely be a doubt that in some instances loss and injury are suffered by those who are least deserving of it. Courts cannot prevent it, for the rules of law are, and have been from the earliest times, inexorable.
The views we have expressed, it is supposed, are apparently in conflict with some of those announced in the opinion of the court in the case of Hannon's Exc'rs vs. The State, use of Robey, 9 Gill 440. That case may be maintained without disturbing the doctrine we have laid down. The part of the opinion which relates to the question supposed to be involved in this case is very brief indeed; but it is not unreasonable to suppose, that it was decided on a principle of analogy to the doctrine of estoppel, which makes the act of the ancestor conclusive upon the heir. We do not consider the case as going any farther, or as intended to overrule the decisions to which we have referred.
The second prayer was well rejected,  [**37]  because there was 

 [*321]  no evidence from which the jury could have found the facts averred as the ground-work of that instruction. More than three years had elapsed between the date of the deed and the time of Worley's application; and he states expressly,--which is all the evidence on the question,--that he then expected to pay all his debts from his business, which was large and profitable, and that he did pay a large portion of them.
For the reasons already stated, we think the court erred in rejecting the third, fourth and fifth prayers of the defendants. It was essential to the right of recovery of the plaintiff, that he should prove the goods seized were on the premises at the time of the execution of the mortgage. The only evidence applicable to this view of the case relates to the "buckles" used in the manufacture of trunks, &c. On the proof in this record, the recovery of the plaintiff would be limited to their value; and to enable him to recover even to that extent, it was incumbent upon him to show that they were known to the defendants to have been on the premises at the date of the mortgage, or were, as such, pointed out by him to the officer.  Shumway, et al., vs. Rutter, 8 Pick. 443. [**38]  No such evidence was offered at the trial. Besides, if the property of the plaintiff was commingled with that of Worley, it must be taken as having been done with his permission, for he allowed the goods to remain in the possession of Worley and under his control, with the knowledge that it was his purpose to use it in the manufacture of other articles.
The officer was bound to take the property of the debtor, and if, by the permissive act of the mortgagee, the property of the latter was so intermixed with that of Worley as to prevent separation or identification, the rights of third parties ought not to be affected thereby, whatever might be the influence of such commingling as between the original owners.
In what we have said, we are, of course, to be understood as speaking only of cases similar to the one now before us. Where personal property, animate in its nature--such as a female slave--is disposed of, the fate of the mother determines that of the child--partus sequitur ventrem.

 [*322]  These views dispose of the case, and it is not, therefore, necessary to consider the sufficiency of the releases offered in evidence.
Judgment reversed and procedendo refused.  [**39]   

78 of 187 DOCUMENTS 

WILLIAM BROWN vs. ROBERT GILMOR'S Exc'rs, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 322; 1855 Md. LEXIS 56 

DECEMBER, 1855, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Equity Side of the Superior Court of Baltimore city.

The appellant was the purchaser at trustee's sale of a tract of land, and took this appeal from an order of the court below, (FRICK, J.,) dismissing his petition and refusing to open the final order of ratification of sale. The facts of the case are sufficiently stated in the opinion of this court.  

DISPOSITION:
Decree affirmed, with costs.  

HEADNOTES:

The act of 1853, ch. 123, is a legitimate exercise by the Iegislature of the power conferred by the 23rd section of the 4th article of the constitution, in reference to the removal to the counties of the cases in the Court of Chancery.

The ratification of a chancery sale is final and conclusive unless irregularly made by the court, or unless the purchaser was prevented by misrepresentation, surprise or fraud, resulting from some act or conduct of the trustee or interested parties, from making his objections in due time.

The passage of an order of ratification nisi is not originating new business, but the mere continuation of an old proceeding, and it is no objection to such an order that it fixed a day for the final ratification after the Court of Chancery would cease to exist.

The jurisdiction of the Court of Chancery to pass such orders in pending cases was never suspended until the court itself expired, and then its jurisdiction passed to and continued in the court to which the case was removed, as if no removal had taken place.

From the passage of the order nisi to that of removal, the proper place to file objections to the sale was in the Court of Chancery, and after the removal they should be filed in the court to which the case is removed.

The order for removal transfers the jurisdiction, and from that moment the case, in legal contemplation, is in the court to which it is removed, whether the papers have actually been transmitted from one court to the other or not.

After the order for removal was passed the register in chancery had no power to receive any paper to be filed in the case.

An order nisi was passed by the chancellor, and the case was then removed to the Superior Court of Baltimore city, which passed the final order of ratification. HELD, that this is final and conclusive in the absence of misrepresentation, surprise or fraud, on the part of the trustee or other interested parties. 

COUNSEL:
Neilson Poe for the appellant, argued, that the passing of the order of ratification was, under the circumstances, a surprise upon the appellant, and that he was not concluded by it. The chancellor had no right to set the case down for hearing at a day after that on which, by the organic law of the State, his office expired. Under the provisions of the constitution the Court of Chancery ceased to exist on the 10th of March 1854, and yet the chancellor fixed the day for the final ratification of this sale on the 6th of April 1854, nearly one month after his office expired. The order of removal does not help the case, because the party asking it never took any proceeding under it, and though passed on the 8th of March 1854, the papers were not removed to the Superior Court of Baltimore [**2]  city until the 12th of April 1854, only four days before the final order of ratification was passed. Where then was the appellant to file his objections? The Court of Chancery existed but little more than one month after the order of ratification nisi was passed. After that time he could not file his exceptions in the Court of Chancery. He could not file them in the Superior Court before the 8th of April, because the papers were not until that day transmitted to that court. The whole time therefore between the 10th of March and the 8th of April was lost to the appellant, for the purpose of filing his exceptions, and yet the law and the language of the order contemplates, that he should have all the time between the order nisi and the final ratification within which to show cause against the sale. Of this the appellant here was deprived without fault or laches on his part, and we therefore insist that the ratification was a surprise upon him.

John Spear Nicholas and Jonathan Meredith for the appellees, argued, that the appellant has no just cause to complain of surprise in the passing of the order of ratification. The general rule is, that a ratified sale is conclusive upon the [**3]  purchaser unless irregularly ratified by the court, or unless the purchaser was prevented by misrepresentation, surprise or fraud, resulting from some act or conduct on the part of the trustee, or those interested in the proceedings, from making his objections in due time. The only one of these grounds relied on here is that of surprise under the circumstances of the passage of the order of ratification. The chancellor had the right to pass the order nisi limiting the time for the final ratification. It was not new business, but a regular and necessary proceeding in a pending case. The constitution and the act of 1853, ch. 123, had provided for the removal of the chancery papers. The order of removal in this case was passed in strict conformity with this law, and immediately after its passage the Superior Court had jurisdiction of the case. There was no cessation or suspension of jurisdiction, but it was continuing for the entire period intervening between the order nisi and the final order of ratification. From the date of the order nisi to that of removal he could file his objections in the Chancery Court, and after the order of removal he could file them in the Superior Court, whether [**4]  the papers were actually removed to that court or not, yet during all this time, and though he had full notice of all the proceedings, he yet takes no steps to file the objections he now sets up. We insist, therefore, that the final order of ratification is conclusive upon this party and ought not to be opened.

(The argument upon the merits of the objections made by the petition, and attempted to be sustained by proof, is omitted, as the case was decided solely upon the ground argued above.) 

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON, TUCK and MASON, J.  

OPINIONBY:
MASON 

OPINION:

 [*324]  MASON, J., delivered the opinion of this court.
On the 28th of October 1853, Jonathan Meredith and John Spear Nichols, Esq'rs., trustees, under a decree of the High Court of Chancery, in the case of Gilmor's Executors vs. Brien's Executors, & others, offered at public sale on the 

 [*325]  premises, in Washington county, amongst other property, a tract of land described in the advertisement thereof, "designated on the plat as 'the Summer-House Farm,' containing about six hundred and eighteen acres, and improved by a dwelling house and other buildings." William Brown, the present [**5]  appellant, became the purchaser thereof, at $ 10 per acre.
The sale, with others made at the same time, was reported to the Hight Court of Chancery, and on the 6th of February 1854, that court passed the usual provisional order for the ratification of the sale, unless cause should be shown to the contrary, on or before the 6th day of April 1854.
On the 8th of March 1854, an order was passed by the chancellor, on the application of the present appellees, for the removal of the cause from the High Court of Chancery to the Superior Court for the city of Baltimore; and it is agreed between the counsel in this cause, although the record does not disclose the fact, that the papers in the said cause were not transmitted to the Superior Court until the 8th of April 1854, when the cause was first docketed in that court.
On the 12th day of April 1854, four days after the actual transmission of the papers in the cause, the sale to Brown was finally ratified by the Superior Court.
On the 12th of May 1854, the appellant filed his petition in the Superior Court, setting forth a number of reasons why the sale should be set aside and himself released from the obligation of complying [**6]  therewith, and concludes with the prayer, that the final order of ratification might be opened, that the trustees answer the petition, &c. The petition further alleges, and it is not denied, that on the day after the order for the removal of the cause was passed, and while the papers were still in the chancery court, the appellant applied to the register to receive objections to the ratification of the sale, but the register refused to receive or file his petition.
The trustees answered the petition, and proof was taken in support of its allegations. Upon final hearing the court below dismissed the petition, from which decree this appeal was taken.
Under the 4th art. and 23rd sec. of the constitution, the 

 [*326]  Court of Chancery ceased to exist on the 10th day of March 1854. The same section provides, "that no new business shall originate in said court after the ratification of the constitution," which was on the first Wednesday of June 1851; and that the legislature should provide for the removal of undisposed of cases to the counties and city of Baltimore, "in such manner and under such regulations as may be deemed necessary and proper."
In pursuance of this [**7]  last provision, the legislature passed the act of 1853, ch. 123. It was conceded by the counsel upon both sides, that the order of the chancellor of the 8th of March, providing for the removal of the cause to the Superior Court, was in strict compliance with the act of Assembly; and this court is of opinion, that the act itself was a legitimate exercise by the legislature of the power conferred by the constitution.
The case thus made presents two questions for this court to determine: the first is, whether the ratification of the sale was final and conclusive, in view of the circumstances under which it was made? and if not, then secondly, whether the appellant has made such a case upon his petition and proof as to entitle him to the relief prayed?
Public policy and justice to parties interested require, that the ratification of judicial sales by courts having jurisdiction over the same should be final and conclusive, unless irregularly made by the court, or unless the purchaser was prevented by misrepresentation, surprise or fraud, from making his objection to the ratification in due time; and it must further appear, that such misrepresentation, surprise or fraud, resulted from [**8]  some act or conduct upon the part of the trustees, or on the part of those interested in the proceedings.
The conclusiveness of this order of ratification is first assailed, upon the ground, that the conditional or provisional order, passed on the 6th of February, was irregular, because it fixed a period for the final ratification, (viz., 6th of April,) beyond that at which, under the constitution, the existence of the Court of Chancery was to terminate.
This objection is not tenable. The passage of this order was not originating new business, but the mere continuation 

 [*327]  of an old proceeding. The jurisdiction of the Court of Chancery to pass such orders in pending cases was never suspended until the expiration of the existence of the court, and then its jurisdiction passed to, and continued in, the court to which the case was removed, as if no removal had taken place. Therefore, from the time of the passage of the order of ratification nisi until the order passed for the removal of the cause to the Superior Court, the proper place for filing objections to the sale would have been in the chancery court: after that time, the objections should have been filed in the [**9]  Superior Court, which court received the case, and all its pending or unexecuted orders, in the same condition in which they were when the removal was ordered. For the purpose of giving the Superior Court complete control over the case, it was not necessary that the papers should have been actually transmitted from the one court to the other. The order for the removal transferred the jurisdiction, and from that moment, in legal contemplation, the case was in the Superior Court. If this were not the true view of the subject, the proceedings might be suspended for an indefinite time between the two courts, a condition of things never contemplated by the constitution and laws. Besides, it is to be remembered, that the papers were actually in the Superior Court four days before the final ratification was made.
Nor had the register in chancery, after the order for removing the case had passed, any power to receive any paper to be filed in the cause, and therefore he was right in refusing to receive or file the appellant's petition.
Unless, therefore, there was some other cause which prevented the purchaser from making his objections to the ratification of the sale within the time [**10]  limited by the order nisi, such as misrepresentation, surprise, or fraud, on the part of the trustees or other parties interested, the ratification by the Superior Court of Baltimore must be regarded as final and conclusive. No such cause or reason has been urged, nor can we discover any ground for any such allegation.
The view thus expressed dispenses with the necessity of considering the second question, namely, whether the appellant 

 [*328]  has made such a case, by his petition and proof, as calls for the interposition of this court. However meritorious his grounds of objection to the sale may be, having suffered the time fixed by the court to elapse within which those objections were to be presented, he cannot now open a proceeding which, by his own laches, has been suffered to ripen into a final and conclusive decree.
Decree affirmed, with costs. 

79 of 187 DOCUMENTS 

THOMAS CORNER, BAPTIST W. CORNER, and GEO. W. CORNER, vs. EDW ARD H. PENDLETON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 337; 1855 Md. LEXIS 58 

DECEMBER, 1855, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Court of Common Pleas for Baltimore city.

Assumpsit, brought on the 3rd of November 1852, by the appellants against the appellees, to recover money lost at play at defendant's gaming-table by Rogers, their clerk, alleged to belong to the plaintiffs. The count in the nar relied on was for money had and received. Plea, non assumpsit.

1st Exception. The plaintiffs proved by Rogers, (to whose competency as a witness all objections were waived by the defendant,) that he played at faro at the defendant's gaming-table and lost there $ 400 between April and July 1851. They then proved that Drakely and Fenton, during the months of May and June, paid said clerk two checks upon the Western Bank of Baltimore, (which were paid by the bank,) for sums of money which it was his duty to collect for the plaintiffs. They then offered in evidence a collection book kept by said clerk, and offered to follow it up by proof that it was his duty as such clerk to enter therein all sums of money collected by him, and that said sums so paid by Drakely and Fenton were not entered in said book; but to the admissibility of the same defendant objected, which objection the court (MARSHALL,  [**2]  J.) sustained, and the plaintiffs excepted.

2nd Exception. The plaintiffs then proved, that in July 1851 said clerk was under arrest, they charging him with having embezzled from them the sum of $ 2000, and that, induced by a desire to keep the matter a secret from their mother and family, his two brothers gave plaintiffs their four joint promissory notes for the $ 2000 thus claimed of said clerk, in sums of $ 500 each, payable at six, twelve, eighteen and twenty-four months from date. They then proved that said clerk was born and raised in the city of Baltimore, never having been out of the city for more than four years during all his life; that he possessed no means whatever, and that he had not one cent. They then offered various receipts showing that said clerk, in his duty as such, had collected various large sums of money from Drakely and Fenton on account of plaintiffs during the months of June and the early part of July 1851. Upon all the evidence the plaintiffs offered the following prayers:

1st. If the jury believe from the evidence that said clerk collected money for the plaintiffs in this case and lost the same, or a part thereof, in gaming, to the defendant,  [**3]  then they are entitled to recover of defendant so much as the jury may find he won of said money.

2nd. If the jury find that the promissory notes given to plaintiffs by the brothers of said clerk, were so given by them with the motive to conceal from their mother and family the fact of the alleged retention by said clerk of the money of the plaintiffs, then such motive constitutes no valid legal consideration of itself to render them responsible upon said notes, and that their mere existence in the hands of the plaintiffs creates no obstacle to the plaintiffs' recovery in this case.

3rd. That there is no evidence in this cause of any valid legal consideration moving from the plaintiffs, or any other person, to the drawers of said notes for the same.

4th. If the jury find the facts set forth in the first prayer, then the giving of said notes and the acceptance of them by the plaintiffs do not of themselves in law operate as a payment of the sum claimed in this action, nor as satisfaction for the same, nor as an accord and satisfaction for the demand set forth in the declaration, nor as a waiver or extinguishment thereof, nor as purging the tort as arising out of the gaming [**4]  set forth in the first prayer upon which the implied assumpsit in this case is founded.

The court rejected each of these prayers, and to this ruling the plaintiffs excepted.

3rd Exception. The defendant upon all the evidence asked the following instructions:

1st. That the plaintiffs are not entitled to recover, because there is no evidence that defendant was at any time in possession of the plaintiffs' money, for the recovery of which this action is brought.

2nd. That if the jury find from the evidence that plaintiffs took the notes of the brothers of said clerk in satisfaction, if paid at maturity, for the sum or sums claimed or alleged to have been embezzled by said clerk, then the plaintiffs are not entitled to recover.

These prayers the court granted, and to this ruling the plaintiffs excepted, and the verdict and judgment being against them, appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

In an action to recover money lost at play by the plaintiffs' clerk from the party to whom it was lost, the plaintiffs proposed to produce a collection book kept by the clerk, and to show that he had not entered therein certain sums collected by him as it was his duty to do. HELD, that this evidence was wholly irrelevant to the issue in this case.

Where the right to recover depends upon several distinct propositions of fact, and the party fails in either, there is, in the language of the law, a total failure of evidence, and the court may so instruct the jury.

This total failure of evidence also occurs where the evidence is so slight and inconclusive, that no rational well constructed mind can infer from it the fact which it is offered to establish, and the jury would be left to draw deductions from wild speculation and conjecture.

Where the fact to be proved involves moral delinquency, the evidence should be so strong as to exclude the presumption of innocence, for innocence is presumed until guilt is proved.

Slight presumptions, although sufficient to excite suspicion or produce an impression in favor of the truth of the facts they indicate, do not, when taken singly, either amount to proof or shift the burthen of proof.

Where a number of such circumstances concur, they should be so strong as to satisfy the jury of the existence of the fact they are offered to establish; they must furnish more than the probability of the fact.  

COUNSEL:
Grafton L. Dulany for the appellants.

1st. It is very clear, that if the money lost by the clerk of the plaintiffs to the defendant was not his, but theirs, they can recover in this action. The proposition may be assumed, that whenever the property of one man comes to the hands [**5]  of another, unless he be a bona fide purchaser for a valuable consideration without notice, the title of the original owner still continues, and he may sustain an action to recover it from the possessor. 3 How., 402, Oliver, et al., vs. Piatt. 1 Maule & Selw., 714, Randoll vs. Bell. 15 Ves., 440, Lupton vs. White. 14 Penn. State Rep., 295, McCullough vs. McCullough. 12 Clark & Finnelly, 764, Murray vs. Pinkett.

2nd. The notes given to the plaintiffs did not extinguish or satisfy the demand in this case. There is not a single fact in the case which shows that they were given or intended for the benefit of the defendant. The evidence is expressly and positively the other way, the consideration being to pass concealed the entire transaction, from motives of affection to a parent. With the gamester, Pendleton, the drawers of the notes had no dealings, nor even an acquaintance, nor any imaginable inducement to pay him the money which he held of others. The creditor may go against the original debtor, notwithstanding the notes; nothing but payment will satisfy the debt. 5 H. & J., 425, Merryman vs. The State. 6 Do., 256, McIlhenny vs. Jones. 1 H. & J., 48, Pearce vs. Wallace. 2 G. &  [**6]  J., 344, Williamson vs. Allen. 11 Do., 287, Sangston vs. Maitland, et al.

3rd. There was evidence to go to the jury, that the money lost by Rogers to defendant belonged to the plaintiffs. I do not believe that it is possible for any impartial mind, attentively considering the circumstances disclosed by the record, to arrive at any other conclusion than that the money lost was the property of the plaintiffs. It was proved that the clerk of the plaintiffs, between the months of March and July 1851, lost $ 400 to the defendant at his gaming-table. It was proved, that whilst he was in their employment he had taken of their money $ 2000, which he did not return to them. There is positive proof, that at this time he had no means--not one cent; that is, of his own money. The inference is irresistible, that the money which he lost to Pendleton was part of the money which he had withheld from the Corners. There is no proof that he had money belonging to any one else, or that he borrowed money upon his credit, or had received wages as a clerk, or that he was entrusted with their money by others than the Corners. The question then is, whether the facts in the cause in favor of the plaintiffs,  [**7]  taken by themselves and uncontradicted, constitute evidence sufficient to go to the jury as tending to prove the issue on the plaintiffs' side? The solution of this question does not depend upon any legal principles, but upon the nature and character of the facts virtually proved, whether in themselves they directly support the issue on behalf of the plaintiffs, or carry along with them the probable existence of another or other facts not expressly proved which do support the issue. In either case the evidence would not only be admissible, but sufficient; for in all civil cases, according to elementary principles, the verdict is given on that side upon which the weight of probability inclines the scales. The jury are not required to find the existence of any facts, but merely their probable existence.

The cases cited on the other side, decided by the Court of Appeals, are not any of them analogous in their circumstances, in regard to the question I am now considering, to those of the present case, and establish nothing more than the general principle, which is not denied, that it is for the court to pronounce, in the first instance, upon the "sufficiency of the evidence" to be [**8]  submitted to the jury; but as furnishing a test whether the evidence in this particular case is sufficient, they vary so much, each of them in their circumstances, from the special facts proved in this cause, that they are quite inapplicable and useless. The case of the Mechanics Bank vs. Cook, tried in Baltimore county court, before Chief Justice Le Grand and Judge Purviance, appears to me to be a case directly in point, upon the question mooted here. The facts of the case, as well as I can recollect them, were strictly these:

It was proved that Turner, one of the clerks of the bank, had, in the course of a series of years, embezzled a very large sum of money from his employers, and being charged with his offence, or conscious of the suspicions existing against him, had fled the city; proof was also adduced of peculation on his part some two or three weeks before his flight. Cook, the defendant in the action, was a police officer, who was sent in pursuit of Turner, whom he found, some six weeks or two months after he had left Baltimore, in Canada, having on his person a roll of British guineas, amounting to $ 284.84.

This sum was taken by Cook, brought to Baltimore and placed [**9]  on special deposit in the Mechanics Bank, Cook being warned by Turner that he claimed the money as his own, and that he should not pay it over to the bank. An action of assumpsit was then brought by the bank against Cook for the recovery of the money he had taken from Turner, on the ground that in fact it was the bank's property. At the trial of the cause, in addition to the facts proved as stated above, testimony was adduced to the effect, that Turner had no means of his own; which was attempted to be rebutted by evidence that he had. There was no direct proof that the roll of guineas found on the person of Turner was the property of the bank; they were not identified by positive evidence.

On this state of facts the bank asked the court's direction to the jury, that if they found from the evidence, either that the money taken by Cook from Turner was by him embezzled from the bank or was the proceeds of that which had been so embezzled by him, then the bank was entitled to recover; this direction was granted by the court, and the jury gave a verdict in favor of the plaintiffs for $ 284.84.

But before the court's decision on the plaintiffs' prayer was given, the defendant's [**10]  counsel, as well as I recollect, the late Attorney General, Mr. Richardson, objected, that there was no sufficient evidence to go to the jury of the plaintiffs' title to the funds they sought to recover--that the money was not identified as the plaintiffs' property. This objection was earnestly argued on both sides, and the court, overruling the objection, decided that there was prima facie evidence sufficient to go to the jury for their consideration in relation to the purpose for which it was offered. The verdict being for the plaintiffs, a motion for a new trial was made and argued before a full court, when the motion was overruled. This case appears to me to be strongly in point.

R. T. Merrick and Robert J. Brent for the appellee.

1st. As to the first exception: It is difficult to perceive what the duty of Rogers, as clerk of the plaintiffs, had to do with the liability of the defendant in this case. There is no attempt to identify the money collected by Rogers, and not entered in the book referred to, with any money the defendant ever had. And even if there was, the book kept by Rogers would not be competent evidence to aid in establishing that identity in this case.  [**11]  It is nothing but his declaration. In an action against him it would be admissible, but in action against a third party he is, himself, a competent witness, and had actually been sworn in this cause.

2nd. The taking of a note for a precedent debt, if taken with the understanding that it is in full discharge of that debt, is an extinguishment of that debt, whether the note be paid at maturity or not. And the fact of taking a note for a precedent debt is, in law, a suspension of the right of action on the debt until the maturity of the note. 1 Parsons on Cont., 365, 368, 369. 2 Do., 197, 198. 16 Penn. State Rep., 450, Stone vs. Miller. 1 Barn. & Adol., 603, Smith vs. Alger. 1 Md. Rep., 110, Mudd vs. Harper. 2 G. & J., 493, Glenn vs. Smith.

3rd. There is no evidence whatever, in the record, that Rogers ever appropriated to himself, or to any purpose, other than proper and legitimate purposes, any money of the plaintiffs that came into his possession. The only attempt made to establish the fact that he had been guilty of the charge they made against him, was in the offer of the book in which they allege it was his duty to have made an entry of certain moneys received by him on [**12]  their account, and in which book they allege the entries did not appear. From this fact they intended to draw the inference that he had appropriated that money. The court very properly rejected this evidence. It was the declaration of a third party, and if proved by a competent witness, was a fact, from which no rational mind conld draw the conclusion, that a clerk who had thus simply failed in a manual duty of his office, had therefore been guilty of so grave and serious an offence as that sought to be established by it. It was not an attempt to prove a false or fraudulent entry, but simply a failure to make an entry, which was a circumstance perfectly consistent with a more charitable hypothesis than criminal guilt. But if it were in proof that he had embezzled the money of the plaintiffs, where is the proof that this defend-ever received it? The only proof relative to this defendant's intercourse with Rogers is, that he won from Rogers some $ 400. But there was no attempt to identify this money, and privity between the plaintiffs and this defendant was not pretended. The plaintiffs were pursuing a fund, which, in order to recover from this defendant, it was necessary they should [**13]  identify--should establish by evidence to be the particular money to which they had title. There is no such evidence in the record. The most unfavorable view of this case for the defendant, when presented by the plaintiffs on their behalf, is: Rogers was the plaintiffs' clerk; Rogers had the plaintiffs' money; Rogers lost $ 400 to defendant; Rogers had no money of his own, and therefore the money Rogers lost was the plaintiffs' money, and they are entitled to recover it in an action for money had and received to their use. This certainly institutes a new mode by which an indebtment is to be established in the State of Maryland. But Rogers had more than $ 400 of the plaintiffs' money. They allege he appropriated $ 2000. Where is the rest? Pendleton didn't get all of it: what became of the rest?

The case of Jones vs. Mechanics Bank, 8 Gill, 123, is one similar to the present, but with much stronger proof against the defendant than in the present case, and yet the Court of Appeals did not hesitate to say that the evidence was not sufficient to support the action. Where the deduction sought to be drawn would be merely from wild speculation and conjecture, or where the evidence is [**14]  so slight and inconclusive that no rational, well constructed mind could make therefrom the inference sought to be deduced, in all such cases the court may, and will instruct the jury, that there is no evidence, or no sufficient evidence, in point of law, to establish the fact sought to be proved. 7 G. & J., 95, Farmers Bank vs. Duvall. 4 Md. Rep., 283, Thurston vs. Lloyd. 9 Gill, 331, Clarke vs. Marriott.  

JUDGES:
The cause was argued before LE GRAND, C. J., TUCK and MASON, J.  

OPINIONBY:
TUCK 

OPINION:

 [*344]  TUCK, J., delivered the opinion of this court.
We are of opinion that the point made by the first exception, as to the admissibleness of the collection book offered by the 

 [*345]  plaintiffs, was properly ruled against them. The failure on the part of their clerk to enter collections in the book was wholly irrelevant to the issue in the cause, which was whether Rogers had lost the plaintiffs' money at play with the defendant. The offer concedes the necessity of proving that he had collected money of the plaintiffs' before the book could be used. Of what avail then the omission to enter the sums collected could be after its receipt by the clerk had been proved, we are at a loss to conjecture. [**15]  But suppose it had appeared by the book that these sums were entered, would that have affected the plaintiffs' case? Certainly not. He might still have recovered if he had traced the money to the defendant's possession. In either aspect, the effect of producing the book would be the same, and not tending to prove the issue it was well rejected.
The second exception embraces four prayers offered by the plaintiffs, all of which were rejected. The reason assigned here for the refusal of the first of these prayers is, that there was no evidence legally sufficient to warrant the jury in finding, that Rogers lost the plaintiffs' money with the defendant. If this proposition be maintained, the defendant's first prayer in the third exception was properly granted.
In many cases it is very difficult to define the line which separates the province of the jury, in deciding facts, from the power of the court to withdraw the case from their consideration altogether, on the assumption, that the evidence, if believed by the jury, is not legally sufficient to prove the issue sought to be established. If the right to recover depends on several distinct propositions of fact and the party fails [**16]  in either, it is a case of total failure, in the language of the law; and this may occur, not only where there is no evidence whatever as to one or more of the propositions, but where it is so slight and inconclusive that no rational, well constructed mind, can infer from it the fact which it is offered to establish, ( Cole vs. Hebb, 7 G. & J. 20,) and the jury would be left to draw deductions from wild speculation and conjecture. Ibid., 95, Farmers Bank vs. Duvall. Considering that juries are designed for the trial of issues of fact, it would perhaps have been safer if courts had 

 [*346]  contented themselves with interfering only in those cases where there was an absolute want of evidence as to all or any one of the propositions necessary to be proved, leaving to the jurors the right to decide in all cases where any evidence was offered tending to prove the matters in dispute. The court's control over verdicts by the power to grant new trials, would, we think, be a sufficient security against abuse of authority by the jurors. But as we find this to be the established law in this State and elsewhere, substituting in such instances the judgment of the [**17]  court for that of the jury, it is our duty to apply it in the present case, unless the record shows that the evidence offered leads to the conclusion, as matter of fact, that the money collected by Rogers passed to the possession of Pendleton, at his gaming-table.
That Rogers collected money for the plaintiffs during the time that he was in the habit of visiting the defendant's rooms there can be no doubt, but that this money was lost there is not apparent. If it had been proved that during this period of time Rogers had no other money from any source, the inference would be reasonable, that this money only could have been gambled by him. But the evidence does not go to that extent. It shows that "he possessed no means whatever and that he had not one cent," without defining the time to which this statement of his condition was intended to apply. The inference is not reasonable that the witness was speaking of the whole lifetime of this young man. He was employed in the commercial house of these plaintiffs, discharging, among others, the responsible duty of collecting large sums of money. We cannot presume that he was doing this for nothing, or that he had no credit by which he could [**18]  obtain money. The case goes upon the ground that the clerk embezzled from his employers, and a verdict for the plaintiffs could have been rendered on no other hypothesis. This it was sought to establish by inferring, that contrary to his duty, the sums collected had not been accounted for, and superadded to this, by another inference, that because he had, during these periods, played at faro with the defendant, therefore he lost this money and none other. The identity of the money lost with the funds 

 [*347]  collected was the fact to be proved. Depending upon circumstantial evidence, and involving moral delinquency, not to say criminal offence, by the clerk, we think the inference should be so strong as to exclude the presumption that he obtained the money elsewhere. "Slight presumptions, although sufficient to excite suspicion or produce an impression in favor of the truth of the facts they indicate, do not, when taken singly, either amount to proof, or shift the burden of proof." Best on Presumptions, 41. 47 Law Lib. 45. And where a number concur, they should be so strong as to satisfy the jury of the existence of the fact they are offered to establish.  5 G. & J. 304. [**19]  They must furnish more than a probability of the fact. Moreover, this is a case of conflicting presumptions, where the inference claimed by the plaintiffs, that the money lost by Rogers belonged to them, is met by the principle, that innocence is presumed until guilt is proved. In Rex vs. Inhabitants of Twyning, 2 Barn. & Ald. 386, a point of legitimacy arose, depending on the question, whether the mother, whose first husband had left the county twelve months before, was a widow when she married the father of the children, and it was held that the second marriage should be presumed to be valid. The court said, "this is a case of conflicting presumptions, and the question is, which is to prevail? The law presumes the continuance of life for seven years; but it also presumes against the commission of crime, and that even in civil cases, until the contrary be proved. If the female had been indicted for bigamy, the evidence would clearly not be sufficient." Best on Presumptions, 59. 47 Law Lib. 54. We suppose that if Rogers had been tried for embezzling these funds, no conviction could have been had on these inferences, when set up against the presumption that [**20]  he had paid over the money collected, as it was his duty to have done.
Cases of this kind sometimes depend on the authority of decisions on similar facts. And in this view, we think the ruling of the court is sustained by the case of Jones vs. Mechanics Bank, 8 Gill 123, where the circumstances were very strong to show that Perry had improperly obtained the plaintiff's money and deposited that very money in the bank. But the 

 [*348]  court held that there was a failure of evidence on this point. In some respects the inference was sustained by facts, about which there could be no dispute, stronger than those presented by the record before us, but the identity of the bank notes drawn by Jones with those deposited by Perry, was not made out by testimony legally sufficient for that purpose.
The case of Mechanics Bank vs. Cook, referred to in the argument of the appellants' counsel, if in conflict with Jones vs. The Mechanics Bank, 8 Gill 123, must yield to its authority, as the judgment of the court of last resort.
As this view of the case shows the plaintiffs had no standing in court, the other prayers, based upon the matters offered [**21]  in defence, need not be considered and passed upon by us.
Judgment affirmed. 

80 of 187 DOCUMENTS 

JNO. HENDERSON vs. THE MAYOR & CITY COUNCIL OF BALTIMORE, use of JOHN ESCHBACH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 352; 1855 Md. LEXIS 60 

DECEMBER, 1855, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

Assumpsit by the appellees against the appellant, to recover the amount of a paving tax assessed upon the defendant as his proportion for paving that part of Biddle street between Pennsylvania avenue and George street. Plea, non assumpsit.

Exception. The proof on the part of the plaintiff shows that on the 4th of May 1848, application was made to the city commissioners for paving the street in question, agreeably to the acts of Assembly and the ordinances of the city authorities, purporting to be signed by a majority of the proprietors of the feet of ground fronting on said street, and accompanied by a private contract made by the same parties with Eschbach for doing said paving. Among the signers to this application and contract was J. T. Shipley, representing himself as the owner of 191 feet, fronting on the street aforesaid, and these feet were necessary to constitute the required majority. In the course of the trial due publication of the notice of this application, as required by the ordinances of the city authorities, was proved. On the 15th of May 1848, the board of commissioners passed the following order upon said [**2]  application, which order was, on the same day, approved by the Mayor:

"The city commissioners having given the notice required by law, and having ascertained that the owners of a majority of the feet of ground binding and fronting on Biddle street, between Pennsylvania avenue and George street, have signed the within application to pave said part of Biddle street, and having received the accompanying contract for that purpose, the city commissioners have determined that said part of Biddle street may be paved by private contract."

On the 6th of July 1848, the commissioners delivered their warrant, approved by the Mayor, to the collector, accompanied by a list of the persons liable to pay the paving tax for the same, and directing him to collect the same agreeably to the ordinance approved the 22nd of May 1838. The sum assessed to the defendant, as proprietor of a lot fronting 180 feet on this street, was $ 358.65. The several ordinances relating to paving in the city of Baltimore, and the ordinance relative to the paving of Biddle street, were also offered in evidence. The plaintiff also offered in evidence a deed from Ann Shipley and her children, as devisees of Johnsee [**3]  Sellman, conveying to Eschbach a lot fronting sixteen feet on Biddle street. This deed is dated the 19th of April 1848. Some of the grantors resided in Baltimore city, some in Anne Arundel and Worcester counties, and some in the State of Delaware. It was acknowledged by those residing in Baltimore city on the 13th of May, by those in Anne Arundel county on the 19th of April, by those in Worcester county on the 17th of June 1848, and by those in Delaware on the 29th of May 1850, and was recorded on the first of June 1850.

The defendant then proved, that he attended at the office of the commissioners and objected to the contract being entered into, because the requisite number of feet had not been subscribed for, and then proved by J. T. Shipley, that on the 3rd of April 1848, he made an agreement with Eschbach, (which was signed by Shipley and Eschbach and offered in evidence,) that in consideration that the latter would pave before the property of the devisees of Johnsee Sellman, that they, the devisees, would convey to him a lot fronting sixteen feet on Biddle street. The agreement also declared, that in case the devisees, or any one of them, shall refuse to sanction this agreement,  [**4]  then it was to be null and void, and that Eschbach was not to commence paving until such consent should have been obtained, either by power of attorney to him in their names, or by signing a deed conveying the lot of ground therein mentioned to Eschbach. He also proved by the same witness, that this was the original contract between himself and Eschbach with regard to the paving of Biddle street; that he told Eschbach he did not feel authorised to sign the petition to pave for the heirs, but agreed to sign it upon the condition mentioned in the above agreement, and that Eschbach consented. The defendant then asked six instructions to the jury, only one of which, the second, need be stated:

2nd. That there is no evidence in this case to establish the fact that the proprietors of a majority of the ground binding and fronting on that part of Biddle street upon which the paving was done, as stated in the evidence, assented in writing to the application to pave said street, and they not having so assented the plaintiff is not entitled to recover.

To the refusal of the court (FRICK, J.) to grant this, as well as his other instructions, the defendant excepted, and the verdict and [**5]  judgment being against him, appealed.  

DISPOSITION:
Judgment reversed and procedendo refused.  

HEADNOTES:

The ordinances of the city of Baltimore in relation to paving of streets, confer on property owners, not only the right to have their own lots improved by paving in front of them, but also the power to compel others to submit to and pay for such supposed improvements.

The paving tax is due immediately after the commissioners make out the lists of persons assessed, and its payment may be enforced before any portion of the paving is commenced.

The assent in writing of the proprietors of a majority of feet fronting on the street to be paved must appear to have been given before the paving is ordered, and the want of such assent may be shown as a defence to an action to enforce collection of the tax.

Where a deed is executed and acknowledged by parties living in different counties and on different days, the presumption arising from its date, that it was delivered on that day, cannot stand against the positive averments in the acknowledgments, that it was executed afterwards.

Questions arising upon the face of a deed, unconnected with parol proof, are for the decision of the court.

A prayer that there is no evidence of the assent of certain parties, "and they not having so assented the plaintiff is not entitled to recover," is not objectionable in form; the latter clause is but a statement of a reason for the conclusion of law and not the assumption of a fact.

The certificate of the commissioners, stating that a requisite number of proprietors had assented to the paving, is not conclusive on the question of assent; it has but a prima facie effect as the warrant or authority to have the paving done, and those who act under it do so at their peril.

The authority of the commissioners as to paving of streets is special and limited, both as to its scope and effect, and when made the foundation of an action it must appear to have been exercised according to law.  

COUNSEL:
Benjamin C. Presstman and Grafton L. Dulany for the appellant, argued:

That under the provisions of the act of 1817, ch. 148, sec. 18, the Mayor and City Council of Baltimore are not authorised to cause any unpaved street, lane or alley, or part thereof respectively, within the city of Baltimore, to be paved without the previous assent, in writing, of the proprietors of the majority of the ground binding and fronting on such street, lane or alley, or the part thereof, to be paved; and that there was no evidence of any such previous assent, either at the time when the order of the commissioners to pave was passed or at the time that the contract was entered into with Eschbach. The conditional agreement entered into by Shipley, upon its face, requires the fulfilment of certain conditions before the paving should commence, and these conditions not being fulfilled prior to the making of said contract, no subsequent assent will validate the action of the commissioners in ordering the paving to be done. The learned counsel then cited and commented upon the acts of 1797, ch. 54, 1817, ch. 148, sec.  [**6]  18, and 1833, ch. 40, and the ordinances of the corporation of Baltimore, No. 47, approved May 22nd, 1838, and the supplement thereto, approved March 10th, 1842, ordinance No. 15, approved March 3rd, 1848, and ordinance No. 41, approved April 1st, 1848; and argued, that the ordinance of 1842, permitting the paving to be done by private contract and making the proprietors liable for the paving done under such contract, is null and void; it is directly in conflict with the maxim, potestas delegata non delegari potest, and is an absurd stretch of power, as it makes all the owners fronting on this street liable to a private contract which the city authorities never made and have no power or control over. But it is said, the order of the city commissioners directing the paving to be done, is to be regarded as a conclusive determination of the question, that a majority of proprietors did sign the application--that this is to be regarded as a judgment which cannot be inquired into. This, however, we submit, cannot be the construction of these proceedings. The previous assent of a majority is necessary, and is a condition precedent to the proper exercise of the authority vested in the commissioners [**7]  to direct the paving to be done, and this may be inquired into in any case in which an attempt is made to enforce collection of the paving tax assessed under such proceedings. We therefore say, upon the principles above stated, that the court erred in refusing to grant either the first, second, fourth and fifth prayers, or all of them.

James Malcolm and J. Mason Campbell for the appellee, after stating the provisions of the acts of Assembly and ordinances referred to by the appellant, argued, that the assent of a majority of the proprietors of ground fronting on the street to be paved, was necessary, according to the provision of the third section of the act of 1817, ch. 148, but that the tribunal designated by law to ascertain that fact are the city commissioners. No other body can find the fact, in the first instance, for the purpose of determining whether to pave or not to pave. They have found the assent, and state in so many words, "having ascertained that the owners of a majority of the feet of ground binding and fronting on Biddle street, between Pennsylvania avenue and George street, have signed the within application to pave said part of Biddle street." This is, therefore,  [**8]  a judicial determination of this fact by the judgment of a court of competent authority which cannot be questioned, and must, therefore, be taken as conclusive in this case. The second prayer, which asserts there was no evidence of an assent in writing, was correctly rejected, because this judgment of the commissioners was not only evidence, but conclusive evidence of this fact. The proposition in the prayer is very different from one which, conceding a prima facie assent, overthrows it by superior proof. The assertion is of "no evidence" of utter absence of proof, prima facie or otherwise, to show a written assent. Now the fact is directly the reverse, as we have shown. 2 G. & J., 114, Shilknecht vs. Eastburn. 4 Philips on Ev., 209, and cases there cited. But again, the latter clause of this prayer does not put it to the jury to find the fact of assent but assumes it, and for this reason was properly rejected.  

JUDGES:
The cause was argued before LEGRAND, C. J., TUCK and MASON, J.  

OPINIONBY:
TUCK 

OPINION:

 [*357]  TUCK, J., delivered the opinion of this court.
We do not think that the ordinances of the city of Baltimore, applicable to the present case, should receive the construction placed [**9]  upon them by the counsel for the appellee to the full extent of their argument. They virtually confer on property owners, not only the right of having their own lots improved by paving in front of them, but also the power to compel others to submit to such supposed improvements, and 

 [*358]  to pay for the same against their will; and the tax being due immediately on the commissioners making out the lists, payment may be enforced even before any portion of the work is commenced, though laid, not by the municipal authorities in the ordinary exercise of their taxing powers, but at the instance of persons who may be influenced solely by a regard for their own interests. It is true that this is done subject to the approval of the commissioners and the mayor, acting under the provisions of the ordinances, but the machinery necessary to give them effect can be put in motion only by those so interested. This is certainly a very high power to be possessed by any portion of citizens over others. It may be presumed that proprietors, looking to their own interests, will not object if they can perceive that their property will be appreciated by the improvement. But it is not difficult to perceive,  [**10]  that combinations may be formed for the advantage of some to the prejudice of others; and on the other hand, that a single individual, owning a majority of the feet of ground, may subject his neighbors to the operation of the ordinances when illy able to incur the expense, without, in either case, promoting the public convenience to any great extent. To prevent the abuse of the power, certain preliminaries are prescribed which must appear to have been at least substantially complied with, and among these, as most important, is the assent of the proprietors of the requisite number of feet binding and fronting on the street to be paved.
The defendant's second prayer asserts, that the evidence on this point was not legally sufficient, and as this proposition, if correct, will dispose of the case, we shall address ourselves to its consideration. There is no testimony to show that Shipley had authority to assent for the owners of the lot whom he claimed to represent. He states in his evidence, that he told Eschbach that he did not feel authorised to sign for the heirs, but did sign upon the conditions mentioned in the agreement of the 3rd of April 1848. The deed, bearing date April [**11]  19th, executed as a compliance with the condition on which Shipley signed the application, and relied on by the appellees as evidence of ratification, cannot be considered as operative from its 

 [*359]  date, even if it be otherwise sufficient to remove the objection. Deeds take effect from delivery. It is manifest that this was executed and acknowledged by some of the grantors after the 4th of May, and could not have been delivered on the day of its date. There was no proof as to the delivery other than what appeared on the instrument. Being a point arising upon its face, unconnected with parol proof, it was for the decision of the court.  Barry vs. Hoffman, 6 Md. 78. Where deeds, as in this case, are executed and acknowledged in different counties, and necessarily on different days, the presumption arising from the date that the instrument was delivered on that day cannot stand against the positive averment in the acknowledgment that it was executed afterwards. Though this deed may have been executed and delivered before the work was actually commenced, of which, however, there is no evidence, it was but a performance of the condition in the agreement of the [**12]  3rd of April, and not a compliance with the prerequisites of the ordinance.
But the frame of this prayer is objected to, on the ground that the latter clause assumes the want of assent without submitting the question to the jury, and that the instruction was, therefore, well refused. We do not think so. The theory of the prayer is, that there was no legally sufficient evidence on this point. The record shows there was no proof of assent by Shipley's heirs, and without the number of front feet owned by them there was not a majority of feet. It is then a case of total failure of evidence, in the legal sense of that expression. There was nothing to be left to the jury. The purpose of the prayer was to take the case from them, on the concession that all the plaintiff's evidence offered on this point was true and that the jury would so find, yet asserting that the facts conceded did not entitle the plaintiff to a verdict. If the words objected to, to wit, "and they not having assented," had been omitted, or if, instead of these, the words "therefore," or "because they have not so assented," had been used, we suppose the prayer would have been unobjectionable in form. The language employed [**13]  we consider as a mere statement of a reason for the conclusion of law, that the plaintiffs were not entitled to recover, as in the above examples.

 [*360]  Nor do we agree with the counsel for the appellees, that the certificate of the commissioners is conclusive on the question of assent. At best it has a prima facie effect only, as the warrant or authority to have the paving done. But the parties who act under it do so at their peril. If it were otherwise, these commissioners might deem it necessary, in the faithful discharge of their duty, to examine the records to satisfy themselves that the persons assenting as proprietors were really owners of the lots, and in this pursuit, they would doubtless find titles on which they would be wholly incompetent to decide. But if they did decide, the owners objecting would be bound by their judgment. We believe that no such power was designed to be conferred on them. Their authority is special, and limited both as to its scope and effect. It was granted for the purpose of giving sanction to acts in pais, affecting the property and rights of others; but when made the foundation of an action, as here, it must appear to have been exercised [**14]  according to law.
Eschbach cannot justly complain of this result. Without waiting for the consent of the owners in legal form, he treated with a person who he knew had no authority to act for them, and as the liability of the owners not assenting depends upon the regularity of the proceedings under the ordinances, he must take the consequences of his haste. There being a radical defect in the preliminary proceedings, the judgment must be reversed without procedendo.
Judgment reversed and procedendo refused. 

81 of 187 DOCUMENTS 

HENRY P. BROOKS, Permanent Trustee of HENRY P. THOMAS, vs. HENRY P. THOMAS and JOHN H. T. JEROME.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 367; 1855 Md. LEXIS 62 

DECEMBER, 1855, Decided 

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

The bill in this case was filed on the 15th of October 1850, by Brooks, as permanent trustee of Thomas, an insolvent debtor, to set aside certain alleged preferences made by the insolvent to Jerome.

The proceedings show that Thomas and one Childress commenced business as grocers in the city of Baltimore, in September 1847, and carried it on till March 1848, when they dissolved, and Childress retired, taking with him the capital which he put in, about $ 600, and his share of a small estimated profit. No cash capital was furnished by Thomas, but he brought into the concern about $ 600 worth of groceries which he had purchased from Jerome, (in whose employment he had previously been,) upon credit, who charged them to the firm. After the dissolution in March 1848, Thomas continued to carry on the business by himself until some time in September or early in October following. when he failed, and proposed to make an assignment of all his assets for the benefit of his creditors, provided they would release him. Jerome, to whom he was then indebted to the amount of $ 2130, agreed to do this, but some of the other creditors refusing, the assignment [**2]  was not made. On the 12th of October, Thomas sold his entire stock of goods to one Evans for $ 604.38. The negotiation for this sale was communicated to Jerome by Evans, and before it was finally completed Evans required, and Jerome gave him, a guaranty that the sale should not be disturbed. The whole, or the greater part of, the proceeds of sale he paid over to Jerome, which, with some other money, amounted to $ 900 in cash, and about the same time transferred to him all his credits and assets of every description, including his furniture, amounting to $ 1,010. During this whole time it was proved that Jerome and Thomas were on the most intimate terms, the latter having been in the employment of the former, both previous to his going into business and since his failure; very soon after this transfer Thomas left the city and remained away until the following February, when he returned, and on the 5th of that month applied for the benefit of the insolvent laws.

The bill assails this payment of money and transfer of property to Jerome:--1st, because it was made by Thomas with a view and under the expectation of taking the benefit of the insolvent laws, and with intent thereby to [**3]  give an undue and improper preference; and 2nd, because it was void under the act of 1834, ch. 293.

The allegations of the answer and the proof in the case are sufficiently stated in the opinion of this court, and in that of the chancellor, (JOHNSON,) which is reported in 4 Md. Ch. Dec., 15. The chancellor dismissed the bill, and from this decree the complainant appealed.  

DISPOSITION:
Decree reversed, with costs, and case ordered to the circuit court of Baltimore city.  

HEADNOTES:

To overthrow the positive denials in an answer to the allegations of the bill they must be disproved by the testimony of two witnesses, or by one witness accompanied with pregnant circumstances.

A knowledge that a party is negotiating or compromising with his creditors, accompanied with the actual information that he was generally considered insolvent in his neighborhood, is, in contemplation of the act of 1834, ch. 293, notice of insolvency.

Though a proposition from a debtor for a composition with his creditors is not conclusive evidence of insolvency, yet it is one of the most pregnant circumstances from which to infer insolvency.

To avoid a transfer, under the act of 1834, ch. 293, the debtor must, at the time, have "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," and the preferred creditor must have notice of such condition of insolvency. 

COUNSEL:
Henry P. Brooks and Levin Gale for the appellant, argued:

1st. That the evidence is sufficient to establish the fact, that at the time of making the transfer to Jerome, Thomas contemplated applying for the benefit of the insolvent laws. The facts upon which we rely to show this intent and overthrow the answers are, that in September 1848 he proposed to his creditors to make an assignment for their benefit. In October of the same year, he makes this transfer of all his property to Jerome. He then left the city until the following February, when he returned, and immediately applied for the benefit of those laws, and returned no assets. In his answer he swears, that he did not believe himself insolvent, and that he [**4]  could pay all his debts, yet the proof shows, that by his own declarations, he admitted that he could only pay a certain per cent. of his debts. He says he expects the mercy of his creditors, and that he did not think they would force him to take advantage of the insolvent laws, and yet by this transfer he stripped himself of all means to pay them, and had thereby so exasperated them as to leave resort to the insolvent laws as his only means of relief. Acts of 1812, ch. 77, sec. 1. 1816, ch. 221, sec. 6. 1845, ch. 139, sec. 2. 3 G. & J., 188, Kolb vs. Whitely. 1 H. & G., 81, Ringgold vs. Ringgold. 3 Story's Rep., 446, Everett vs. Stone.

2nd. That if the evidence does not sufficiently establish an actual intention to apply, yet it shows that Thomas had, at the time, no reasonable expectation of being exempted from liability otherwise than by an application for the benefit of the insolvent laws, and that Jerome had notice of his insolvent condition, so as to render the transfer void under the act of 1834, ch. 293. The main question under this point is, whether Jerome had notice of the insolvent condition of Thomas? What is notice? Whatever is sufficient to put a party upon inquiry [**5]  is good notice in equity. 11 G. & J., 243, Magruder vs. Peter. 3 Md. Ch. Dec., 493, Ringgold vs. Bryan. 3 Metcalf, 405, Curtis vs. Mundy. The case last cited establishes the true test, viz., that the "notice is sufficient if it be such as men usually act upon in the ordinary affairs of life." See also, 1 Gill, 412, Cole vs. Albers & Runge. Now what are the facts proved in this case. Evans swears that he stated "to Jerome," that he wanted indemnity, because "Thomas was generally considered insolvent, this was the general opinion in the neighborhood." Jerome and Thomas had been upon the most intimate business relations, both prior and subsequent to the latter's failure. In September 1848, Thomas proposed to Jerome to give up his assets for the benefit of his creditors. This in effect is a proposition of insolvency. He then conveyed to Jerome book-accounts, notes, credits, and all his property and effects, including household furniture; and Jerome says in his answer, that he offered to sign a release to Thomas upon conveyance of all his property for the benefit of his credtors. It is impossible to reconcile these facts with the answer of Jerome denying knowledge of Thomas' insolvent condition;  [**6]  and they clearly satisfy the rule by which an answer is to be overthrown, even if this case does not come within the exception to the rule laid down in 2 Gill, 106, Jones vs. Belt. As to what is the insolvent condition, of which the preferred creditor is to have notice, see 2 Kent, 189, 469. 16 Eng. C. L. Rep., 166, Shone vs. Lucas. 4 Cushing, 134, Thompson vs. Thompson. 1 Maule & Selw., 338, Bayly vs. Schofield. 3 Story's Rep., 446, Everett vs. Stone. Insolvency, according to these authorities, means an inability to pay debts in the usual and ordinary course of business.

Charles H. Pitts for the appellees, argued, that the bill was properly dismissed:

1st. Because Thomas, by his answer, expressly denies that he made the payments and transfers to Jerome with a view and under the expectation of being and becoming an insolvent debtor, and that there is no sufficient evidence in the record to rebut this denial. To be an insolvent debtor under our laws, means to be in such a state as to contemplate taking the benefit of the insolvent laws. Mere inability to pay debts in the usual course of business will not suffice; there must also be an intent to take the benefit of the insolvent [**7]  laws. This is legal insolvency in this State. 5 G. & J., 377, Hickley vs. Farmers & Merchants Bank. 7 G. & J., 170, Dulaney vs. Hoffman. The answer in regard to such intent must stand, and is conclusive unless contradicted by two witnesses, or by one with pregnant circumstances. 9 Gill, 211, Beatty vs. Davis. 3 Md. Rep., 229, Glenn vs. Grover & McColm. There is not here a solitary witness to contradict the answer of Thomas upon this point, and however strong the circumstances may be, they alone will not do. 7 Md. Rep., 537, Feigley vs. Feigley.

2nd. Because there is no sufficient evidence in the record to establish the fact, that Jerome had knowledge of Thomas' insolvency at the time he received the money, choses in action and property from him. He expressly denies in his answer that he had such knowledge. Inquiry into obligations, and the condition of assets alone, could be the basis of such knowledge. 1 Gill, 412, Cole vs. Albers & Range. Jerome says he did not know the amount of assets or the amount of obligations. "Knowledge of insolvency as aforesaid," in the act of 1834, means knowledge that the party was in such a condition as left him no reasonable expectation of relief [**8]  except by resort to the benefit of the insolvent laws. 7 Gill, 439, Stewart vs. The Union Bank. 6 G. & J., 323, Crawfords & Sellman, vs. Taylor. Jerome says he did not know that Thomas was insolvent, and that when the proposition was made to transfer his property for the benefit of his creditors, Thomas assured him that he was solvent, and from that time to the time of his application, there is no fact brought home to Jerome's knowledge from which notice of a different condition could be inferred. The answer, therefore, must stand.

3rd. Because there was an adequate remedy at law. 9 Metcalf, 470, Thayer, et al., vs. Smith. 7 Cushing, 181, Woodman vs. Saltonstall. 8 Ala., 743, Knotts vs. Tarver. 1 Story's Eq., sec. 76.  

JUDGES:
The cause was argued before LEGRAND, C. J., TUCK and MASON, J.  

OPINIONBY:
MASON 

OPINION:

 [*371]  MASON, J., delivered the opinion of this court.
The questions presented on this appeal arise under the act of 1834, ch. 293, sec. 1, and are, first, whether, when Thomas 

 [*372]  made the transfer to Jerome, the defendant, he did so in contemplation of insolvency, or that at the time he "had no reasonable expectation of being exempted from liability or execution for [**9]  or on account of his debts, without applying for the benefit of the insolvent laws?" and secondly, if so, whether Jerome "had notice of the condition of insolvency as aforesaid of said debtor?" Unless these two circumstances are established, the deed in question, as to the party claiming under it, cannot be avoided.
The defendant, Jerome, denies flatly, in his answer, that he knew of the insolvency of Thomas, and unless the force of this answer be broken by independent proof, in accordance with the rules of evidence adopted in such cases, his statement on this point must be sustained. A positive denial in an answer to the allegations of the bill must be disproved by the testimony of two witnesses, or by one witness with pregnant circumstances. We will not pause to inquire whether this case falls within the exception to this general rule, which is laid down in the case of Jones vs. Belt, 2 Gill 106, because we think that under the rule itself, the answer of the defendant, Jerome, has been sufficiently disproved so as to destroy its force as a ground of defence against the claim of the complainant.
Evans, a competent witness, expressly states, that he "stated to [**10]  Jerome that he wanted indemnity, as Thomas was generally considered insolvent--this was the general opinion in the neighborhood. Mr. Jerome did not seem surprised at witness' remark." Jerome, in reply, "informed witness that Thomas sold the goods by consent of the creditors," and that "Jerome did give the guaranty."
If this is not notice or information of the insolvency of the defendant, Thomas, we are at a loss to conjecture what other kind of notice could be furnished of such a fact. From the nature and character of insolvency, the knowledge of its existence in third parties must of necessity be to some extent conjectural or inferential, unless the information should be derived directly from the insolvent himself; and in a majority of cases, even the party is often deceived as to his own condition, and other persons are often as well, if not better, informed of his 

 [*373]  pecuniary circumstances than he is himself. A knowledge that a party is negotiating or compromising with his creditors, accompanied with the actual information that he was generally considered insolvent in his neighborhood, is, in contemplation of the act of 1834, "notice of the condition of insolvency [**11]  of said debtor." Nor do we consider this as such "technical or constructive notice," as is referred to in the case of Cole vs. Albers & Runge, 1 Gill 412, but we regard it as an actual notice, as much so, as such a fact ordinarily is susceptible of being the subject of actual notice.
The facts just mentioned were established by the evidence of Evans, and thus we have the positive testimony of one witness. But under the rule this is not sufficient, unless it be accompanied with pregnant circumstances. These are to be found, we think, in the close and intimate relations, both business and social, which existed between Thomas and Jerome, and in the fact, still more pregnant with an inference of the knowledge of insolvency on the part of Jerome, that Thomas proposed, previous to the preference complained of, to make an assignment of all his property for the benefit of his creditors, upon condition that they would release him from further responsibility, and the appellee admits that the proposition was made to him and agreed to. While we are willing to admit that a proposition from a debtor for a composition with his creditors is not conclusive evidence [**12]  of insolvency, yet it is still one of the most pregnant circumstances imaginable from which insolvency can be inferred. Indeed it may not be too much to say, that it is an unheard of circumstance for a debtor to propose a composition with his creditors, unless he be in a state of insolvency.
From all the facts in the case the conclusion is irresistible to our minds, that at the time of the transfer of money and property to Jerome by Thomas, the latter was insolvent, or that he 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, and that the former had knowledge of the fact.

 [*374]  The transfer or assignment is therefore void, and the property which it embraced vested in the trustee, and a decree will be passed accordingly.
Decree reversed, with costs, and case ordered to the circuit court of Baltimore city. 

DISSENTBY:
LE GRAND 

DISSENT:

LE GRAND, C. J., dissented, and delivered the following opinion:
I have carefully examined this case and concur in the correctness of the decree of the chancellor, and for the reasons assigned by him. I feel bound to say, however, that it [**13]  is a case--apart from the stern rules prescribed by the law of evidence for the interpretation of the motives of parties--entitling the appellant to the relief sought by him; for it is impossible to suppose--when his close and intimate relation to Thomas is considered and the taking of all his property--that he was not aware of his insolvent condition; a fact which, according to the testimony of Mr. Evans, seems to have been generally believed. But Mr. Jerome denies such knowledge, and he is not contradicted as fully and in the way required by the law, and as a consequence, his denial prevails.  

82 of 187 DOCUMENTS 

JAS. MALCOLM, Perm't Trustee of THOS. SPRIGG and HENRY MESEKE, vs. JAS. HODGES.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 418; 1855 Md. LEXIS 69 

DECEMBER, 1855, Decided 

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

The bill in this case was filed on the 15th of July 1850, by the appellant, as permanent trustee in insolvency of Sprigg & Meseke, to vacate a deed executed by the said insolvents to the appellee, on the 2nd of June 1849. The bill assails the deed as void both at common law, under the statute of Elizabeth, and under the insolvent laws. Sprigg & Meseke applied for the benefit of the insolvent laws on the 5th of July 1849, and the appellant was duly appointed their permanent trustee on the 11th of August following.

The deed, which is filed as an exhibit with the bill, is dated the 2nd of June 1849, and purports to be an "indenture between Thomas Sprigg and Henry Meseke, copartners, trading in the name, style and firm of Sprigg & Meseke," and James Hodges. It recites, that "whereas, the said Sprigg & Meseke are indebted to sundry persons, and being unable to pay their liabilities, the said Sprigg & Meseke have hereby assigned all their estate and effects unto the said Hodges, upon trust, for the benefit of their creditors, to be distributed, pro rata, according to their claims, among them, or so many of them as will sign a release, on or before [**2]  the 2nd of July next succeeding the date above written to the said Sprigg & Meseke, to them." It then, in consideration of the premises, conveys to Hodges "all and singular the stock of goods, machinery, book-accounts owing to said Sprigg & Meseke, and all and singular the estate and effects of the said Sprigg & Meseke, of whatsoever consisting: To have and to hold the said property, estate and effects of the said Sprigg & Meseke unto the said James Hodges, his executors, administrators and assigns," in trust, to sell the same at public auction or private sale, as the trustee in his discretion may deem best, and collect and apply the proceeds to pay, first, the expenses of the sale and the trust; secondly, the trustee's commission of eight per cent., and thirdly, to distribute the residue "pro rata, according to their claims, among those of the said Sprigg & Meseke's creditors who shall, on or before the 2nd of July next succeeding the date first above hereinbefore written, sign a release to the said Thomas Sprigg and to the said Henry Meseke, from all their liabilities, individual as well as copartnership, to them the said creditors." It also contains a power of attorney to Hodges [**3]  to collect the debts due the grantors and to compound for the same.

The answer of Hodges states, that shortly before the 2nd of June 1849, Sprigg & Meseke called a meeting of their creditors, for the purpose of laying before them a statement of their assets and liabilities, and getting an extension upon their liabilities, averring at the time that they were able and would pay all their debts if time was given them; that at this meeting respondent, being a creditor, met with a large majority of the creditors, who then examined into the affairs of Sprigg & Meseke, and unanimously determined, it would be for the interest and advantage of all and each of the creditors of said parties that they should at once execute an assignment of all their effects for the benefit of their creditors, which they agreed to do, and accordingly executed the deed in question; that at this meeting, all the creditors present believed Sprigg & Meseke ought to be released upon the execution of said deed, and agreed themselves so to release them; that after the execution of this deed, respondent addressed letters to all the non-resident creditors, informing them of its provisions, and all of them, except [**4]  two, whose claims do not amount to one-fourth of the grantors' liabilities, have agreed to come in under it. The answer also denies that the deed is void under the insolvent laws.

A replication was filed and the cause submitted to the chancellor (JOHNSON) upon bill, answer and replication, who delivered the following opinion, accompanying his decree dismissing the bill:

"This cause was submitted on the part of the complainant during the sittings of the term, and at the close of the sittings is laid before the chancellor under the rule for decision.

"After the repeated adjudications of the Court of Appeals upon the subject of the validity or invalidity of deeds containing provisions similar to those to be found in this deed, I deem it unnecessary to occupy time or space in an argument, and will merely say, that according to my understanding of the case of Sangston vs. Gaither, 3 Md. Rep., 40, the deed in this case is valid.

"It does convey all the estate and property of the grantors of every kind and description, and there is no reservation of the surplus to them after paying the preferred, or any class of creditors. The deed, therefore, is not void at common law [**5]  or under the statute of Elizabeth, and there being no evidence in support of the allegations of the bill which assail it as void under the insolvent laws, the complainant does not make out a title to relief in any way, and his bill must be dismissed."

From the decree dismissing his bill the complainant appealed.  

DISPOSITION:
Decree reversed, and cause transmitted to the circuit court of Baltimore city.  

HEADNOTES:

The validity of a deed of trust for the benefit of creditors must be determined by the deed itself, without reference to extrinsic facts.

A deed from two parties, "copartners in trade," conveying "all and singular the stock of goods, machinery, book-accounts owing to" the grantors, "of whatsoever consisting," to hold the same in trust, to sell and apply the proceeds in part to such creditors as shall release the grantors "from all their liabilities, individual as well as copartnership," operates as a conveyance of all the grantor's property, both joint and separate.

An implied reservation of the surplus, after paying the releasing or preferred creditors, to the grantor, avoids the deed equally with an express reservation, and the court cannot look outside of the deed to ascertain whether there will be a surplus or not.

Such an assignment, to be valid, must convey all the property of the debtor, and in terms dedicate the whole for the benefit of his creditors, subject to such preferences as may be declared in the deed.

A deed which makes no disposition of the surplus, after paying the releasing creditors, is void, because there is an implied reservation of such surplus to the grantor. 

COUNSEL:
William H. Norris and J. M. Campbell for the appellant, argued, that the deed in question was void:

1st. Because while under it nothing passes to the trustee for the use of the releasing creditors except the partnership property of the grantors, it demands from the releasing creditors a release to the grantors of all their liabilities to such creditors, individual as well as partnership. That such a deed is void has been expressly adjudicated, and this although the debtors had no separate property. 5 Rawle, 221, Thomas vs. Jenks. 6 Watts & Sergt., 300, Hennessy vs. The Western Bank. 3 Md. Rep., 12, Green & Trammell, vs. Trieber. It seems to be too plain for argument, that when two recite a joint interest and joint liabilities, and a style or firm, and only mention the estate and [**6]  effects of such style or firm as intended to be granted, that it would be impossible to suppose that any thing was intended to be covered by the grant but what belonged to the style or firm ownership: otherwise every deed by partners would be held to convey all the joint and separate estate of the partners, if the style of the partnership chanced to correspond with the surnames of the individual partners. But when you pass from the granting part of the deed to the habendum, it will be seen that the rule of construction coincides with the knowledge of the grantors and violates no possible intention in fact; for in stipulating for releases it is from all their liabilities, "individual as well as co-partnership," thus recognising their appreciation of the distinction between their private and co-partnership relations as respects debts, and if this was before their minds, the failure to convey also thus distinctly and distributively evinces a clear purpose to reserve from the grant their individual estate. The next question is, assuming the deed does not convey the individual property, is it good until the parties assailing it prove that there is individual estate which has not been conveyed?  [**7]  If such is the duty of the party assailing the deed, then a deed from a partnership conveying a single chattel is prima facie good until the parties assailing it prove there were other chattels or assets. And can such a principle be law in cases where, for the permission given to exact releases, the party is required to make it appear that he has conveyed all his estate? Must not the operative transfer in law be in fact of all the party's property, stated or unstated, known or unknown? Can a law levelled against fraudulent reservation be otherwise administered? Must not the grantor show conclusively that he has complied with the condition? It therefore seems to us that it ought not to be admissible for a grantor to prove that the specification includes all his property, where the terms of the grant do not in themselves convey all. The rule being directed against fraudulent reservations, they are allowed too much liberty of accomplishment when a party is permitted to narrow the terms of his grant from a general transfer into a particular one, and then to prove that practically it is a general transfer. The simplicity of fair dealing requires that the proof of compliance with the rule [**8]  should be found in the terms of the grant. This is sufficiently indicated in the cases of Green & Trammell, vs. Trieber, 3 Md. Rep., 12, and Sangston vs. Gaither, Ibid., 41, independently of the other authorities.

2nd. Because the deed makes no provision for paying any surplus remaining after the claims of the releasing creditors shall have been satisfied over to those creditors who may refuse to sign a release, and therefore any surplus that might remain in the hands of the trustee would revert to the grantors themselves. 3 Md. Rep., 41, Sangston vs. Gaither. 17 Verm., 390, Dana vs. Lull. 7 Md. Rep., 380, American Exchange Bank vs. Inloes, Garn. of Turnbull & Co. The effort to sustain this deed as a composition deed is met with many insuperable difficulties, which need not be noticed; for whether there be a valid composition or not as to certain creditors, it is admitted there were two who did not compound, and whether there were or not any thus dissenting, it is not perceived how that makes a deed good which makes no provision for paying any surplus, after the claims of the releasing creditors have been satisfied, to those who may refuse to sign a release. This court is not [**9]  sitting over the distribution of assets; equity don't distribute insolvent estates. 3 Md. Rep., 464, Manahan & Gorman, vs. Sammon & Thurston. If the failure to make this provision makes the deed void, the composition and release is a matter between the insolvent trustees and the trustees, and the grantor and the composition creditors, which only comes up when a distribution is gone into. If the deed is valid as between the parties the insolvent trustee will pay the surplus to the grantors, but he has none the less right to set the deed aside. That nobody will be injured by its being treated as valid, is a question with which a court of equity has no concern; that only arises when creditors are notified to file their claims and a distribution is to be made. It cannot be legally known until then whether there are dissenting creditors or not.

St. George W. Teackle for the appellee, argued:

1st. That the first objection to the validity of the deed is not supported by any evidence in the cause, or by the provision of the deed itself, but on the contrary, the deed itself conveys not only all the partnership property of the grantors, but also all their individual property; for,  [**10]  after granting to the trustee "all and singular the stock of goods, machinery, book-accounts owing to said Sprigg & Meseke," the deed further says, "and all and singular the estate and effects of the said Sprigg & Meseke, of whatsoever consisting." Now upon the well established rule of interpretation in regard to deeds, that every deed is to be construed as strongly against the grantor as possible, can it be doubted that the individual estate and property of the grantors in this deed passed to the trustee under its provisions? Such was the construction put upon the deed by the learned chancellor who decided this case below. But even if no individual property did pass by the deed, can it be successfully contended for as law in Maryland that this deed is void on that account, without some evidence to show that the grantors had some individual property? Is the court to presume that they had individual property, for the purpose of establishing upon that presumption of fact (not sustained by any allegation or proof in the cause) the legal conclusion, that the deed is thereby avoided, and that too upon the ground of fraud? Such a doctrine, it is respectfully submitted, will not, upon a careful [**11]  examination, be found to be supported by either of the cases referred to by the counsel on the other side. No such point was presented for the decision of the court by the record in either of those cases.

2nd. The second objection to the deed is equally untenable and unsupported by authority. The deed reserves no surplus to the grantors or any one else, and the objection rests upon the ground of a surplus by way of resulting trust to the grantors. This point is liable to the same objection as to the first, viz., that there is no fact in the case to show, or from which it could be rationally presumed, that any of the creditors would refuse to take under the provisions of the deed of trust, or if any would have so refused, whether their dividends would have been more than sufficient to pay in full all the claims of the assenting creditors, and leave a surplus for the grantors. And yet to support this point the court must presume both these facts, and that too in opposition to the fact stated in the answer responsive to the bill, and not excepted to by the complainant, that all of the creditors at the meeting called to investigate the affairs of the grantors, they being a large majority [**12]  in value of all the creditors, advised and accepted the deed, and agreed to abide by its provisions. We submit, that the cases of Sangston vs. Gaither, and Dana vs. Lull, decide no such doctrine. But we say the present case stands upon grounds totally different and clearly distinguishable from those on which any of the cases cited on the other side were decided. None of them decide or intimate that if the creditors agree with their debtors to take less than the full amount of their claims and release them, that such an agreement, if based on a valuable consideration, would not be valid and binding against such creditors, nor can any case be found going to that extent. Upon such an hypothesis as this there could be no such thing as valid deeds of composition between creditors and debtors, and yet the books are full of them, and the principles governing them are so familiar as not to require the citation of authority. Now apply these principles to the present case, and it will be found that the deed in question is a deed of composition between creditors and debtors, and not a deed having in it or about it a single feature obnoxious to any of the provisions of the statute of Elizabeth.  [**13]  (The learned counsel then further argued, that from the facts of the case, as disclosed by the answer, this was a composition deed.) 

JUDGES:
The cause was argued before LEGRAND, C. J., TUCK and MASON, J.  

OPINIONBY:
TUCK 

OPINION:

 [*425]  TUCK, J., delivered the opinion of this court.
The appellant, as trustee of Sprigg & Meseke, under the insolvent laws, filed a bill against the appellee to vacate a deed from Sprigg & Meseke to him, as trustee, for the benefit of their creditors, on the terms and conditions mentioned in the deed. The case was heard on bill, answer and replication, before the chancellor, who dismissed the bill, being of opinion, that as the conveyance transferred all the property of the grantors, and contained no reservation to them of any surplus, after paying the preferred or any class of creditors, it was not void.
The validity of the deed must be determined without regard to the surrounding and other circumstances averred in the answer. If admissible for any purpose they are not proved. "We are to look to the character with which the law stamps the deed, without reference to extrinsic facts as to motive. If the law imputes to the grantor a design in making the deed, no evidence [**14]  of intention can change the presumption. If the 

 [*426]  law declares the deed to be void, it is no matter how the question of fraud in fact may stand." 3 Md. 40, Green vs. Trieber.
Upon consideration of the deed we are of opinion, with the chancellor, that if good in other respects it would operate as a conveyance of all the grantors' property, joint and separate. The terms are not very clear; but, construing all its parts together, the legal effect of the granting clause and the habendum is to vest in the grantee title to all their property and effects of every description. But we think the instrument is void as against the appellant, representing the creditors of the grantors, because the necessary effect of the trusts declared therein is to secure to the grantors any surplus that may remain, after paying the claims of those creditors who may come in under its terms within the time limited. The law is now too well settled to admit of dispute, that deeds of this description must not only convey all the property of the debtor, but they must, in terms, dedicate the whole for the benefit of the creditors, subject to such preferences as may be declared in [**15]  the deed. There must be no reservation to the debtor, express or implied. We cannot look outside the assignment to ascertain whether there will be a surplus or not. That would make the efficacy of the instrument depend on extrinsic circumstances, when the law requires that its intent shall be gathered from its face. This deed, in express terms, restricts the benefits designed to be conferred to those creditors who may come in within a certain time and execute releases. Nothing is said of the surplus. Now suppose creditors, to a very small amount, assent, and that all the rest stand out, what becomes of the surplus of the property when those few who may assent are fully paid? Does it not belong to the grantors as a resulting trust? Nothing, in our opinion, can be clearer. The refusing creditors could not claim it under the deed, and it would not belong to the grantee, as in cases of deeds where the grantee is not a trustee for others. It is true the other creditors might prosecute their claims against the trustee, in respect of this surplus, but not in reliance upon the assignment, which they have repudiated. They would claim to be paid out of the fund, not as 

 [*427]  theirs by [**16]  the deed, but as the property of the grantors, their debtors, in the hands of the trustee for the use of the grantors; and this pretension, probably, could be asserted only by process of law, to which, as we have said in 3 Md. 52, the grantors have no right to compel them to resort.
The view here expressed was affirmed in Dana vs. Lull, 17 Vt. 390, referred to in 3 Md. 51. The case then before the court did not require us, in terms, to go as far as the Vermont doctrine, but we have no doubt of its correctness, upon principle, and so intimated. If such deeds, as the one before us, are valid, fraudulent transfers might easily be made by granting preferences to a few creditors, of small amount, and omitting all mention of the surplus. The operation would be, that after the property was sold and the preferences satisfied, the trustee would return the residue to the debtor before the other creditors could take measures to arrest it in his hands for the payment of their claims. To prevent such devices the law requires that the deed, on its face, shall show that the debtor can get nothing for himself, so long as a creditor remains unpaid.  [**17]  
This case is substantially the same as Dana vs. Lull, and satisfied that it was decided on proper grounds, we adopt the reasoning there employed as conclusive of the question arising on the assignment now in controversy.
Decree reversed, and cause transmitted to the circuit court of Baltimore city. 

83 of 187 DOCUMENTS 

WILLIAM E. MAYHEW vs. RICH'D S. HARDESTY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 479; 1855 Md. LEXIS 74 

DECEMBER, 1855, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Court of Common Pleas of Baltimore city.

Assumpsit by the appellant against the appellee to recover the amount paid by the plaintiff as premiums for certain policies of insurance. Plea, non assumpsit.

Exception. The facts of the case appearing by the record are briefly these: Capron and wife, by deed dated the 26th of December 1845, leased to Heath and Snowden, for ninety-nine years, renewable forever, two undivided thirds of certain lands, including certain water privileges appertaining to a factory about to be erected thereon, for the yearly rent of $ 900. This lease contained a covenant between the lessees, "their heirs, executors and administrators," and the lessor, "his heirs and assigns," that the lessees, "their executors, administrators or assigns" should, during the continuance of the term, "at their own proper cost and charge, insure or cause to be insured, and kept insured from loss or damage by fire, the factories and buildings erected or that may be erected" on the demised premises, in some insurance offices in the city of Baltimore; and should assign, to and for the use of the lessor, two undivided thirds of all the right and interest of the lessors [**2]  or their executors, administrators or assigns, in each and every such policy of insurance, and shall pay the lessor, his heirs and assigns, or permit him or them to collect two-thirds of the money received on such policies to pay the rent, or by the permission of the lessor, his heirs or assigns, to apply the money to rebuilding or repairing such buildings as may be destroyed or injured by fire under the policies; and in case of default of the lessees to keep up the insurance or to assign the policies as aforesaid, then the lessor, "his heirs or assigns, may effect insurance thereon for his or their use at the expense of the" lessees, "their executors, administrators or assigns." On the same day the lessees mortgaged to the lessor, to secure the punctual payment of the rent reserved in the above lease, all the machinery and fixtures then in or intended to be placed in the factory in course of erection on the demised premises.

On the 6th of May 1846, and the 13th of January 1849, the lessor conveyed by two deeds, (one moiety by each,) the property in question, subject to the lease above stated, and the mortgaged machinery and fixtures, to Mayhew, the plaintiff, for $ 10,000. On [**3]  the 12th of September 1849, the Avondale Manufacturing Company having acquired by mesne assignment all the interest of the lessees, Heath and Snowden, in the lease and demised property, mortgaged the same, with other property, to Hardesty, the defendant, to secure the payment of certain notes mentioned in the mortgage, the mortgagor covenanting to keep insured the buildings, machinery and fixtures, and until default in payment in the notes as they became due the mortgagor was to remain in possession of the property, but in case of failure to pay the same as they respectively fell due the mortgagee was to enter and possess the property. None of the notes mentioned in the above mortgage were paid at the time this suit was brought, though most of them had long since become due.

In July 1850, Hardesty sold to Mason all his estate and interest in the property mortgaged to him, and Mason, by the authority and consent of Hardesty, then took possession of the same and has since continued to hold it, and has ever since regularly paid to Mayhew the ground-rent reserved by the original lease. The arrears of ground-rent, due at the time of this purchase, was paid by Hardesty to Mayhew out [**4]  of the purchase money paid by Mason. On the 14th of November 1850, Hardesty executed a bond of conveyance to Mason for the property sold, reciting the terms of the purchase, in which, among other things, it was stipulated that Mason should keep the factory and machinery insured until the payment of all the purchase money, and that the equity of redemption of the Avondale Manufacturing Company in the property had been conveyed to Hardesty by deed dated the 14th of November 1850. It was proved, that at the time of the original lease there were no buildings upon the land except two small houses; that the cotton factory, which was put in operation early in 1846 or 1847, cost, exclusive of machinery, between $ 8000 and $ 10,000; and the cost of the movable machinery was from $ 12,000 to $ 15,000; that what is called fixed machinery includes the water-wheel, shafting and gearing; that there were two water-wheels of iron to the factory, which cost originally about $ 450 or $ 500; that in one of these wheels some alteration was made, which cost less than $ 400; that the other fixed machinery might have cost $ 500 or $ 1000.

It was admitted that neither the original lessees nor Hardesty [**5]  had done anything in performance of the covenant for insurance in the original lease, between the 13th of October 1850 and the 4th of November 1852. The plaintiff, Mayhew, insured in the Etna Insurance Company on the 14th of October 1850, for one year, to the amount of $ 5000, viz., $ 2500 on the movable machinery in this factory, and $ 2500 on the building, paying therefor as premium $ 100; also in the Franklin Fire Insurance Company of Philadelphia, on the 4th of November 1850, for one year, to the amount of $ 5000 on the "cotton mill and water-wheel," paying $ 100 premium; and also in the Etna Insurance Company on the 14th of October 1851, for one year, to the amount of $ 5000, viz., $ 2200 on the building and $ 2800 "on the fixed machinery, including water-wheel, shafting, gearing," &c., paying $ 100 premium. The property mentioned in these policies was on the demised premises at the time the policies were effected. On these facts the plaintiff asked the following instructions to the jury:

1st. That the plaintiff, as assignee of the reversion in the property described in the lease from Capron to Heath and Snowden, is entitled to recover the premiums or sum or sums of money [**6]  paid by plaintiff to procure the insurance effected by the policies given in evidence upon all the property described in those policies, except the property described as movable machinery in the policy of the 14th of October 1850; if they find that the said property was on the demised premises at the respective dates of said policies, and find that none of the notes described in the mortgage to Hardesty, given in evidence, have been paid, notwithstanding that said Hardesty had not possession of said mortgaged premises at the time when said premiums were paid or when some of them were paid.

2nd. That if they find the facts stated in the plaintiff's first prayer, that then the plaintiff is entitled to recover the premiums or proportion of premiums paid for insurances effected on all the property described in all said policies, inclusive of the water-wheel but excepting the property described as "movable machinery" and that described as "shafting, gearings," &c., although said Hardesty had not possession of said mortgaged premises when said premiums were paid.

3rd. That if they find the facts stated in the plaintiff's first prayer, that then the plaintiff is entitled to recover [**7]  the premiums or a due proportion of the premiums for effecting insurances effected on all the property described in all said policies, excepting the movable machinery, the water-wheel and shafting and gearing, although said Hardesty had not possession of said mortgaged premises when said premiums were paid.

4th. If the jury find the facts stated in the first prayer, and that Hardesty, in July 1850, contracted with Mason to sell all his estate and interest in the mortgaged premises, and to execute, at some future day, a deed therefor to Mason, upon certain conditions, to be performed according to the form and effect of the bond of conveyance, dated the 14th of November 1850, and given in evidence, and that at the time of making this contract Hardesty agreed and stipulated, that Mason should or might take actual possession of and use the premises from and after the time of making this contract, and that in pursuance of this contract and agreement, Mason did take actual possession of the mortgaged premises from and after the time of making the contract, and has continued ever since to hold possession thereof, that then Hardesty is to be considered in this action as a mortgagee in [**8]  possession from and after the time of this contract; and then the plaintiff is entitled to recover the premiums paid by him to procure the insurance effected by the policies given in evidence upon all the property described in those policies, except the property described as "movable machinery" in the policy of the 14th of October 1850, if they find that none of the notes described in the mortgage to Hardesty, given in evidence, have been paid, and if they find that said policies were all effected after the date of the contract between Hardesty and Mason.

5th. If the jury find the facts stated in the first and fourth prayers, then the plaintiff is entitled to recover a due proportion of the premiums paid for effecting insurances on all the property described in all said policies, inclusive of the water-wheel, but excepting the movable machinery and that described as shafting and gearing.

6th. If they find the facts stated in the first and fourth prayers, then the plaintiff is entitled to recover the premiums, or a due proportion of the premiums, paid for effecting insurances on all the property described in all said policies, excepting the movable machinery, the water-wheel,  [**9]  shafting and gearing.

The court (MARSHALL, J.) rejected each and all of these prayers, and to this ruling the plaintiff excepted; and the verdict and judgment being against him, appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

The mortgagee of a term, after forfeiture, has the whole legal estate therein, and is liable on the real covenants in the lease whether he becomes possessed of or occupies the premises in fact or not.

To make a party liable under the covenants as assignee, he must be the assignee of the entire term, for otherwise he is but a mere sub-lessee, and as such not liable under the covenants.

An interest in a term for more than seven years cannot be transferred or assigned, except in the mode prescribed by our registry laws, and no acts in pais short of a deed, duly executed and recorded, can transfer such interest.

A bond of conveyance executed by a lessee to a purchaser of the lease, does not make such purchaser the legal assignee of the entire term, and he is not therefore liable under the covenants in the lease.

A covenant to keep insured a factory, necessarily embraces the obligation to keep the fixed machinery, necessary to the operation of the factory, insured, among which would be included the water-wheel, shafting and gearing; the term "factory" embraces such fixed machinery. 

COUNSEL:
Edward O. Hinkley for the appellant, argued:

1st. That a covenant to insure runs with the land and binds assignees, and the covenant in the present case expressly includes them. 6 G. & J., 381, Thomas vs. Vonkapff. The appellee is mortgagee of the tenant, and as such is assignee in law and is liable, even though not in possession, for default had been made, none of the notes secured by the mortgage having been paid, and the first of them having become due in March 1850, long before insurance was effected, and the mortgagee then having the right to possession both by law and by the express terms of the mortgage. 4 Kent, 145. 1 Brod. & Bing., 238, Williams vs. Bosanquet. 4 Leigh, 69, Farmers Bank vs. Mutual Assurance Society. 15 Verm., 489, Pingry vs. Watkins, and the same case in 17 Verm. The very point has been decided by this court in Hintze vs. Thomas, 7 Md. Rep., 346.

But most clearly the appellee is liable if in possession, and his [**10]  acts are equivalent to taking possession, for he sold to Mason, who immediately took possession, in July 1850; that is, before the insurance was effected: and afterwards, on the 14th of November 1850, the equity of redemption was conveyed to the mortgagee, as appears by his reference to that fact in his bond of conveyance to Mason.

2nd. As to the extent of the appellee's liability: The word factories includes the fixed machinery; that is, the water-wheel and the shafting and gearing, for it is proved by a competent witness, that "what is called fixed machinery includes the water-wheel, shafting and gearing," and the language of one of the policies is, "on the fixed machinery, viz., the water-wheel, shafting, gearing," &c., showing clearly the opinion of the insurance company, that those things were fixed machinery, and showing their intention to hold themselves liable therefor. It is to be observed, that the appellant did not claim for any movable machinery: all his prayers expressly exclude that. Now does the word factory embrace fixed machinery? Most clearly it does, for the reason that without machinery the buildings are not factories, and the language of the covenant is particular,  [**11]  "buildings and factories." It is also to be observed, that the mortgage to the appellee expressly includes the machinery and fixtures as well as the land, and so does the bond of conveyance from the appellee to Mason. But even independently of the word factories, the covenant to insure the buildings would include fixtures, because they would pass by a conveyance of the land, and so would be covered by a covenant running with the land. 11 Barbour, 43, 62, 64, Buckley vs. Buckley. 3 Md. Ch. Dec., 186, McKim & Kennedy vs. Mason, and cases there cited. 1 Ohio State Rep., 528, Teaff vs. Hewitt.

F. K. Howard and S. T. Wallis for the appellee.

The plaintiff below offered six prayers, all of which were rejected. From that rejection alone the appeal is taken. The onus is therefore on the appellant to show that at least one of his prayers should have been granted, in the identical shape in which it was presented. This court cannot go behind the prayers to look for merits, of fact or law, which the appellant's case may be supposed to possess, but which the prayers either do not embody, or embody in a connexion which it would have been error to adopt. The action of the court below must [**12]  be judged by the prayers which were before it, and not by propositions, which might have been, but were not.

Of the six prayers, the first, second and third assert that Hardesty, as mortgagee, is responsible on the covenant to insure, though he may never have been in possession. The fourth, fifth and sixth assert, that by his contract with Mason, and Mason's possession thereunder, Hardesty, in contemplation of law, was actually in possession and so responsible on the covenant. Let us first assume, for the sake of argument, that the two sets of prayers are not otherwise defective or erroneous than in the two propositions which they thus principally set up, viz:

1st. That the mortgagee of a term, out of possession, is liable for covenants running with the land; and 2nd. That the possession of a purchaser under a bond of conveyance is the possession of the vendor, so as to make the latter liable for such covenants, as an assignee in possession.

1st. It is respectfully submitted, that some overruling legal necessity alone will induce this court to fix on a mortgagee, out of possession, a responsibility for his mortgagor's covenants. It is common learning, that if the lessee [**13]  sub-lets, by way of mortgage or otherwise, reserving a reversion of but a single day, the sub-lessee is free from the covenants. He is not an assignee, in name, though he is in fact. The twenty four hours save him. An assignee, it is conceded law, may assign to a pauper, avowedly to get rid of the covenants, and the pauper's responsibility at law, (though he has none in fact,) discharges the liability of his assignor. Surely there cannot be any peculiar sanctity in a rule of responsibility, which may be legitimately reduced to a practical absurdity by such simple processes. Surely a liability which is so purely nominal, that it attaches to a man merely when you call him an "assignee," and ceases to bind him as soon as you call him something else, though he in fact remains the same, cannot depend upon any vital principle of policy or jurisprudence. It must belong to that class of doctrines which the authorities denounce, when they say that "to stick at the letter is to stick in the bark"-- qui hoeret in litera hoeret in cortice.

But, even if the doctrine has any thing sound in it, as applied to absolute assignees--owners of the term--it certainly has not, in its application to [**14]  mortgagees, who, as every body knows, are not owners of the term in fact, no matter how strenuously you may endeavor to prove them so by definitions. Courts of law, in the progress of civilization, have at last grown to regard mortgages as what they are--securities and nothing more. You need not go into equity now to learn that a security for a debt is not a landed estate--that it is a mere collateral to the debt which it secures. The courts have at last acknowledged consciousness of the fact, that an estate in land, which may be extinguished by the payment of a promissory note, and amounts to nothing till the note is due and unpaid, is not of much higher dignity than the promissory note itself. Thus, happily, men's rights and reason are no longer smothered under old scholastic phrases, and the securities of a commercial community have ceased, in a measure, to be regulated by the statute of "Quia Emptores."

In Maryland our legislation has been in aid of this progress of ideas. A mortgage in fee-simple is no longer any thing, in fact, but a chattel interest with us. By the acts of 1833, ch. 181, and 1839, ch. 26, the interest in the land devolves, with the debt, on the executor,  [**15]  whose release is made equivalent to a reconveyance by the heirs.

Nor have our courts been at all behind the legislature, in relieving us, on this point, from the fictions of feudal pedantry. An outstanding mortgage, if paid in fact, cannot be set up in ejectment against the mortgagor, though it may not have been paid till after forfeiture. (Morgan vs. Davis, 2 H. & McH., 9.) Nor can a mortgagee, who has been paid, but who still retains the legal title, recover in ejectment against the mortgagor's assignee. (Paxon vs. Paul, 3 H. & McH., 399.) In the former of these cases the court decides, in terms, what is, in substance, necessarily determined in them both, that by payment "the mortgage was discharged, and the estate of the mortgagee defeated, in law and equity," though the legal title was still outstanding in him. One would think that after this there should be an end to all superstition about the empty shell of the mortgagor's "legal estate." The late Court of Appeals indeed expressly determined, further, that the mortgagor is regarded in law, as in equity, as the substantial owner, until foreclosure, his estate being, at law, responsible for his debts under attachment or execution.  [**16]  (Ford vs. Philpot, 5 H. & J., 312. Dougherty vs. McColgan, 6 G. & J., 285.) This court itself, pursuing the same enlightened course of decision, has determined, (Georges Creek Coal & Iron Co. vs. Detmold, 1 Md. Rep., 237,) that a covenant in a mortgage, for the mortgagee to hold until default, is equivalent to a re-demise from the mortgagee, and revests the legal estate in the mortgagor, so as to enable him to maintain ejectment.

With what show of consistency then, in view of these decisions and our statutes, can the appellant ask this court to say, that a mortgagee of a term, not in possession--not enjoying the profits--a mere holder of an unappropriated security--is, by virtue of his having the naked "legal estate" in him, an assignee of the whole term, and bound by the covenants of the lease? That he is not the owner of the term in equity, (which means simply that he is not in fact,) is conceded. It is his being clothed with the "legal estate" which alone creates his liability. But if a mortgagee in fee, though clothed with the nominal legal estate, does not pass it to his heirs; if the legal estate of a satisfied mortgagee, though still a legal estate, will not maintain or [**17]  defeat an ejectment, which is a mere matter of legal estate; if a mere covenant for possession, till default, which, on the strictest principles, is perfectly consistent with the existence of a present legal estate in the mortgagee, is yet construed to be a re-demise, and to render the actual legal estate of the mortgagee no legal estate at all for the time being; whence shall come the sanctity which is sought to be attached to the mere legal estate here? It is the same mortgage--the same legal estate--the same policy--the same principle--throughout. Why then set up the shadow in the one isolated case, when you regard the substance, only, in all the others? Why adhere to one incident only of the legal estate, when you repudiate all the rest? Why make the solitary exception in a case, where you admit that the rule is a technical and verbal one only, by conceding that the trick of a sub-lease or an assignment to a pauper may demolish it altogether? It is no answer to say that this is a case at law, and that the constructions and doctrines of equity have nothing to do with it. Not one of the decisions referred to can stand upon that theory. Every one of them involves the absolute subordination [**18]  of the mortgagee's legal title at law, to the broad and liberal application of the principles of equity. Uphold the doctrine contended for here, and you reverse them all--establishing in the stead of the rational principles which they embody, the singular doctrine, that a mortgage, which is meant for a security to a creditor, is but a mode of entrapping securities for the lessor of the debtor. It can only be done, it is respectfully submitted, by ignoring utterly the nature of a mortgage, as understood and expounded in modern days, and going back to the times when Glanvil and Skene expatiated de mortuo vadio.

The case of Eaton vs. Jacques, 2 Douglas, 456, in which Lord Mansfield repudiated the liability of a mortgagee out of possession, upon the covenants in the lease, would be conclusive from its reasoning if not from the authority of the great judge who pronounced it and the able associates who concurred with him in it. In spite of the case of Williams vs. Bosanquet, by which it has been overruled in England, it has not ceased to command the support of the most eminent authorities in this country.

Astor vs. Miller, 2 Paige, 68. Astor vs. Hoyt, 5 Wendell, 603. Walton vs.  [**19]  Crouly, 14 Wendell, 63. Wittington vs. Sale, 7 Mass., 139. Cushing vs. Hurd, 4 Pick., 253. Cooper vs. Davis, 15 Conn., 560. Wilkins vs. French, 20 Maine, 117. Smith vs. Taylor, 9 Alab., 637. And see Greenleaf's Cruise, title 15, secs. 15, 16, p. 111.

The Supreme Court of the United States, in Calvert vs. Bradley, 16 Howard, 580, has left no doubt of its determination to adopt the doctrine of Lord Mansfield whenever the case shall arise.

It is the conceded doctrine already, in all our courts, in regard to the liability of mortgagees of ships for repairs done while the mortgagors remain in possession, and it seems impossible to draw a distinction, in principle, between those cases and cases like the present; the liability in both being sought to be affixed to the legal title, and that title in both being a matter of record, independent of possession.

Nor is there any foundation for the argument, that this court itself has held differently in the case of Hintze vs. Thomas, 7 Md. Rep., 346. That cause was heard and determined on a case stated, and it is part of the statement itself, that upon the forfeiture of the mortgage, "by the terms thereof, Hintze became the absolute [**20]  assignee at law." The court therefore was bound, according to its own repeated decisions, to adhere to the case stated, and it consequently treated Hintze as "absolute assignee" throughout. The obligations of mortgagees, whether in or out of possession, were not discussed by the counsel, (as reported,) nor considered by the court. The word "mortgage" does not occur once in the whole opinion, nor are mortgagees once alluded to.

It is, of course, obvious, that in the case of an absolute assignment, (as in Hintze vs. Thomas,) it makes no difference whether the assignee does or does not take possession. He is the absolute representative in responsibility of the original covenantor. But as a mortgagee, even after forfeiture, is under our decisions, only owner sub modo, with qualified rights; he is only, sub modo, exposed to responsibility. The possession, which clothes him with the profits of the term, thus becomes an indispensable item among the considerations which are to fix its burdens on him.

It is therefore a palpable non sequitur to argue, that because an absolute assignee has been held liable, (in Hintze vs Thomas,) without possession, an assignee, by way of mortgage and [**21]  out of possession, has the same liability. The law may be so, but that case does not decide it, and the argument to the contrary merely begs the whole question by assuming the identity, quoad hoc, of mortgagees and absolute assignees, which is precisely the matter in dispute.

So much for the first three prayers, so far as their main principle is concerned.

2nd. Is it true, as is asserted by the last three prayers, that Mason's possession was Hardesty's?

One of the interest notes secured became due to Hardesty on December 15th, 1849. He, however, never took possession, but, on July 8th, 1850, contracted to sell the property to Mason, who immediately took possession under the contract, having paid part of the purchase-money and given notes for the rest. On November 14th, 1850, Hardesty, for the first time, received a deed of the Avondale Factory's equity of redemption, and he, on that day, uno flatu, executed a bond of conveyance to Mason, conditioned to convey, on payment of the notes given in July 1850. Mayhew himself was, however, assignee of a mortgage of the leasehold interest in the machinery and fixtures of older date than Hardesty's mortgage, nay of the same date [**22]  with the original lease, viz., December 26th, 1845, so that Hardesty, so far as the machinery and fixtures were concerned, never had the legal estate at all in the term. His legal estate in the term, as to the buildings, he passed away the moment he acquired it, and he never had any actual possession. With a part of Mason's purchase-money he paid the arrears of ground-rent before Mason took possession in July 1850, and from that time forth, Mason, being in possession under the bond of conveyance and in his own right, regularly paid the ground-rent to Mayhew, who as regularly received it from him.

Can such a possession be called the possession of Hardesty? If it cannot the last three prayers were properly rejected, even supposing them to be erroneous in no other particular.

This is not a question, as supposed in the argument, as to whether Mason was, at law, the assignee of Hardesty's whole interest. Upon the most rudimental principles, he, of course, was not.

But still there is no analogy between his case and that of a sub-lessee. Hardesty retained no reversion. Mason was the assignee in equity of the whole beneficial interest, subject, of course, to the terms of the [**23]  bond of conveyance, and the question is, whether being thus, in fact, in possession, in his own right, he was, in law, in possession in Hardesty's, merely because he had not the technical legal estate in him? There seems to be a very simple mode of testing the matter.

In a case fairly raising the question, could there be any doubt that Mason's possession was adverse to Hardesty? Obviously not. It was a possession by Mason as purchaser, not as tenant, in his own right, and in that of no one else. It would have given a legal title, of itself, if continued long enough. How then could it be adverse and not adverse at the same time? How could it be Mason's possession and Hardesty's likewise, when the one was directly antagonistic to the other and irreconcilable with it?

The possession of a purchaser, under an unrecorded deed, is so far notice to all the world as to avail, under our statutes, against every one but a bona fide purchaser for value by deed recorded. (1831, ch. 304.)

So possession under a bond of conveyance will carry the legal title, under a decree in equity, against intermediate judgment creditors, (Alexander vs. Ghiselin, 5 Gill, 181,) the registry laws to [**24]  the contrary notwithstanding. Where then can this court find authority for treating such a possession as nothing at all? It is no answer to say that Mason could not be sued at law as assignee, and therefore the right of action must remain against Hardesty. In the very case of Hintze vs. Thomas, 7 Md. Rep., 351, this court has itself determined, that assignees may be liable in equity for breaches of covenant, and can there be any doubt that Mason, in possession in his own right, under an equitable title, might have been made liable in equity if not at law? Even at law, could not Mason have been estopped from denying that privity of estate which sustains the remedy against an assignee after he had taken possession in his own right and paid rent under the lease?

3rd. But the prayers could not have been properly granted, even if the appellant's view of the preceding propositions be correct.

The 2nd, 3rd, 5th and 6th prayers are erroneous, because uncertain and inconsistent in their terms and alternatives. They instruct the jury to give "the premiums or proportion of premiums paid;" "the premiums or a due proportion of the premiums paid," and "due proportions of the premiums paid.  [**25]  " The plaintiff, if entitled to recover at all, was entitled to the whole premiums paid or to a portion of them. It was for the court to say whether he should have the whole or a part, and if a part it was for the court to determine what part. The court would have manifestly erred in leaving it to the jury to give the whole or a part, in their discretion, and to determine, if they gave a proportion, what proportion was the "due" one.

The 1st and 4th prayers are clearly defective in asserting the appellant's right to recover the whole premiums paid "for insurance on all the property," when the covenant, in terms, only provided for the insurance of a two-thirds interest.

The 1st, 2nd, 4th and 5th prayers are further erroneous, because they assume the right of Mayhew to insure the "machinery and fixtures" at Hardesty's expense. The covenant is to insure the "factories and buildings" only to the extent of a two-thirds interest. There were no "factories" on the land at the time, and all the machinery and fixtures in existence were at another place. These fixtures and machinery were, by deed of even date with the lease which contains the covenant, mortgaged to the lessors as a security [**26]  for the rent, together with all other machinery and fixtures which might thereafter be put up, &c. That mortgage of machinery and and fixtures has been assigned to Mayhew, the present appellant. Now one of two things is clear: Either the machinery and fixtures are mere chattels, or they are attached to and pass as part of the realty. If they are mere chattels it seems impossible to determine that they are covered by a covenant to insure "buildings and factories," or that such a covenant runs, as to the chattels, with the land. If they are attached to the realty then Mr. Mayhew is assignee of a mortgage of part of the leasehold premises, and must, upon the appellant's own doctrine, be liable under the identical covenant here sued on; he being, quoad hoc, in precisely the same relation to the lease that Hardesty occupies, with the additional difficulty of being a prior mortgagee. In either case the prayers referred to must be bad. In the one, supposing the fixtures, &c., to be chattels, Mr. Mayhew is estopped from asking that he be allowed to insure them as "buildings" at Hardesty's expense. In the other, if they are an interest in land Mayhew is clearly precluded from fixing on Hardesty,  [**27]  as the prayers require, the duty to insure the whole, for the insurance of part of which he is, himself, on his own doctrine, bound. As mortgagee of the leasehold interest in the machinery and fixtures he cannot escape from the obligation to keep them insured, if there be anything at all in the theory of his own case; and being so obliged he had no right to ask, and the court would have erred in instructing the jury, that Hardesty was liable for the whole. At the most Hardesty could only have been liable for the proportion which the value of the buildings might bear to the machinery and fixtures, and the prayers were erroneous in ignoring this. The same error, in fact, pervades and vitiates all the prayers.

4th. There is a still further and fatal objection to all the prayers, which is, that assuming Hardesty to be assignee of the term, and liable as such, in virtue of his privity of estate, they overlook the conclusive fact that Hardesty was only mortgagee of an equity of redemption and not of a legal estate. Besides the interest in the machinery and fixtures, which Mayhew holds under the first mortgage of all, Capron had a mortgage of the legal estate of the term. It is true [**28]  he joined in the mortgage to Hardesty, but, distinctly, not for the purpose of abandoning his estate. It was only to waive his priority of payment.

It will be further observed, that all the prayers treat Hardesty as mortgagee. None of them advert to the deed of the 14th of November 1850, by which the Avondale Factory passed its equity of redemption to him. Indeed none of them require the jury to find the execution of even the original lease or the mortgage to Hardesty. They all assume and take, distinctly, from the jury these fundamental facts of the case. It is respectfully submitted, that not one of the prayers can be indicated which was not properly rejected under this court's repeated decisions, on that ground if on no other.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and MASON, J.  

OPINIONBY:
MASON 

OPINION:

 [*494]  MASON, J., delivered the opinion of this court.
The principal questions raised upon this appeal are:--first, whether the appellee, Hardesty, as mortgagee of the term, notwithstanding he never took possession of the premises, is liable under the real covenants of the assignor? secondly, if he was, did not the sale and bond of conveyance to Mason, accompanied [**29]  with possession, so far amount to a legal transfer of all his interest, as to make Mason, and not himself, liable under the covenants? and thirdly, if not liable as mortgagee out of possession, or if there has not been a complete transfer of all interest to Mason, so as to make him liable, will not the possession of Mason, under the peculiar circumstances of the case, be regarded as that of Hardesty, so as to make him mortgagee constructively in possession?
In settling the first two questions, we need not look to the English authorities nor to those of our sister States, as we think the decisions of our own Court of Appeals have settled both. The third question, therefore, becomes unimportant.
By a close inspection of the case of Hintze vs. Thomas, 7 Md. 346, it will be found that the principle is clearly recognised, that where a party takes an assignment of a lease, as in the present case, the whole legal estate passes, and he 

 [*495]  thereby becomes liable on the real covenants, whether he became possessed, or occupied the premises, in fact, or not.
This is also now the law in England, notwithstanding the earlier decision of Eaton vs. Jacques, Doug.  [**30]  , 455, to the contrary.  Williams vs. Bosanquet, 1 Brod. & Bing. 230, 5 Eng. Com. Law Rep. 72. The same rule prevails at least in some of our sister States.  Pingrey vs. Watkins, 15 Vt., 479.
But it is contended by the appellee's counsel, as his second ground of defence, that even if he had been liable, by mere force of the mortgage, to him, and without possession, such liability was divested by the sale and bond of conveyance of his interest to Mason, and the possession of the latter thereunder.
This is not a correct legal assumption. Unless Hardesty transferred to Mason his entire interest or term, the latter would not thereby be an assignee, but a mere sub-lessee, and as such not liable under the covenants. The case of Peter vs. Schley, 3 Har. & Johns. 211, determines, that such an entire interest as is ascribed to Mason, that is, an interest for more than seven years, cannot, under our registry laws, be transferred or assigned in any other way than that prescribed by those laws, and that no acts, in pais, short of a deed duly executed and recorded, are competent for that purpose, (act of 1766, ch. 14.)  [**31]  Mason, therefore, cannot be regarded as the legal assignee of Hardesty's entire interest, and is not on that account liable to the appellant.
We are also of the opinion, that the term "factories" embraces the fixed machinery necessary to operate the factories, and the reason is, that without such necessary machinery, the buildings would not in fact be factories. A building is no more a factory without machinery, than machinery would be a factory without a building. A covenant, therefore, to keep insured a factory, necessarily embraces the obligation to keep the machinery necessary for the operation of the factory also insured: among such necessary fixed machinery would be included the water-wheel, shafting and gearing.
In the main, we think the theories of the appellant's first 

 [*496]  three prayers are correct, but we do not deem it necessary to affirm all the legal propositions advanced by each of those prayers. The last three prayers, which rest upon the notion that Mason's possession should be treated as the possession of Hardesty, need not be passed upon in the view we have already taken of the case.
We reverse the judgment, in order that the Court of Common Pleas,  [**32]  upon another trial, may instruct the jury in accordance with the principles herein announced.
Judgment reversed and procedendo awarded. 

84 of 187 DOCUMENTS 

JACOB STOKELEY vs. WILLIAM J. M. GORDON, and ANNA MARIA GORDON, his wife's Lessee.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 496; 1855 Md. LEXIS 75 

DECEMBER, 1855, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

Ejectment by the appellees against the appellant for a house and lot in the city of Baltimore. Plea, non cul.

1st Exception. The property in question belonged to Mrs. Ann Craig, who died in August 1843, leaving a will, executed on the 10th of May 1843, by which she devised the house and lot, now in controversy, "unto Anna Maria German, (wife of Jonathan German,) to her, the said Anna Maria German, her heirs and assigns, in fee-simple." The will, also, contains a bequest of railroad stock, and another of specific articles of silver to "Anna Maria German, (wife of Jonathan German.") It was admitted that Anna Maria German was born on the 27th of November 1829, and was the daughter, not wife, of Jonathan German, and that she intermarried with William J. M. Gordon after the death of Mrs. Ann Craig, and before the institution of this suit. It was also admitted that the wife of Jonathan German was named Catharine German, and that Jonathan German died after Mrs. Ann Craig. (The plaintiffs in this suit are, Gordon and wife, claiming in right of his wife, who was Anna Maria German, the daughter of Jonathan German; and the defendant Stokely,  [**2]  is the tenant of Catharine German the wife of Jonathan German.)

The plaintiffs then offered a competent witness, and proposed to prove by him that Anna Maria German, (now Gordon,) was the great niece of the testatrix, Mrs. Ann Craig; that her first name, Anna, was given to her after the testatrix; that the testatrix took her to live with her when a small child, about six or seven years of age, and that she lived with her from that time up to the death of the testatrix, a period of seven or eight years, and that the testatrix uniformly treated her with great affection; that she gave her her board, caused her to be educated at her own expense, and conducted her religious training and education; and that the testatrix was an aged widow who had never had children. To the admissibility of which testimony, and of all parol testimony to show or explain an ambiguity in the will of the testatrix, Ann Craig, the defendant objected, upon the ground that the devise of the property in suit is to and in favor of the wife of Jonathan German, and that the will is free from ambiguity. The court, (FRICK, J.,) overruled this objection and allowed the witness to be sworn on the part of the plaintiffs.  [**3]  To this ruling the defendant excepted.

2nd Exception. The plaintiffs then proceeded to offer evidence to the jury, the admission of which it was agreed should not be held an abandonment by defendant of the question of law and objection raised in the first exception. The plaintiffs then, in addition to the evidence set forth in the first exception, proved by witnesses, substantially, as follows:

Miss Linthicum testified that she knew Jonathan German, and his wife Mrs. Catharine German, who was familiarly called Kitty; that she knew Mrs. Ann Craig, and Anna Maria German the daughter of Jonathan and Catharine German, who was called Anna after Mrs. Craig, and was a great-niece of Mrs. Craig; that Mrs. Craig had a brother and some sisters, but never had any children, and was a widow twenty years or more previous to her death, on the 28th of August 1843; that Anna Maria was living with Mrs. Craig in August 1836, being then very small, and continued to live with her from that time till her death; Mrs. Craig was very kind to Anna Maria, though witness does not think she was treated as an adopted child. Isabella Stansbury, another great-niece of Mrs. Craig, was also taken to live [**4]  with her, and did live with her till her death. Mrs. Craig gave them their board, and said she educated them, and that she occasionally gave them presents. Witness heard Mrs. Craig say she intended giving the piano to Anna Maria German, and a silver cake basket or baskets, and the rest of her silver to Mary Ann Craggs; and also heard her say, that if Anna Maria German behaved herself she would not forget her when she died. Anna Maria always went with Mrs. Craig to the Baptist church, (her family were Episcopalians,) and was sent to the Baptist sunday school by Mrs. Craig. Witness thinks Anna Maria slept in the same bed with Mrs. Craig, and accompanied her to the springs in 1843, shortly before Mrs. Craig's death, being then about fourteen years of age.

Mrs. Trott was slightly acquainted with Mrs. Ann Craig; saw her at Jonathan German's house, and heard her say, in the midst of the family, and in the presence of Anna Maria German, that if Anna Maria would be a good girl, and mind her, she would never want for any thing at her death: this was a year before Mrs. Craig's death.

Benjamin German, a brother of Jonathan German, deceased, proved that Mrs. Craig had been a widow twenty [**5]  years, and had never had children; that she had a brother who had several children, and a sister, and that Mrs. Catharine German was the daughter of a deceased sister; that Mrs. Craig lived with Jonathan German for some years, and until Anna Maria German was from five to seven years old, when she went to her own house and took Anna Maria with her. That she manifested as much devotion to Anna Maria as if she was her own child; that she went with her to church, and assumed her religious training and education. Also, that Mrs. German and Mrs. Craig were upon affectionate terms, and that the former visited Mrs. Craig frequently; that Mrs. German, when a child, and going to school, staid part of her time with Mrs. Craig, and part with her uncle; that Jonathan and Catharine German had other children besides Anna Maria, but all of them except one, a son, were small, and were not very often at Mrs. Craig's.

Miss Blatchley was, for five or six years, intimate with Mrs. Craig, and visited her often; that Mrs. Craig took Anna Maria as her own daughter, and told witness that she so considered her; that she was very fond and affectionate to her, and had the religious training and education [**6]  of her; that Mrs. Craig often told witness she intended to leave Anna Maria enough to live on; that she intended to leave her a house in York or East Baltimore street, a watch and chain, a silver basket, and a piano; that she said this frequently; that this was about two or three years before her death.

John Hanan, offered on the part of the defendant, testified, that he was sent for to go to the house of Jonathan German to draw the will of Mrs. Craig; that he went to her room, and asked her to give him the bequests; that she did so and he put them down rough, and then read them to her slowly, and asked if it was right? and she said it was; that he then took the papers home, and drew the will from the memoranda he had made; that he took it the next day to Mrs. Craig and read it to her, and asked her if it was what she wanted? and she replied that it was; he then sent for witnesses and caused it to be executed, and handed it to her; that he was always under the impression that Mrs. German's name was Anna Maria, and thought she was named after Mrs. Craig; that he inserted the words, "wife of Jonathan German," after the name, that there might be no mistake about the person intended.  [**7]  He has no recollection that the name, Anna Maria, was mentioned; that he put it down of his own accord, and then read it to her; that Mrs. Craig was in good health at the time, which was three or four months before she died.

On cross-examination this witness stated, that he took down the names of devisees from Mrs. Craig's lips; that he varied from the plan, because he thought Mrs. German was intended; that he took the names, and put down the relations of his own caution. He thought Mrs. German's name was Anna Maria; that he wrote the words, "Ann Maria German, (wife of Jonathan German,)" in the rough draft; that he put the word "wife," himself, and that Mrs. Craig did not tell him.

The defendant then prayed the court to instruct the jury, that if they should believe that the testatrix, Ann Craig, executed the will given in evidence, and all the other testimony given in the case, then notwithstanding all the parol testimony, and notwithstanding the jury shall believe the christian name of Jonathan German's wife is Catharine and not Anna Maria, and that Anna Maria is the christian name of said Jonathan's daughter, and that she was in being, and so named, at the date of the [**8]  will of the testatrix, and that she is now Anna Maria Gordon, and the wife of William J. M. Gordon, and was married to said Gordon after the death of the testatrix, the plaintiff is not entitled to recover, the true construction of said will being, notwithstanding the error in the said wife's christian name, to pass to the wife of said Jonathan German, the property in the several devises and bequests therein set forth, as made to "Anna Maria German, wife of Jonathan German." This instruction the court refused to give, and to this ruling the defendant excepted. The verdict and judgment were in favor of the plaintiffs, and the defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

A testatrix devised a house and lot to "Anna Maria German, wife of Jonathan German." Anna Maria was not the wife but the daughter of Jonathan German, and his wife was named Catharine. The daughter and wife both claimed the devise. HELD:

Per Mason, J., That parol testimony was inadmissible to show, whether the testatrix intended to devise the property to the daughter or the wife; that the question was one of construction from the face of the will, and the wife was entitled to the devise.

Per Tuck, J., That the devise was void, for uncertainty; and that the property descends to the heir at law as if the party had died intestate.

Per Eccleston, J., That upon a proper construction of the will, in connection with such evidence as was legally applicable to the case, the daughter is entitled to the property.  

COUNSEL:
Charles F. Mayer for the appellant, argued:

1st. That although it is admitted that Anna Maria is not the christian name of Mrs. German, yet that the effect of the dispositions in the will is to make the "wife of Jonathan German" the devisee and legatee; and that only one who fulfilled that relation and answered that description can take under the will the particular property now in dispute; and that therefore no case of latent ambiguity is presented which authorises any parol testimony, or is required, for determining [**9]  the testatrix's intent; and that that is emphatically true, as there can be but one person, as the wife, pointed to; just as (in the position in Coke Litt., 3. a,) where a grant is made to Robert, Earl of Pembroke, avails, although the earl's name is not Robert, but Henry. In designation of parties who are to take interests, or are in the view of stipulations, the particular relation or capacity mentioned, for the purpose of identifying them, is imperative as one of the terms of designation, and is much more to be regarded than the name, as the relation or capacity is more surely and obviously to be known and considered than is a name. Who can doubt, that if the devise had been "to the wife of Jonathan German, Anna Maria German," or "named Anna Maria," the construction must have been that the "wife" alone is meant? How does the present phraseology differ from that thus supposed? Anna Maria is used, and to obviate chances of error and make the meaning certain, the identification, as "the wife of Jonathan German," is superadded. The parenthesis for the words "wife of Jonathan German," indicates that pointedly. It is so the law appreciates this definition of the party meant to be benefited,  [**10]  and explains the occasion and purpose of it: De nomine proprio non est currandum quum in substantia non erretur. 6 Coke, 66. Branch's Principia, 38. Fonb. Eq., 427, book 1, ch. 6, sec. 11. 1 Greenlf. on Ev., secs. 299, 287, 289, 301, 290. 10 Johns., 137, Jackson vs. Stanley. 3 Ves., 321, Campbell vs. French. 4 Do., 680, Price vs. Page. 6 Do., 42, Smith vs. Coney. 19 Do., 382, Stockdale vs. Bushby. Hobart, 170, 171, Stukeley vs. Butler. 5 Mees. & Wels., 363, Hiscocks vs. Hiscocks. 2 Younge & Collyer, 72, Bradshaw vs. Bradshaw. 11 Simons, 467, Blundell vs. Gladstone. 9 Eng. Law & Eq. Rep., 269, Adams vs. Jones. 11 Do., 191, The General Lying-in Hospital vs. Knight. 21 Do., 66, In re. Rickit's Trust. 23 Do., 207, Bernasconi vs. Atkinson. Ibid., 239, Douglas vs. Fellows. 5 Md. Rep., 304, Walston vs. White. 7 Do., 22, Douglas vs. Blackford.

2nd. Description is said to be inferior, as means of designation, to name, when appended to the name and when false. But that principle does not govern where there is truth in the description as being applicable to another person, and where, under that description, this other person may claim. This relative grade of description is marked by the [**11]  maxim of "falsa demonstratio non nocet," and no other position than this maxim is meant by it. It is applied only where the named party "is certain;" that is, is certainly the person meant. Such is the language of the doctrine. As, suppose, a devise "to my brother A, Judge in Calcutta," when although the brother is truly named A, yet he is not a judge nor resides in Calcutta. There the description yields as a falsity, and the name prevails. Broom's Legal Maxims, 269 to 274. 6 Tcrm Rep., 671, Thomas vs. Thomas. 1 Lord Raymond, 304, King vs. Bishop of Chester. 1 Greenlf. on Ev., sec. 301. Fonb., 427. 2 Kent, 271.

3rd. Latent ambiguity arises, and parol evidence is admissible, only where extra the instrument more than one are shown to exist, answering the description or designation of the party named as for the benefit of the instrument, or where two or more parties are shown fulfilling each in part the description annexed to the name. The cases of 3 Barn. & Ald., 632, LeChevelier vs. Huthwaite, and of 1 Ed. Ch. Rep., 189, and 4 Paige, 272, Smith vs. Smith, are instances of the last branch of the position just advanced in regard to the latent ambiguity. In the first case the party [**12]  named fulfilled the description as being a son, thought not a second son, as he was characterised, and he who was truly the second son was in competition with him, as within the testator's bounty. In the other case, (Smith vs. Smith,) the party named fulfilled, as being a wife, the annexed description in part, but did not, in name, correspond to the testator's words. If Anna Maria had been a wife at all, and (as "German" is affixed to "Anna Maria,") a wife of one German, not a Jonathan, then a case of latent ambiguity would have arisen and such a case as is exhibited in the two authorities just adverted to, relied on by the appellees. These cases, however, disprove one position of our adversaries; that is, that the name is to prevail over all descriptions, as preeminently signifying the person in view of the testator. Were that so, why was not Mary Smith declared legatee, without the introduction of parol proof to test the testator's meaning between her and Sarah, in Smith vs. Smith? And in LeChevelier vs. Huthwaite, why was not Stokeham Huthwaite construed the devisee, without making his claim dependent on parol proof for explaining the testator's intent? 8 Bing., 244, Miller vs.  [**13]  Travers. 1 Greenlf. on Ev., sec. 299. 5 Mees. & Wels., 363, Hiscocks vs. Hiscocks. 23 Eng. Law & Eq. Rep., 239, Douglas vs. Fellows.

John H. Handy and Levin Gale for the appellees, argued:

1st. That it being shown by the parol evidence that Anna Maria German was the daughter of Jonathan German, and that Jonathan German's wife was named Catharine, a latent ambiguity is shown, and that parol testimony is admissible to aid in the construction of the will, particularly evidence of the situation and condition of the testatrix, and the relationship and intimacy existing between her and the person claiming the devise, which was the substance of the evidence excepted to. The cases of Smith vs. Smith, 1 Edw. Ch. Rep., 189, affirmed on appeal in 4 Paige, 272, and Doe on Demise of LeChevelier vs. Huthwaite, 3 Barn. & Ald., 632, are almost identical in their circumstances with this case, and in both cases parol evidence was held admissible. The general rule on the subject is announced in the case of Miller vs. Travers, 8 Bing., 244, and was adopted by the Supreme Court in Atkinson's Lessee vs. Cummins, 9 How., 479. Parol evidence was also held admissible in the following cases, and in [**14]  many others too numerous to cite: 8 Iredell, 39, Eringhaus vs. Cartwright. 1 Iredell's Eq. Rep., 11, Simpson vs. King. 15 Conn., 274, Brewster vs. McCall's Devisees. 4 Johns. Ch. Rep., 607, Thomas vs. Stevens. 1 Paige, 291, Connolly vs. Pardon. 2 Dana, 47, Tudor vs. Terrel. 1 Ves., Jr., 266, Parsons vs. Parsons. Ambler, 175, Dowset vs. Sweet. 19 Ves., 601, Careless vs. Careless. 10 Leigh, 199, Maund's Adm'r vs. McPhail. 1 Wend., 541, Doe vs. Roe. 1 B. Monroe, 111, Haydon vs. Ewing's Devisees. 1 H. & J., 192, Dorsey vs. Hammond. 3 Watts, 385, Vernor vs. Henry. 12 Penn. State Rep., 136, Brownfield vs. Brownfield. 2 Mees. & Wels., 129, Gord vs. Needs. 12 Adol. & Ellis, 451, Allen vs. Allen. 4 Ves., 680, Price vs. Page. 1 Wm. Black., 60, Jones vs. Newman. 4 Md. Rep., 506, Marshall vs. Haney. 5 Do., 303, Walston vs. White. 7 Do., 22, Douglas vs. Blackford. 1 House of Lord's Cases, 778, Lord Camoys vs. Blundell, and the same case in 11 Simons, 467, 6 Term Rep., 671, Thomas vs. Thomas. 2 Younge & Collyer, 72, Bradshaw vs. Bradshaw. 23 Eng. Law & Eq. Rep., 207, Bernasconi vs. Atkinson. Ibid., 238, Douglas vs. Fellows. There is no case in England or in this country which has dared to question [**15]  a single point decided in Miller vs. Travers; but on the contrary, that case has been affirmed by every court in which the question has been raised.

2nd. That if the will is free from ambiguity, and either the name or the designation is to be preferred, that the name is entitled to the preference, and that therefore Catharine German, the wife, is not entitled before Anna Maria, the daughter, who bears the name. On this point, see Bacon's Maxims of the Law, rule 25: "Presentia corporis tollet errorem nominis et veritas nominis tollet errorem demonstrationis." Under which rule Lord Bacon says: "There be three degrees of certainty: 1st. Presence. 2nd. Name. 3rd. Demonstration." And again: "The proper name of every one is in certainty worthiest; next are such appellations as are fixed to his person, or at least of continuance, as "son of such a man," "wife of such a husband," &c. See also 1 House of Lord's Cases, 778, Lord Camoys vs. Blundell.  

JUDGES:
The cause was argued before ECCLESTON, TUCK and MASON, J.  

OPINIONBY:
MASON 

OPINION:

 [*504]  MASON, J., delivered the following opinion:
In what cases, and to what extent, parol testimony is admissible to explain ambiguities in wills, or to ascertain [**16]  the intention of the testator dehors the will itself, are questions, the determination of which has ever been attended with the greatest difficulty. To this class of questions does the one presented upon this appeal belong.
On the trial below it was admitted that Mrs. Craig, the testatrix, was seized of the real estate in controversy, and that 

 [*505]  by her will, duly executed, she devised the same "to Anna Maria German, wife of Jonathan German," and that Anna Maria was not in fact the wife, but the daughter of Jonathan German, but that his wife was named Catharine.
In this condition of the case the question arose, whether parol testimony was admissible to enable a jury to ascertain whether the testatrix intended to devise the property to the daughter, or the wife, or whether such parol evidence was to be excluded, and, from the will itself, arrive at the intention of the testatrix? Parol evidence was received, and the question of intention submitted to the jury, who found in favor of the daughter, and hence this appeal.
In all cases it is necessary, in construing wills, that the court should be placed, by parol evidence, in possession of all the surrounding facts [**17]  and circumstances connected with the testator, and which tend to show his situation in his relations to the persons and things to which his devise may refer. Therefore it would have been proper in this case to have shown, if the fact had not been admitted, that the name and description of the devisee did not concur. Properly speaking this is not that kind of evidence which is intended to explain written instruments, but is proof necessary to enable the court to understand the situation of the testatrix, and thus reach the meaning and application of the words employed in the will. But the evidence which is sought here to be introduced, to show the intention of the testatrix, independent of the words of the will itself, and of such surrounding circumstances as have been alluded to, is a question of a very different nature. The inquiry then arises, in what cases extrinsic evidence of intention on the part of the testator is admissible: or, in other words, in what cases can ambiguities in written instruments be explained by parol proof?
Patent ambiguities are those which appear upon the face of the writing itself: as for example, a will with the name of the devisee left in blank.  [**18]  As a general rule such ambiguities cannot be explained, but if settled at all, must be from the face of the paper itself.
On the other hand a latent ambiguity is, where a writing is 

 [*506]  perfect and intelligible upon its face, but from some circumstance admitted in proof, a doubt arises as to the applicability of the language employed to a particular person or thing; but it is by no means an universal rule that general parol evidence is admissible to explain even latent ambiguities, or that such questions, in every instance, are questions of fact for the jury. The present case presents an example of a latent ambiguity.
Cases of latent ambiguity may be classed under three heads. The first is, when the description contained in a written instrument, of the person, thing or place intended, is applicable with equal certainty to each of several subjects, as a devise to "my cousin John," when the testator has two cousins John. In cases belonging to this class, and in none other, (it would seem from the later authorities,) is general parol evidence of the intention admissible, such as the declarations of the testator at the time and before executing the will, the nature and character [**19]  of his intercourse and relations with the different parties, and things intended to be described, and the like. This principle, in the broad language in which we have laid it down, has been recognised in a number of cases, but the rule upon the subject is perhaps no where so well and fully defined, as in the recent case of Hiscocks vs. Hiscocks, 5 Mees. & Wels. 363, by Lord Abinger. He says: "Now, there is but one case in which it appears to us that this sort of evidence (the testator's declarations, the instructions given for his will, and other circumstances of the like nature,) of intention can properly be admitted, and that is where the meaning of the testator's words is neither ambiguous nor obscure, and where the devise is on the face of it perfect and intelligible, but from some of the circumstances admitted in proof, an ambiguity arises, as to which of the two or more things, or which of the two or more persons, (each answering the words of the will,) the testator intended to express. Thus if the testator devise his manor of S to A, B, and has two manors of S," &c. "It appears to us, that in all other cases parol evidence of what was the testator's intention [**20]  ought to be excluded, upon this plain ground, that the will ought to be made in writing; and if his intention cannot be made to appear by the writing, explained by circumstances, there is no will."

 [*507]  In a still later case, (1853,) Bernasconi vs. Atkinson, 23 Eng. Law & Eq. Rep. 207, the same principle is thus broadly announced: "Now, I think it is quite plain, upon looking through the authorities, that there is only one case in which any evidence can be introduced to show the intention of a testator, namely, where the description in the will is equally applicable to two different subject matters of devise, or to two different persons."
Again, in Wigram on Wills, (2 Lib. of Law & Eq.,) Prop. 7, page 101, it is said, "that courts of law, in certain special cases, admit extrinsic evidence of intention to make certain the person or thing intended, when the description in the will is insufficient for the purpose. These cases may be thus defined:--when the object of a testator's bounty, or the subject of disposition, (i. e., the person or thing intended,) is described in terms which are applicable indifferently to more than one person or thing, evidence [**21]  is admissible to prove which of the persons or things so described was intended by the testator."
To this class of cases belong those of Cheney, 5 Rep., 68; Couden vs. Clerke, Hobart, 32; Jones vs. Newman, 1 Wm. Black 60; Doe vs. Westlake, 4 Barn. & Ald. 57; Fox vs. Collins, 2 Eden 107; Brownfield vs. Brownfield, 12 Pa. 136, and others. In all those cases general parol evidence was properly admitted, including the declarations of the testator, to show his intention, or explain his meaning. And the reason of the rule is obvious, and it is because it would be impossible to form any general, sensible rule of interpretation, by which courts could settle such questions from the face of the will itself, and they would remain undetermined, if parol proof of intention were not permitted to go to the jury. In the case of Vernor vs. Henry, 3 Watts 385, Chief Justice Gibson says: "When the designation is by a name common to two or more, and without reference to circumstances of description, the question of identity is one purely of fact."
The second class of cases of ambiguity is, where the name, or description,  [**22]  or both, of the person or thing intended to be referred to, is in some respect so far incomplete or erroneous, as not to refer with precision to any particular person or thing, 

 [*508]  and therefore the defect or omission has to be supplied by implication, as, for example, a devise was to "Catharine Earnly," while no person of that name claimed the legacy, but one Gertrude Yardly did.  Beaumont vs. Fell, 2 Peere Wms. 140. The cases of Thomas vs. Thomas, 6 Term Rep. 671; Vansant vs. Roberts, 3 Md.  119, and others, are also examples of cases of this character. It may be added that out of such cases have arisen the greatest difficulties and conflict of authorities, as to whether such questions were to be determined by the court or by the jury, and to what extent, if at all, extrinsic evidence was admissible to ascertain the testator's intention. In many instances the same rule has been adopted as in cases falling under the first head, and the widest latitude has been allowed to the introduction of evidence to the jury, and the two English cases last cited are examples of the great extent to which courts have gone upon [**23]  this point. We have referred to them, not as authorities, (for they have not been sustained by later cases,) but as illustrations merely of our meaning. The case also of Camoys vs. Blundell, 1 House of Lords' Cases, 778, is one of this class, and the same case is also reported in 11 Simons 467, and is more fully referred to hereafter. In modern decisions much less latitude is allowed in the admission of testimony of intention than was warranted by the earlier cases, and, if what we have said upon the first head be correct, the practice of submitting such questions as those which belong to cases arising under our second head to the jury at all, and especially upon the declarations of the testator, and other similar evidence, is not warranted by sound general principles, or by cases of later adjudication. All such questions are questions of construction for the court, and must be determined from the face of the will itself, in connection only with such facts and circumstances as, in the language of Lord Coke, "stand well with the will."
In the case of Blundell vs. Gladstone, as reported in 11 Simon 467, and which we have before said belongs to this class, the vice-chancellor [**24]  says: "The sole question is, who was the person described as 'Edward Weld, of Lulworth, in the county of Dorset, Esquire?' That is the sole question, 

 [*509]  and for the purpose of determining it I shall only advert to the evidence which has been given, and very properly given, of the state of the Weld family, entirely rejecting from my consideration every thing else dehors the will, that can be at all said to bear upon what the testator's intention was. I look only at the facts of the case, namely, at those facts which show the state of the Weld family at the date of the will, and what the testator has said in his will." See also 5 Pick. 512, and particularly the case of Douglas vs. Fellows, 23 Eng. Law & Eq. Rep. 240. The case of Vansant vs. Roberts, 3 Md. 119, was a case of this class, and there this court rejected parol evidence and decided the case from the face of the will, and the surrounding circumstances.
Then comes the third class of cases, as where the name used applies perfectly to one person or thing, while a description employed applies as perfectly to another. To this class belongs the case we are now considering.  [**25]  Such also were the cases of Doe vs. Huthwaite, 3 Barn. & Ald. 632; Smith vs. Smith, 1 Edwards Chan. Rep. 189; Adams vs. Jones, 9 Eng. Law & Eq. Rep. 269; Bradshaw vs. Bradshaw, 2 Younge & Col. 72; Vernor vs. Henry, 3 Watts 385; Douglas vs. Blackford, 7 Md. 8, and others.
The first matter to be determined, in a case like the present, is, whether the question is one of fact for the jury, or whether it is one of construction for the court? Upon principle it seems plain, that it must be one of construction, and should be settled by the court from the face of the will, in connection with the surrounding circumstances attending the transaction, although it is to be admitted, which it is to be regretted, that the authorities are very conflicting upon the subject, and any attempt to reconcile or harmonise them, would be a work of impossibility. In speaking of wills being the subjects of construction for the court, of course it is only meant to embrace such cases where the facts, which would be properly admissible in evidence, are admitted. In every instance when facts are denied, they must be found by the [**26]  jury upon a hypothetical instruction from the court. Ch. J. Gibson, in Vernor vs. Henry, says, "that the ascertainment of intention from the will itself falls within the province of the court."

 [*510]  Here it may be remarked, if the principle laid down under our first head, upon the authority of Lord Abinger and others, be correct, then the present case is not one for the jury, or for the admissibility of parol evidence, because it does not fall within the rule there prescribed for the admission of such testimony. Where, from the face of the will, in connection with the surrounding circumstances, a case is disclosed, upon which the judicial mind can take hold, and upon principles of reason or logic, arrive at a conclusion in regard to the testator's intention, then the case is one of construction for the court, and not one of intention depending upon extrinsic evidence and to be found by a jury. The case before us is one of this character, while cases falling under our first head could never be determined upon any such principle, and must therefore be submitted to a jury upon general evidence of intention. And it may be added, that this question is a matter of construction [**27]  for the court appears manifest from the circumstance, that as far back as Lord Bacon's time, a rule of interpretation was adopted by which cases of this kind were to be determined, and that that rule, with certain qualifications, has been repeated and recognised down to the present period. If this therefore be a question purely of intention, to be governed by the peculiar facts of each case, as understood by different juries, does it not follow that the result would work a complete abrogation of the rule? In other words, where is the office of this or any other rule, if each case is to turn upon the intention of the testator independent of all rules?
Lord Bacon states the maxim of law to be, "veritas nominis tollit errorem demonstrationis;" which is, the truth of the name takes away, or controls, the error of the description. As recently as 1849, Chief Justice Gibson, in the case of Brownfield vs. Brownfield, already cited, adopts precisely the same rule, in this language: "Where a concurrent designation by name and description disagree, the rule is, that the former shall be taken to be more worthy in certainty." And the same rule is commented upon in the still more recent [**28]  English case of Camoys vs. Blundell, 1 House of Lords' Cases, 778. Of the rule Lord Brougham says, "I admit its authority as a general principle."

 [*511]  If, therefore, this rule comes to us well sanctioned, as it certainly does, then we are to conclude, that all questions falling within the purview of the rule, are to be governed by the rule, and that we have no more right to disregard rules of interpretation in arriving at the purpose of the testator, by submitting the question of intention to the jury, than we would have to disregard the long and well established rule adopted in Shelly's case, and to make all the questions so long controlled by that rule, depend entirely upon the capricious conclusions of juries, based upon facts outside of the instrument. All wills, it is true, depend upon the intention of the testator, but in every case, except the one already referred to, namely, where the designation is by a name, common, with equal certainty, to two or more persons or things, that intention must be ascertained by the court from the face of the will itself, and the surrounding circumstances which are connected with, or relate to, the parties, or the subject [**29]  matter of the devise, and upon established rules of interpretation.
The error in the present case consists, in having submitted to the jury the question of intention, and in having received testimony other than that which was simply sufficient to bring the case within the operation of the rule, by showing that the name designated one person, while the description pointed to another. At this point of the case the rules of interpretation ought to have been invoked, and from them the intention ascertained.
As has before been remarked, the authorities do not sustain with unanimity the principles herein announced: on the contrary, many cases, especially those of earlier date, have admitted parol evidence, in its widest range, to go to the jury in cases in all respects like the present. But we repeat that such cases do not rest upon sound principle, and are not sustained by the more recent decisions. The case of Vernor vs. Henry, was a case like this, and although parol evidence was admitted to ascertain the intention of the testator, yet in the subsequent case of Brownfield vs. Brownfield, Judge Gibson in referring to his previous decision in Vernor vs. Henry, places the decision [**30]  upon the express ground, that it was in pursuance of the 

 [*512]  rule of Bacon. He says, "I can, at present, recall but one case in which a legal conclusion has been drawn from modes of designation. Where, as in the case of Vernor vs. Henry, 3 Watts 385; a concurrent designation by name and by description, disagree, the rule is that the former shall be taken to be the more worthy in certainty." The late cases of Hiscocks vs. Hiscocks, already cited, and Miller vs. Travers, 8 Bing. 244, assail many of the earlier cases upon this question, as unsound. The court, in the first of those cases, say, "it must be owned, however, that there are decided cases which are not to be reconciled with this distinction in a manner altogether satisfactory." And again, "these cases, (Thomas vs. Thomas and Beaumont vs. Fell,) seem to us at variance with the decision in Miller vs. Travers, which is a decision entitled to great weight." By authority of the case of Miller vs. Travers, as well as that of Hiscocks vs. Hiscocks, the earlier cases of Thomas vs. Thomas, 6 Term Rep. 671; and that of Beaumont vs. Fell, 2 Peere Wms. 140, [**31]  are expressly overruled, and we think properly. The case of Douglas vs. Blackford, 7 Md. 8, fully supports the position, that in cases like the present, the question is one of construction for the court, and not a question of intention to be found by a jury.
This then brings us to the consideration of the last point suggested by this record, and that is, as a question of interpretation for the court, who takes under this will, the daughter, or the wife, of Jonathan German?
If the principle laid down by Bacon is to prevail as the unbending rule of law, upon the subject, without qualification, then the daughter would undoubtedly take. But Baron Parke in Camoys vs. Blundell, expressly says, that the rule "is not inflexible." and Lord Brougham in the same case adds, "I admit its authority as a general principle; but still, so far from its being an inflexible rule, I find the learned judges have held that it is not inflexible;" and a number of other cases to the same effect, might be cited.
The reason assigned for this principle, as a general rule of interpretation, is, that the name being more certain than the description, should therefore prevail.  [**32]  It would seem to follow 

 [*513]  as a necessary consequence, that the converse of the proposition would be true, if the description was more certain than the name. It would undoubtedly strike every one as reasonable, that the best and surest way to designate persons would be by the name they bear, yet, at the same time it must also be admitted that title or description, in many cases, would be a paramount and superior designation to the name itself even. What could be a more commanding or certain designation of any woman, than that of "wife of" such a man? How many females do we know, well, and even intimately, as the wives of particular individuals, without even knowing their christian names? The title, in such a case, is so unerring and complete as to absorb the name almost entirely:--in other words, it becomes the substitute for the name itself. Indeed, it is a very common practice at present, to convert the name of the husband into that of the wife, by simply affixing to the former the letters, "Mrs.," thus dispensing with the real christian female name almost entirely.
So with the titles, for example, of president, or governor, or the like. In such cases the designation [**33]  points so unerringly to a particular individual, that the name becomes, comparatively, of small moment.
The precise point involved in the present appeal has been twice adjudicated and reported,--so far as we have been able to discover. The case of Smith vs. Smith, 1 Edwards' N. Y. Chan. Rep., 189, it must be admitted is, in all respects, in direct conflict with the positions we have taken in this opinion. In the first place parol evidence was admitted, for the purpose of reaching the intention of the testator. One of the chief authorities relied on for such a proceeding, was the case of Thomas vs. Thomas, which we have shown has been overruled by the later and better cases. In the next place the old rule of Lord Bacon was recognised without qualification, and the description of "wife of N. S." was made to yield to the name, which pointed to another person. This case was decided in 1831.
On the other hand, the case of Adams vs. Jones, 9 Eng. Law & Eq. Rep. 269, and which was decided as late as 1852, is a case directly in point to support the positions 

 [*514]  herein taken. In that case the devise was "to Clare Hannah Adams, the wife of Thomas Adams." A [**34]  daughter of Thomas Adams was named Clare Hannah, but the name of his wife was simply Hannah. The daughter and wife, as in this case, both claimed the legacy. The court held that the question was one of construction by the court, from the face of the will, and decided in favor of the claim of the wife. The court say, "But, in the present case, the testatrix must have known who was the wife of Thomas Adams, and probably made a mistake in the name." The same theory would determine the present case in the same way. See, also, 1 Coke Lit. 3 a, (Ed. of 1853.)
It is averred with confidence, that if this devise were submitted to the correct thinking and sound judging men of any or all professions, unembarrassed by the extrinsic evidence which has been made to surround and confuse the case, that ninety-nine out of every hundred of them would say the testatrix meant the wife and not the daughter of German.
In the view taken of this case, it would perhaps be unnecessary to express any opinion in regard to the first exception, which related to the admissibility of testimony. Some of the facts proposed to be proved, may have been (but I express no opinion) of that class which [**35]  "stand well with the will," and were therefore admissible, and as the objection to the testimony was general, the court was probably right in overruling it. But if all the legal evidence applicable to the case and none other, had been received, the prayer of the appellant, which adopts the interpretation already suggested, ought to have been granted. But not having been granted, the judgment ought to be reversed.
This opinion has rested, throughout, upon the well settled and almost universally recognised principle of more modern times, that in no case is the bequest to be deemed void for uncertainty, as to the person or thing referred to, by the testator, if, with any degree of reasonable certainty, it can be ascertained upon legal rules of interpretation. I am in favor, therefore, of a reversal of the judgment.
But in the conclusions to which I have come in the foregoing 

 [*515]  opinion, my brother judges do not concur. Judge Eccleston thinks, that upon a proper construction of the will, in connection with such evidence as was legally applicable to the case, the daughter of German is entitled to the property, and that the judgment ought to be affirmed. On the [**36]  other hand, Judge Tuck is of the opinion, that the devise is void for uncertainty, and that the property embraced in it descends to the legal heir, as if the party had died intestate. Without approving of the result of the trial below, he nevertheless thinks, that the ruling of the court upon the first exception was correct, because the objection of the appellant to the admissibility of the testimony, having been general to the whole evidence, and as some of it was legal and proper, the objection was properly overruled under a well established rule frequently adopted by this court. Judge Tuck thinks, also, the prayer of the appellant was properly refused, because it asked the court to say that the property passed to German's wife, while he thinks it descends to the heir or heirs at law.
As between the heirs at law, and Anna Maria German, the daughter, I express no opinion.
The anomalous position of the court upon the questions involved in this case, leads inevitably to an affirmance of the judgment.
Judgment affirmed.
TUCK, J., delivered the following separate opinion:
Although the law, in some cases, admits evidence of surrounding facts, for the purpose of ascertaining [**37]  the meaning a testator may have applied to certain words used in his will, it nowhere countenances the idea, that speculation or conjecture may be indulged in. The facts when received must satisfy the mind, at least beyond a reasonable doubt, that the exposition they are designed to support is the correct one. We must resort to the words of the will, (aided in those cases in which parol evidence is received,) free from conjecture. Ram. on Wills, 31. Lord Mansfield said, "Guesses may be formed, but that is not enough. Perhaps quod voluit non dixit. We cannot make a will for the testator. Conjectures 

 [*516]  may be made both ways." Dougles, 78. The intention must be gathered from the whole will so as to leave the mind quite satisfied about what the testator meant.  3 Burr. 1531. We cannot proceed on loose conjectural interpretations, or by considering what a man may be imagined to do in the testator's circumstances. 1 Eden 43.  3 Term Rep. 85.
It is much to be regretted, I think, that parol evidence was ever admitted except in cases of undoubted latent ambiguity, such as where there are two persons of the same name, or two estates [**38]  or other pieces of property known by the same designation, each answering the words in the will. Here, however, there are not two persons answering fully the name and description in the will. On its face it shows a plain intent, provided the person named is the wife of Jonathan German, but she is not; and hence the property cannot pass to either, according to the words of the will as they are written. If the claim of either be allowed so much of the will as would give the estate to the other must be overlooked or explained. The name applies to one and the description to another, and we are called upon to say which was intended as devisee of the property.
After carefully considering the case, with every disposition to avoid an intestacy, which the books tell us is our duty, I cannot, with any degree of confidence, satisfactory to my own mind, declare, that the exposition of either side is well founded. Part of the evidence taken alone would show one view to be correct, but that is fully met, if not overcome, by other portions of the proof, and when the whole evidence is considered in connection with the will the uncertainty is very much increased. The doctrines of the law applicable [**39]  to these questions are fully discussed by Mr. Wigram under his sixth and seventh propositions, according to which, and the cases there cited, I am of opinion that a prayer affirming the right of either party, claiming as devisee, could not be granted. It is to be remembered that the law pays respect to the rights of the heir at law, and that he is not to be disinherited by slight implication or vague conjecture as to the intent of the testator, gathered from evidence of facts, of which, in the present case, 

 [*517]  it may be safely averred, there is much on both sides. The only safe test, if indeed any can be so called, where the door to parol evidence is once opened, is, as stated by Wigram, 99: "Do the words of the will, when all the circumstances of the case are known, express the intention which is ascribed to the testator? The court which interprets the will must be satisfied that they do so, and no other rule can, in the abstract, be laid down." I am not satisfied from the evidence offered, that either of these parties is entitled as devisee of the property in dispute, when the proof is applied to the language of the will. I consider the devise as inoperative from uncertainty,  [**40]  occasioned by a mistake which we have no power to correct. The prayer, which was refused, having asked the court to affirm the title of the defendant, it was properly refused, as should have been one offered on the hypothesis of the plaintiff's right as devisee. As was said in Hiscocks vs. Hiscocks, 5 Mees. & Wels. 363, the plaintiffs must, for the present, succeed, but the claims of the heirs at law may ultimately prevail.  

85 of 187 DOCUMENTS 

CATHARINE BINNERMAN, (formerly CATHARINE WEAVER,) Adm'x c. t. a. of CASPAR WEAVER, vs. WM. H. WEAVER and GOTLIEB THATER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 517; 1855 Md. LEXIS 76 

DECEMBER, 1855, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Orphans Court for Baltimore city.

This appeal was taken from an order of the orphans court revoking the grant of letters to the appellant and granting letters d. b. n. to the appellees, and directing the appellant to pass another administration account recharging herself with $ 2415.58, which, in her first account, was retained by her as the widow of the testator, and to distribute the same among those legally entitled. The facts of the case are fully stated in the opinion of this court.  

DISPOSITION:
Order reversed and petition dismissed.  

HEADNOTES:

A devise, that "my wife shall keep possession of all my property during the continuance of her life, provided she doth stay unmarried," without a bequest over in the event of marriage, will not defeat the life estate of the wife, it being against the policy of the law and in restraint of marriage.

Under the laws of this State, a married woman may act as executrix or administratrix.

A testator directed that his wife should "keep possession of all his estate" during her life, "provided she doth stay unmarried, to take care of the younger children and raise them up until the youngest child is eighteen years of age; but if she should die or get permanently diseased, or in any other way unable to attend to the duties of the will," then he appointed two other persons "as administrators and guardians of his estate and personal property." HELD:

1st. That the widow was entitled to a life estate in the property embraced in the will, subject to the trusts engrafted upon it in favor of the children.

2nd. Having settled her accounts fully in the orphans court, the jurisdiction of that court ceases, and a court of equity alone can enforce the trusts created by the will.  

COUNSEL:
Geo. H. Williams and Cornelius McLean for the appellant, argued:

1st. That by the true construction of the will of the testator, the appellant, his widow, is entitled, as tenant for life, subject to the obligation to support the testator's children until they arrive at the age specified; that the condition in restraint of marriage is null and void, and there being no limitation over it, in terrorem only, in any aspect of the case. Story's Eq., secs. 287, 289. 6 Mass., 169, Parsons vs. Winslow.

2nd. That the time prescribed by our testamentary system having arrived, she distributed to herself, by her first and final account,  [**2]  all the estate of the deceased, which account was ratified by the orphans court; that that court, therefore, has no longer any jurisdiction over the property, and that parties entitled in remainder must seek another forum in which to enforce their rights, if any they have; that after a lapse of almost two years, the orphans court had no power to direct the appellant to recharge herself with property, the distribution of which they had ratified, and that the proceedings were coram non judice; the property could not be said to be unadministered.

3rd. Even if by marriage the appellant forfeited her tenancy for life, she did not forfeit her right to remain administratrix; that marriage is not only not a legal disability for such an office, but our testamentary laws recognise and provide for the appointment of married women. And that neither as matter of fact or law did the appellant's marriage render her unable to attend to the duties of the testator's will. And the orphans court, therefore, had no right to revoke her letters. Act of 1798, ch. 101, sub-ch. 4, sec. 8, and sub-ch. 14, sec. 7.

4th. That the estate of the testator having been fully administered, the administratrix [**3]  still living and there being no evidence of any other assets, the orphans court had no power to appoint an administrator de bonis non; no case existed for such an appointment; no act of Assembly specifies marriage as a reason for revocation. Act of 1798, ch. 101, sub-ch. 5, sec. 6, and sub-ch. 14, sec. 14.

5th. That no party is entitled to any relief beyond that he prays for. Here is no prayer for revocation of letters nor for general relief, but only "that she may pass a distributive account, that petitioners may take charge of that portion of the estate to which the children were entitled." The court's decree goes far beyond the relief asked for in the petition.

6th. That as a married woman, the appellant's husband should have been cited and made a co-defendant.

John J. Snyder and Charles F. Mayer for the appellees, argued:

1st. The right of the appellant to represent the personal estate is made, by the will, coordinate with the right to possess the estate for the benefit of herself and of her children, who are thence to have their support. When that bequest to her ends her correlative administrative privileges cease. But apart from this, is it not clear that [**4]  by her marriage she became, in the words of the will, "unable to attend to the duties of the will?" How could she, whilst under the restraints and embarrassments of a husband's control, carry out the will in its essential purpose of sustaining the children, when the very marriage cut off the resources which were, by the will, to be used for the support of the children? Her incompetency to perform the duties of the will was thus established by her marriage, and in such an event what was to supervene? The succession of new administrators in the present appellees. It was manifest then to the court, upon the allegations of the petition confessed by the answer, that the powers that had been conferred under a limitation affixed to them by the will had ceased. The court had, therefore, a right, and were even under an ex-officio duty, to revoke the administration or declare that the powers of the widow to act as such had ceased. To do this, which was an incumbent duty on the court, needed no prayer in the petition. But there is here what is equivalent to a prayer for such action, for not only does the petition begin with averring the rights of the appellees, but in asking for a distribution [**5]  account, the object is stated to be, "that the petitioners may take charge of the portions of the estate to which the children are entitled under the will." How could such an investiture of the petitioners be had, unless by superseding the powers of the appellant as administratrix? The administration of the widow was a conditional or temporary one. The terms of the will so make it, and executorships of that character are recognised at law, and are, while they endure, not the less potential, because they may, by supervening circumstances or by efflux of time, come to an end. 2 Shep. Touch., 401. Co. Litt., 209, 960, 40. 8 Coke, 135, Sir John Nedham's case. The administration or virtual executorship of the appellant was here dealt with by the court as thus provisional or transitory.

2nd. If such was the character of the administration to be attached to it in obedience to the will it was to subserve, the jurisdiction of the court to act on the administration seems to follow as an incontestable result. It is not true, that because an account is passed which implies that debts are paid, the orphans court's control over the estate ceases. The act of 1798, ch. 101, sub-ch. 10, secs.  [**6]  6, 10, 11, which speak of accounts showing all debts paid and presenting the estate ripe for distribution, reserves the continuous administrative power for ulterior assets. Whenever, in short, there can arise ground for the court's action within the scope of its ordinary jurisdiction, or for any step concerning its past exercise of jurisdiction, the orphans court may act. 8 G. & J., 226, Alexander vs. Stewart. If once administration ceases, let the cause be what it may, what is to debar the court from constituting another for any possible assets or objects in future to accrue? See also the act of 1798, ch. 101, sub-ch. 10, sec. 11.

3rd. The husband was no necessary party to the petition. Even where administration issues to a married woman, it regularly goes to her alone and not to her husband conjointly. Toller's Exc'rs, 92. Comyn's Digest, Administrators D. 3 Salk., 21. Being concerned only jure alieno, she is treated as sole in reference to the administration, and her husband is consequently no necessary party to any procedure for enforcing from her an account, or otherwise bearing on her administrative capacity.

4th. But it is said, this devise is, so far as it limits [**7]  her benefit until she marries again, void as in restraint of marriage. It might suffice to say:--1st. That she is debarred any such objection to the bequest, as she has made her election to abide by the will. 2nd. That the bequest is not merely to the widow, but effectively is to her and the children, especially the younger children. 3rd. That the children being thus the principal objects of the provision and their interests trenched on only so far as the unmarried state of the widow continues, this is the case of a bequest over upon the marriage, and it is well settled, that where there is a bequest over, conditions in restraint of marriage are valid. 1 Roper on Leg., 555. 3 Atk., 367, Wheeler vs. Bingham. Bac. Abr., Legacies F. 2 Vernon, 357, Stratton vs. Grymes. But it is well settled, that a husband's devise or bequest to his widow, durante viduitate, is good as a limitation. 1 Story's Eq., sec. 285. 2 Vernon., 308, Barton vs. Barton. 2 Greenlf's Cruise, 22, 47. 2 Wms. Exc'rs, 914, 918. 2 Brown's Ch. Rep., 488, Scott vs. Tyler. 3 H. & McH., 93, O'Neale vs. Ward. There is no case contravening this position except that cited from 6 Mass., 169; but that decision is of no weight, and [**8]  as thus insignificant against the established principle it is treated by Story and Greenleaf. Again, in any case the bequest ceases on marriage when that is assigned as the terminating event, whenever the terms so confining the bequest are to be construed a limitation, and not a condition, and no precise words are required for such an operation. The limitation, "until" or "so long as," or any words curtailing the enjoyment and looking to duration, make a limitation. 1 Roper on Leg., 525, 558, 758, 759, and notes. 2 Wms. on Exc'rs, 914, 918. 2 Atk., 321, Richards vs. Baker. What words could be suggested more directly creating a limitation than the words here used, "provided she shall stay unmarried;" pointing to the continuance of an existing state--to a termination by an event of a benefit at once entered into? The doctrine of limitation, as contradistinguished from condition, under this title of conditions in restraint of marriage, is not peculiar to real estate or devises. It is the rule as to bequests and the cases cited are of personalty. It is consequently clear, that so far as the interest of the widow, as legatee, is made the measure of determining the scope of her power as [**9]  administratrix, her authority ceased by her marriage. Upon these considerations we submit, that in form and in substance we are entitled to an affirmance of the decree of the orphans court.  

JUDGES:
The cause was argued before LEGRAND, C. J., TUCK and MASON, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*522]  LE GRAND, C. J., delivered the opinion of this court.
The appellees filed in the orphans court for Baltimore city a petition stating, that a certain Caspar Weaver, by his last will and testament, appointed his wife, Catharine, his executrix, with power to take charge of his entire estate, collect rents, &c., until his youngest child should become eighteen years of age, provided she remained unmarried; but that in the event of her marriage, and for other causes mentioned in the will, then the petitioners should act as executors and guardian's of his estate. It further represented that the said Catharine had contracted marriage with one John H. Binnerman; and prayed that the court pass an order "directing her to pass a distributive account, so that the petitioners might take charge 

 [*523]  of that portion of such estate to which the children might be entitled."
The appellant replied to this application,  [**10]  stating that letters of administration had been duly granted to her, and that she had fully settled said estate so far as the orphans court is concerned; and claiming also, that by a proper construction of the will of her testator, she is entitled to the entire estate during her life.
At the hearing of the cause the court revoked the letters of administration granted to the appellant, and granted letters de bonis non to the appellees. The court also directed that the appellant should state another account, in which she should recharge herself with the sum of $ 2415.50, which was in her first administration account retained by her as the widow of the said Caspar Weaver, deceased.
The clause in the will which gives rise to this controversy is in these words:
"Baltimore, June the eleventh, in the year of our Lord, one thousand, eight hundred and fifty-one, I, Caspar Weaver, I know all men by these presents, and make this instrument of writing my last will a testament, as follows: That my wife, (Catharine Weaver,) shall keep possession of all my property during the continuance of her life, proviting she doths stay unmarried to take care of the younger children and raise [**11]  them up untill the youngest child is eighteen years of age, and that she shall draw the rents of said property and settle all incumbrances thereon to the best advantage; but if said wife should depart this life or should get permanently deseased, or in any other way unable to attend to the duties of my will, I then select my son, William Henry Weaver, and my son-in-law, Gotlieb Thater, as administrators and as gardiens of my estate and personal property."
On the part of the appellees it is contended, that the true construction of this very singular paper is, that on the marriage of the appellant the letters granted to her ought to be revoked and letters de bonis non granted to the appellees.
Under the laws of this State a married woman may act as executrix or administratrix. There is nothing then to disqualify 

 [*524]  her except it be found in the language of the will. To say the least of it, it is very doubtful whether it was not the intention of the testator only to appoint the appellees in case his wife "should depart this life, or should get permanently diseased, or in any other way unable to attend to the duties" of the will. But be this as it may, it is [**12]  clear, that the bequest to the wife, during life, without a bequest over in the event of marriage, is not such a bequest as will defeat the life-estate, it being against the policy of the law and in restraint of marriage. It may be said here, as it was in the case of Evans, et al., vs. Iglehart, 6 Gill & John. 171, "a life-estate in a chattel may be granted for life to one person, and the same with its issue or increase be limited over to another; but this cannot be done but by express words or necessary implication. Here no such express words are used; no such necessary implication arises."
In any event the appellant would be entitled to her interest, jure mariti, and as she has settled her accounts fully the jurisdiction of the orphans court ceases, and a court of equity alone can enforce the trust created by the will, if any such be raised by it.
We are of opinion, however, that the appellant is entitled to a life-estate in the property embraced in the will of her testator, subject to the trusts engrafted upon it. She cannot be required to recharge herself as directed by the order of the orphans court. The settlement already made by her discharges her [**13]  bond, and if she fails to perform her duty as enjoined in the will the remedy is in a court of equity.
Order reversed and petition dismissed. 

86 of 187 DOCUMENTS 

CITIZENS BANK OF BALTIMORE vs. JOHN A. HOWELL & BROTHERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 530; 1855 Md. LEXIS 78 

DECEMBER, 1855, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Court of Common Pleas for Baltimore city.

Assumpsit by the appellees against the appellant to recover the amount of a promissory note for $ 122.11, at sixty days, dated the 25th of March 1851, drawn by Wesley F. Walter in favor of Edmond T. H. Walter, the payee, who endorsed it to the plaintiffs, who deposited it with the defendant, the bank, for collection, and the amount of which, the declaration alleges, was lost to the plaintiffs by the neglect of the notary public employed by the bank, in not properly notifying the endorser of the dishonor of the note by the maker. Plea, non assumpsit.

Exception. The plaintiffs offered in evidence the protest of the note by the notary, stating that it was presented at the place of business of the maker, and the reply was, that it could not be paid; and that the notice of this dishonor for the endorser "was left at Wesley F. Walter's." They then proved the handwriting of the maker and endorser, and that before its maturity, viz., on the 24th of March 1851, they deposited it with the Citizens Bank for collection; that Duvall, a notary public, called at their store on the 27th of May 1851, with the note, and asked if they [**2]  wished it protested, and was informed that they did; and that the maker resided in Caroline street; and the place of business of the endorser was No. 3, West Pratt street; and that the maker was insolvent, but the endorser was good. They further proved, that the endorser's place of business is at No. 3, West Pratt street, but that his name was not upon the sign over the door; and that his place of residence was in East Baltimore street, in 1851; they further offered in evidence the City Directory for 1851, showing the endorser's place of business to be at No. 3, West Pratt street, and the maker's residence in Caroline street at the time of the protest.

The defendant then proved by Duvall, the notary, that he was a duly commissioned notary in the city of Baltimore; that it is the universal usage and custom of the banks in that city to cause demand, protest and notice to endorsers to be made and given by a notary in case of inland as well as foreign bills of exchange and promissory notes; and that he was in the habit of discharging those duties for the defendant, the Franklin Bank, and Purvis & Gover, bankers; that the note in question was handed to him by the bank on the day of [**3]  its maturity, with directions to enquire of the plaintiffs whether they wished it protested; that he called at their store and enquired of their clerk if they wished it protested, and the reply was that they did; that he then enquired of the same party where the maker and endorser resided, and was informed that they resided in Caroline street; that he has no recollection that he said the endorser's place of business was at No. 3, West Pratt street, and does not believe he did, because in going to Caroline street he had to pass immediately by the door of No. 3, West Pratt street, and would, of course, have called; that he had difficulty in finding their residence in Caroline street, and meeting with a man at work he asked him where the maker and endorser resided, and was told on the opposite side of the street, pointing to the house, that he called at the house and inquired of a lady who came to the door, if Wesley F. Walter was in, she replied no; he then asked if Edmond T. H. Walter was in, she said no; witness then handed her a notice and requested her to give it to him when he came in. The defendant also offered in evidence the Directory of 1849, and also that of 1851; in the first [**4]  of which the endorser's residence is given, viz., West Fayette street, and in the latter no residence is recorded. The defendant also proved by the cashier of the Union Bank, that it is the universal custom and usage of the banks in the city of Baltimore to cause demand, protest and notice to be done by a notary of bills and notes, as well those deposited with the banks as their own. The defendant then asked the following instructions to the jury:

1st. That if they shall believe from the evidence in the cause, that the note in question being duly made and endorsed, was, on the 24th of March 1851, deposited with the defendant for collection; that it was duly handed to Duvall, a notary duly appointed and commissioned for the city of Baltimore, and that he having enquired at the counting-house of the plaintiffs was informed that the drawer and endorser both lived in Caroline street, and made other inquiry and was also informed by others that they resided in Caroline street, and that notice was accordingly left at said place, and at the same time directed to the said endorser; and notice was also given to the plaintiffs on said day at their place of business and between said hours;  [**5]  that it is the universal custom and usage of banks in the city of Baltimore to hand all notes to a notary of said city for presentment and notice, as well such as are left with them for collection as those belonging to them, then the plaintiffs are not entitled to recover, although the jury may further find that the endorser did not reside with the maker, but had a residence in another part of the city but not recorded in the Directory for the year 1851; and also had a place of business which was named in the Directory for said year, and that said notary, as soon as he had ascertained that he had mistaken the residence, gave notice to said endorser, first, because the defendant is not responsible for the want of due diligence, if any, on the part of the notary; and secondly, because due diligence was used by the notary as well as by the defendant.

2nd. That the bank having complied with its uniform usage as well as the usage of the banks of the city of Baltimore, by delivering the note at the regular time to the notary public, had entirely discharged its duty and relieved itself from all responsibility in the premises to the plaintiffs.

3rd. That the notary public was not [**6]  in any wise the agent of the bank, he being a public officer, created as such by the law, upon whom devolves all the responsibility arising from a failure to perform his official duties in a proper manner, and that therefore the bank was not responsible for any failure of duty on the part of the notary.

4th. If the jury find that it is the usage of the banks in the city of Baltimore to cause all demands, protests and notices to be made and given by a notary, that the bank in this case is not responsible for the acts of the notary, unless they believe that there was a special contract by the bank to be responsible for the acts of the notary, of which there is no evidence.

These instructions the court, (MARSHALL, J.,) refused to give, but was of opinion and directed the jury as set out in the opinion of this court. "To which opinion and direction of the court to the jury" the defendant excepted, and the verdict and judgment being in favor of the plaintiffs the bank appealed.  

DISPOSITION:
Judgment reversed and procedendo ordered.  

HEADNOTES:

In this State when a note or bill is received in the ordinary course of business, without any special agreement on the subject, by a bank for collection, and the bank in due time delivers it to the notary usually employed by it in such matters, so that the necessary demand, protest and notices may be made and given, the bank will not be answerable for loss resulting from the failure of the notary to perform his duty.

The act of 1837, ch. 253, makes protests of inland bills and promissory notes prima facie evidence, and to secure the benefit of this law to the owners of such instruments it is the duty of the banks receiving them for collection to place them in the hands of a notary that they may be protested in due time when necessary.  

COUNSEL:
D. C. H. Emory and Thos. S. Alexander for the appellant.

The appellees suppose the only question open on the exception involves the propriety of the [**7]  instruction given by the court to the jury. But it is apparent from the structure of the whole exception, that the appellants intended to except as well to the refusal of the court to give the instructions prayed for as the instruction actually given. The instruction is, in truth, a response to the prayer, and involves the very contrary of the propositions advanced by the defendants. Thus the court say, there is evidence of a special contract by which the bank guaranteed the plaintiffs against the neglect of the notary. The defendant had insisted that there was no such evidence. The court instructed the jury that there was evidence of negligence or omission on the part of the notary. The defendant had asked for an instruction, that upon the facts offered in evidence the charge of negligence was not made out. Conceding, then, for sake of the argument, that in the general an exception to the instruction actually given will not entitle the party to contest the propriety of the court's refusal to give the instruction prayed for, it is insisted that the rule does not apply to a case like the present, where the subject of the instruction is identical with the subject of the prayer, and the [**8]  instruction is intended as a response to the prayer. In such case the instruction is wrong if the prayer ought to have been granted.

We propose to discuss, in the first place, therefore, the propriety of the defendant's prayers, and then the propriety of the court's instructions to the jury. The plaintiffs' case supposes that the notary was guilty of negligence, and that the defendant is liable for such neglect of the notary. We shall endeavor to show that there was no negligence on the part of the notary, and next, assuming there was negligence, that the bank is not responsible therefor.

When the holder is ignorant of the place of residence of an indorser, he may excuse his failure to give notice of the dishonor of the bill or note to such party, by showing that he used reasonable diligence in the effort to ascertain the place of residence of the party, but without success. And if, on inquiry of persons whom he has fair reason to believe can give him correct information on the subject, he does receive information which he credits and acts on, he is likewise excused.

Reasonable diligence is that degree of diligence which men of ordinary habits of attention to business [**9]  usually devote to their own affairs. What is reasonable diligence depends on the special circumstances, and is usually, therefore, a mixed question of law and fact. But where the state of facts is given or assumed, it becomes a question of law to be determined by the court. For the rule and its application, we refer to Chitty on Bills, 453, and passim., and especially to 4 How., 336, Harris vs. Robinson, and 9 How., 552, Lambert vs. Ghiselin; in this last case the bill, being protested in Baltimore in the year 1846, was returned to the holders in Alexandria. They addressed notices to the indorser at Nottingham. They acted on information received from a person who had, prior to the year 1842, sailed a vessel between Nottingham and Alexandria; and showed there was in 1846 little intercourse between the two places; and that there was no one in Alexandria who was likely to give more correct information on the subject. In fact, the indorser resided in early life in Nottingham, but had removed thence as early as the year 1839. But the Supreme Court were of opinion, that due diligence had been used by the holder and the indorser was held liable. In the present case the notary addressed himself [**10]  to the plaintiffs, and by the clerk he was informed that the maker and indorser resided together in Caroline street. He proceeded thither, making inquiry of a number of persons on the street. At length he met a laborer, in his shirt sleeves at work, of whom he inquired where the maker and indorser resided, and by him he (the notary) was told that they resided in a house on the opposite side of the street, to which the laborer pointed. He called at that house and was met at the door by a lady, who, to his inquiry whether the drawer was in, answered no. The notary then handed her a notice addressed to the indorser, and requested her to hand it to him when he came in. On the same day notice of dishonor was also given to the plaintiffs. The plaintiffs attempted to prove, that their clerk had also informed the notary that the indorser had a place of business in Pratt street. But the notary has no recollection of any such statement having been made, and the reason stated by him would seem to be conclusive on the subject. He passed through Pratt street on his way to Caroline street, which is beyond the limits of business in Baltimore and is comparatively an obscure street, and there wasted [**11]  time in making inquiries which would have been unnecessary if the notary had understood that the drawer had a place of business in Pratt street. On the whole evidence it is admitted, that the notary evinced a strong desire to discharge his duty--that he labored faithfully to discharge his duty--and that he really believed he had in good faith acquitted himself of his duty. What more can be expected in any case?

But again, the plaintiffs have failed in proving any special agreement between them and the bank. They deny that the usage of the bank, to hand over all bills and notes to the notary, can bind them. They trusted to the bank. The notary was the bank's agent; and what was done and what was omitted to be done by the agent, are to be treated as done and omitted by the bank itself. The General Law Merchant is, therefore, to be invoked to determine whether the bank, as collecting agent, has fulfilled its duty. Now we apprehend it is clear, that the holder of a bill is bound to give notice to such of the parties as he proposes to hold answerable to himself. If he gives notice to the last indorser only, this latter has the right, and if he deems it essential to his own indemnity,  [**12]  must give notice to the prior parties in obligation on the paper. If the demand is made by an agent, it is sufficient that he give notice of dishonor to his principal, and it then becomes necessary for the principal to give the proper notices to the prior parties to be fixed. 3 Bos. & Pul., 599, Haynes vs. Birks; 8 Barn. & Cres., 387, Firth vs. Thrush, and 2 Johns. Cases, 1, Tunno vs. Lague, will be sufficient on this point. Now, it is put to the jury to find, as a part of our case, that the notary gave a notice of dishonor to the plaintiffs on the very day on which the note became payable. Again, the general law does not require that the notary shall assume the office of a general directory, and know at his peril the residence of every one who may become a party to negotiable paper. He is at liberty to apply to the holder for direction, and if the holder undertakes to give information which turns out to be erroneous, the loss must be borne by himself. In this case the notary informed the plaintiffs that the note was in his hands; he inquired whether the note was to be protested if not honored, and where the indorser was to be found. He was informed by the holder that the indorser [**13]  resided on Caroline street. He betook himself accordingly to Caroline street, and whilst there made every effort to discover the house wherein the indorser was supposed to reside. The charge now is that he was misled by the holders. Conceding, then, for the sake of the argument, that there was neglect on the part of the notary, we deny that the appellant is liable for the consequences thereof.

It was proved to be the invariable usage of the banks in Baltimore to cause demand, protest and notices to indorsers to be made and given by a notary, in the case of inland as well as foreign bills and notes. And the prayer puts it to the jury to find that this usage exists, as well in relation to bills and notes left with the banks for collection as to those which are issued by them. Of this usage the plaintiffs had actual notice; and in the absence of such proof, it would be presumed that they had notice thereof and that their deposit was made with reference to the usage. 11 Wheat., 431, Mills vs. Bank of the United States. The placing of the note with the defendant was equivalent to an agreement, that it should be delivered by the defendant to a notary for the purpose of demand and protest,  [**14]  in accordance with the usage. 6 H. & J., 150, Jackson vs. Union Bank. The usage is reasonable in itself and highly proper to be observed, since the act of 1837, ch. 253, makes the protest prima facie evidence of the facts of demand and notice of dishonor to the indorsers. The usage was obligatory on the bank. If it had failed to hand the note over to the notary, and by such failure had deprived the plaintiffs of the facilities for establishing their case against the indorsers, which would have been supplied by the protest, the bank might have been held answerable for all the consequences of the default. But if the plaintiffs had a right to require the delivery of the note to the notary, in order to insure to them the advantages to be derived from a notarial protest, and if the omission to deliver the note over to the notary would have been culpable negligence on the part of the bank, with what color of justice can it be pretended that the bank, which has delivered the note to the notary in deference to the usage, shall be responsible for the defaults of the notary in the performance of his duty? In 4 Whart., 105, Bellemire vs. Bank of United States and same case in 1 Miles, 173, it [**15]  was expressly adjudged, that where a bank receiving a note for collection, hands it over to a notary for the purposes of demand, conformably to the usage of the bank, it is not liable for any act or default of the notary. Vide also 1 La. An. Rep., 13, Baldwin vs. Bank of Louisiana. 17 La. Rep., 560, Hyde vs. Planters Bank.

It is undoubtedly a general rule, that an agent cannot delegate his authority, and is, therefore, in the general, held to answer for the deficiencies of the persons employed by him. They are treated as his agents. But the usage of trade sometimes requires, and at other times justifies, a departure from the rule. And where, in deference to usage, the deputy is selected, he becomes the agent of the principal, and is answerable to the principal for any negligence in the discharge of his duty. The agent is never responsible for the defaults of a deputy who has been appointed, according to the usage of trade, to assist him in the performance of his agency. Story on Agency, sec. 201. 1 G. & J., 147, Pawson vs. Donnell.

Thus it is settled, that the owner or master is not liable for a collision happening whilst the vessel is in charge of a licensed pilot. In 22 [**16]  Conn., 213, Windham Bank vs. Norton, it was held, that the holder is not responsible for delay occasioned by miscarriage of a letter containing a note through the negligence of the post-office. These cases are strictly analogous to the case of the notary, who, like the pilot and the postmaster, is clothed with official authority. In 6 H. & J., 150, Jackson vs. Union Bank, this court suppose, that a foreign merchant sends goods to his consignee in Baltimore, with instructions to dispose of them for him to the best advantage; the consignee sends them to auction, the auctioneer makes way with the goods, or sells them and makes way with the money, and fails, in such case it is declared, the consignee would not be responsible; and the court therefore adjudge, that if a bill drawn on Washington is deposited with a bank in Baltimore for collection, and is by that bank remitted to a bank at Washington--its usual agent--to be collected, this last bank becomes the agent of the holder, and its defaults are not to be visited against the bank in Baltimore. 23 Pick., 330, Fabens vs. The Mercantile Bank. 1 Cush., 177, Dorchester Bank vs. New England Bank. 12 Conn., 303, East-Haddam Bank vs. Scovil,  [**17]  amongst others, may be cited to the same effect.

A different rule would seem to prevail in New York. In 22 Wend., 215, Allen vs. Merchants Bank, it was held, that the bank to which the note was remitted for collection was the agent of the bank with which the note was deposited by the holder, and the latter bank was liable to the holder for the defaults of its agent. This is the leading case on the subject in New York, and was decided in the Court of Errors by a vote of fourteen to ten, reversing the judgment of the Supreme Court. The ground of the New York rule is stated, in 223, to be, that the acceptance of negotiable paper thus deposited for collection forms an implied undertaking to make the demand, and give the notice required by law or mercantile usage, for the perfect protection of the holder's rights against all previous parties--for which undertaking the use of the funds thus temporarily obtained, or of the average balances thereof for the purposes of discount or exchange, forms a valuable consideration. Now it will be observed, that the liability of the bank is thus rested on contract implied by law, from the fact that the depositary is a bank of discount and deposit,  [**18]  ordinarily using the funds of its customers in the transaction of its own business. The profit which is derived from the employment of the aggregate balances to the credit of its customers, is the consideration upon which the law will imply a special contract with the wayfarer who accidentally deposits a bill for collection, to indemnify him against the defaults of the agents who may be employed in the collection of that bill. Conceding that the guarantee ought to be sustained against the defaults of the clerks of the bank or other agents, voluntarily selected to assist in the discharge of its agency, there would yet remain a difficulty in extending it to the default of a public officer to whom the note was entrusted, for the purpose of authenticating the facts which fix the responsibility of the indorsers, and of thereby facilitating the recovery of the claim by the holders against them. There was no proof offered of usage or commercial understanding, that the banks should assume any unusual responsibility for agents, whose appointment should be rendered necessary by usage or the exigency of business, much less that they should assume the obligation of giving notice of dishonor to [**19]  all the parties to the instrument. In England it is certain, that the banker is bound to give notice of dishonor only to the holder by whom the bill was deposited for collection, (3 Bos. & Pul., 599, Haynes vs. Birks,) and the inference is very fair, that the courts at Westminster would ignore the existence of the other branch of the supposed implied contract. If the use of the average balances in hand is a consideration for the contract, to be implied that the banker shall guarantee his customers against the negligence of the agents necessarily employed by the agent, why should not the law, in the case supposed in Jackson vs. Union Bank, imply a contract or undertaking, on the part of the consignee, to indemnify his principal against the frauds of the auctioneer employed to sell the goods consigned?

The ground assumed in New York is petitio principii, assumed in the absence of evidence, sustained by no authority, and warranted by no principle. But it will be sufficient to conclude the argument by suggesting, that the decision, and the reasoning on which it is rested, are directly at variance with the point adjudged and the reasoning adopted by this court in Jackson vs. Union [**20]  Bank.

The instruction given by the court below assumes there was evidence of a special contract on the part of the bank to do all that was necessary to fix the responsibility of all prior parties to the plaintiffs. But there was no evidence of any such special contract. The extent of the obligation of the bank was determinable by the general law. The court ought to have stated what were the obligations which this general law casts on the bank, and ought not to have left it to the jury to find what were the obligations of the contract which this law implied from the relation of depositor and depositary existing between the parties. In this particular the jury were required to find matter of law.

But in the next place, the court based the second branch of its instructions upon the facts enumerated in the first branch thereof, and amongst others, upon the fact that the plaintiffs had misdirected the notary as to the actual residence of the indorser. The effect of the instruction then was, that if the jury should, from the relation of depositor and depositary, imply a contract on the part of the bank to do all that was necessary to fix the liability of the indorser, and that [**21]  the bank had not given due notice to the indorser, then the plaintiffs were entitled to recover, although they should find that the plaintiffs had misdirected the notary as to the actual residence of the indorser, and that the failure to give proper notice to the indorser was the necessary consequence of such misdirection. In this, as before stated, the jury were charged to find what were the legal consequences resulting from the relation of depositor and depositary. And the contract supposed, being implied as matter of law, the court instruct the jury, that the defendant cannot excuse the non-performance of the contract, by showing that this default was caused by the false information given to the notary by the plaintiffs. This would be hard law indeed, unless it can be shown that the notary is bound, at his peril, to find out the places of residence of the indorsers. We have already stated, that these instructions involve the reverse of the propositions submitted by the appellant.

Charles W. Ridgely and St. Geo. W. Teackle for the appellees:

The greater portion of the argument on the other side is bestowed upon the discussion of the prayers of the appellant, all of which [**22]  were rejected by the court; and if those prayers were open for argument in this court, we apprehend that it would be an easy task for us to show that each and all of them were properly rejected. But as no exception was reserved to the rejection of either of those prayers in the court below, we deem it unnecessary, and a useless consumption of the time of this court, to discuss either of those prayers, and will proceed at once to discuss the true and only questions open upon this appeal, in the order in which they are presented in the record.

The first question arises upon the first branch of the instruction of the court. Now it will be seen from an examination of this portion of the instruction, that the only proposition of law decided in it is, that if the maker and indorser of a promissory note both reside in the same city, and the note at its maturity is not paid, and the indorser had no notice of the non-payment of the note on the day of its maturity or on the next day thereafter, and no notice of non-payment was left at the residence or place of business of said indorser, that then the said indorser is not responsible for the payment of said note, by reason of his said indorsement,  [**23]  notwithstanding any misdirection given to the notary by the plaintiffs or other persons as to the actual residence of said indorser, unless upon proper and reasonable diligence it was not in the power of the notary to have procured more correct information as to such residence or place of business. Now can any proposition of law be clearer than that announced in this instruction? The point decided is simply that if the jury find the facts stated in the instruction, that then the indorser is discharged from his liability as indorser. It does not follow from the instruction, as is erroneously supposed in the argument on the other side, that therefore the plaintiffs are entitled to recover as against the defendant, for it might well be, that if the failure of the notary to find the indorser or his residence or place of business resulted from the misdirection of the plaintiffs, that the notary, or the bank, whose agent he was, should not be held responsible for such failure to notify such indorser.

We deem the above sufficient upon this question and proceed to the consideration of the next question which arises upon the second branch of the court's instruction. The question here presented [**24]  is simply this: whose agent was the notary for the purposes of demand and notice? Upon the facts stated in this instruction, was he the agent of the bank or the agent of the plaintiffs? Two important facts bearing upon this question are free from all doubt:--1st. That the bank received the note in question from the plaintiffs for collection, and undertook to collect it, or have it collected; and 2nd. That the bank, without consultation with, or notice to the plaintiffs, employed the notary in this case to take the necessary steps to secure the collection of the note, and also employed him as general agent in similar cases. Now upon general principles it seems clear, that the person employed as an agent, is the agent of the person who so employs him, unless specially employed as the agent of another, under a sufficient power for that purpose. And the privity being between the agent and the person employing him, the principal ought to be, and is ordinarily, responsible to third parties for the acts of such agent. This, as a general rule, is conceded in the argument of the appellant's counsel, but they contend that a notary public, being an official character, forms an exception to this [**25]  general rule of law. Now it is unquestionable law, that no protest of an inland bill or promissory note is necessary to bind an indorser--demand and notice are alone sufficient for that purpose, and the notary in this case could have done every thing necessary to bind the indorser, in his individual capacity as Lemuel Duvall, as well as in his official capacity as Lemuel Duvall, notary public. And the usage proved in this case is not to protest all or any inland bills or notes, but simply to place them, if not paid at maturity, into the hands of a notary, for what purpose the evidence does not state. But, say the learned counsel for the appellants, the bank was bound to have this note protested, in order to secure to the holder the advantage of the prima facie proof afforded by a protest under the act of 1837, and if it had failed in this duty which it had undertaken, it would have been liable to the plaintiffs. This argument of our opponents we deem conclusive upon this question: for, we ask, how could the bank be held liable for not securing to the appellees in this case the prima facie evidence of a protest to facilitate the plaintiff's recovery upon the note, as against this indorser,  [**26]  and not be held liable to the appellees for not giving notice of demand and non-payment to the indorser, without which all the protest and other evidence would be entirely inefficacious towards the recovery of the amount of the note as against such indorser? There was but one undertaking of the bank, and that was a general one, viz: to collect the note, or rather to take the necessary means to do so. And amongst these means, notice of demand and non-payment to the indorser is the most necessary and imperative. We deem it only necessary, in support of the foregoing views, to refer the court to the following authorities: Allen vs. Merchants Bank, 22 Wend., 215. Smedes vs. Bank of Utica, 20 Johns., 371. Thompson vs. Bank of S. Carolina, 3 Hill S. C. Rep., 77. Bank of Utica vs. McKinster, 11 Wend., 473. Fabens vs. The Mercantile Bank, 23 Pick., 330. The Bank of Utica vs. Smedes, &c., 3 Cowen, 662.

Now it is not questioned in either of these cases that the notary is the agent of the bank in which the note is deposited for collection, where the bank is located in the place where the note is payable, and where the parties responsible on the note reside. Even the chancellor and his nine [**27]  compeers, in the case in 22 Wendell, admit that, but they put their dissenting opinion solely upon the ground, in that case, that the note was payable in another city, and necessarily required the intervention of other agents in such other city, and that such necessity was known to the depositor, and he was to be presumed to acquiesce in the employment of some one as his agent other than the bank in which he deposited the note. The opinion of the majority of the court allows no such distinction, but holds the bank that first receives the note for collection liable as agent to the depositor for all negligence, whether of its officers or of other banks or persons employed by them wherever located or residing. It is not necessary for us to go to the extent ruled in this case;--in the case now before this court the bank, the holders of the note, and all the parties responsible upon it, lived in the city of Baltimore. Before leaving this branch of the case, we beg leave to say that all the cases cited by our opponents upon this point will, upon examination, be found to harmonize with the view we have above expressed, if they are examined with reference to the distinction above taken between [**28]  banks or agents located or residing in the place where the note is payable and the parties responsible upon it reside, and where they are not so located.

In conclusion, we submit that there is no foundation for the objections started by our opponents, either that any question of law has been put by the court to the jury in this case, or that any question of facts has been taken from them--this error arises from the counsel of the appellants blending the facts and principles of law stated in their prayers to the court, with the court's instructions--the rejection of those prayers not having been excepted to below, every thing in them is outside of this case.  

JUDGES:
The cause was argued before LEGRAND, C. J., ECCLESTON and MASON, J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*545]  ECCLESTON, J., delivered the opinion of this court.
The counsel for the appellant insist, that the record presents for our consideration, not only the inquiry whether the court was right in the instructions given to the jury, but also, whether there was not error in refusing to grant the prayers of the appellant; whilst the appellees contend that no exception was taken to the rejection of the prayers but only to the instructions [**29]  by the court. We are inclined to think the latter is the correct view, but the point need not be decided, because, confining ourselves to the instructions, we find such error in them as to require a reversal of the judgment.
The following is the language of the court: "If the jury believe from the evidence in the cause, that the note offered in evidence was drawn by Wesley F. Walter and indorsed by Edmond T. H. Walter, and that the said indorser and drawer both resided in the city of Baltimore at the time of maturity, and that the note was held by the bank at said time, in said city, for collection on account of the plaintiffs, and shall believe they were then and still are the owners of the same; and if they shall further believe that the said note was not paid at maturity, and that said indorser had no notice of the non-payment thereof, on the day of its maturity or the next day thereafter, and that no notice thereof was left by the plaintiffs or their agent at the residence or place of business of said indorser, then the indorser is not responsible for the payment of said note by reason of his indorsement, although they should believe that the plaintiffs, or their agent duly authorized [**30]  thereto, as well as other persons in the city of Baltimore, misdirected the notary as to the actual residence of the said indorser, unless they should believe, that upon proper and reasonable diligence it was not in the power of the notary to have procured 

 [*546]  better and correct information as to the residence or place of business of the said indorser.
"If the jury believe the facts stated above as to said note, that the contract and undertaking of the bank with the plaintiffs is to be found by the jury from all the evidence in the cause; and if they shall find from such evidence that the bank undertook, on receiving this note for collection, only to employ a competent and proper person to demand payment of said note at maturity, and give the proper notices of its non-payment, and that they did employ such competent and proper person, and placed the note in his hands in time to have said demand made on the day of the maturity of the note, and such notices given, then the bank is not responsible, although they should believe, that by the negligence or other fault of such person so employed, the note has become lost to the said plaintiffs. But if the jury should believe from [**31]  the evidence in the cause, that the undertaking of the bank in their receiving said note for collection was, that they would do all that was proper and necessary to be done by the plaintiffs themselves, in order to the security of the interests of the plaintiffs, so far forth as the responsibility of the drawer and indorser was concerned, then the defendant is answerable to the plaintiffs for whatever loss they may find the plaintiffs to have incurred by reason of such negligence, and insufficient action of the bank or the person employed by it as aforesaid."
In the latter part of the opinion and direction thus given by the court, the jury are told, if they believe from the evidence, that in receiving the note for collection the bank undertook to do all that was proper and necessary to be done by the plaintiffs themselves, in order to secure the interests of the plaintiffs so far as the responsibility of the drawer and indorser was concerned, then the bank is answerable to the plaintiffs for any loss they had incurred by reason of negligence and insufficient action of the bank or the person employed by it. "The person employed," here spoken of, means, of course, the notary. But we [**32]  see no evidence tending to prove any undertaking or agreement whatever, on the part of the bank, which can render it responsible to the plaintiffs for the alleged negligence 

 [*547]  of the notary, or for his insufficient action in the premises, and for want of proof to sustain such responsibility we think there was error in giving the instruction.
The act of 1837, ch. 253, makes protests of inland bills of exchange and promissory notes prima facie evidence; and for the purpose of securing the benefit of this law to the owners of such instruments, it is the duty of the banks receiving them for collection to place them in the hands of a notary that they may be protested in due time, when necessary. And we think, that in this State, when, in the ordinary course of business, without any special agreement on the subject, a note or bill is received by a bank for collection, which is in due time delivered by it to the notary usually employed in such matters by the bank, so that the necessary demand, protest and notices may be made and given by him, the bank will not be answerable in case of loss resulting from a failure of the notary to perform his duty.
The responsibility of banks [**33]  receiving notes for collection, where they have employed other banks or agents, has been carried further in New York than in some other States of the Union. But even there, in Smedes vs. Utica Bank, 20 Johns. Rep. 384, where the bank was held answerable on account of having employed a person to make demand and give the notice, who was not a competent agent, the court say: "If the note had been delivered to a notary it would present a different case. Notaries are officers appointed by the State; confidence is placed in them by the government. This may be evidence sufficient to justify an agent in committing to them business relating to their offices, although in point of fact it might subsequently appear, they did not possess the necessary qualifications." See also Story on Agency, sec. 201.  Pawson vs. Donnell, 1 G. & J. 1. Jackson vs. Union Bank, 6 H. & J. 146. Fabens vs. The Mercantile Bank, 23 Pick. 330. Dorchester Bank vs. New England Bank, 1 Cush. 177, 188. East Haddam Bank vs. Scovil, 12 Conn. 303. Bellemire vs. Bank of the United States. 4 Wharton 105, [**34]  and 1 Miles 173. Baldwin vs. Bank of Louisiana, 1 Louisiana Annual Rep., 13.  Hyde & Goodrich vs. Planters 

 [*548]  Bank of Miss., 17 La. 560. Tiernan & others, vs.  Commercial Bank of Natchez, 7 How. 648. Angel & Ames on Corp., 186.
Judgment reversed and procedendo ordered. 

87 of 187 DOCUMENTS 

MARY WILDERMAN, EXC'X of JOHN WILDERMAN, vs. THE MAYOR & CITY COUNCIL OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 551; 1855 Md. LEXIS 80 

DECEMBER, 1855, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Court of Common Pleas for Baltimore city.

Covenant by the appellees against the appellant to recover arrears of ground-rent due under a lease for ninety-nine years, renewable forever, executed by Henry Peters to John Wilderman; the rent reserved thereby having been devised by said Peters to the plaintiffs. Plea, nil debet.

The case was submitted to the court below upon an agreed statement of facts. The question presented is, as to the validity of the following devise in the will of Henry Peters, executed on the 26th of December 1836, and admitted to probate on the 20th of February 1838. The testator, after enumerating certain annuities, says: "I give, devise and bequeath to the Mayor and City Council of Baltimore and their assigns, in trust and special confidence that the said annuities, amounting aggregately to the said sum of one hundred and five dollars and fifty cents, shall annually forever hereafter be distributed, appropriated and applied, under the direction of said corporation, to the relief and support of the indigent and necessitous poor persons who may, from time to time, reside within the limits, as now known, of the twelfth ward of the said city [**2]  of Baltimore." The plaintiffs claimed and demanded the arrears of rent sued for in this case under this devise, but the defendant refused to pay the same by reason of notice from the residuary devisees of said Peters that they claimed the same, and that the aforesaid devise is null and void. It was also agreed that a pro forma judgment should be rendered in favor of the plaintiffs from which the defendant should appeal, and this was accordingly done.  

DISPOSITION:
Judgment reversed, but no procedendo.  

HEADNOTES:

A devise to the city of Baltimore, in trust, "for the relief and support of the indigent and necessitous poor persons who may, from time to time, reside within the limits, as now known, of the twelfth ward of said city of Baltimore," is void as being too vague and indefinite, and the property vests in the next of kin of the testator, or his residuary devisees.

The right of the residuary devisees vested immediately upon the death of the testator, and it is not in the power of the legislature, by the subsequent act of 1842, ch. 86, to divest the vested rights acquired under the will, by giving that act a retrospective operation. 

COUNSEL:
William F. Frick for the appellant.

The validity of this devise can hardly be deemed an open question in this State after the decisions of this court in the cases of Trippe vs. Frazier, 4 H. & J., 446. Dashiell vs. The Attorney General, 5 H. & J., 392, and the same case in 6 H. & J., 1.

1. It is well settled, (5 H. & J., 401, 402,) that the Statute of 43 Elizabeth is not in force in Maryland. The devise can therefore receive no aid from the provisions of that statute, or of any of the numerous adjudications upon it in England, and the other States of this Union.

In any point of view the devise is void at law, and could only be made good by the intervention of a court of equity.  [**3]  But independent of the Statute of 43 Elizabeth, there is no jurisdiction in chancery to set up a charity, which is so vague and indefinite in its provisions, that the cestui que trusts can only be designated by the exercise of an arbitrary discretion in the trustee. The doctrine of Cy Pres has never been adopted in this country, even in those States in which the Statute of 43 Elizabeth has been either directly re-enacted, or forms, in its spirit, part of their common law.

The Supreme Court of the United States, in the case of the Baptist Association vs. Hart's Ex'rs, 4 Wheat., 1, held, that the entire jurisdiction of the chancery court over charitable uses grew out of the Statute of 43 Elizabeth. Whatever doubts may have since arisen about the correctness of this opinion, it is still clear, on all the authorities, that "a court of chancery in this country, independently of the Statute of Elizabeth, cannot support a devise to charitable uses where no legal interest is vested, on account of the two vague description of those who are to take."

This state of things presents an inherent difficulty, which can only be removed by the aid of the Statute of 43 Elizabeth, and the application [**4]  of the equitable doctrine of Cy Pres; neither of which is in force in Maryland.

In Dashiell vs. The Attorney General, 5 H. & J., 392, the devise was "to the poor children belonging to the congregation of St. Peter's Protestant Episcopal Church, in the city of Baltimore." The court say, (page 399,) "without the aid of the statute the cestui que trust can only be brought into being by the ascertainment and designation of the trustee; and there being no such ascertainment and designation, though certain selections have been made, no persons exist having in themselves a vested equitable interest which they are capable of asserting in a court of equity. The bequest is therefore too vague and indefinite, &c., &c., and is void, and the subject of the trust, being undisposed of, the benefit of it results to the next of kin."

In Trippe vs. Frazier & Wife, 4 H. & J., 446, the bequest was "to the real distressed private poor of Talbot county;" and was held to be void, owing "to the impracticability of correctly ascertaining the objects of the bequest."

2nd. A still further insurmountable objection to this devise, even if it were free from the objection last urged, is, that it is [**5]  a perpetuity, created for the benefit of the poor persons who should, from time to time, reside within the limits, &c., of the twelfth ward. Even if, at the time the devise took effect, the cestui que trusts were sufficiently capable in equity of being ascertained and designated, "The poor, &c., &c., of the twelfth ward" are not a body corporate capable of taking in succession the annual income forever devised to them by the testator. In Dashiell vs. Attorney General, 6 H. & J., 1, the devise was "to the trustees of Hillsborough school, to be by them applied towards feeding, clothing and educating the poor children of Caroline county, which attend the poor or charity school at Hillsborough." The court say, (page 8,) "the interposition of trustees does not make the bequest good, &c. The fund is a perpetual fund, intended, not only for the poor children who, at the death of the testator, attended Hillsborough school, but for such as should in succession attend that school, &c. The poor children of Caroline county which attend Hillsborough school are not a body corporate and cannot take in succession; and the bequest, if otherwise good, must fall as soon as the first objects of the testator's [**6]  beneficence ceased to attend the school."

It seems obvious, that whatever new lights may recently have been thrown upon the extent and character of the jurisdiction in chancery over charitable uses prior to the Statute of Elizabeth, the present case cannot be brought within the saving benefits of that jurisdiction, except as amplified and extended by the statute.

3rd. Neither is it aided by the act of Assembly of 1842, ch. 86. This act was passed by reason of the admitted incompetency of the city, as trustee, to take the devise in question. As a body corporate, chartered for specific limited purposes, it could not be seized of a trust foreign to the ends of its charter. It is only by virtue of the provisions of the statute of Elizabeth that a corporation can hold in trust for charitable uses when its charter confers no such power. The statute not being in force in Maryland the principle remains as at common law. 2 Bac. Abr., title Corporations, 2. The title of the act of 1842 sufficiently indicates the legislative interpretation of this question. It professes to confer additional powers upon the Mayor and City Council of Baltimore. Looking then at this act in its true purview,  [**7]  it can only be construed as conferring on the city corporation the power to receive and hold in trust, and to control for the purposes of such trust all property bestowed for valid corporate, educational and charitable uses. In other words it only enables the city to act as trustee in all cases where, without the act, equity would support the bequest by the appointment of competent trustees to execute it. If this be not so, why was it necessary to provide for the case of gifts for any of their corporate purposes? But the act does not profess to give validity to such charities, as the courts of equity in the State would, on general principles refuse to set up, by reason of their vagueness and uncertainty, their creation of perpetuities, their repugnance to State or public policy, or otherwise. It can hardly be said that this act was intended, quoad the city of Baltimore, to re-enact the provisions of the Statute of 43 Elizabeth; and to confine the benefits, if such they be, of that statute, to cases arising within the city limits. And unless some such construction be put upon its language, it cannot be taken to cure the inherent defects in the devise now in question.

But even if [**8]  it could be construed to give validity to such devises for the future, it is clear it cannot do so retrospectively. If, without the act, the devise could not take effect, the subject matter of the trust vested, at the death of the testator, in his residuary devisees. Their rights thus acquired could not be divested by any subsequent legislative act. "No State government can be presumed to possess the transcendental sovereignty to take away vested rights of property." Story's Com. on the Const., sec. 712.

No counsel appeared for the appellees.  

JUDGES:
The cause was argued before LEGRAND, C. J., ECCLESTON, TUCK and MASON, J.  

OPINIONBY:
MASON 

OPINION:

 [*555]  MASON, J., delivered the opinion of this court.
The question presented upon this appeal is whether the following devise can be supported? It is to the city of Baltimore in trust for "the relief and support of the indigent and necessitous poor persons, who may, from time to time, reside within the limits, as now known, of the twelfth ward of said city of Baltimore."
Since the decisions of this court in the cases of Trippe vs. Frazier, 4 Harr. & Johns. 446; and Dashiell vs. Attorney General, 5 H. & J. 392; and Same vs.  [**9]   Same, 6 H. & J. 1; 

 [*556]  the validity of the devise now before us can hardly be regarded as an open question. It is too vague and indefinite, and too difficult of being correctly ascertained, to be enforced, and is therefore void, and in all such cases the subject of the trust must vest in the next of kin of the testator, or his residuary devisees.
In the present instance the testator died, and the will took effect in the year 1838. The rights of the residuary devisees thereby became immediately vested, and it was not in the power of the Legislature, by giving the act of 1842, chap. 86, such a retrospective operation, so as to divest the vested rights acquired under the will. See the case recently decided by Judge Giles in the Circuit Court of Maryland reported in Volume 4th, page 526, American Law Register, and also to the Opinion of Chief Justice Taney, therein referred to.
We reverse the pro forma judgment, entered in the court below, and direct judgment to be entered for the appellant.
Judgment reversed, but no procedendo. 

88 of 187 DOCUMENTS 

THE AMERICAN EXCHANGE BANK vs. FRANCIS H. INLOES, Garnishee of TURNBULL & Co.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Md. 380; 1855 Md. LEXIS 5 

JUNE, 1855, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

Attachment on judgment sued out by the appellant, to affect the property and credits of Turnbull & Co., and laid in the hands of the appellee as garnishee, who appeared and pleaded nulla bona.

Exception. The judgment on which the attachment issued, was for $ 30,000, recovered on the 10th of May 1852, and it was admitted, that the garnishee, at the time of attachment laid and plea pleaded, had and continues to have in his hands, upwards of $ 37,000, the proceeds of sales and collections of claims as trustee under a deed of trust from Turnbull & Co., dated the 22nd of September 1851, conveying to him all their stock of goods in their store in Baltimore, (their business being the carpet and oil-cloth business, both by wholesale and retail, but mostly by retail,) and all notes and evidences of debt, in trust, to sell the goods and collect the claims in the manner thereinafter mentioned, with power "to arbitrate and compound at his discretion as that might appear most expedient for the advantage of those concerned in these trusts." And to apply the proceeds--1st, to pay the expenses of the trust, including a reasonable commission [**2]  to the trustee. 2nd. to pay two notes due by the firm, particularly described, and then to apply the residue to pay in full, or ratably and proportionably, so far as it extends, certain scheduled claims, and after that, to apply the surplus, if any, to pay all other claims against the firm, ratably and proportionably. The deed then contains the provisions set out in the opinion of this court.

The garnishee then proved, that the trustee filed his bond under the act of 1845, ch. 166, which was duly recorded, and then offered in evidence certain proceedings on the equity side of Baltimore county court, showing that on the 4th of November 1851, the owners of the two notes mentioned in the first trust, filed their bill, setting forth the deed, and praying that these notes might be paid out of the proceeds of the trust property in the hands of the trustee, who answered the bill admitting the facts, and submitting himself to such decree as the court might pass. The court, on the same day, passed an order that these notes should be paid out of the fund, which was done, and the case entered "satisfied." On the 17th of March 1852, the trustee filed a petition, stating that he desired to [**3]  distribute the fund under direction of the court, and asking for an order giving notice to all the creditors to file their claims, and such order was passed, and afterwards, upon petition of the trustee, the time of filing claims was extended to the 15th of July 1852. He further proved, that the whole of the goods sold amounted to $ 40,265.79, of which only $ 190 remained unpaid. The plaintiff then offered two prayers:

1st. That the said deed of trust is void on the following grounds: 1st, because it authorises the trustee to arbitrate and compound at his discretion, as may appear most for the advantage of those concerned in the trusts. 2nd, because it authorises him to dispose of the property gradually, and in the manner and on the terms in which, in the course of their business, Turnbull & Co. had, before the deed, sold and disposed of their merchandise. 3rd, because it authorises the trustee to sell the property by retail or in parcels, as might by him be deemed eligible. 4th, because, by the terms of the deed, the trustee is not to be liable for any violation of the trust, or any omission or neglect, save only for personal and actual, and wilful wrong or default.

The [**4]  second prayer need not be stated, as no decision was made upon it. The court (FRICK, J.,) rejected both these prayers, and to this ruling the plaintiff excepted, and the verdict and judgment being in favor of the defendant, appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

Proceedings in a court of equity, under a deed of trust not assailing the deed, but assuming its validity, and asking the aid of equity to carry out and enforce its trusts, do not oust the jurisdiction of a court of law, to set the deed aside.

The party assailing the deed at law, not having been a party to the proceedings in equity, would not be bound by them, even if they had contemplated the same object as the suit at law.

Where a prayer assigns a number of distinct reasons why a deed of trust is void, each of these reasons is to be treated as a distinct and separate prayer, and if any one presents a valid objection to the deed, it is error to reject it.

Preferences in a deed of trust, securing one creditor to the exclusion of others, are only permitted by a court of equity, and when such preferences are followed by other provisions equally suspicious in their character, the court will have little difficulty in discovering such a fraudulent design on the part of the grantor, as to vacate the deed.

A power to the trustee, in an assignment in favor of creditors, to sell the property "gradually, in the manner and on the terms in which, in the course of their business, the grantors had sold and disposed of their merchandise," renders the deed void as to creditors.

Where a deed appears to be void upon its face, it is the duty of the court so to pronounce it, and there is nothing, in such case, to be left for the jury to find. 

COUNSEL:
Wm. Schley for the appellant, stated, that if any one of the grounds assigned in the first prayer is a good one for setting aside the deed, the prayer is not defective, because it contains a bad one, and that the several reasons assigned in the prayer are to be treated as so many separate prayers, if any one of which presented a valid objection to the deed it was error to reject it. He then argued, in support of this prayer, that the deed was void upon its face:

1st. Because of the power given to the trustee to arbitrate and compound at his discretion. Independent of the authority in the deed he would have no such powers, and if so, can the deed be good which gives him such powers? If such power had been reserved to the grantors, could there be a doubt the deed would be void?--if they cannot reserve this power to themselves, how can they confer it upon the trustee of their own selection? The terms of [**5]  the trust are binding upon the trustee, and a court of equity cannot interpolate a new trust upon it. 2 Selden, 520, Nicholson vs. Leavitt. The fact, therefore, that equity would interfere and restrain the trustee from doing wrong, cannot render the deed good if its terms are otherwise bad. In Wakeman vs. Grover, 4 Paige, 41, and on appeal in 11 Wend., 201, it was held, that a power to compound with creditors renders the deed void. In my opinion, the deed is thrice as objectionable where the power is to compound with debtors. By such a deed, the grantor in principle holds on to his property, and cannot be said to devote it to his creditors when he gives this power. The power is a dangerous one and would produce great mischief, and is contrary to the authorities, which decide, that the grantor must part with the entire dominion over the property. 9 Barbour, 257, Woodburn vs. Mosher.

2nd. Because of the power to the trustee to dispose of the property gradually, in the manner and on the terms in which, in the course of their business, the grantees had sold and disposed of their merchandise. This position is sustained by the following cases: 9 Paige, 405, Meacham vs. Sternes. 7 Paige,  [**6]  37, Hart vs. Crane. 2 Comstock, 371, Barney vs. Griffin. 9 Barbour, 357, Woodburn vs. Mosher. 4 Sandf., 279, Nicholson vs. Leavitt; and on appeal, in 2 Selden, 510. 11 Barbour, 198, Whitney vs. Krows. 12 Do., 168, Burdick vs. Post. 31 Eng. C. L. Rep., 254, Owen vs. Body. There is no Maryland decision to the contrary of this view. The question here has always been, whether there could be a preference, and whether the stipulation for releases from the asserting creditors avoided the deed or not? The point has, I admit, been passed sub silentio, but it is now raised and argued for the first time. The party must devote his property bona fide to the payment of his debts without any delay, (1 Iredell, 499, Hafner vs. Irwin; 9 Sme. & Mar., 433, Arthur vs. Bank of Vicksburg;) and here the power is not simply to sell on credit, but gradually, as the grantors, in the course of their business, had been accustomed to sell.

3rd. Because of the power to the trustee to sell the property by retail, or in parcels, at his discretion.

4th. Because of the power to the trustee to employ agents in the execution of the trusts of the deed. Whenever there is discretion and judgment placed in the [**7]  trustee, the authority is personal and cannot be delegated. 26 Wend., 485, Lyon vs. Jerome. 11 How., 223, Warner vs. Martin. There is no privity between the agent appointed by the trustee and the creditors. 3 Sandf., 545, Litchfield vs. White. The deed moreover declares, whilst giving this power to the trustee to appoint agents, that he shall be liable only for personal, and actual and wilful wrong or default.

5th. The prayer is not objectionable, because it does not put the question of fraud in fact to the jury. The statute of Elizabeth says, that any deed made to hinder, delay or defraud creditors, is void; it is in the distributive; and if the effect is to delay creditors, the statute speaks and denounces the deed, no matter how pure the motives of the parties to it may have been. 3 Md. Rep., 39, Green & Trammel, vs. Trieber.

6th. But it is said a court of law has no jurisdiction to declare this deed void:--1st, because the proceedings under the act of 1845, ch. 166, gave a court of equity jurisdiction of the case. But this act is but a revenue law, and gives the court no jurisdiction. It merely says, the trustee must perform his trust according to the deed. 2nd, because [**8]  the funds were in the hands of a court of equity by virtue of the proceedings set out in the record, and therefore not liable to attachment. But this objection is likewise unavailing. A voluntary application to a court of equity by a trustee will not prevent a party from pursuing his legal remedies. It can only be done by a bill regularly filed, making all persons interested parties, and then not until a decree or some decisive action by the court. 2 Md. Rep., 17, Glenn vs. Gill. Again, the validity of the deed was not in issue in the proceedings in equity, but they assumed its validity. Besides this, the appellee did not plead the pendency of this suit, which he should have done if it was a good defence, or obtained an injunction to restrain the case at law. Instead of doing this, he pleads simply nulla bona.

Frederick W. Brune and Chas. F. Mayer for the appellee, argued:

1st. That even if the deed be regarded as void, the funds are not liable to attachment in this case:--1st, because the filing of the bond under the act of 1845, ch. 166, and the operation of that act draw jurisdiction of courts of equity to such deeds as the present. 2nd, because by the proceedings in equity,  [**9]  the jurisdiction of that court attached to the funds, and is exclusive of that of any other court, especially as all the creditors of the grantees are, by these proceedings, invoked into that court, which alone could do full justice to the parties in case the deed should be held invalid. That funds under the control of a court of equity cannot be attached, is decided in Glenn vs. Gill, 2 Md. Rep., 1. See also on this point 4 Johns. Ch. Rep., 640, Thompson vs. Brown.

2nd. That the first prayer of the appellant is bad for several reasons:--1st. It submits several propositions, if any one of which is bad there was no error in rejecting the prayer in its entirety, because if granted, it would have affirmed that the deed was void on each of all the grounds set forth in it. If, then, any one of the reasons assigned is not a legal ground for declaring the deed void, it was the duty of the court to reject the prayer. 12 G. & J., 236, Gray vs. Crook. Ibid., 484, Doyle vs. Commissioners of Balto. County. 5 G. & J., 102, Sasscer vs. Walker. Ibid., 489, Grahame vs. Harris. 4 G. & J., 407, Charlotte Hall School vs. Greenwell. 3 Do., 435, Sothoron vs. Weems. 3 Gill, 198, Budd vs. Brooke. 4 [**10]  Md. Rep., 305, Greenway vs. Turner. 5 Do., 448, Stewart vs. Spedden. 2nd. It does not put it to the jury to find that the deed was fraudulent; the fraud is left out of the prayer, though it includes the delay, which is but evidence of the intent to defraud, and this intent must be found by the jury. Delay is not, per se, fraud, or a fraudulent act. If the deed be bona fide, there may be delay and ultimate defeat of the claims of creditors. 1 Iredell, 496, Hafner vs. Irwin. 5 Eng. Law & Eq. Rep., 430, Janes vs. Whitbread. 3 Maule & Selw., 374, Pickstock vs. Lyster. 15 Eng. Law & Eq. Rep., 529, Smith vs. Hurst.

3rd. But the deed is not void for any of the reasons assigned in the prayer.

1st. The authority given to the trustee to arbitrate and compound at his discretion, is a reasonable, usual and proper power, not tending to hinder, delay or defraud creditors, but advantageous to creditors, as tending to the proper and speedy settlement of the trust, although it may not always be necessary to exercise it. In this case the power to compound has never been exercised, nor does it appear that the power to arbitrate has been exercised. A court of equity authorises compromises and [**11]  arbitrations in cases of such trusts, where even no express nor implied provision for them exists in the deed. Such a proceeding on behalf of trust interests cannot be regarded as evidence of fraud, and so the provision toward such action cannot in this deed be considered as frudulent, the trustee being necessarily subject to the control of a court of equity in the use of that and every power conferred by the deed. This provision, and all others objected to by the prayers, relate merely to the administration of the trust and are purely modal, (to use a civil law phrase,) and cannot vitiate the trust itself, essentially considered. A similar provision was contained in all the deeds so much litigated in this court. 4 Gill, 130, McCall vs. Hinkley. 7 Gill, 446, Albert & Wife vs. Winn & Ross. A stipulation for releases does not invalidate the deed. 8 Gill, 472, Kettlewell vs. Stewart. 3 Md. Rep., 46, Sangston vs. Gaither. Lewin on Trustees, 417. Edwards on Receivers, 354. Hill on Trustees, 344. Angel on Assignments, 210, 219. Oliver's Conveyancing, 154. Curtis' Conveyancing, 42. 21 Alabama Rep., 382, Rankin vs. Lodor.

2nd. The authority to the trustee to dispose of said property gradually,  [**12]  in the manner and on the terms in which, in the course of their business, the said firm had, before the making of the said deed, sold and disposed of their merchandise, does not render the deed void. This is a permission given to the trustee for the benefit of the trust, which he might exercise or not as he deemed eligible. It could not be required, certainly, that all the property should be sold at the same time or in one mass, and any other mode of selling is necessarily gradual. As the prayer does not state or submit to the jury the manner in which Turnbull & Co. had been in the habit of selling their merchandise, the court, before it could declare the deed void on this ground, would have to assume, that the mode of selling goods practised by Turnbull & Co. was such as was calculated to hinder, delay, or defraud the creditors.

3rd. The authority to sell by retail or in parcels, as the trustee might deem eligible, is also a reasonable and proper power, because there are many things which cannot be sold to advantage in any other way. Such a discretion would be conferred in a judicial trust, as also would, and is habitually, a right to sell on credit. The privilege cannot, in [**13]  se, therefore, be regarded as fraudulent or as evidence of fraud.

4th. The provision that the trustee is not to be answerable but for personal and actual and wilful wrong and default, is a common provision, intended to protect the trustee and not to injure creditors. It is one that equity sanctions; and a court of equity regulates a trustee's liability according to the principle that that provision implies. A similar provision was in the deeds in 4 Gill, 133; 8 Gill, 472. See also 2 Stewart, 86, Robinson vs. Kaflege. 9 Porter, 566, Ashurst vs. Martin. 21 Ala. Rep., 390, Rankin vs. Lodor. 6 Watts & Seargt., 312, Hennessy vs. The Western Bank. Curtis on Conveyancing, 42.

5th. The power to sell on credit does not vitiate the deed as announced in the second prayer of the appellant. Burrill on Assignments, 196, 197. 21 Pick., 185, Neally vs. Ambrose. 1 Metcalf, 79, Hopkins vs. Ray. 8 Leigh, 273, Skipwith vs. Cunningham. 5 Eng. Law & Eq. Rep., 431, Janes vs. Whitbread. 9 Gill, 211, Beatty vs. Davis. 7 Paige, 37, Hart vs. Crane. 4 Sandf., 252, Nicholson vs. Leavitt.  

JUDGES:
The cause was argued before LE GRAND, C. J., TUCK and MASON, J.  

OPINIONBY:
MASON 

OPINION:

 [*387]  MASON, J., delivered [**14]  the opinion of this court.
We are of opinion that the question of the validity of the deed of trust from the Messrs. Turnbull to Inloes, is properly presented on this appeal.
The objection raised by the appellees to the present proceeding, namely, that the court of equity having assumed jurisdiction over the subject, has thereby ousted the court of law of the jurisdiction which it now seeks to exercise, cannot be sustained. The equity proceeding which has been set up as a bar to the present action, does not propose to assail the deed of trust, but on the contrary, it rests upon the assumption that the deed is valid, and was intended merely to invoke the aid of a court of equity to carry out and enforce the trusts 

 [*388]  contemplated by said deed. The present proceeding is based upon the contrary assumption, namely, that the deed is null and void; the objects, therefore, of the two proceedings being entirely opposite in their character and purposes, cannot be said to conflict with each other. And further, to this chancery proceeding the plaintiffs in this action were no parties, and therefore they should not be bound by it, even if it had contemplated in its range the exigencies [**15]  of their case.
The appellants in the court below offered two prayers, each designed to present to the mind of the court the invalidity of the deed of trust. Both were rejected. The first prayer assigns a number of reasons why the deed should be vacated, and it is now urged by the appellee that if any of those several reasons should not constitute a legal ground for declaring the deed void, it was the duty of the court to reject the prayer in its entirety, notwithstanding it should appear that the deed was void for some one, or more, of the reasons assigned. In this view we do not concur. These several legal propositions should be treated as so many separate prayers, and if one presented a valid objection to the deed, it was error in the court to reject it. It was not proposed by the prayer that all the several objections urged to the validity of the deed should concur, in order to make the deed void; and the prayer would have sufficiently raised the point of the viciousness of the deed upon any ground, if no particular reasons at all had been assigned in the prayer itself for vacating it.
Is the deed of trust void or not, is the question to be determined on this appeal. If void for [**16]  any reason, it interposes no impediment to the appellants' right to recover in this action, but, on the contrary, if valid, the plaintiffs have no case in court.
Although it has been more than once decided in Maryland that a debtor, by the common law, and apart from our insolvent system, may, by assignment of his property, or by payment, secure one creditor to the exclusion of others; yet such a provision in a deed of trust is only permitted by a court of equity, but so far from commending the transaction to the 

 [*389]  court as one of honesty and fair dealing, should rather throw a cloud of distrust upon it, and where such a preference is followed up by other provisions, equally suspicious in their character, the court will have little difficulty in discovering such a fraudulent design on the part of the debtor, as to render it imperative upon them to vacate the deed. The present deed creates preferences in favor of particular creditors, to the exclusion of others, and in addition provides as follows, viz:
Third. That said "Inloes, his executors or administrators, shall, at his discretion, sell as aforesaid, all or any part, or parts, of said goods, wares, merchandise, [**17]  chattels and effects, by public or private sale, and by wholesale or retail, or in parcels, as may by him, as to all or any portions of said property, be deemed eligible, and it being understood that said property may be gradually sold in the manner and on the terms in which, in course of their business, said Turnbull & Co. have sold and disposed of their merchandise.
"Fourth. It is further as aforesaid declared, that said Francis H. Inloes, his executors or administrators, may, at their best discretion, appoint and employ any agent, agents and clerks, for selling as above provided, at such compensations as the said trustees may deem proper, and causing such sales to be made in any store or warehouse that from time to time, as he may see fit, he may rent and have occupied.
"Fifth. It is further declared as part of the trust of these presents, that the said Inloes, or his executors or administrators, shall not, as trustees aforesaid, or in any matter of or relating to this trust, be deemed in any wise liable as for any violation of said trust, or as for any omission or neglect, save only for their own personal, and actual and wilful wrong or default."
There is no express  [**18]   provision in this deed that the trustee shall sell on credit. The right to do so, however, might undoubtedly be exercised under the power conferred by the deed, "that said property may be gradually sold in the manner and on the terms in which, in course of their business, said Turnbull & Co. have sold and disposed of their merchandise." 

 [*390]  We do not wish to be understood as pronouncing the present deed void upon the isolated ground alone of its empowering the trustee to sell upon credit. We do not deem it necessary to pass expressly upon that point. Until latterly deeds of assignment containing such a provision have been held generally not to be thereby vitiated, on the ground of hindering and delaying creditors. But very recently a different doctrine has been established by the Court of Appeals of New York, and so far as that State is concerned it may now be said to be settled, that a deed of trust containing a clause conferring upon the trustee or assignee power to sell on credit, will not be sustained. For this principle the very cogent reason may be assigned, that a debtor cannot, by the creation of a trust, avoid the obligation of immediate payment, or extend [**19]  the period of credit, without the assent of the creditor.  Nicholson vs. Leavitt, 2 Selden 510. Barney vs. Griffin, 2 Comstock 365.
We are not aware that this question has ever been expressly brought to the mind of our own Court of Appeals, and passed upon by them. In the case of Beatty vs. Davis, 9 Gill 211, the deed of trust, the validity of which was the question involved on the appeal, contained the provision that the trustee should have power "to sell the said real and personal property, either at public or private sale, and upon such terms and notice as he may deem most expedient, &c., and in case he shall deem it necessary for the purposes of this trust to mortgage the said real estate or any part thereof, he is hereby invested with full power so to do." This deed was sustained.
It might appear, at first view, that the power to sell upon such terms as the trustee might think proper, was equivalent to an authority to sell upon credit, and therefore our Court of Appeals may be regarded as having sanctioned such a provision in deeds of trust. But in the case of Macham vs. Stearns, 9 Paige 398, [**20]  the trustee was directed by the deed to sell the trust property at such reasonable times as should seem proper to him; and in that case, though the deed was sustained, yet it was held that this did not authorise him to sell at retail and on credit: and it is by no means impossible that our own 

 [*391]  court, in Beatty vs. Davis, might have said, if the question had been directly brought to their view, that they did not regard the deed in the case as conferring the power to sell on credit.
But omitting the further consideration of this point, (which we repeat we do not wish to be understood as deciding,) we regard the deed now before us as void upon another ground. It expressly empowers the trustee at his discretion to sell the property covered by the deed, gradually, in the manner and on the terms in which, in course of their business, said Turnbull & Co. have sold and disposed of their merchandise.
Without adverting to other objectionable, if not fatal, provisions in this deed, the one to which we have just referred is sufficient, in the judgment of this court, to render the deed null and void as against creditors. It simply seeks, through the instrumentality [**21]  of a trustee, to provide for carrying on the business of the concern in the same manner in which it had been before conducted, and for an indefinite period, free of all control or interference on the part of creditors. Surely, if such a provision in a deed is not calculated to hinder and delay creditors, we are at a loss to know what could have such an effect, short of a conveyance in trust for the benefit of the grantor himself. A debtor cannot thus postpone his creditors to an indefinite period, without their assent. A conveyance which thus attempts to deprive creditors of their just rights to enforce their claims against the property of their debtor, by placing it beyond their control, for an uncertain and indefinite period, must be regarded, in conscience and law, as a fraud. This subject has been very fully considered by this court in the case of Green & Trammell, vs. Trieber, 3 Md. 11, and the general principle distinctly announced, that the law will not tolerate any hinderance in assignments for the benefit of creditors, beyond what may be necessary for the purposes of the trust.
There are cases, it is true, in which deeds of trust for the benefit of [**22]  creditors, have been sustained as valid, which contain provisions for the continuance of the business of the 

 [*392]  debtor or grantor, either by himself or by his assignee or trustee. Janes vs. Whitbread, 5 Eng. Law & Eq. Rep. 431.  Nunn vs. Wilsmore, 8 Term Rep. 521. Cunningham vs. Freeborn, 11 Wend. 240. De Forest vs. Bacon, 2 Conn. 633. Kendall vs. Carpet Company, 13 Conn. 383. Hitchcock vs. Cadmus, 2 Barb. S. C. Rep. 381.  Foster vs. Saco Company, 12 Pick. 451. Woodward vs. Marshall, 22 Pick. 468. Ravisies vs. Alston, 5 Ala. 297. But it will be found, on examination of those cases, that most, if not all of them, rest upon the important principle, not applicable to the present case, that the stipulation in question was designed more effectually to promote the interests of the creditors, and not intended for the benefit of the debtor; or, where it was intended to be ancillary to the winding up of the debtor's business, as where he had on hand at the time of the assignment unmanufactured material in the way of his business,  [**23]  or the like. In the case of Janes vs. Whitbread, 5 Eng. Law & Eq. 431, the deed which was of this character, was sustained expressly upon the ground, that the carrying on the trade being ancillary to winding up the affairs of the debtor, did not avoid the deed. And in the present case, if the grantors had been manufacturers of oil-cloths, carpets, and the like, we would not be prepared to say that a deed containing a provision authorising the assignee, or the debtors themselves even, to work up any unmanufactured or raw material on hand at the time of the assignment, would vitiate the assignment. But such is not the fact, and as this case at present stands, we can regard it in no other light than an attempt to place the assignee in the place of the debtors, for the purpose of carrying on the latter's business as it had been previously conducted by them before the deed of trust, without any special benefit to be derived thereby by the creditors, and without limitation or restriction upon the trustee.
We will not attempt a review of the numerous authorities which would bear upon the questions involved in this case. As far as cases have gone in sustaining voluntary [**24]  deeds of trust, few, if any, can be found, which have advanced principles 

 [*393]  sufficiently comprehensive or flexible to embrace a case like the present.
The appellant's first prayer asks the court to pronounce the deed void, and to instruct the jury so to find. This prayer was improperly rejected. The deed appearing to be void upon its face, it was the duty of the court so to pronounce it, and there was nothing left for the jury to find.
Having, as we suppose, disposed of the whole case, by declaring the deed void, we deem it unnecessary to pass upon the appellant's second prayer, or upon any other of the questions raised in the course of the argument.
Judgment reversed and procedendo awarded. 

89 of 187 DOCUMENTS 

JAMES C. GUYTON vs. THOMAS J. FLACK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Md. 398; 1855 Md. LEXIS 7 

JUNE, 1855, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Baltimore city.

The bill in this case, filed by the appellee against the appellant and Frances Guyton, the administratrix of William C. Guyton, deceased, alleges, that William C. Guyton, carrying on business under the firm of Wm. Guyton & Co., became indebted to the complainant. It then contains the allegation as to the partnership between the appellant and the said William C. Guyton, which is set out in the opinion of this court. It then alleges, that the appellant has possession of the books and assets of said Guyton & Co., and declares his intention to sell them, and is unable or unwilling to pay complainant's claim, and that he has reason to fear that the appellant is insolvent, and prays for a receiver and an injunction.

On this bill an order was passed, on the 7th of September 1854, by St. George W. Teackle, a solicitor of the court, directing the injunction to issue, with leave to defendant to move for dissolution at any time after filing his answer, and giving five days notice. The injunction was issued, and on the 8th of September, Frances Guyton appeared, and on the 11th, filed a consent to the appointment of a receiver, and on the [**2]  same day the court (KREBS, J.,) passed an order appointing a receiver, and the defendant filed his answer, and appealed both from the order granting the injunction, and that appointing the receiver.  

DISPOSITION:
Reversed and bill dismissed.  

HEADNOTES:

Upon an appeal from two orders, one granting an injunction and the other appointing a receiver, the answer, though filed and appearing in the record, is not to be considered by this court.

Creditors have but a quasi lien upon the partnership effects, which as a derivative and subordinate right through the lien and equity of the partners may be enforced in equity.

Equity will not grant relief to a creditor of a deceased debtor against a party for improperly interfering with or retaining and using the assets of the deceased; his remedy is at law.

An allegation in a bill that the defendant claims to have been a partner of his deceased brother, whose widow denies it, and that complainant does not know whether the brothers were partners or not, is not a sufficient averment of a partnership. 

COUNSEL:
J. M. Harris and T. Yates Walsh for the appellant, argued:

1st. That the solicitor who granted the injunction had no authority to issue such an order. There is no power given to the judge of the circuit court to delegate the power to issue an injunction. That power is vested exclusively in the judge. The 4th article of the constitution disposes of the entire judicial power of the State, and says it shall reside in the judges and courts there specified. The 22nd section of this article, and the act of 1852, ch. 68, provide for all contingencies arising from the disqualification of the judges, and prescribe the governing rule in all cases, and the act of 1853, ch. 122, creating the circuit court for Baltimore city, contains nothing enlarging the powers of its judge. The act of 1852, ch. 173, gives the clerks of the several courts certain powers, but not that of issuing injunctions. But it is said, that the circuit court has the same power as was conferred [**3]  by law upon the county courts as courts of equity, and the chancellor, and therefore it has this power. Now the powers conferred by law upon the chancellor and the equity courts, will be found in various acts of Assembly, none of which contain such a grant of power as this. The only dictum in which the practice has been recognised, is found in 1 Bland, 191, Stewart vs. Barry, where the chancellor does not claim it as a power conferred by law, but says that it is done in pursuance of long established usage.

2nd. That the only reservation of the order for the injunction, was the liberty to the defendants to move for a dissolution at any time after filing their answer, and giving five days' notice, and that, notwithstanding, before the time had arrived when defendants were called upon to answer, the order appointing a receiver was passed by Judge Krebs, which order was illegal and void. That there being no reservation in this order than that above stated, there was no right or authority in the judge of the circuit court to appoint a receiver under the bill.

3rd. That the alleged consent of the co-defendant, Frances Guyton, could give no basis for the appointment of a receiver,  [**4]  and that if it could do so, such alleged assent is utterly informal and void.

4th. That the allegations of the bill of the complainant did not justify the issue of an injunction, or the appointment of a receiver. There is no evidence of indebtedness filed with the bill. 1 Md. Ch. Dec., 489, Thompson vs. Diffenderfer. The allegations as to the indebtedness and insolvency, are not special enough. 1 Bland, 213, Hannah K. Chase's case. 9 G. & J., 474, Amelung vs. Seekamp. 1 Md. Rep., 547, White vs. Flannagan. Again, if there is a sufficient allegation as to the partnership, and the appellant stands in the attitude of a partner, he is entitled to keep possession of the books, and wind up the business of the firm. 16 Ves., 59, Lloyd vs. Passingham. 9 Gill, 476, Speights vs. Peters. 3 Md. Rep., 112, Furlong & Miller, vs. Edwards. 4 Md. Ch. Dec., 41, Walker vs. House.

5th. But creditors have no lien upon the partnership effects, except that which is derived through the partners, (2 Md. Rep., 1, Glenn vs. Gill. 2 Story's Eq., sec. 1243,) and there is in this bill no sufficient allegation of a partnership.

T. Parkin Scott for the appellee, argued:

1st. That the answer of [**5]  the appellant is not to be considered by this court, because it was not filed until after the orders appealed from had been passed, and consequently was not considered by the court below. But even if it could be considered, it does not deny the allegations of the bill, upon which the orders appealed from were passed.

2nd. That the order granting the injunction was properly issued by the solicitor in the absence of the judge. This is the first time that any objection has ever been made to such a practice. The chancellor, in 1 Bland, 191, treats it as the invariable practice of his court. In the case of Albert & Wife, vs. Winn & Ross, 7 Gill, 446, so much litigated in the court below, and in this court, the injunction was granted by a solicitor, and no question was raised as to the propriety of the practice.

3rd. That whether or not there had been a partnership between the appellant and his deceased brother, the facts presented by the bill shows a proper case for the relief prayed for and granted. 1 Bland, 213, Hannah K. Chase's case. Ibid., 419, Williamson vs. Wilson. 6 Gill, 424, Kerr vs. Potter. 9 Gill, 476, Speights vs. Peters. 2 Md. Rep., 15, 16, Glenn vs. Gill. 3 Md.  [**6]  Rep., 99, 112, Furlong & Miller, vs. Edwards. 4 Md. Ch. Dec., 46, 49, Walker vs. House.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON, TUCK and MASON, J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*402]  ECCLESTON, J., delivered the opinion of this court.
This appeal is upon two orders, one granting an injunction and the other appointing a receiver. Although an answer has been filed and appears in the record, still it is not to be considered by us in deciding the questions arising on this appeal, but we are confined to the case as made by the bill. This principle was established in Wagner & Marshall, vs. Cohen, 6 Gill 97. There the chancellor granted an injunction upon a petition; the answer was filed and the appeal was taken from the order granting the injunction. After an argument insisting it was the duty of the court to examine the answer, they refused to do so, holding that under the third section of the act of 1835, ch. 380, they could not look to the answer, in reviewing the order of the chancellor; and confined themselves to the petition in ascertaining whether the injunction had been properly granted.
The section of the act referred to relates only to injunctions, [**7]  but the second section of chapter 346, passed the same year, makes provision in reference to the appointment of receivers as well as the granting of injunctions; and the two sections correspond with each other in providing for appeals and the filing of answers. The correspondence is so perfect that we consider the case of Wagner & Marshall, vs. Cohen, as fully settling the question in regard to the present answer. In that case the answer was filed after the injunction had been granted, and here it was filed after the order directing the injunction and subsequent to the appointment of the receiver.
The next inquiry is, does the bill state such a case as authorized the orders appealed from. To do that it must aver that a partnership existed between the brothers, William 

 [*403]  and James Guyton. For if there was no such partnership, the complainant is not entitled to the relief sought by him.
Partners themselves have a lien upon partnership effects for the discharge of the debits of the firm, (where they have not parted with it,) which lien may be made available for the benefit of the creditors. But the equities of the creditors are to be worked out through the medium of the [**8]  partners. The creditors have not a lien, but a quasi lien upon the partnership effects, which, as a derivative subordinate right, through the lien and equity of the partners, may be enforced in a court of equity. Story on Partnership, secs. 360 to 362, inclusive. In Ex-parte Kendall, 17 Ves. 526, Lord Eldon said: "In all these cases of distribution of joint effects, it is by force of the equities of the partners among themselves that the creditors are paid, and not by force of their own claim upon the assets, for they have none." See also Glenn vs. Gill, 2 Md. 1, 16.
If there was no partnership between William and James, and the assets of the estate of the former were held and used by the latter, he might have been sued as executor de son tort in a court of law by the complainant. James was likewise responsible in a court of law, to the administratrix of William, for improperly withholding from her the assets. We have been furnished with no case which shows that a court of equity will grant relief to a creditor of his deceased debtor, against a party, for improperly interfering with, or retaining and using, the assets of the debtor.  [**9]  
If the brothers were not partners the complainant had no right to an injunction, or to have a receiver appointed. And as we are to look to the bill only, if that does not aver a partnership it is the same as if none existed in fact.
The bill alleges that William Guyton was carrying on trade and commerce in the city of Baltimore, under the name and style of William Guyton & Co.; that he departed this life intestate on or about the 2nd day of September 1854; that since his death James C. Guyton, his brother, and who was employed in his store in his lifetime, claims to have been a 

 [*404]  partner with William in the said commercial house of William Guyton & Co., but that Frances Guyton, widow of the deceased, and who has obtained letters of administration on his estate, denies the said partnership, and that the complainant does not know whether or not William and James were co-partners.
Thus it appears James asserts there was a partnership; the administratrix denies it; and the complainant neither asserts or denies it, but says he does not know whether there was or not. Surely it cannot be said there is an averment by the complainant of a partnership, when his statement is that [**10]  he does not know whether there was one or not, and the assertion by one defendant of its existence is denied by the other.
Upon such a bill we think the injunction should not have been issued, or the receiver appointed. And the consent of the administratrix to the appointment of the receiver did not cure the defect of the bill, in not asserting the existence of the partnership.
These views relieve us from any necessity to decide the other questions presented in argument.
Both orders will be reversed, and the bill dismissed without prejudice, and without costs.
Reversed and bill dismissed. 

90 of 187 DOCUMENTS 

JAMES W. BOYD vs. WILLIAM A. TALBOTT, Garnishee of HENRY F. HOOK and HENRY HOOK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Md. 404; 1855 Md. LEXIS 8 

JUNE, 1855, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

The record in this case shows that the appellant recovered judgment against the two Hooks on the 1st of March 1848, on which a fi. fa. was issued on the 24th of August following, but was immediately countermanded, and on the same day a ca. sa. issued, and was returned on the 2nd Monday of September, non est as to one, discharged under the insolvent laws as to the other, of the defendants. On the 6th of October 1848, a fi. fa. was issued, and returned on the 2nd Monday of January 1849, "nulla bona." On the 2nd of October 1849, an attachment was issued, and returned on the 2nd Monday of January 1850, "laid in the hands of William A. Talbott, permanent trustee of Henry F. Hook," who appeared and pleaded "nulla bona," and the attachment was regularly continued till the 2nd of March 1852, when the plaintiff suffered judgment of non suit by default, and on the same day a second attachment was issued, and also laid in the hands of Talbott, who, upon its return, moved to quash this writ--1st, because the judgment on which it issued was rendered more than three years before the date of the attachment, and had not been revived by scire facias.  [**2]  2nd, because it was rendered more than a year and a day before the writ issued, and had not been properly kept alive.

The cause was then continued under curia till January term 1853, when the plaintiff, after the motion to quash had been argued on both sides, moved for leave to enter on the docket and roll the continuances from January term 1849, regularly through that year to January term 1850. The court (FRICK, J.,) refused to grant this leave, and quashed the attachment, and from the judgment of cassetur the plaintiff appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

An attachment on judgment, so far as the issuing of it is involved, is on the same footing with a fi. fa. or ca. sa., and cannot be issued more than three years after the rendition of the judgment, unless the latter has been revived by scire facias. 

COUNSEL:
James Malcolm and J. Mason Campbell for the appellant:

The appellee's first reason for quashing the writ, puts the execution, by way of attachment, in the same category with a ca. sa. and fi. fa., and assuming the same rule to be applicable to it as to them, affirms it to be irregular where they would have been. The theory then is, that attachments on judgments being executions, are within the equity, though not within the terms of the act of 1823, ch. 194, entitled "An act relating to executions." If this be true, it is fatal to the second point, which proceeds on the assumption that the attachment could only issue within [**3]  a year and a day, and is, consequently, a denial of the applicability of the act of 1823 to such a writ. Assuming it to be true however, argumenti gratia, the question presented by this point is, whether this attachment, being issued after three years, required a preliminary scire facias on the judgment to warrant its issue? The present attachment, it will be remembered, is not the first which issued on the judgment. It had been preceded by a previous one in October 1849, when it is conceded by this point that the judgment was alive and the writ issuable. This previous attachment was regularly carried forward by continuances, until the 2nd of March 1852, after the three years had expired, when the plaintiffs suffered judgment by default, and on the same day the present writ issued. Now, that the judgment was alive on that day, there can be no doubt. Had there then been funds in the garnishee's hands, a condemnation would have taken place on the first attachment, and as there are no fractions of a day in law, the present attachment was in time, because the judgment on that day was in force. It is an error to suppose that the rule requiring a scire facias to revive a judgment where no [**4]  execution has issued within the year in England, or the three years in this State, is without exception. Bacon (Title Execution H.,) says: "Though the general rule be, that the plaintiff cannot take out execution after the year and day, without a sci. fa., yet it must be understood with these restrictions." And he then proceeds to cite a writ of error, a stay of execution, &c., as not affecting the right to take out execution, even though the year has expired. The same principle is laid down by Tidd, (2 Tidd, 1155,) and in addition to the exceptional instances mentioned by Bacon, he says: "When a fi. fa. or ca. sa. is taken out within the year, and not executed, a new writ of execution may be sued out at any time afterwards, without a scire facias, provided the first writ be returned and filed, and continuances entered from the time of issuing it." This passage is both cited with approval, and explained by the Court of Appeals, in Mullikin vs. Duvall, 7 G. & J., 358. The opinion in that case says, "That a judgment may be kept alive and in full legal operation for an indefinite period of time, by the issuing an execution on it within a year and a day, by the law of England, and within [**5]  three years by the law of this State, and if such execution is not effective by renewing it from term to term." The rule, therefore, both in England and Maryland, is, that the judgment is unaffected by any lapse of time, during which process of execution is kept up by the renewal of the writ, whenever it proves ineffective. In this case, the original attachment issued within the three years, was not ascertained to be ineffective until the 2nd of March 1852, and not only at the same term, but on the same day on which it became ineffective, the alias or present attachment was issued. It is submitted with great confidence that no scire facias was necessary, and that the court below ought not, for this reason, to have quashed the attachment.

(The argument upon the second reason for quashing the writ, need not be stated, because this court held, that the writ was properly quashed for the first reason.)

No counsel appeared for the appellee.  

JUDGES:
The cause was argued before LE GRAND, C. J., TUCK and MASON, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*407]  LE GRAND, C. J., delivered the opinion of this court.
We are of opinion, independently of all other considerations, that by virtue of the provisions [**6]  of the act of Assembly of 1834, chapter 189, the judgment of the court below ought to be affirmed. We regard that act as a legislative interpretation of the previous state of the law, and as designed to place an attachment on judgment on precisely the same footing, so far as the issue of it should be involved, as that of a fi. fa. or ca. sa. The writ in this case having issued more than three years after the rendition of the judgment, and the latter not having been previously revived by scire facias, we 

 [*408]  think the court did right in quashing it, and accordingly affirm the judgment.
Judgment affirmed. 

91 of 187 DOCUMENTS 

STEPHEN BROADBENT and others, vs. THE STATE, at the suggestion of the Lottery Commissioner.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Md. 416; 1855 Md. LEXIS 10 

JUNE, 1855, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Baltimore city.

The bill in this case is a bill of discovery filed in the name of the State, at the instance of Lemuel Roberts, the lottery commissioner, against the appellants, to procure evidence in aid of suits at law, which had been instituted against the defendants, under the acts of 1846, ch. 109, and 1854, ch. 138. Its allegations are fully stated in the opinion of this court. The six interrogatories propounded to the defendants are in substance as follows:

1st. Whether the exhibit referred to in the bill was printed at their instance?

2nd. What is the meaning and purport of the same, and of every part thereof?

3rd. Does it not set forth the terms and conditions of insurances offered to be effected by them of numbers of lottery tickets in the Maryland consolidated lotteries, or some other, and if so, what other?

4th. Were not one or more persons, on the 21st of October 1854, employed by or acting for them, at their instance, or with their knowledge and consent, in the city of Baltimore, to effect insurance of lottery tickets, or the numbers or some of the numbers thereof, or do the things set forth or contemplated by [**2]  said exhibit? and what the names of such persons are? and where they carried on said business on that day? and where they now reside?

5th. Whether said persons, or any of them, effected insurances on said 21st of October 1854, of lottery tickets, or the numbers or any of the numbers thereof? and who such person or persons were, and what tickets or numbers of lottery tickets they insured on that day?

6th. Whether any of the persons employed by or acting for them, at their instance, or with their knowledge on that day, were colored persons? and if so, what are the names of such colored person or persons? and what insurances were effected on that day by such person or persons?

To this bill the defendants filed a demurrer upon the grounds, 1st, that by answering it, they might subject themselves to pains, penalties and forfeitures, and 2nd, because the State has no right to file a joint bill of discovery against them.

This demurrer the court (KREBS, J.,) overruled, and required the defendants to answer, and from the order to this effect they appealed.  

DISPOSITION:
Order reversed and bill dismissed with costs.  

HEADNOTES:

The 20th article of the bill of rights confides to the discretion of the legislature the exercise of the power to compel a party to give evidence against himself, but a just regard for the liberties of the citizen should at all times induce the most cautious and jealous exercise of it by the legislature.

The courts of justice should anxiously and narrowly watch the exercise of this power, and never, under any pretence, extend it beyond the limits to which the strictest interpretation of the language of the legislature confines it, in the particular case.

A bill of discovery was filed to procure evidence in aid of suits at law, instituted under the third section of the act of 1846, ch. 109, contained interrogatories which, if answered, might subject the defendants to a criminal prosecution, under the 4th section of that act. HELD, that they were not bound to answer such interrogatories.

The 2nd section of the act of 1847, ch. 284, only compels the party to answer on oath any bill of discovery filed against him "in the premises," which are the things specified in the third section of the act of 1846, ch. 109, among which is not the employment of colored persons to issue lottery tickets, which is an offence punished by the 4th section of that act.

Where there are separate proceedings before a justice of the peace against several parties, for a violation of the third section of the act of 1846, ch. 103, a joint bill of discovery cannot be filed against them, and such joinder is matter of substance and not of form, and is fatal on demurrer.

The 4th section of the 7th article of the constitution clearly contemplates the performance, by the commissioner of lotteries therein referred to, of the duties previously discharged by the lottery commissioners, and he can therefore file a bill for discovery under the acts of 1846, ch. 109, and 1847, ch. 284, there is nothing in those acts which has expired, or which is repugnant to the constitution, and they are protected by the 3rd article of the bill of rights.  

COUNSEL:
Robert J. Brent and Charles H. Pitts for the appellants, argued:  [**3]  

1st. This bill of discovery is alone in aid of a suit at law, and can only enforce discovery for the purposes of that suit, and beyond that purpose, it is a fishing bill. Story's Eq. Pl., secs. 321, 325. 2 Story's Eq., sec. 1497. What is the cause of action in the suits at law, in respect to which discovery is wanted? This is shown in the bill to be illegal insurances effected on the 21st of October 1854, by the defendants in the city of Baltimore, through some person or persons employed by them, or acting for them in the premises at their instance, &c. The complaint, therefore, is not that defendants personally insured on that day, but they did it by some person or persons. The 4th, 5th and 6th interrogatories require a discovery of all the persons and their names so employed by them, and whether such persons, or any of them, were colored persons? Therefore it is plain that the principal object of the bill is to enforce discovery of the agents who effected insurances for defendants, and it is charged that one or more of them were colored persons, and the names of all such persons are called for. Should it, therefore, turn out that all were colored, the defendants, if they answer [**4]  at all, must say so. If part are colored, the defendants must name them in their answer. Framed as this bill is, they must, if they answer fully, expose themselves to the indictment provided in the 4th sec. of the act of 1846, ch. 109, and by the act of 1847, ch. 284. Conceding, therefore, that the defendants are bound to expose themselves to the penalties of the 3rd section, which are to be recovered in the form of a civil action, as ruled in Day vs. State, 7 Gill, 325, yet they are not bound, even under the rigorous doctrine of that decision, to expose themselves under this bill to criminal prosecution, under the 4th section. In Day's case, no such enquiry or discovery was made as to the agents, or their being colored persons, but it was simply whether Day had not himself illegally insured, thereby exposing him only to the action of debt, and not to the criminal and indictable offence created in the 4th section, which is still in force and not repealed. The rule then applies, that though the bill may be in aid of a civil suit, yet its answer would involve a liability to an indictment, if the facts are as charged. Wigram on Discovery, 61, 150, 195. Story's Eq., sec. 1494, note 2.  [**5]  Glynn vs. Houston, 1 Keen, 329. Singery vs. Attorney General, 2 H. & J., 497. Wolf vs. Wolf, 2 H. & G., 387. If this bill had only sought discovery as to the single fact, whether they insured by white agents, and called for their names, it would have avoided this objection, but here the test is, that we cannot answer without giving the names of all the agents, one or more of whom are expressly charged to be colored; we cannot answer and give the names of white agents only, for that would not be a full answer. It is no answer to our objection to say, that the discovery is only sought to recover a penalty in a civil action of debt, and that such a discovery was allowed in State vs. Day. Here, it is true, the State only claims the pecuniary fine by an action of debt. But the frame and scope of this bill goes upon a state of facts not only subjecting the parties to the action of debt, but to an indictment hereafter, if they should discover colored agents in their answers to the interrogatories, or if they should furnish even a link to connect them with a res gesta averred to have been carried on by colored agents, and therefore indictable. Surely the State cannot make a party expose himself [**6]  to a future indictment, merely to enable her now to maintain "a civil action." 2 Younge & Jervis, 183, Maccallum vs. Turton. 1 Atk., 539, Harrison vs. Southcote. 2 H. & G., 389, Wolf vs. Wolf. Wigram on Discovery, 62, 63. This case, therefore, differs broadly from State vs. Day. The 20th article of the bill of rights (copied from the old bill of rights,) declares, that "no man ought to be compelled to give evidence against himself in a court of common law, or in any other court, but in such cases as have been usually practised in this State, or may hereafter be directed by the legislature." And the 42nd article declares, that "this enumeration of rights shall not be construed to impair or deny others retained by the people." From this it is manifest there was a residuum of natural rights never intended to be surrendered to the legislature. Now it will be observed, that the 20th article only applies to the cases where a man is called on to testify "against him in a court of common law, or any other court," and conceding that the legislature may direct in what cases he shall be a witness against himself, yet the question remains, whether the legislature can direct him to testify against [**7]  himself in a civil case, where his testimony would involve a liability to a criminal charge to be afterwards instituted in some other court? It is well known, that the exemption of the citizen from all obligations to criminate himself in any case, was based on the broadest principles of the common law, and solemnly reaffirmed by magna charta. Has the legislature of Maryland overthrown this great national right, by the act of 1846, for the contemptible and petty purpose of breaking up lottery policies? Assuming their power to exercise such despotic powers of government, the court will, at least, require a clear and positive manifestation of the legislative intention to do so. So sacred a natural right can never be wrested from a free citizen, upon construction or implication. There are many cases of natural right in which the power of the legislature may be well questioned, without any formal recognition of those rights in the constitution. 3 Story's Com. on the Cons., sec. 1393. And it is to this class of non-enumerated rights that the 42nd article of our bill of rights points, as not surrendered by the people. Surely no man can say, that the people ever meant to delegate to their [**8]  legislature the powers of absolute despotism--the power of declaring what should be criminal, and the power to make a man convict himself of any thing that the legislature might declare to be a crime. Give this power to the legislature, and there is not a vestige of liberty left to the citizen. Give it to the legislature, and you trample down the great natural rights of persons secured by magna charta itself, and you concede to the legislature of Maryland a power not possessed by the Parliament of England. Give it to the legislature, and you pass by the 42nd article of the bill of rights as idle and unmeaning; at the same time you pervert the spirit of the 3rd article, securing to all citizens "the common law of England, and the trial by jury, according to the course of that law," and also disregard the 4th article, which imposes restraints on the legislative power, and inculcates resistance to all acts "of arbitrary power and oppression." And above all, you strike down the letter and spirit of the 19th article, which secures the jury trial to every criminal, and the right to be confronted with his witnesses: for it would be a farce to give the form of a jury trial, when the State [**9]  had already compelled the prisoner to record his confession of the criminal offence, and the jury could not fail to convict upon this legalized, though extorted confession of crime. With these great and fundamental principles in view, let us approach the construction of these acts of Assembly. The act of 1846, ch. 109, sec. 3, inflicts a pecuniary penalty of $ 50, to be recovered in an action of debt. Sec. 4 makes it indictable to employ negroes or colored agents, as charged in this bill, but the act of 1846 does not give the right of discovery on oath. The act of 1847, ch. 284, changes the punishment inflicted by that of 1846, ch. 109, sec. 4, to a fine of $ 30 and costs, and imprisonment not less than sixty days, nor more than six months, and then declares, that a recovery and payment of the pecuniary penalties, shall bar the criminal prosecution based on the same act. Now it may be said, that the State could not prosecute by indictment on the discovery of these parties, because if this gives the discovery as prayed, the penalty will be recovered, and then, by payment, they can bar the indictment. But non constat, that the justice will enter judgment for the penalty, even though [**10]  the parties confess the facts in their answer. Nor can this court assume that the parties are able or will pay the fine, so as to bar the indictment. A rich man might pay and bar the prosecution, while a poor man, unable to pay, would still be liable to indictment on his own extorted answer. The 2nd sec. of the act of 1847, ch. 284, gives the right to file the bill of discovery in any proceeding, to recover the fine imposed by the original act of 1846, ch. 109; but it does not follow, except by loose construction, that the legislature meant to allow the discovery where the proceeding, though for a recovery of the fine, also involved, as here, an indictable offence. The legislature have not said, that on an indictment for employing colored persons, the prisoner should answer a blll of discovery; and where they have not said so directly, can you hold that they have said it indirectly? The true and rational construction, therefore, is, to authorize the bill of discovery in those cases where the facts charged exposed the party only to the pecuniary penalty, by way of action of debt, and not to cases where they involve an indictable offence, as well as the action of debt. The act of 1854,  [**11]  ch. 138, amends the act of 1846, ch. 109, sec. 3, so as to make the pecuniary penalty for selling lottery policies only $ 5, but says nothing of the bill of discovery. By the letter of the act authorizing the discovery, the right to demand it is conferred in those cases when the penalty of $ 50, imposed by the original act, is sought to be recovered, and this suit, therefore, is not within the letter of the act of 1847, conferring the right to discovery. It is only by implication or construction that you can apply the bill of discovery to a case like this, and we have shown that no such implication should be made for the purpose of exposing the party to a criminal prosecution. Again, it is manifest, from the facts stated in the bill, and the purpose charged, that the answer of the defendants, if they admit the facts, would convict them of a conspiracy. A conspiracy or combination between the three to do an illegal act, is, as such, indictable. State vs. Buchanan, 5 H. & J., 350.

2nd. Again, this privilege of discovery was allowed to the lottery commissioners, and the new constitution has created a new officer, and defines his powers and duties. It has not given him the powers [**12]  of the three commissioners, but only the enumerated powers. Const., art. 7, sec. 4. The act of 1852, ch. 113, which attempts to confer on the single lottery commissioner all the powers, &c., is therefore void, as adding powers not conferred on that officer by the constitution, but impliedly denied by the enumeration of what he shall do. 2 English's Rep., 172, Gibson vs. Emerson, 8 B. Monroe, 648, Page vs. Hardin. 5 Md. Rep., 347, State vs. Mace.

3rd. There are several actions at law against each of the three defendants. The discovery should be separately prayed for, and the demurrer lies in this case for a misjoinder of defendants. Certainly, if the causes of action are separate at law, the discovery cannot be asked for jointly. Story's Eq. Pl., secs. 270, 271, 277, 278, and the notes.

J. Mason Campbell and John Nelson for the appellee.

This bill was filed under the authority of the act of 1847, ch. 284, sec. 2, which is a supplement to that of 1846, ch. 109, and is in these words: "That upon any proceeding for the recovery of any fine imposed by the act to which this is a supplement, the party from whom it is sought to be discovered shall be bound to answer on oath [**13]  any bill of discovery which may be filed against him by the commissioners of lotteries in the name of the State, either in the high court of chancery, or in any county court as a court of equity." The present bill was filed within the terms of the act of 1847, in a proceeding to recover a fine imposed by the act of 1846, and that the act of 1847 is constitutional is not an open question. 7 Gill, 321, Day vs. The State. 5 Md. Rep., 349, State vs. Mace.

It is said the present lottery commissioner under the new constitution has no power to file this bill. This objection is not tenable, for the 4th section of the 7th article of the constitution confers upon the lottery commissioner the same powers that the old lottery commissioners had, for it requires him "to give such bond for the faithful performance of his duties as is now given by the lottery commissioners." This section does not profess to repeal all the laws regulating the duties of commissioners of lotteries, but on the contrary, contemplates that the commissioner should look to the existing laws for the purpose of ascertaining what those duties are. And besides this, the 3rd article of the bill of rights secures to the people [**14]  of the State the benefit of all acts not repealed by the constitution.

The only other question is in regard to the character of the bill. It unquestionably presents inquiries which the defendants are bound to answer apart from the objection taken by their demurrer. But can there be a doubt that they are bound to answer all these questions. The 20th section of the bill of rights expressly excepts cases in which the legislature may direct the parties to answer, and this article is precisely the same as that of the old bill of rights, which was construed by the Court of Appeals in Day vs. The State, which, in all respects, is similar to the present case. The party must answer the interrogatories not involving an indictment, even if he be not required to answer the others. Story's Eq. Pl., secs. 578, 578, (a,) 588. But the 1st section of the act of 1847, ch. 284, answers all the objections urged against this bill or any of the interrogatories, by enacting that the recovery and payment of the penalties shall be a bar to any indictment under this act for the same offence. It in effect says that the parties shall answer, but that their answers shall not be used as evidence against them [**15]  on an indictment. As to the objection of the joinder of the defendants, it is answered by the 6th section of the act of 1846, ch. 109.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and TUCK, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*425]  LE GRAND, C. J., delivered the opinion of this court.
The State filed its bill for discovery in the circuit court for Baltimore city, alleging that it had instituted, under the acts of 1846, chapter 109, and 1854, chapter 138, before a justice of the peace, three actions of debt against Stephen Broadbent, three actions against Scotti Broadbent, and three against Joseph Beard, to recover the penalties imposed by the 3rd section of the act of 1846; and that each of said actions so pending are brought for the illegal insurance of lottery tickets, and that such illegal insurances were effected on the 21st October 1851, by the defendants in the city of Baltimore, through certain person their agents, one or more of whom were colored persons. The bill then avers that the appellants have caused to be printed and published a certain handbill filed with the bill of discovery, the true meaning of which is unknown to the appellee. It then asks that the appellants [**16]  shall answer and make discovery of certain things and matters in regard to which they are specifically interrogated. To this 

 [*426]  bill the defendants demurred. The circuit court overruled the demurrer, from which order this appeal is taken.
The third section of the act of 1846, chapter 109, is in these words: "That all insuring of lottery tickets, or numbers or certificates of numbers of lottery tickets, either foreign or domestic, is absolutely prohibited in this State; and any person, directly or indirectly, making or offering, or agreeing to make such insurance or insuring, or receiving any consideration for insuring for or against the drawing of any ticket or tickets in any lottery, whether authorized by law or not, or receiving any money, goods or thing in action, in consideration of any agreements to repay any sum or sums of money, or to deliver the same, or any goods or thing in action, if any ticket or tickets in any lottery whatever shall prove fortunate or unfortunate, or shall be drawn or not drawn, on any particular day, or in any particular order or otherwise howsoever, or promising or agreeing to pay any sum of money, or to deliver any goods or thing in action,  [**17]  or to do, or forbear to do, anything for the benefit of any other person or persons, with or without consideration, upon any event or contingency dependent upon the drawing of any ticket or tickets, or number or numbers of any ticket or tickets in any lottery whatsoever, shall, for each of said offences, be punishable as is provided for by the first section of this act in regard to the offences there described." The first section provides a fine of fifty dollars for each offence, which, by the act of 1854, chapter 138, section 1, is reduced to five dollars, to "be recovered before any justice of the peace, by action of debt in the name of the State," &c.
The 4th section of the act of 1846, chapter 109, provides, "that the employment, by any licensed vendor or vendors, or any other person, of any negro or colored person to do any of the matters or things prohibited by this act, or in any way to assist in doing them, shall be punished, upon indictment and conviction thereof, by a fine of not less than fifty, nor more than two hundred and fifty dollars, and by imprisonment for not less than twenty days, nor more than six months."

 [*427]  The second section of the [**18]  act of 1847, chapter 284, provides: "That upon any proceeding for the recovery of any fine imposed by the act to which this is a supplement, the party from whom it is sought to be recovered shall be bound to answer on oath any bill of discovery which may be filed against him in the premises by the commissioners of lotteries, in the name of the State, either in the high court of chancery or in any county court as a court of equity."
The bill in this case calls upon the defendants to answer six interrogatories. We are of opinion they ought not to be compelled to answer some of them. The bill was filed to procure evidence in aid of suits at law instituted under the third section of the act of 1846, chapter 109. That section does not make the employment, as does the 4th section, of colored persons a crime. Some of the questions ask of the defendants to make such disclosures as would, (if they have employed negroes or colored persons,) subject them to a criminal prosecution.
The 20th section of the existing bill of rights of Maryland, is precisely the same as the 19th section of the bill of rights of 1776, and the latter, in connection with the second section of the act of 1847,  [**19]  chapter 284, has received a judicial interpretation in the case of Day vs. The State, 7 Gill, 321. Both articles read as follows: "That no man ought to be compelled to give evidence against himself in a court of common law, or in any other court, but in such cases as have been usually practised in this State, or may hereafter be directed by the legislature." The concluding words of the article clearly confide to the discretion of the legislative branch of the government the exercise of the power to compel a party to give evidence against himself, and so it was expressly holden by the Court of Appeals in the case to which we have referred. But, although it is competent to the legislature to alter the rules of evidence so as to compel a party to give testimony against himself, it is, nevertheless, a power of such transcendent and overwhelming importance, that a just regard for the liberties of the citizen should, at all times, induce the most cautious 

 [*428]  and jealous exercise of it by the legislature. And especially should courts of justice anxiously and narrowly watch it; and never, under any pretence whatever, extend it beyond the limits to which the [**20]  strictest interpretation of the language of the legislature confines it in the particular case. In the case before us, the parties are not being proceeded against for the violation of the 4th section of the act of 1846, but of the 3rd section. They ought not, therefore, to be compelled to answer any question which is not essential to the ascertainment of the fact, whether or not they have violated the provisions of the third section of the act. So far as liability under that section is concerned, the color of the agents through whom the insuring, &c., may have been done, is a wholly immaterial inquiry. It is the 4th section which makes the employment of negroes a crime, punishable by fine and imprisonment. In the suits pending before the justice, the defendants are not charged with a violation of the 4th section, and we, therefore, can see no reason why they should be compelled to furnish evidence which would, in regard to a different matter, to wit, the employment of negroes, subject them to a criminal prosecution. The 2nd section of the act of 1847, chapter 284, only compels the party to answer on oath any bill of discovery which may be filed against him "in the premises.  [**21]  " The premises here are the things specified in the third section of the act of 1846, among which is not to be found the employment, eo nomine, of negroes or colored persons. Independently of the act of 1847, it could not and has not been contended, that the defendants could be compelled to answer the matters inquired of in this bill of discovery, and, for the reasons we have given, we are of opinion the defendants ought not to be compelled to answer the interrogatories to which we have referred, even were there no other objection to the bill. We think the joinder of the defendants is a fatal defect. The proceedings before the justice are separate. The cases have no necessary connection with each other, and the defendants in them ought not to be compelled to defend jointly, or to have their rights in a court of equity mingled with those of 

 [*429]  other parties, and for that reason the bill is bad on demurrer. But, it is said, this defect, if one, is cured by the sixth section of the act of 1846, which provides: "That no proceedings in any court, or before any justice, by indictment, action of debt, bill in equity, or otherwise instituted, upon the suggestion of the commissioners [**22]  of lotteries, shall be quashed, set aside, dismissed or delayed for any defect or (in) form whatsoever." There might be a question, whether this section has any bearing on the 2nd section of the act of 1847, chapter 284, but conceding that it has, on the principle that matters in pari materia shall be construed together, yet it cannot avail the State in this case, for we regard the joinder of the defendants as a matter of substance, and not of form, to which the section was evidently, in any event, designed exclusively to apply.
These views dispose of this case, but inasmuch as there was another question of practical importance presented and discussed, we deem it proper to dispose of it also. It was contended, on the part of the defendants, that under the present constitution of Maryland, the lottery commissioner has no right to institute such a proceeding as that now under consideration. In this view we do not concur. We think the 4th section of the 7th article of the constitution clearly contemplates the performance, by the commissioner therein referred to, of the duties previously discharged by the two lottery commissioners. He is required to give bond "for the faithful [**23]  performance of his duties as is now (then) given by the lottery commissioners." The 5th section of the same article only assigns to him another and additional duty, and in no wise confines his power to the mere making of a contract. The 3rd section of the bill of rights, however, is a conclusive answer to the objection. It distinctly declares to be in force all laws which were so on the first Monday of November 1850, except such as may thereafter have expired, or be repugnant to the constitution. There is nothing in the acts of 1846, or 1847, relating to the subject before us, which has expired, or which is repugnant to the constitution. The constitution expressly 

 [*430]  recognizes the continuance, for a specified term, of the lottery system, and in the absence of some express declaration to the contrary, we must understand the language of the constitution to mean the system in force at the time of its adoption. The objection can find no support from the decision of the case of Mace vs. The State, 5 Md. 337. The question of the jurisdiction of the Court of Common Pleas, considered in that case, was determined in reference to the language of the 10th and 11th [**24]  sections of the 4th article of the constitution, which, after conferring on the Superior Court certain powers, proceeds to say, that in addition to the enumerated powers, it shall have jurisdiction in "all other civil cases which have not been heretofore assigned to the Court of Common Pleas." This language undoubtedly makes the latter court one of limited and specified jurisdiction, and it was on this ground the court rested its decision.
Order reversed and bill dismissed with costs. 

92 of 187 DOCUMENTS 

HENRY WEIGHORST vs. THE STATE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Md. 442; 1855 Md. LEXIS 12 

JUNE, 1855, Decided 

PRIOR HISTORY:
 [**1]  ERROR to the Criminal Court of Baltimore city.

The plaintiff in error was indicted for the murder of his wife, and upon this indictment he was tried, and the jury rendered their verdict, as appears by the docket entry thereof, "guilty of murder in the second degree." This entry appears in the record amplified as follows, "that the said Henry Weighorst is guilty of the felony and murder aforesaid above charged and imposed upon him, and that the said felony and murder is murder of the second degree."

The prisoner then moved for a new trial, upon the grounds that the verdict was contrary to law, to the evidence and to the weight of evidence, and also because the court erred, 1st, in admitting the dying declarations of the wife as to threats made by the prisoner on the 15th of July, the killing having occurred on the 16th of that month, and 2nd, in admitting the confessions or admissions of the prisoner, alleged to have been made at the watch-house, the State having closed its case, and these alleged confessions not being properly rebutting testimony. This motion the court (STUMP, J.,) overruled.

The prisoner then moved in arrest of judgment, because the jury have not found [**2]  and answered all the issues confided to them. They have simply found the prisoner guilty of murder in the second degree, and have not negatived murder in the first degree, and manslaughter. This motion the court also overruled, and passed judgment sentencing the prisoner to the penitentiary until the 4th of June 1868, being thirteen years and six months. To correct this judgment the prisoner sued out a writ of error from the Circuit Court for Baltimore city.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Upon an indictment for murder, a verdict "guilty of murder in the second degree," without negativing murder in the first degree, is sufficient.

A docket entry, "guilty of murder in the second degree," was set out in the record "guilty of the felony and murder aforesaid, above charged and imposed upon him, and that the said felony and murder is murder of the second degree." HELD:

That both are substantially the same, the latter being but the technical extension of the former, according to the long established practice of the courts.

In legal contemplation, docket entries are made under the eye of the court, and by its authority, and when not properly entered or extended, the error may be corrected.

Where there is but one count, and the party is found guilty of the higher grade of the offence, the inferior grade need not be passed upon by the jury.

The rule by which the sufficiency of a verdict is to be determined, is to ascertain whether it covers the indictment.

The act of 1809, ch. 138, does not create a new offence in distinguishing between murder of the first and second degrees. The design was to discriminate in awarding the punishment.

Manslaughter and murder are different crimes, and not different degrees of the same offence, and hence, on an indictment for murder, and a conviction of manslaughter, the verdict must negative the murder, otherwise the crime charged in the indictment would be left wholly unnoticed.

But, in the case of a conviction of "murder in the second degree," the crime for which the party is indicted is fully covered by the verdict.

Such a verdict is in the form required by the act of 1809, ch. 138, because it finds the party guilty of the crime charged against him, and ascertains the degree of that crime for the guidance of the court in awarding punishment.

This form of taking the verdict in such cases, has been the almost universal practice for nearly a half century, in all the courts in the State, and such practice is to be recognized as evidence of what the law has been supposed to be from the earliest times.  

COUNSEL:
Chas. H. Pitts and T. Yates Walsh for the plaintiff in error:

1st. The act of 1809, ch. 138, speaks of murder in the first degree, and of the crime of murder in the second degree, as separate and distinct offences. The 4th section says, that "the offences" thereinafter named shall be punished as therein prescribed--"1st, every person convicted of murder in the first degree" shall suffer death, &c.; "2nd, every person duly convicted of the crime of murder in the second degree," shall be confined in the penitentiary, &c.; and "3rd, every person duly convicted of the crime of manslaughter," shall also be confined in the penitentiary.

Manslaughter, murder in the second degree, and murder in the first [**3]  degree, are all degrees of homicide. In every such indictment, therefore, homicide is the subject charged, and murder, or murder in the second degree, or manslaughter, is the result. Every such indictment, therefore, presents for the consideration of the jury three separate issues or charges--1st, of murder in the first degree; 2nd, of murder in the second degree; and 3rd, of manslaughter. A verdict which finds the party guilty of any one of these inferior degrees, is a verdict which partially convicts and partially acquits, and to be valid, must find specifically not guilty of the higher and guilty of the inferior charge; and if it merely finds the party guilty of the inferior offence, it will be of no avail. This is the language of Chitty, in 1 Chitty's Cr. Law, 641, quoted and approved by the Court of Appeals in State vs. Sutton, 4 Gill, 494, and acted upon in the case of State vs. Flannigan, 6 Md. Rep., 167, where a verdict finding the party guilty of manslaughter, without negativing the murder, was held invalid. Manslaughter is just as much, and no more, an inferior grade of homicide than murder in the second degree, and if it be necessary to negative the higher grade in the one [**4]  case, it must be equally imperative to do so in the other. The opinion of the court in Flannigan's case, places the case of a conviction of murder in the second degree, without negativing murder in the first degree, as precisely parallel with that of a conviction of manslaughter, without negativing murder. The court say, that each of such convictions necessarily, in their opinion, implies a finding of not guilty of the higher offence, but inasmuch as the practice in England, as stated by Chitty, was so clearly recognized by the court in the case of State vs. Sutton, they felt themselves bound by it, and pronounced a verdict of guilty of manslaughter, which did not in terms negative the murder, as invalid. We, therefore, consider the very point presented in this case as settled by that decision. In addition to the authorities already cited, we refer to 2 Wheat., 221, Patterson vs. United States, and 1 Mason, 169, Stearns vs. Barrett, for the principle that a verdict cannot be aided by inferences, and for our construction of the act of 1809, ch. 138, we refer to 3 G. & J., 10, State vs. Dent, and 20 Ohio Rep., 26, Wilson vs. The State.

2nd. The question whether the verdict actually [**5]  given by the jury is properly set out in the record, arises under the agreement for the amendment of the record. We say the clerk had no right to put into the mouths of the jury language they never used; this record seems to have been made up to meet the point made in Flannigain's case, and is not the form in which the verdict should appear. The true form is set forth in 2 Ev. Harris, 297. See also 8 Geo. Rep., 208, Settle vs. Alison. We say, then, that it is clear, if there is any difference between the verdict rendered and that set out, neither the clerk nor the court had the right to make it, and if there be no difference, the point is not material.

Charles J. M. Gwinn, State's Attorney for Baltimore city, for the State, argued the following points:

1st. That the act of 1809, ch. 138, sec. 3, does not alter the crime of murder, as it is known at the common law, State vs. Dowd, 19 Conn., 391, Wharton on Homicide, 360. Under that act, the proper form for an indictment is for murder, as at the common law. The degrees of murder recognized by the act, are to be found by the jury, if the party is convicted, as a guide to court in the infliction of the punishment only; for without [**6]  such finding, the court would be uncertain which of the two punishments prescribed for murder it ought to inflict. The language of the act is clear upon this point. It says, "the jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty thereof, ascertain in their verdict whether it be murder in the first or second degree." By this it is clearly shown, that the prisoner is indicted and tried for murder, as at the common law, and that the finding of the degree by the jury is but their designation of the greater or less atrocity of the act for which the prisoner is convicted, and is intended as a guide to the court in the punishment. State vs. Dowd.

2nd. That this is the true construction of the act, appears from the latter part of the third section of the same act. For it says, "if such person be convicted by confession, the court shall proceed, by examination of witnesses, to determine the degree of the crime, and to give sentence accordingly." If the prisoner pleads guilty, the clerk must enter this general plea on his docket. The court cannot amend it so as to make the prisoner plead differently from his answer. It must proceed to [**7]  ascertain, not his crime, for that he has confessed, but the circumstances of his crime, in order to ascertain the measure of his punishment.

3rd. In an indictment containing one or more counts charging the same offence, but which offence is by its nature divisible into two charges, the criminal law requires, if the party be convicted of the less offence, that the greater should be negatived; because otherwise the jury does not respond to the whole charge of the indictment, whether it contain one count or many, expressive of the higher charge. For instance, in an indictment for robbery, the jury cannot find the prisoner guilty of larceny, without negativing the force which constitutes the robbery. The reason is, that robbery and larceny are different crimes, and the technical language which describes the former, does not apply to the latter; and vice versa. If the jury, in an indictment for robbery, find the prisoner guilty of larceny, but say nothing as to the robbery, the verdict is defective, because it does not respond to the allegation of force contained in the charge of robbery.

4th. But the verdict can only negative one part of a count, or one part of a set of similar [**8]  counts, when there are words in the count or counts which are applicable to the offence negatived by the verdict, but inapplicable to the offence which the verdict finds. The verdict cannot negative what the indictment does not charge, any more than it can affirm what the indictment does not state. The indictment in murder does not charge murder in the first degree, or murder in the second degree, but only murder; nor is there any part of an indictment containing a single count for murder, which the jury could negative, if their verdict was for murder in the second degree. All the words describing an offence which may be declared to be murder in the first degree, are necessary to the description of an offence which may be declared to be murder in the second degree. And as the verdict of a jury must respond to the whole indictment, if they said that they found the party not guilty of murder in the first degree, but guilty of murder in the second degree, the first part of their verdict would be an impertinence, because they would have proposed to negative what was not set forth in the indictment itself, and which did not need other negation than was supplied by their finding. See Le [**9]  Grand's opinion in State vs. Sutton, 4 Gill, 495.

5th. There is but one view in which this question can be regarded. The degree of the murder which the jury are directed to find, is intended as a direction to the court as to the punishment. If they find the degree, the duty of the jury is performed, not only according to the intent, but according to the very language of the act.

6th. It is proper to argue on behalf of the appellee, that a careful search in the records of the court has demonstrated that it has been the invariable practice of the courts in Baltimore city, since 1809, to take the verdict as it was taken in Weighorst's case.

7th. Nor is the practice confined to the State of Maryland. The law of 1809, in Maryland, in so far as it relates to murder, is a copy of the Pennsylvania statute of 22nd April 1794, secs. 1 and 2. In this last named State the indictments are drawn as for murder at common law, (Wharton on Homicide, 387,) and that the form of verdict recorded in this case is the form used in Pennsylvania, is shown by certified copies of the docket entries produced to this court from the records of the Court of Oyer and Terminer for the city and county [**10]  of Philadelphia. They were the cases of Andrew McBride, in 1852, of Felix Burns, in 1852, of James O'Neill, in 1853, of John Martin Rudolph, in 1855, and of Joseph P. McKinney, in 1855. Indeed, no case can be produced from the records of that court, indicating that any other form of verdict has been there known. In addition, the certificate of Chief Justice Lewis, of the State of Pennsylvania, in affirmance of the general practice of the State, is offered as authority higher than that of any text book of practice that could be shown to the court. The practice in Alabama, where the same statute obtains, is also shown by the certificate of the judge of a Criminal Court of that State. The practice in New Hampshire is also shown.

8th. The rationale of the law of murder, in reference to those distinctions, is well set out in Wharton on Homicide, 355, 359, 360, 361, and in the case of State vs. Dowd, 19 Conn., 391, opinion of Waite, justice. The Connecticut statute being the same with that of Pennsylvania and Maryland.

9th. There is no reason for requiring that a jury should negative manslaughter, when they find a prisoner guilty on an indictment which charges murder. Their duty [**11]  is to respond to the indictment. If their verdict covers the charge, it is good. Starkie on Crim. Plead., 347. Manslaughter is but unlawful killing--murder is this unlawful killing with a circumstance of aggravation. How would it be possible for a jury to find that the killing was unlawful, and was attended by the circumstance of malice, but that it was not an unlawful killing alone? Do they not find that it was not an unlawful killing alone, when they find the circumstance of aggravation by declaring that the offence is murder? What more could be required?

10th. Nor is there any lack of adjudications in England, upon points of practice, which are identical with those presented by the case under consideration. Prior to the Stats. 7 and 8, Geo. 4, ch. 29, sec. 2, which abolished the distinction between grand and petty larceny, if the value of the article stolen was uncertain, it was laid as above twelve pence, which was the point of value dividing grand and petty larceny. The indictment was precisely the same in form in either case, except as to the value laid. 2 Starkie's Crim. Plead., 451, note a. The punishments for the two offences were different. Grand larceny at the common [**12]  law being punishable with death, and petty larceny by whipping. 2 East's P. C., 736, sec. 134. Yet a party indicted for grand larceny could be convicted of petty larceny; and in case of such conviction, the jury did not negative the grand larceny, but they found the prisoner guilty of petty larceny, by saying in response to the indictment, "guilty, but that the goods are but of the value of ten pence." 2 Hawk. P. C., 620, sec. 6. See as to this form of verdict in petty larceny: 2 Hale's P. C., 302. 2 East's P. C., 741, sec. 137. Foster's Cr. Law, 73. It being a felony, and so charged, whether the value was above twelve pence, or under it, the jury so found by their verdict of guilty, but they proceeded to ascertain the degree of the felony as a guide to the court in its punishment.

11th. There is no substantial difference between the finding of the jury, as recorded by the clerk on the docket, and the record as before the court, which would be ground for a diminution, or which would justify the court in correcting the record. The entry of the verdict on the docket, is a minute only made by the clerk for his guidance in making up the record. 2 East's Pleas of the Crown, 518. 1 [**13]  Chitty's Cr. Law, 642. If the record is but the true legal amplification of that minute, it is formal, and the court below, or above, cannot interfere with it. The record before the Court of Appeals is that minute in its true legal and technical amplification.

12th. The alleged defect cannot, at all events, be taken advantage of since the act of 1852, ch. 63, sec. 2.  

JUDGES:
The cause was argued before LE GRAND, C. J., TUCK and MASON, J.  

OPINIONBY:
TUCK 

OPINION:

 [*450]  TUCK, J., delivered the opinion of this court.
The plaintiff in error was indicted and tried for murder. The record, as originally transmitted to this court, shows, that the jury found him "guilty of the felony and murder aforesaid, above charged and imposed upon him, and that the said felony and murder is murder of the second degree." It appears, however, by an amendment of the record, that the verdict as rendered and entered on the docket was in these words: "Guilty of murder in the second degree;" and it is contended that this docket entry must be considered as the verdict of the jury, and that the clerk had no authority to amplify their finding, as set out in the record.
It has always been the habit of clerks to take [**14]  minutes and docket entries of the court's proceedings, and, subsequently, to enter them at length in technical language, according to established forms. This is necessary to the dispatch of business, and relieves these officers from the inconvenient, if not impracticable, labor, of making correct full records of proceedings as they transpire. In legal contemplation they are made under the eye of the court, and by its authority, and, when not properly entered or extended, the error may be corrected. But, in the present case, we do not perceive that there is any substantial difference between the docket entries, and the verdict as set out in the record. One is but the technical extension of the other, according to the long established practice of the courts, and, in disposing of the chief question in the cause--the legal sufficiency of the finding of the jury--we shall not ascribe to the record, as originally transmitted to this court, a greater effect than, by legal intendment, belongs to the verdict as entered on the docket.
The motion in arrest of judgment is founded on the supposition, that the verdict should have acquitted the party of murder in the first degree, and of manslaughter; [**15]  but we do not understand the latter feature of this motion to be relied on. Where there is but one count the inferior grade of the offence need not be passed upon by the jury. It is sufficient if the finding cover the indictment, and we agree that the 

 [*451]  present case must be decided according to this rule. Weighorst was indicted for the crime of murder, not for having committed a homicide. Upon this charge he was convicted, and the jury, in obedience to the act of 1809, ch. 138, ascertained the degree of that crime. This verdict, though not subjecting him to the severest penalty, found him guilty of murder, the crime alleged against him. The act of Assembly does not create a new offence in distinguishing between murder of the first and second degrees. The design was to discriminate in awarding the punishment. The supposed analogy between a conviction of manslaughter and of murder in the second degree does not exist. Manslaughter is a different crime from murder. Although both are within the general term homicide, yet, legally speaking, they are not different degrees of the same offence, because one is not murder at all, and, hence, a verdict merely convicting the accused of [**16]  that grade of homicide would leave the crime charged in the indictment wholly unnoticed, in disregard of the nature and end of pleading, and of the duty of the jury to pass upon the issues as framed. Besides, if the act of Assembly created a new offence, it would be necessary, where a party is convicted of manslaughter under a count for murder, to acquit of both degrees of murder, but this is never done. It is sufficient in such cases to say not guilty of the murder, without negativing each degree of that crime. Again, the act does not authorize the accused to plead guilty of murder of the second degree. If he confesses at all he must plead to the indictment for murder, and it is then made the duty of the court, "by examination of witnesses, to determine the degree of the crime, and to give sentence accordingly." It is true the act does, in awarding punishments, speak of the crime of murder in the second degree, as if creating an offence before unknown to our laws; but we think this single expression must yield to the object and design of the act as indicated by its other sections.
It is supposed that the present question was settled by this court, in 6 Md. 167. We [**17]  certainly did not intend to 

 [*452]  carry the principle recognized by the Court of Appeals in 4 Gill 494, beyond the case then before us for judgment. It is manifest that we yielded to the force of authority in the particular case, not recognizing the soundness of the reason on which the rule was said to have been adopted in England and followed here. We then said, that "where an issue is joined on a single count, involving different grades of homicide, a conviction of manslaughter, or of murder in the second degree, necessarily implies a finding of not guilty of the higher offence," and so we think now. In that case, where the indictment charged one crime, and the party was convicted of another, we held that the practice of taking verdicts in such cases, because sanctioned in Sutton vs. The State, should be observed. But where the reason fails the rule is not applicable. The difference between the cases is this. Here the party was convicted of the crime for which he was indicted, though of an inferior degree, and the charge was fully covered by the verdict, whereas Flannigan was indicted for one crime and convicted of another, without any finding as to the [**18]  offence charged.
But, apart from this view, and conceding that the cases are the same in principle, we think this question is settled by the act of Assembly. A verdict we take to be correctly found when rendered as required by the act. The statute speaks of two degrees of murder, distinguished by the circumstances attending the commission of the crime, according to which the party is to be punished. It first declares what shall be deemed murder of the first degree; and then says: "all other kind of murder shall be deemed murder of the second degree; and the jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty thereof, (that is of murder,) ascertain, in their verdict, whether it be murder in the first or second degree." The party was convicted of the crime charged against him, and its degree was ascertained for the guidance of the court in awarding the punishment. The act makes no such requirement as to convictions of manslaughter under indictments for murder. These 

 [*453]  are left to be rendered as at common law, it having been deemed important, as we may suppose, only in cases of murder to prescribe the form of the verdict.  [**19]  
In conformity with this view of the subject we find, after a careful examination of the criminal records of nearly all the counties, and of the city of Baltimore, made since the argument of this cause, that, with the exception of a few instances, the practice has been to receive, and pass judgment upon, verdicts, after the manner observed in the trial of this party. We recognize the value of precedents and practice, when applicable, not as making the law, but as evidence of what it has been supposed to be since the earliest times.  4 Taunt. 611, (Ram. on Legal Judgments, 62.) And, indeed, in Sutton's and Flannigan's cases, the point was ruled on no higher authority than the practice in the courts of England, as stated by Chitty and others. When, for all the time elapsed since the passage of the act under which this party was tried--nearly half a century--we know, that, in trials presided over and conducted by eminent jurists, the same form has obtained, regardless of any supposed similarity between such cases and convictions for manslaughter, why may we not respect their construction of the law as safely as, in other cases, we adhere to the common law practice?  [**20]  If we doubted as to the propriety of the ruling of the court below, according to the principles of law applicable to the point, we should feel great reluctance to disturb or call in question a form of proceeding sanctioned by the practice of our courts for so many years.
Judgment affirmed. 

93 of 187 DOCUMENTS 

EMANUEL RAAB vs. THE STATE OF MARYLAND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Md. 483; 1855 Md. LEXIS 15 

JUNE, 1855, Decided 

PRIOR HISTORY:
 [**1]  ERROR to the Circuit Court for Anne Arundel county.

The plaintiff in error was indicted in the Criminal Court of Baltimore city, for receiving stolen goods, (four yards of satin, of the value of eight dollars,) knowing them to have been stolen. After plea of non cul. upon his affidavit and suggestion, the court removed his case to the Circuit Court for Anne Arundel county, for trial, where he was tried and found guilty.

After verdict, the traverser moved in arrest of judgment, upon the ground that the Circuit Court for Anne Arundel county had no jurisdiction to try the case, it not being a court of a county adjoining the city of Baltimore, to which alone the judge of the Criminal Court was required by the constitution to remove the cause. This motion the court (BREWER, J.,) overruled, and sentenced the prisoner to confinement in the penitentiary for eight years. To correct this judgment the traverser sued out a writ of error from the equity side of said Circuit Court. The following is the opinion of the court below, delivered upon overruling the motion in arrest:

"A motion in arrest of judgment was made in this case, for want of jurisdiction in the court, which has been [**2]  argued, and involves the question, 'Whether Anne Arundel county adjoins the city of Baltimore?'

"It seems to me that it is very convenient and desirable to bound both States and counties by streams of water; a stream being a natural, permanent and nearly unalterable boundary, especially a navigable stream, and that also seems to have been the object of the Legislature in dividing the State of Maryland; the Chesapeake bay and Susquehanna river dividing the Eastern and Western Shore, and nearly all the counties on the Eastern and Western Shore, certainly wherever it could be done, being divided by rivers. (I will hereafter refer to the particular acts.) Where the counties are divided by streams not navigable, in analogy to grants, each of the adjoining counties runs to the middle of the stream.

"The same rule may possibly obtain as to navigable rivers; of that, however, I doubt. It is indispensable, however, that some county should have jurisdiction over navigable water for some purposes, and to remove all doubt, if any existed, as to the bay, the act of 1809, ch. 138, secs. 19, 20, prescribed the jurisdiction as to offences committed on it. The act of 1704, ch. 92, recites,  [**3]  in its 3rd section, 'And whereas there are several counties that are divided by navigable rivers, and no rule yet made how far the jurisdiction of each county shall extend on the river, be it enacted, &c., that every county lying on any navigable river in this province, shall extend its jurisdiction from the shore to the channel of said river that divides the county, and be divided from the other county by the channel of the said river.'

"Before the passage of that act, by the act of 1695, ch. 13, the county of St. Mary's was laid off, including all that land lying between Patuxent and Potomac rivers, the division between it and Charles county being Bud and Indian creeks, and a line drawn from the head of one creek to the head of the other. St. Mary's is bounded by the lower side of the creeks.

"Charles county:--the bounds begin where the upper bounds of St. Mary's end, and extends itself upwards to Mattawoman creek and branch, (which is on the Potomac,) and is divided on the upper side from Prince George's by that creek and Swanson's creek, which runs into the Patuxent river, and a straight line from the head of one creek to the head of the other. Including all the land [**4]  lying on the upper part of Bud and Indian creek branches, where St. Mary's county ends, to the lower side of Mattawoman and Swanson's creek and branch, between Patuxent and Potomac rivers.

"Prince George's county, includes the land from the upper side of Mattawoman and Swanson's creek, &c., extending upwards, and bounded by Patuxent on the east, and Potomac on the west. No limit is fixed to the upper part of the county.

"Calvert county:--this county has always been understood to bind on the north-east side of Patuxent river. It lies in its whole length between that river and the bay. I can find no published law on the subject of its boundaries, except those relating to the divisional line between it and Anne Arundel, which do not mention other boundaries; but one of these, the act of 1823, ch. 183, terminates the divisional line at the river Patuxent, which sufficiently shows, I think, that it bounded on the north-east side of the river, and was divided by the river from St. Mary's, Charles, and part of Prince George's. I cannot find when it obtained the name of 'Calvert.' It was the county formerly called Patuxent, the bounds of which are to be found in ch. 6 of 1654, recorded [**5]  in the Council Chamber. This act extends the county from the south side of Mr. Marshes' creek, extending down the bay, including all the families and land on the south side of these creeks, including all the cliffs, with the north and south side of Patuxent river, with all the creeks thereunto belonging, and shall be called as it is, Patuxent county.

"Patuxent river runs nearly north and south, the upper side of the river being east or north-east. This act was passed more than forty years before the laying off of St. Mary's by the act of 1695. The law would seem to give it a considerable extent below the Patuxent, and if its boundaries were to be determined by this law, and the law of 1695, it might include the river, which is contrary to the received opinion now. Though the language of the law is peculiar and indefinite, giving no southern boundary, but including in the county the north and south sides of the river, with all the creeks, seeming to include the creeks in the county, but not the river.

"On the Eastern Shore, the Isle of Kent, by the same act of 1695, is added to and made part of Talbot county. That part of Talbot county lying on the north side of Corsica creek,  [**6]  running up the main eastern branch to the head thereof, shall be the southerly bounds of the county of Kent, and on the north by the county of Cecil.

"The act of 1704, ch. 92, recites in the preamble the laying off of counties by this act of 1695, and the act of 1698, ch. 13, relating to the division of Baltimore and Anne Arundel counties only, confirms them in its second section, and makes the provision before mentioned.

"The last act of 1698 begins Baltimore county on the Chesapeake bay, and extends it thence with certain lines to the Patuxent river, and up that river to its head, giving no bounds to the upper part of the county. All that tract of land lying on the north side of the said division lines, &c., to be in Baltimore county, and all the land, &c., on the south side thereof, to the ancient extent of Anne Arundel county, to be in Anne Arundel county.

"Then comes the act of 1704, reciting these acts, and establishing a rule as to the jurisdiction of counties binding on navigable rivers. This act, it is contended, applies only to the counties mentioned in those acts as binding on navigable waters, in which Anne Arundel and Baltimore counties are not included.  [**7]  

"I do not think it is thus confined. A part of the State only was, at that time, laid off into counties. It must have been then contemplated to lay off other counties. The bounds between Cecil and Kent, and the upper bounds of Cecil, were not accurately defined, nor the bounds of Talbot on every side, nor were the upper bounds of Baltimore and Prince George's. Some of the other counties thereafter to be laid off, might be bounded by navigable rivers, and the object of the act of 1704, although it refers only to the counties already laid off, seems to be to establish a rule applicable to all similar cases. The language of the law in the enacting part of the clause is very general, 'that every county lying on any navigable river.' The Legislature is establishing a rule applicable to a particular class of cases, and why should not the rule apply to all subsequent additions to that class?

"The first we hear of Anne Arundel county, is in the act of 1650, ch. 8, which provides, 'That that part of the Province of Maryland on the west side of the bay of Chesapeake, over against the Isle of Kent, formerly called by the name of Providence, by the inhabitants there residing, shall from [**8]  henceforth be erected into a shire or county, by the name of Anne Arundel county,' and by that name to be ever hereafter called.

"By the act of 1654, ch. 5, it is again called Providence, and so designated in ch. 17, of the same year.

"By the repealing and confirmatory law of 1676, ch. 2, the act of 1650 is confirmed. The act of 1654 is not, however, expressly repealed. At the period of 1750, I find no counties mentioned but St. Mary's, Anne Arundel, and Isle of Kent: no others appear to have been laid off at that time. Bacon says there were but two, St. Mary's and the Isle of Kent counties, (page 1649,) the only counties represented in the Legislature. Anne Arundel then included all the Western Shore on the north of the Patuxent, to the extreme bounds of the State, and Prince George's included all on the south side of the Patuxent. I see no mention made of Baltimore county, in the published laws, before the act of 1698.

"Next comes the act of 1726, ch. 1, entitled, 'An act for uniting part of Baltimore county to Anne Arundel county.' By this act 'the land lying on the south side of Patapsco river, and contained within the bounds following, viz., from the mouth of the [**9]  said Patapsco river with the said river to the head thereof, &c., shall be, and forever hereafter deemed as part of Anne Arundel county,' and 'all that part of the act of 1698, ch. 13, for dividing Anne Arundel county, which relates to the south side of Patapsco river being added to Baltimore county, is repealed.' What were the bounds of Baltimore county when the act of 1698 was passed, cannot be found in the published laws. Many acts of Assembly were lost, and among them probably a law laying off Baltimore and other counties, for in 1715, a court was provided for Baltimore county. There must, therefore, have then been many inhabitants in the county.

"In 1637, the Assembly, the first on record, passed a law for the dividing of the Province, of which Bacon says there is no record to be found.

"In 1654, the Legislature was held at Patuxent, and Patuxent, by ch. 6, was erected into a county.

"Baltimore county, like Prince Georges, must have had inhabitants in 1698, and probably reputed, if not fixed boundaries. The act of 1698 settled the division line between it and Anne Arundel different, no doubt, from the former boundaries, for the act of 1726, ch. 1, speaks of the [**10]  land on the south side of Patapsco being added to Baltimore county.

"This act, in addition to the last mentioned provision, bounds Anne Arundel county on the south side of the river, which, if the act of 1704 applies to counties subsequently laid off, carries it to the middle of the stream, and at any rate would leave to Baltimore county only half of the river, precisely the same as if a law bounded it on the north side.

"But what motive could influence the legislature to give to Baltimore county the whole of this navigable part of the river? By the former division it was necessarily in Baltimore county, as Severn, South river, &c., were in Anne Arundel, but as it was determined it should not extend south beyond the river, the intention of the Legislature to make the river the boundary is much more probable. The river was useful to both counties for the purposes of navigation, and the use of the shore to neither for any other purpose except that of a division line. I do not think any navigable river in the State will be found included in the body of the county, except where, by other outlines, it is necessarily embraced in it.

"Now let us look at the division of other [**11]  counties subsequent to the act of 1704.

"Talbot county, by the act of 1706, ch. 3, contains 'all the land on the north side of 'Great Choptank river' up to Tuckahoe bridge, across to Swetnam's mill, thence down the south side of Wye river to its mouth, showing the intention of the Legislature to make the river the boundary further by giving to Talbot, Bruff's island lying in Wye river.

"Queen Anne's county is laid off between Talbot and Kent counties, taking a part of each by the same act, and includes 'all the land on the south side of Chester river to Small's Branch,' making the bay the starting point for this line. The islands in the bay are divided, Kent island being given to Queen Anne, and Sharp's, Choptank and Poplar island being given to Talbot. Then making the bay again the starting point, it is bounded on the south with Talbot county to Tuckahoe Bridge, in words therefore, so far including Wye river by the south side of which Talbot county is bounded. But this could not have been the intention of the Legislature, because that line would include 'Bruff's island,' which by the same act is given to Talbot.

"Kent county, by the same law, begins on the bay 'at the [**12]  south point of Eastern neck,' (which is on the north side of Chester river;) thence up the bay 'to Sassafras river,' and up said river to the south end of long pine bridge, lying over the head of the said river, which shows the intention of bounding it on the south side of Sassafras river, thence with other lines till it intersects the line of Queen Anne's county, and 'with the said county down Chester river to Eastern neck,' where it first began. Here also the words would at first seem to include in Kent county, the whole of Chester river, because it runs down Chester river with Queen Anne's county, which county is bounded by the south side of Chester river. But that could not have been the intention, because the line down the river ends at the beginning on the north side of the river. It is clear that the counties were intended to join, the river being the boundary between them.

"Then comes 'Cecil county,' which 'shall contain all the land on the north side of Sassafras river and Kent county, bounded on the south with Sassafras river and Kent county, inconsistent expressions of it was intended to bind it on the line of Kent county, which is on the south side of Sassafras river.  [**13]  It is obvious that it was intended to join Kent county, but that the river should be the boundary line. On the west, Cecil is bounded 'with Susquehanna river and the Chesapeake bay.'

"Next comes 'Harford county:' by the act of 1773, ch. 6, this comprehends 'all that part of Baltimore county which is included within the bounds following, to wit: 'Beginning at the mouth of the little falls of Gunpowder river, and running with said falls to the fountain head;' thence with other lines, including Spesutia and Pool's islands, to the mouth of Gunpowder river, thence up the said river to the beginning, as aforesaid. This is very similar to the case now to be decided. Harford county runs from the mouth of Gunpowder river up the said river, not with the north side of the river, but it runs to the 'mouth of the falls,' which is on the north side. No part of the river is included in words in Harford county, which would leave the whole of it in Baltimore county, yet is it not obviously the intention to make the river the boundary between the two counties? In the case of Harford, commencing at the mouth of the river, it runs to the falls, thence running with the unnavigable falls, the middle [**14]  of the stream would be the boundary; with Anne Arundel the Patapsco is navigable but a short distance, then the middle of the stream is the boundary; would it not be absurd, in both cases, to run the line with the navigable part, on one side, then having arrived at the unnavigable part, to cross over and run up the middle? Harford is bounded on one side with Susquehanna river and Chesapeake bay, no side being mentioned--the same as with Cecil. The river is unquestionably the boundary between those two last mentioned counties.

"Somerset county.--I can find no law laying off this county originally; probably there never was one. The first notice I find of its boundaries is in the act of 1742, ch. 19, which prescribes its bounds from that time. It runs with the southern boundary of the State, Pocomoke river, then across to Nanticoke river, thence down the said river with Dorchester county to the mouth thereof, thence including all the islands formerly deemed to be in Somerset county, to the beginning; all the remaining part of what is now reputed to be within the county of Somerset to constitute Worcester county, which is not divided from Somerset by a navigable stream.

"Caroline [**15]  county, which is composed of parts of Dorchester and Queen Anne's county, by the act of 1773, ch. 10, runs one of its lines to the 'Nanticoke river;' thence with said river, to and with the exterior limits of the said county of Dorchester.

"Dorchester county.--I can find no act laying off this county, but a branch is made the division between it and Worcester county, which branch must run into the Nanticoke. 'The land on the north side of the branch to be in Dorchester county, and all the lands to the southward thereof to be in Worcester county.' That part of Dorchester now making a part of Caroline, runs with the river Nanticoke and the exterior limits of the county of Dorchester. It is evident from this and the line of Somerset county on the Naticoke, that the river is the boundary between the two counties.

"Thus we have all the counties on the Eastern Shore, except Worcester lying in the interior and not on a river, divided by navigable rivers, so Cecil and Harford, and Harford and Baltimore. What counties have jurisdiction on those rivers, or is there any jurisdiction if the act of 1704, establishing a rule in such cases, does not apply to them?

"Why should the line [**16]  between Baltimore and Anne Arundel be different?

"Anne Arundel, I have shown, is bounded by the river, which would carry it to the middle of the stream, and there is a strong presumption that Baltimore, before the act of 1698, ran to the river only.

"This view, I think, is strengthened, rather than weakened, by the act of 1816, ch. 209, extending the limits of the city of Baltimore. The line runs with the southern extremity of the Lazaretto lot to the Patapsco river; thence across the river to Whestone point, on which the Fort is built, on the main branch of Patapsco river, 'and running with and bounding on the said main branch' to the place called the Ferry point, being the junction of the said main branch with the middle branch, and thence due west to the western side of the middle branch, and on the west by a line running from the termination of the last mentioned line on the Western Shore of the middle branch, and binding on the said shore, &c. These lines include all the land on the south side of the old city limits, which was in Baltimore county and was intended to do so. Running with the river, if the county ran with the river, it would certainly give to the city all [**17]  the rights of the county connected with the land, which would carry the city to the middle of the river so far as it extended on it, which right is indispensable to the city. Adopting the other construction, that the city is confined to the shore and the whole river is still in the county, it would be of the greatest inconvenience to the city, and this the legislature understood. They include the whole of the middle branch, which is a much smaller and shorter stream in the city limit, while running to the shore of the main branch only; and by that, giving the command of the water to the middle of the river, which, as I have said, was indispensable to it.

"If it had been apprehended in the least that the whole of the main branch was in Baltimore county, they would have taken the precaution to run the line across the main as they did across the middle branch, or to have extended it into the middle of the stream, or have made some other effectual provision to give to the city a sufficient command of the adjoining water. This idea of Anne Arundel county holding the land on one side of the river and the city of Baltimore on the other, while Baltimore county held the middle of the stream,  [**18]  is neither a useful, practical, nor liberal construction of the acts of the Legislature. It is an afterthought of lawyers, astute in the discovery of technical points, and zealous in the behalf of their clients who are to be benefitted by them.

"Being satisfied that I am right in this point, which is important to be settled, I have not considered any other, although it may perhaps be made a question, whether an objection for want of jurisdiction can be taken in a removed case, by a motion in arrest of judgment, and whether it should not have been taken by motion to remand the cause." 

DISPOSITION:
Judgment reversed.  

HEADNOTES:

By the true construction of the acts of Assembly, defining the limits of Baltimore city, that city is not an adjoining jurisdiction to Anne Arundel county, and, therefore, under the present constitution and laws, a criminal case cannot be removed from the Criminal Court of Baltimore city to the Circuit Court of Anne Arundel county, for trial.  

COUNSEL:
William Pinkney Whyte and Reverdy Johnson for the plaintiff in error, argued, that Anne Arundel county does not adjoin the city of Baltimore, and that the transmission of the proceedings in this case to that court, was not in accordance with the 28th section of the 4th article of the constitution, which is the only guide in such cases, (State vs. Shillinger, 6 Md. Rep., 449,) and the judgment was therefore erroneous.

Baltimore county was formed in or about the year 1659, and its bounds were first described in a proclamation of the 6th of June 1674, by which its southern [**19]  boundary was defined to be "the south side of Patapsco river, and from the highest plantations on that side of the river due south two miles into the woods." Subsequently the lines dividing Baltimore and Anne Arundel counties, were described by the act of 1698, ch. 13. This act gives to Baltimore county land lying south of Patapsco river, beginning at a point one and a quarter miles below Bodkin creek, and running the line westwardly, changing its direction slightly, to the Patuxent. This boundary remained unchanged till the act of 1726, ch. 1. By this act "the land lying on the south side of Patapsco river" was added to Anne Arundel county. The northern boundary of Anne Arundel county was, therefore, limited to the south side of Patapsco river, and the jurisdiction over the entire river remained in Baltimore county. This was the very point decided in Handly's Lessee vs. Anthony, 5 Wheat., 374, in reference to the States of Kentucky and Ohio. It was there held, that where one State is the original proprietor, and grants the territory on one side only, it retains the river within its own domain, and the newly erected State extends to the river only, and the low-water-mark is its boundary.  [**20]  See also 13 How., 381, Howard vs. Ingersoll.

Baltimore city having been subsequently erected out of a part of Baltimore county, and having a separate and independent jurisdiction, (5 Md. Rep., 375, Wright vs. Hamner,) it is necessary to see how its limits are defined. Baltimore town was located on the north side of Patapsco river, by the act of 1729, ch. 12. It was increased in size by the acts of 1732, ch. 14, and 1745, ch. 9, by the last of which Jones' town and Baltimore town were united. A great number of acts were subsequently passed, enlarging the limits of the town, but none affecting its southern boundary. It was incorporated as the city of Baltimore by the act of 1796, ch. 68. By the act of 1797, ch. 121, a court was established for the trial of criminals in that city. This court was afterwards abolished, and the old city court (which the present Criminal Court of Baltimore succeeded, const. art. 4, sec. 13,) established by the act of 1816, ch. 193. By the fifth section of this act the jurisdiction of this court is expressly limited to the limits and precincts of Baltimore, which limits are there correctly defined. The limits of the city, on its south side, are defined [**21]  by the act of 1816, ch. 209, and on Poppleton's map, made under the authority given in the act of 1817, ch. 148. In the year 1816, Baltimore county extended across the Patapsco river, and Baltimore city was part of Baltimore county. By the act of that year, ch. 209, that part of Baltimore county contained within the limits specified in the act, was made part of Baltimore city. These limits do not extend into the river; the act exhausts itself when the lines reach to the river. It therefore follows, from the acts referred to, that the entire bed of the Patapsco river is under the jurisdiction of Baltimore county, and this jurisdiction intervenes between Baltimore city and Anne Arundel county, and the case is entirely unaffected by the act of 1704, ch. 92.

The argument ab inconvenienti, based upon the fact, that this construction would make Baltimore county the only adjoining county to the city of Baltimore, and that, therefore, all criminal cases from the Criminal Court must be removed to that county, is not of greater force than in the cases of Worcester and Allegany counties, which confessedly have but one adjoining county. But provision was carefully made in the constitution,  [**22]  by which this inconvenience, if it should exist, might be remedied by the Legislature, by authorizing removals to be made to counties not adjoining, under the second proviso to the 28th sec. of art. 4, "that such further remedy in the premises may be provided by law, as the Legislature shall from time to time direct and enact."

The case of State vs. Dashiell, 6 H. & J., 268, is an answer to the difficulty suggested in the concluding portion of the opinion of the court below, as to the time when, and the mode in which the objection to the jurisdiction may be made. It was there made by a motion in arrest of judgment, as in the present case.

James S. Franklin, State's Attorney for Anne Arundel county, for the State, said that he desired the question of jurisdiction to be settled, and therefore waived all objection to the mode in which it was presented by the record. He then argued that Anne Arundel county is an adjoining county to the city of Baltimore, and that the transmission of the proceedings in this case was, therefore, in accordance with the requirements of the 28th section of the 4th article of the constitution.

The act of 1650, ch. 8, erected Providence into a [**23]  county by the name of Anne Arundel, and the act of 1698, ch. 13, defines the limits of Anne Arundel and Baltimore counties. The act of 1704, ch. 92, referring, in its preamble, to the act by which the bounds of St. Mary's, Charles, Prince George's and Kent counties were defined, as well as to that of 1698, ch. 13, dividing Baltimore and Anne Arundel counties, and reciting, that whereas "no rule has been made how far the jurisdiction of each county shall extend on the river," enacts, "that every county lying on any navigable river, shall extend its jurisdiction from the shore to the channel of such river that divides the county, and be divided from the other county by the channel of the said river." This act is analogous to the common law doctrine of ad filum medium aquae, between riparian proprietors, and establishes a natural and desirable rule which was to be fixed and apply to future as well as to existing counties. With full knowledge of this act, the act of 1726, ch. 1, was passed, which makes Anne Arundel county lie upon the Patapsco river. Then came the various laws incorporating Baltimore city, (which, for all the purposes of this argument, is to be regarded as a county, Wright [**24]  vs. Hamner, 5 Md. Rep., 375,) and these also were enacted with a full knowledge of the act of 1704. The act of 1816, ch. 209, clearly makes the southern limits of the city extend to the Patapsco, and therefore makes this river, as all others were, subject to the act of 1704, and thereby the limits of the city were extended to the channel, where they met those of Anne Arundel county. There must be a clear exception in the grant nullifying, pro tanto, the act of 1704, to render it inapplicable.

In the division of counties since the act of 1704, they are almost without exception divided by streams of water, and each runs to the river only. The jurisdiction over the Chesapeake bay is provided for by the act of 1809, ch. 138, secs. 19, 20. Unless, therefore, the act of 1704 was meant to, and does, apply to future as well as to existing cases, an offence committed on any of the rivers dividing such counties, to wit, Wye, Chester, Sassafras, Susquehanna, Gunpowder, Nanticoke, and Patuxent, all of which separate counties, could not be punished in any court of this State. The construction that this act was prospective in its operation, evidently governed the Legislature in laying off and [**25]  defining the bounds of counties subsequent to its passage.

The argument, ab inconvenienti, shows that it was not intended that Baltimore county should retain the exclusive jurisdiction over the Patapsco. The contrary hypothesis would make Baltimore county the only one adjoining the city, which is negatived by both the language and the spirit of the constitution. Baltimore city having the greater necessity for removals, the constitution intended to gratify it, and not to make comparatively a burlesque of the right, by confining the removal to one county. If Baltimore county had been, in the opinion of the convention, the only adjoining county, it would have been mentioned by name, and the right of removal specifically extended to others.

The cases cited from Wheat. & Howard, by the counsel on the other side, are not applicable to this, for there is a vast difference between a sovereign State ceding a portion of its territory, and a State dividing off its counties for the purpose of jurisdiction.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON, TUCK and MASON, J.  

OPINIONBY:
TUCK 

OPINION:

 [*497]  TUCK, J., delivered the opinion of this court.
We are to determine in this [**26]  case whether Baltimore city and Anne Arundel county are adjoining jurisdictions.
By the act of 1698, ch. 13, Baltimore county embraced a considerable portion of what is now within the lines of Anne Arundel county; but by the act of 1726, ch. 1, it is declared, that "from and after the last day of May 1727, the land lying on the south side of Patapsco river, and contained within the bounds following, viz: From the mouth of the said Patapsco river, with the said river to the head thereof, and from thence bounding on the south side of the main falls, &c., &c., shall be, and forever hereafter deemed, as part of Anne Arundel county." It is manifest that the river, after this act, remained as it had been for many years, within the limits of Baltimore county, and that the jurisdiction of these counties adjoined on its southern shore, unless affected by the act of 1704, ch. 92, which provides, "that every county lying on any navigable river in this Province, shall extend its jurisdiction from the shore to the channel of such river that divides the county, and be divided from the other county by the channel of said river;" and, under this act, if applicable, the river, as far as the channel, [**27]  remained in Baltimore county, and subject to the jurisdiction of its courts.

 [*498]  It is insisted on the part of the State, that because Baltimore city is a separate jurisdiction under the present constitution, the act of 1704, ch. 92, applies to it, and that by its terms and proper construction, it joins Anne Arundel county at the channel of the river. We are of opinion, that the present case does not depend on that act of Assembly, for the reasons about to be stated.
It is clear, that the act could have had no other effect than to enlarge the limits of Anne Arundel county to the channel, and that it did not extend the line of Baltimore county into the river. If it operated on these counties at all, its effect was to restrict the southern line of Baltimore county to the channel, and not to assign to it any jurisdiction not previously possessed. Before the act, this county had within its limits all the river, and afterwards, at least as far as the channel. In this state of things, the acts of 1816, chaps. 193 and 209, were passed: the former for the establishment of Baltimore city court and the latter to enlarge the bounds of Baltimore city. By chapter 209 it is provided, that [**28]  the precincts of Baltimore city and all that part of Baltimore county which is included within certain metes and bounds, shall be annexed to, and made part of, the city. The southern and western limits--all that is material in this case--extend from the Lazeretto lot "to the most southern part of Whetstone point on the main branch of the Patapsco river, and running with and bounding on the said main branch, (excludiug the fort,) to the place called the Ferry point, being the junction of the said main branch with the middle branch aforesaid, and thence due west to the western side of the middle branch aforesaid, and on the west by a line running from the termination of the last mentioned line, on the western shore of the middle branch, and binding on the said shore to the north of Gwynn's falls, thence up and with the south-west side of Gwynn's falls," &c., &c.
If, as contended on the part of the State, the effect of this application of the act is to give jurisdiction to the city, as far as the channel, over all that part of the river between it and Anne Arundel county, then, upon the same principle, that part of the middle branch which divides the city from Baltimore 

 [*499]   [**29]  county, must, as far as the channel, be under the jurisdiction of that county, because the county binds the southern and western shores of that branch, as Anne Arundel county does the south side of the main river opposite the city. The consequence of which construction would be to extend the city, on the river line, beyond the limits specified in the act, and to diminish its territory and jurisdiction as to the middle branch, though actually embraced by the act. The legislature, while professing to enlarge the city, surely did not mean to continue in the county the jurisdiction over any part of this area. On the contrary, it was the plain intent of the act to make the middle branch, and all other portions of the county taken within these limits, parts of the city, and subject to its authority, leaving to the county jurisdiction over all not thereby included.
This view is sustained by the act of 1816, ch. 193, by which the same limits were established as the sphere within which Baltimore city court, (to whose powers the criminal court succeeded,) should have jurisdiction; and the sixth section vests in the county court and its judges all the powers, jurisdiction and authority previously [**30]  exercised by the court of Oyer and Terminer in and over all that part of Baltimore county which was not included in the city and precincts as therein described.
If, as we think upon consideration of these acts of Assembly, the jurisdiction of the city was confined to the limits prescribed, part of the river at least was left within that of Baltimore county, and if so, there is an intervening jurisdiction between the city and Anne Arundel county, from which it follows that the record of the present indictment was improvidently transmitted to the circuit court for that county.
The argument predicated upon the supposed inconvenience that may result from a reversal of this judgment cannot apply to the present case, inasmuch as the Patapsco river has always been within the jurisdiction of one or both of the counties bordering on its shores.
The counsel for the State, wishing to have the prominent point on the record decided, waived all objection to the form in which it is presented. As a precedent, however, for determining 

 [*500]  the question as properly arising on a motion in arrest of judgment, see State vs. Dashiell, 6 H. & J. 268.
Judgment reversed. [**31]  

94 of 187 DOCUMENTS 

GEORGE H. STEUART vs. THE MAYOR AND CITY COUNCIL OF BALTIMORE, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Md. 500; 1855 Md. LEXIS 16 

JUNE, 1855, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Baltimore city.

The bill in this case was filed by the appellant, praying for an injunction to restrain the city authorities from further proceedings under ordinance No. 58, approved June 8th 1853, for the opening, grading and paving of Baltimore street, from the east side of Fulton street to the city limits.

It alleges, in substance, that this ordinance was inoperative and invalid, because, in attempting to open said street in a continuous line, it passes through and conflicts with a square lying on the grounds of the complainant, laid out by the commissioners, under the act of 1817, ch. 148, as a public square, and marked on Poppleton's plat as "Dr. Stewart's," but commonly known as "Maryland Square," and by them dedicated, delineated and set apart for public purposes; and that said square can only be opened or closed on definite notice for the opening or closing of said square in whole or in part, and then only by means of regular and valid proceedings for that purpose, in pursuance of an ordinance duly enacted for that express purpose, in conformity with published notice, and the existing acts of Assembly in relation thereto.

It further [**2]  alleges, that the Mayor and City Council, disregarding the existence of said square, and without any notice having been published for the opening or closing thereof, improvidently passed the said ordinance No. 58, which, complainant insists, they had no right to do; and that the commissioners for opening streets were about to open said street through the grounds of complainant, and for 360 feet through said square, which opening, without first lawfully closing the square, he alleges, will work him irreparable injury. He then avers, that he is willing that Baltimore street should be opened in a continuous line to the city limits, if said square be first closed in a regular and valid manner, but insists that the opening of it, without first closing the square, would leave his ground no longer available for and valuable as a square laid out in the midst of his property, (particularly after the same is deformed by a street run through it,) and also at the same time leave it unavailable and of no value for other purposes, inasmuch as the ground would still remain marked out, bounded, dedicated and set apart for public use, and, therefore, not available for the erection of buildings.

Upon [**3]  this bill the court granted the injunction prayed for.

The answer of the city authorities admits that the following notice (which was duly published,) was the only notice published, in relation to the application for the opening of Baltimore street, before the passage of the ordinance No. 58, and that said ordinance was passed in pursuance thereof.

"Notice is hereby given, that application will be made to the Mayor and City Council of Baltimore, at its next session, to open and condemn Baltimore street, from the east side of Fulton street to the city limits."

They deny that this ordinance was invalid or inoperative, or that it was not authorized by the act of 1838, ch. 226, under which they claim and exercise the power of laying out, opening or closing streets, squares, lanes and alleys, but admit, that in pursuance of said ordinance, Baltimore street was to be opened in a continuous line, and to pass through the square referred to in the bill. But, whilst they admit that this square was delineated on Poppleton's plat by the commissioners, under the act of 1817, ch. 148, they deny that said commissioners did or could dedicate the same to public uses, or that Poppleton's [**4]  plat is binding on them, in reference to streets or squares delineated thereon, or that any other or stricter proceedings are required to open or close a street marked thereon, than would be required to open or close a street or square not found thereon. They deny that said alleged square has ever been opened, or that it has any actual or legal existence, and aver that, under the act of 1838, ch. 226, they have full power to decide how or where streets or squares shall be opened, and that having determined, after due notice, to open Baltimore street in a continuous line from Fulton street to the city limits, the validity of the ordinance No. 58, is in no degree impaired or affected by passing through that part of complainant's property delineated as a public square, any more than by passing through any other part of his property.

They further admit, that the commissioners for opening streets have, under this ordinance, proceeded to locate and open said street through complainant's property, and aver that all proceedings in the premises have been in strict conformity with law, and a copy of the return of the commissioners is filed with the answer. They then insist, that if there [**5]  was any illegality or irregularity in the official proceedings in reference to the opening of this street, the complainant had the right to appeal to the Criminal Court of Baltimore city for redress, and not having availed himself of that remedy, he has no right to apply to the Circuit Court to assume jurisdiction over the subject matter.

The answer further states and charges, that the sums for which the complainant was assessed by the commissioners, for benefits derived by him from the opening of this street, were paid by him by a draft drawn upon the city register, to be paid out of the moneys due by the city to complainant, for damages assessed to him for opening said street through his property, and insists that this payment, for benefits and receipt of damages, amount to a ratification by him of all previous proceedings, and a waiver of all right on his part to object to the same. They further deny that any irreparable or other injury will ensue to the complainant by the opening of said street.

The answer then sets up an agreement between complainant and other owners of the property through which the street passes, as a reason why such owners were necessary and proper [**6]  parties to the bill, which they insist is defective in this respect, and the injunction should be dissolved, and the bill dismissed.

The testimony of Williams and Mayer, as to the location of this square, is sufficiently stated in the opinion of this court. The return of the commissioners, filed with the answer, shows that the complainant was allowed, for damages for the opening of this street, the sum of $ 3942.50, and was assessed, for benefits, in the sum of $ 3154.39, which latter sum, it was admitted, was paid by him by a draft for that amount on the city register, in favor of the city collector, payable out of the former sum awarded to him for damages.

The court below (KREBS, J.,) decided--1st. That the ground in question never was a public square, open or otherwise; never was dedicated for public use, and that the city never acquired any right or claim to it as a square, or for public purposes; and that the title of the complainant to it, is unaffected by any thing that the city authorities have done in reference to it, and that no proceedings were necessary to close it. 2nd. That the receipt by the complainant of $ 3154.39, from the register, for damages allowed him,  [**7]  and the payment by him of that amount to the collector, for benefits assessed to him, is a complete estoppel in pais, and that complainant cannot now insist that this property is a public square dedicated to public uses. 3rd. That the act of 1838, ch. 226, providing for the opening of streets in the city of Baltimore, does not conflict with the 46th section of the 3rd article of the constitution.

The court thereupon passed an order dissolving the injunction and dismissing the bill, from which the complainant appealed.  

DISPOSITION:
Order affirmed and bill dismissed.  

HEADNOTES:

A square designated as such upon Poppleton's plat of the city of Baltimore, and marked by two boundary stones, but which has never been used by the public for any purpose, but has constantly been held by the owners of the land, and has never been purchased by the city authorities, or conveyed to them, is not a square for public purposes, contemplated by the act of 1817, ch. 148, sec. 13.

The owner has the same right to improve the land in this square that he has to improve any other portion of his property within the city limits, and the city authorities have the right to open a street through it in the same manner as through the private property of any other person; there is no necessity for them to close this square, because it never was, in legal contemplation, a public square.

Notice that application will be made to the city authorities "to open and condemn Baltimore street from the east side of Fulton street to the city limits," describes with sufficient accuracy and distinctness the street designed to be opened, and is not defective in this particular.

Where a law secures the trial by jury upon an appeal, it is no violation of a constitutional provision securing that right, though such law may provide for a primary trial, without the intervention of a jury, because the party, if he thinks proper, may have his case tried by a jury, before it is finally settled.

The 46th section of the 3rd art. of the constitution provides, that the "Legislature shall enact no law authorizing private property to be taken for public use, without just compensation, as agreed upon between the parties, or awarded by a jury, being first paid or tendered to the party entitled to such compensation." HELD:

1st. That the Legislature may pass a law taking private property for public uses, if provision be made for compensation first to be paid or tendered to the owner, the ascertainment of which is to be made by contract with him, or by the assessment of commissioners, giving the owner the right of appeal from their decision, and securing him a trial by jury before the appellate tribunal, provided the appeal be taken in some specified reasonable time.

2nd. If the owner does not appeal within the time prescribed, and the compensation assessed be paid or tendered, the property may be taken for public use; the neglect or refusal to appeal is considered a waiver or abandonment of the right to have the damages awarded by a jury, and as an agreement to take the compensation determined by the assessment.

3rd. The act of 1838, ch. 226, and the ordinance of the city authorities of Baltimore city, of 1850, ch. 17, for the opening of streets, &c., passed in pursuance thereof, giving the right of appeal from the decisions of the commissioners to the city court, and any ordinance for the opening of a particular street thereunder, are therefore constitutional and valid.

The constitutional prohibition against taking private property for public use, until compensation be first paid or tendered, means taking the property from the owner and actually applying it to the use of the public, and not the survey and other preliminary measures necessary in such cases.

The protection is sufficient if the owner is secured in the use and enjoyment of his property until the damages he may sustain are constitutionally ascertained and paid, or tendered, and until then a street cannot be opened or used, but an entry to grade or prepare the ground for that purpose, is illegal.  

COUNSEL:
Neilson Poe and John Nelson for the appellant, argued:

1st. That Poppleton's plat is a plan of the city of Baltimore, prepared by commissioners fully authorised by law to lay down streets, lanes, squares, &c., and that the laying down of any street, lane, square or alley on said plat was such a delineation thereof as a street, square, &c., that the same cannot lawfully be opened, closed, widened or in any manner altered, except by virtue of an ordinance duly passed, upon proper notice, for the express purpose of closing, opening, widening or altering the same, and the ordinance in question for opening Baltimore street [**8]  was, therefore, invalid and insufficient to authorise the laying or opening of said street through the ground embraced by the said square. There never has been an instance known in which an ordinance to widen or close a street has been passed under notice to straighten or open one, yet in this case a square is sought to be closed under an ordinance to open a street, passed upon notice to open it. We submit that such a proceeding is totally irregular and invalid.

2nd. That the act of 1838, ch. 226, so far as it authorises the Mayor and City Council to take private property for public use without compensation, as agreed upon between the parties or awarded by a jury, being first paid or tendered to the party entitled to such compensation, is in conflict with the 46th section of the 3rd article of the constitution.

We admit, that as to all matters within the jurisdiction of the city court under this act, a court of equity has no authority to interfere, and we concede this upon general principles as well as upon authority. But the question here is, whether this is a matter within that jurisdiction? We do not object to any irregularity, in the proceedings under the ordinance, by [**9]  the commissioners, but upon the broad ground, that the whole proceedings by the city authorities are void and totally without authority; and upon this ground we have the right to go to a court of equity for relief. This act provides for an appeal from the decision of the commissioners in relation to the assessment of damages and benefits. It gives no right of appeal for the purpose of testing the constitutionality of an ordinance of the city; no such appeal is provided for. Nor does the ordinance of 1850, No. 17, provide for such an appeal. The very question then as to the jurisdiction of the equity courts in such cases is decided in the case of Alexander vs. Mayor & City Council, 5 Gill, 389. The case of the Methodist Church vs. Mayor & City Council, 6 Gill, 391, was not one in which the validity of the ordinance was assailed, but this was conceded, and the question was, whether the judgment of the commissioners in their assessment of damages was correct or not? But here the question is not one of regularity or of error in judgment, but of power, of authority, and in such a case equity has a clear right to interfere where an inferior tribunal undertakes to take private property for [**10]  public uses without authority.

Now we say the whole proceedings of the city authorities are utterly null and void. This act of 1838, which was held to be valid under the old, is not valid under the present constitution of the State, which, by the 46th section of its 3rd article, says, that no man's property shall be taken for public use except upon payment of compensation agreed upon between the parties or awarded by a jury. This is made a condition precedent; the legislature cannot grant the power to take the property without tendering and making this compensation. The city authorities must first ascertain the compensation by contract or the award of a jury, or they have no authority to act. 1 Baldwin C. C. Rep., 226, Bonaparte vs. Camden & Amboy Rail Road Co. Neither of these modes has been adopted in this case, and we therefore say that the whole proceedings are unconstitutional and void.

3rd. The receipt by the appellant of the sums awarded to him by the commissioners for damages did not, under the circumstances of the case, amount to an acquiescence by him in their proceedings, or to a waiver of any right he might have to contest the validity of their proceedings. He,  [**11]  in fact, never received a cent of this money, but simply transferred a part of the damages in payment of the benefits assessed to him, and the residue he has never touched.

Samuel Taggart and J. Nevitt Steele for the appellees, argued the following points:

1st. That Poppleton's plat is not obligatory on the Mayor and City Council of Baltimore in reference to the opening of the public squares delineated thereon, and that the alleged square on the property of the appellant never having been in fact opened, had no legal or actual existence; and it was therefore entirely in the power and discretion of the Mayor and City Council, under the act of 1838, ch. 226, to open a street through the ground on which said square is located on said plat, precisely in the same manner as if no such location or delineation had been made. Moale vs. Mayor & City Council, 5 Md. Rep., 314.

2nd. That the ordinance, No. 58, passed by the Mayor and City Council of Baltimore, in 1853, was a legal and valid exercise of the power conferred upon them by the act of 1838, ch. 226. The appellant has no right to make any objection to the notice in this case. He had notice in fact, and so avers in his bill.  [**12]  He was not damnified thereby and it is no ground for equitable relief. 6 Gill, 401, 402.

In regard to the question of the constitutionality of this act of 1838, we say, that so long as the right of appeal is allowed, by means of which a trial by jury can be had, the right of trial by jury is not taken away. 4 Conn., 535, Beers vs. Beers. 8 Yerger, 444, Morford vs. Barnes. 6 Seargt. & Rawle, 240, McDonald vs. Schell. 2 Murphey, 41, Keddie vs. Moore.

3rd. That the ground of the appellant included within the limits of the square marked out on Poppleton's plat, would, if the Mayor and City Council should at any time determine to open a public square in that particular spot, be as available for that purpose after the proposed extension of Baltimore street as before; and the appellant, after the extension of this street through his property, would have precisely the same right to improve, build upon and use for his individual purposes that part of his property included within the alleged public square, as he would have in reference to those portions thereof not so included, so that the two grounds of irreparable damage set forth and relied upon in the bill are both unfounded, and [**13]  the only remaining damage sustained by the appellant results from the taking of his land for the bed of the street, and for this the law has provided, and he has received, adequate compensation.

4th. That all the proceedings for the opening of Baltimore street have been legal and regular, and that if there was in them any illegality or irregularity, the only and exclusive remedy of the appellant was by an appeal to Baltimore City Court from the return of the commissioners for opening streets. Methodist Church vs. Mayor & City Council, 6 Gill, 391. Alexander vs. Mayor & City Council, 5 Gill, 383. Richardson vs. Mayor & City Council, 8 Gill, 433.

5th. That the appellant having suffered more than a year to elapse after the passing of ordinance No. 58 without applying to a court of equity for relief; and having permitted the Mayor and City Council to go on with the opening of this street and to incur expenses, and assess upon and collect from various persons considerable sums of money for the payment of such expenses; and having declined or neglected to avail himself of his right of appeal to Baltimore City Court; and finally, having paid to the collector of the city a large [**14]  sum of money for benefits to his property, resulting from the opening of the street, and received from the city register a like large sum for damages due to him for his land taken for the bed of the street, is estopped from denying the validity of this ordinance, and has waived all right of objection to any of the proceedings which have been taken under and by virtue of it. Savings Institution vs. Schroeder, 8 G. & J., 93. Okisko Co. vs. Elysville Manufacturing Co., 5 Md. Rep., 152. 2 Edwards' Ch. Rep., 229, Verplanch vs. City of New York.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and MASON, J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*508]  ECCLESTON, J., delivered the opinion of this court.
The 12th section of the act of 1817, ch. 148, appointed certain commissioners, with authority to have surveyed and laid off, within the limits of the city of Baltimore, all such 

 [*509]  streets, lanes and alleys, as they should deem proper and convenient, and to cause the same to be marked with so many and such durable marks as they should think necessary, to return plots with such survey and location, with proper explanations, to the register of the city.
The 13th section enacts: "That [**15]  the said commissioners be, and they are hereby authorized, to contract for and lay out such and so many parcels of ground within the said city, as they shall judge convenient and necessary to be used for public purposes; and if the price demanded therefor shall be deemed reasonable by the Mayor and City Council of Baltimore, they are hereby authorized to purchase the same at the expense of the city, and such lots or parcels of ground shall be conveyed to the said Mayor and City Council, for the purposes aforesaid."
Under this act what is known as Poppleton's plat was made; and upon it is laid out or designated the lot or square then known as "Dr. Steuart's," which the appellant says has since been called "Maryland Square," and through which the proposed extension of Baltimore street passes.
The appellant says this is a public square, made such under the proceedings of the commissioners appointed by the act of 1817, and that the city authorities have no power to open a street through it without closing up the square according to the act of 1838.
This square has never been used by the public for any purpose, but has constantly been held and occupied by the complainant, or those under [**16]  whom he claims. And the only evidence, of any sort, tending to show this to be a public square, is Poppleton's plat and the depositions of B. Mayer and N. Williams; which depositions speak of two boundary stones planted for the purpose of designating two points of the square. The record furnishes no proof of any contract between the owner of the property and the commissioners, or that any price was demanded therefor and assented to, or deemed reasonable by the Mayor and City Council, or that they had purchased the same, or that it had been conveyed 

 [*510]  to them. Seeing that the owner of the property has held and used it for his private purposes; and perceiving no proof of any dedication of it to the public, except its having been laid out by the commissioners as described on their plat, and the setting up of two boundaries, it cannot be regarded as a square for public purposes, contemplated by the act of 1817.
The case of Moale vs. The Mayor and City Council of Baltimore, 5 Md. 314, was decided upon the principle that the proceedings under the act which gave rise to Poppleton's plat, did not deprive the owner of the soil of his right to build upon, or to [**17]  improve it, at his pleasure, although it might be covered by the bed of an unimproved street, designated on the plat, provided he had not been allowed compensation for the same; and that whenever the city authorities might think proper to open such a street he would be entitled to damages, just as if the street had never been so designated. And that decision was made notwithstanding the first proviso in the 16th section of the act of 1817, which is: "That no person shall be entitled to damages for any improvements, unless the same shall have been made or erected, before the laying out or locating of such street, lane or alley, or part thereof respectively." Perceiving the injustice of this proviso the Legislature qualified it, to some extent, by the act of 1832, ch. 207. The language of the proviso, it will be seen, includes a street, lane or alley, but not a public square. If therefore the principle of the decision is correct, in reference to a street, it cannot be less so in regard to a square. If this be true, the appellant had the same right to improve what he calls the Maryland Square, which he had to improve any other portion of his land within the limits of the city. And we [**18]  see no reason why the city authorities have not the right to open a street through the same, in the same manner they have to open one through the private property of any other person. Nor can there be any necessity for them to close the square, for the plain and obvious reason that it never was a public square, in legal contemplation.
One of the grounds relied upon for reversing the order 

 [*511]  dissolving the injunction is, that the notice of the intended application to the Mayor and City Council to open and condemn the street is defective, in not describing with sufficient accuracy and distinctness the street designed to be opened. But we do not consider the notice defective in the particular referred to.
Another ground on which it is said the injunction should be sustained is, that the proceedings in regard to opening the street are illegal and void, because they are not in conformity with the 46th section of the 3rd article of our present constitution, which declares: "The Legislature shall enact no law authorizing private property to be taken for public use without just compensation, as agreed upon between the parties or awarded by a jury, being first paid or tendered to [**19]  the party entitled to such compensation." The appellant contends he has made no agreement in regard to compensation and that none has been awarded by a jury, consequently the proceedings on the part of the city authorities give him a right to relief by injunction.
It has been conceded, that the two cases of Alexander & Wilson, vs. The Mayor & City Council of Balto., 5 Gill 383, and The Methodist Protestant Church against the same defendants, in 6 Gill 391, fully recognize the constitutionality of the act of 1838, under which the city acted in this instance. But it is insisted, that those decisions cannot in any degree affect the rights of the complainant secured to him by the new constitution, adopted since those cases were decided. And this renders it necessary to enquire, whether those rights have been violated.
In the third section of the old bill of rights it was declared, "That the inhabitants of Maryland are entitled to the common law of England, and the trial by jury according to the course of that law." Notwithstanding this, the legislature passed laws at different times extending the jurisdiction of justices of the peace in matters [**20]  of contract, and giving jurisdiction in matters of tort where they had none previously. These laws, of course, made no provision for trials by jury except on appeal 

 [*512]  to the county courts, and yet they were constantly acquiesced in and not considered as being repugnant to the bill of rights.
In several of our sister States where the right of trial by jury is guarded by constitutional enactment, it has been decided that laws passed subsequent to the adoption of the constitution, giving increased jurisdiction to justices of the peace, where there was no provision for a trial by jury except upon appeal, are not unconstitutional. Morford vs. Barnes, 8 Yerger Rep. 444.  Beers vs. Beers, 4 Conn. 535. McDonald vs. Schell, 6 Seargt. & Rawle 240.
In the Connecticut bill of rights the language is, "The right of trial by jury shall remain inviolate." And this provision was held not to have been violated by an act extending the jurisdiction of magistrates, before whom no trial by jury could be had but where an appeal was given, although an appeal bond was required. In delivering the opinion of the court, C. J. Hosmer says, "I am satisfied that the [**21]  liberty of appeal in the case under discussion preserves the right of trial by jury inviolate, within the words and fair intendment of the constitution; and that no such unreasonable hardship is put on the appellant by the bond required for the prosecution of the appeal as to justify the assertion, that the right of trial by jury is in any manner impaired."
In the case cited from Pennsylvania, the question was, whether a provision requiring payment of costs before an appeal could be taken was a violation of the constitution of the State? The plaintiff in error contended it was, because the costs might amount to such a sum as a poor man could not pay, and then he would be deprived of a trial by jury. The court refused to hear counsel for the defendant in error and decided the case in his favor, declaring the act requiring costs to be paid was not unconstitutional.
These cases fully establish the principle, that where a law secures the trial by jury upon an appeal, it is no violation of a constitutional provision for guarding that right, although such law may provide for a primary trial without the intervention of a jury. This is upon the ground that the party, if he thinks proper,  [**22]  can have his case decided by a jury before it is finally settled.

 [*513]  It has been said these decisions can have no proper application to the present subject, because they relate merely to the private right of a citizen, whilst the provision of the constitution now under discussion is a restriction upon the exercise of public authority. But if it be so, it is a restriction for the protection of private property, and we do not perceive any real difference in principle between the two subjects so far as the rules of construction may be concerned. In truth, the first is a restraint upon legislative authority for the preservation of the right of each individual to a jury trial. The other prohibits the taking of private property for public use without compensation first paid or tendered, after having been ascertained in one of the modes prescribed.
The act of 1838 gives authority to the Mayor and City Council of Baltimore "to provide for laying out, opening, extending, widening, straightening or closing up, in whole or in part, any street, square, lane or alley within the bounds of said city, which, in their opinion, the public welfare or convenience may require; to provide for [**23]  ascertaining whether any, and what amount in value of damage will be caused thereby, and what amount of benefit will thereby accrue to the owner or possessor of any ground or improvements within or adjacent to said city, for which such owner or possessor ought to be compensated or ought to pay a compensation." It also authorizes them "to provide for granting appeals to Baltimore City Court from the decisions of any commissioners, or other persons appointed in virtue of any ordinance, to ascertain the damage which will be caused or the benefit which will accrue to the owners or possessors of ground or improvements, by locating, opening, extending, widening, straightening or closing up, in whole or in part, any street, square, lane or alley within said city, and for securing to every such owner and possessor the right, on application within a reasonable time, to have decided by a jury trial whether any damage has been caused or any benefit has accrued to them, and to what amount."
Under this act the Mayor and City Council passed the ordinance of 1850, No. 17, providing for the annual appointment 

 [*514]  of three commissioners for opening streets in the city. By the ninth section [**24]  of which the right of appeal is given, providing for a trial by jury whenever any person shall be dissatisfied with the assessment of damages or benefits which shall be made by the board of commissioners.
The ordinance of 1853, No. 58, authorizing the opening of the street in controversy, and under which the proceedings complained of took place, was passed with express reference to the provisions of the act of 1838, and the ordinance of 1850. These proceedings are not, in our opinion, illegal and void under the present constitution.
The doctrine established by the practice in Maryland, and by the decisions in other States, which have been referred to, in regard to the highly valued privilege of trial by jury, we think will fully justify us in saying there is nothing in our present constitution which prohibits the Legislature from passing a law authorizing private property to be taken for public purposes, if provision is made for compensation first to be paid or tendered to the owner, the ascertainment of which is to be made by contract with him, or by the assessment of commissioners, giving to the owner the right to appeal from their decision, and securing to him a trial by jury [**25]  before the appellate tribunal, provided the appeal be taken within some specified reasonable time. And, in our opinion, if the owner should not appeal within the time prescribed, and the compensation assessed should be paid or tendered, the property might then be taken for public use. Under such circumstances the neglect or refusal to appeal would very properly be considered as a waiver or abandonment of the right to have the damages awarded by a jury, and as an agreement, on the part of the owner to accept the compensation proposed by the public, by means of the assessment. If this is a proper construction of the constitution in reference to a law which may now be passed, then, so far as the provisions of the act of 1838, and the ordinance of 1850, are not inconsistent with the power of the Legislature in reference to a future law, they are not unconstitutional and void; for the 3rd article of the 

 [*515]  declaration of rights continues in operation all acts and parts of acts of Assembly in force on the first Monday of November 1850, except such as have since expired, or were altered by the constitution, or have been changed or repealed by subsequent legislation.
Under the proceedings [**26]  for opening the proposed street, compensation to the appellant has been assessed by commissioners. We have seen that the act of 1838, and the ordinance of 1850, gave him a right to appeal from the decision of the commissioners, and to have his compensation awarded by a jury, if he had desired to do so. This he declined doing, and by waiving that right he has virtually agreed to take the proposed compensation. His failure to appeal is not the only evidence of an agreement to accept the damages assessed, for the appellant has received, voluntarily, a large portion of the amount allowed him, by applying the same in discharge of the benefits assessed upon his property. We have said voluntarily received, although it has been insisted that he applied a portion of the damages in payment of benefits, not voluntarily, but by compulsion, for the purpose of saving his property from being sold. If, as it is contended, because the proceedings were illegal and void, the appellant had a right to enjoin them, most undoubtedly he had an equal right, before his application of the damages in discharge of the benefits, to have prevented, by injunction, the sale of his property for the payment of benefits.  [**27]  The same illegality which would authorize the interposition of the strong arm of a court of equity to stop the opening of the street, would surely justify the exercise of the same power to prevent the city authorities from compelling payment for benefits assessed on account of the supposed increased value of property, by the opening of the street. If the proceedings were illegal, no sale could have been made under them for benefits, if proper steps had been taken to prevent it, and a payment under such circumstances, would be voluntary; especially so when, as in this case, no advertisement or notice of such a sale had been published or given. And if the proceedings were not illegal, but valid, it is a matter 

 [*516]  of no importance whether the payment was voluntary or not.
Prohibition against taking private property until payment or tender of compensation is first made, and the right to have the amount of compensation settled by a jury or by agreement, are the important rights designed to be secured to the owners of property by the present constitution. And although the proposed street has been surveyed, the survey reported, and the damages and benefits assessed, yet the appellant's [**28]  land has not been taken, in the legal sense of that word. Bonaparte vs. The Camden & Amboy Railroad Co., 1 Baldwin's C. C. Rep., 226. The constitutional prohibition against taking private property for public use, until compensation is first paid or tendered, means taking the property from the owner, and actually applying it to the use of the public. It does not mean the preliminary measures necessary in such cases. To hold that compensation must be paid or tendered, before a survey should be made, or other preparatory steps taken, would be a construction of the constitution not required by its language, or necessary for the protection of private rights. It is quite a sufficient protection, if the owner is secured in the use and enjoyment of his property until the damages he may sustain are constitutionally ascertained, and paid or tendered. And until then, we think, a street cannot be opened or used, but an entry to grade, or to prepare the ground for that purpose, would be illegal; and the persons so entering would be responsible, in damages, to the owner of the property.
So far as the proceedings on the part of the appellees have gone, we do not perceive such [**29]  illegality in them as will sustain the injunction, therefore the order dissolving it will be affirmed, and the bill dismissed with costs to the appellees.
Order affirmed and bill dismissed. 

95 of 187 DOCUMENTS 

THE MAYOR AND CITY COUNCIL OF BALTIMORE, vs. THE PROPRIETORS OF GREEN MOUNT CEMETERY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Md. 517; 1855 Md. LEXIS 17 

JUNE, 1855, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

Assumpsit by the appellant against the appellees, for the recovery of a paving tax imposed by the corporate authorities of Baltimore, upon the appellees, as owners of land fronting on a part of York avenue, in the city of Baltimore. Plea non assumpsit. The case was submitted to the court below, (FRICK, J.,) upon a case stated, which is sufficiently set out in the opinion of this court, and a pro forma judgment rendered in favor of the defendants, from which the plaintiff appealed.  

DISPOSITION:
Judgment reversed, and judgment for appellants for amount mentioned in the case stated.  

HEADNOTES:

The charter of a cemetery company within the limits of the city of Baltimore, provided that a certain number of acres of land "shall be forever appropriated and set apart as a cemetery, which, so long as used as such, shall not be liable to any tax or public imposition whatever." HELD:

That a paving tax, for paving a street in front of this property, is not embraced in this exemption; the intent of the Legislature was to exempt the property from all taxes or impositions imposed for the purpose of revenue, but not to relieve it from such charges as are inseparably incident to its location in regard to other property.

The word "tax" means a burden, charge, or imposition put or set upon persons or property for public uses, but to pay for opening a street in a ratio to the benefit derived from it, is not a "tax" within the meaning of an exemption that certain property shall not "be taxed by any law of the State."

The meaning of the words "tax" and "assessment," is the same in our laws, and there is no difference between them, whether applied to the opening or paving of a street; in either case they are synonymous.

The imposition of a paving tax is an exercise of the taxing power, and not of the right of eminent domain. 

COUNSEL:
Geo. M. Gill and John Nelson for the appellant, argued the following points:

1st. That if the defendants are liable for their proportional part of this paving tax, they may be sued in assumpsit therefor. 6 H. & J., 393, Mayor & City Council of Baltimore vs. Howard.

2nd. The exemption in the charter of the appellee (act of 1837, ch. 164,) from any tax or public imposition, relates to charges or impositions put or set upon persons or property for public uses. It does not relate to a paving tax, which is not general or public, but confined to those who [**2]  own property fronting on the street paved.

What is a paving tax, and what is the process by which a public street is paved in the city of Baltimore? The authority is first given by the act of 1797, ch. 54, sec. 2, which gave the power to the city authorities to tax particular localities for the purpose of paving streets therein. This was the rule until the act of 1817, ch. 148, sec. 18, which took from the city authorities the power to pave, except upon the assent of a majority of the proprietors of the ground in front of which the paving was to be done. Still further restrictions are imposed by the acts of 1832, ch. 57, and 1833, ch. 40. The power to tax for paving is then a limited one, dependent upon the action of the owners of property fronting upon the streets. Under the act of 1797, the inquiry in regard to the validity of any such tax was, whether it was for the benefit of the particular locality or not? and the courts decided that the ordinance directing the improvement was evidence that it was a benefit, and therefore the tax was sustainable. The act of 1817, and the subsequent laws, substitute the assent of the proprietors for the judgment of the city authorities.

The [**3]  tax, then, is a special one, and contradistinguishable from a public tax, because it enures as a special benefit to the parties who are to pay it. If there be no benefit, there can be no tax laid, but it matters not whether, in point of fact, benefit has been conferred in particular cases, but whether, in the assumption of the law, the case has arisen for the application of the power, the exercise of the authority. The law prescribes the standard of imposition, and fixes the rule of benefit. 6 H. & J., 392, Mayor & City Council of Baltimore vs. Howard.

The language of the charter of the appellees is, that they shall be exempt from "any tax or public imposition whatever." This means exemption from the operation of a charge operating as a burthen, not from a benefit. The Legislature never meant that they should take the benefits and not pay the equivalent therefor. The design clearly was, to exempt them from the general public taxes which all proprietors and citizens are bound to respond to for the general purposes of government, and not to enable them to enjoy benefits at the expense of their neighbors. There is no hardship in this case; it is said this construction would render [**4]  the property of the appellees, which was consecrated for the purpose of a burial ground, liable to be sold for the purpose of paying this charge, but so would it be liable to be sold for any other debt contracted by the corporation. When their charter was granted, the York road was actually opened, and the bed of the road had been laid down on Poppleton's plat as one of the streets or avenues of the city, and this street was therefore liable to be opened and condemned as a public street, upon the application of not less than two-thirds of the proprietors of ground fronting thereon. Act of 1817, ch. 148, sec. 16. The third section of their charter, while it forbids the opening of streets through their property, appropriated for the purposes of a cemetery, expressly says, that the exemption shall be confined to the area east of the York road. It was then in contemplation that the York avenue might be condemned and opened as a public street. The Legislature had no power to pass a law which would make adjoining proprietors pay the taxes due by the appellees. 4 Gill, 425, Mayor & City Council vs. Lefferman.

But the very questions involved in this case have been repeatedly decided,  [**5]  and are no longer open questions. In our own courts, it has been decided by the cases of Alexander, et al., vs. Mayor & City Council of Baltimore, 5 Gill, 390. Dolan & Foy, vs. The Mayor & City Council, 4 Gill, 394. (Opinions of Justices Le Grand and Dorsey.) Moale vs. The Mayor & City Council of Baltimore, 5 Md. Rep., 314. See also Matter of the Mayor of New York, 11 Johns., 80. Canal Trustees vs. City of Chicago, 12 Illinois Rep., 403. Northern Liberties vs. St. John's Church, 13 Penn. State Rep., 104. Bonsall vs. Lebanon, 19 Ohio Rep., 418. Gardner vs. The State, 1 Zabriskie, 557. Shortwater vs. Armstrong, 9 Humph., 217. Reed vs. Toledo, 18 Ohio Rep., 161.

John H. B. Latrobe and John V. L. McMahon for the appellees.

The charter of the appellee, (act of 1837, ch. 164,) reciting in its preamble that its object is the establishment of a burial ground, which will assure perpetual protection to the remains of deceased friends, as well as the proper preservation of the grounds as a burial place, by its fourth section requires to that end, that at least fifty contiguous acres of the purchase "shall be forever appropriated and set apart as a cemetery:" and it then enacts, "that [**6]  the ground thus set apart as a cemetery, so long as used as such, shall not be liable to any tax, or public imposition whatever." And it being conceded in this case that the ground in respect of which the tax in question was imposed, is a part of the fifty acres so set apart and ever since exclusively used as a cemetery, and therefore covered by this exemption, the question is, whether a paying tax imposed by the city of Baltimore is not embraced by that exemption, looking to its terms as well as its declared objects?

In construing the words of that exemption, it must be manifest, that they are entitled to and ought to receive their fullest signification: and that there is nothing, either in the objects of the charter, or in the context of the exemption, which indicates that the words were used in a limited sense, or were only intended to apply to a particular kind or class of taxes or public impositions. On the contrary, there is a clear design to make the words of the exemption comprehend every thing, without exception, which can be justly denominated either a tax or public imposition: as is manifest from the words "any tax or imposition whatever." So that it is not any particular [**7]  kind of tax or public imposition which the exemption aims at, but every tax and every such imposition, in whatever form it may come. And when we consider that this exemption is granted and continues, only because and so long as the ground exempt is devoted to and used exclusively for the purpose of a cemetery, and is thus rendered unavailable for all other uses, the reasons for the generality of the exemption are at once manifest. In this respect, therefore, the present case is distinguished from some of the decided cases on exemptions, contained in statutes, or in covenants between landlord and tenant, where the general objects of the statute or covenant having relation to taxes of a particular kind, the courts have considered the exemption as having the same relation: or where the statute or covenant has specified for exemption certain taxes, and exempted from others by general words of exemption following such specification, and the court has construed such general words with reference to the specific taxes previously mentioned, and therefore held such general words to relate only to taxes of the same kind or class with those specified. The cases of this description will be seen [**8]  in the references in the argument of the Mayor of New York's case, 11 Johns., 78. But in this case, there is nothing in any way to qualify or restrict the full meaning of the words used, but on the contrary a clear design to comprehend every thing which the words "tax" or "public imposition" can reach.

As to the construction of statutes by their words, and the object manifested by the act itself, and the force of general words in a statute, see 5 Md. Rep., 485, Alexander vs. Worthington. Ibid., 529, 530, 532, 533, Carman vs. Carman. 2 Md. Rep., 120, 121, Allen vs. The Mutual Ins. Co. 20 Wendell, 561, 562, Waller vs. Harris. 50 Law Lib., 169. 9 Law Lib., 48. 18 Maine Rep., 313, Jones vs. Jones. 12 Pick., 226, Doane vs. Phillips. 11 Clark & Finnelly, 86, 143, The Sussex Peerage case. 6 Gill, 296, 297, Mayor & City Council of Balto., vs. Balto. & Ohio Rail Road Co.

Nor is there any thing in the exemption in this case to require or warrant the construction that it was only intended to apply to taxes and impositions already imposed by then existing laws, or only such as were regularly or annually recurring--such as the ordinary State and city taxes: and that it was not intended [**9]  to reach future or extraordinary taxes and impositions, the imposition of which depended on contingencies. Future taxation or imposition was that against which the exemption especially intended to guard: for if nothing more had been designed than to exempt from the then well known and ordinary State and city taxation, very different words would have been used. The exemption from any tax or imposition whatever shows most clearly that they aimed at future as well as present, and extraordinary as well as ordinary taxes and impositions. It will also be remembered that in this case the property thus exempted was, at the period when the charter of the appellee was granted, within the limits of the city of Baltimore, and the acts of Assembly and ordinances of the city, which gave and regulated the power to pave streets and tax for the paving, were then in existence, and subjected this property (without the exemption) to the contingent liability to taxation under that power. There was, therefore, a liability to such a tax by force of then existing laws: and this property was then so situated as to be subject to that liability. And surely, with reference to liabilities for public impositions [**10]  or taxes, existing and known to the law when it makes such an exemption as the present, it cannot be doubted that they are presumed to have been in the contemplation of the Legislature when it made the exemption, and to have been intended to be reached, if the words of the exemption are comprehensive enough to embrace them, and there be no specified exemption. The decided cases fully support these views, and it will suffice to refer for this to the opinion of the court, in Bleecker vs. Ballou, 3 Wendell, 266, and Mayor, &c., of New York, vs. Cashman.

To determine the extent of this exemption, it is then only necessary to enquire what is the true import of these words "tax" or "public imposition?" as every thing that is such is embraced and intended to be embraced. And the first branch of this enquiry is, is this exemption by the State confined to State taxes, or does it not also extend to such taxation or imposition by the city of Baltimore, as one of the municipal governments of the State? And since the decision of this court in the case of the State, use of Washington county, vs. The Rail Road Company, 12 G. & J., 400; 3 Howard, 550, as well as in the various tax cases arising [**11]  under charter exemptions, and especially under the charter of the Baltimore and Ohio Rail Road Company, it cannot be necessary to offer any argument upon this question. These cases certainly establish, that the power of taxation for city purposes, is held by the city as a branch of the State government, and is a public power subject to State control; that where the State, having certainly full control over the taxing power both of State and city, exempts from taxation generally, or public imposition generally, without any thing in the words or context of the exemption to show that she thereby only referred to State taxation, such a general inhibition of taxation, will reach the city as well as the State power of taxation, and alike restrain both; and that a tax or imposition by the city, in the exercise of the municipal power, is properly speaking "a public tax or imposition." And it will not, we presume, be denied that this property is exempt, by the provision of the charter, from the ordinary city tax. 6 Gill, 296, 297. 2 Do., 358, The Phil., Wil. & Balto. Rail Road Co. vs. Bayless. 1 Zabriskie, 557, Gardner vs. The State. 2 Harrison, 80, State vs. Berry. 3 Do., 11, Camden & Amboy [**12]  Rail Road Co. vs. Hillegas.

As then city taxes, and impositions under the municipal authority of the city, are, in their nature, "taxes or public impositions," and therefore falling within the words as well as object of the exemption: the question is narrowed down to the enquiry, "What is there to preclude the application of the exemption to a paving tax?" The source from which the tax or imposition proceeds (the city government,) makes it public; and therefore it is only necessary to ascertain if it is not also a tax or imposition. And to this end, it may be proper to consider briefly the origin and nature of the paving tax in the city of Baltimore, and the manner in which it operates. Before the grant of the city charter, the paving of the streets of Baltimore was regulated by State legislation, and provided for by State taxation, under the acts of 1782, ch. 17, 1789, ch. 45, 1791, ch. 59, and 1792, ch. 21; and by these acts, which placed the paving under the control and direction of the special, or as they were sometimes called, "the street commissioners," the fund to defray the expenses of paving was raised by various specified taxes imposed by the acts themselves, to which [**13]  was added a limited power in the commissioners to tax for that object, as also to raise money by lottery for same purpose. Upon the incorporation of the city, the State, by the charter of 1796, and the supplement of 1797, confided to the city government the power of determining as to the location and opening of streets, and of making, paving and regulating them, and also the power to pass all ordinances necessary for that purpose. Under these the city government could direct the paving of any unpaved street, with or without the consent of the owners of the adjacent property; nor was there any restriction upon that power until the act of 1817, ch. 148, (see also act of 1832, ch. 57,) which, in its 18th section, prohibits the city from forcing the paving of such a street, "without the written assent of the proprietors of a majority of the ground fronting on such street, or the part thereof to be paved." But still this is a mere restriction, and does not require the city to order the paving, even where such assent is given. The power of deciding that the street shall be paved still resides in the city alone, or the officers appointed under its authority to decide that question. She cannot [**14]  order it if a majority do not assent; but even with that assent she has still the right to exercise this power or not, according to the judgment of her commissioners appointed for that purpose. The city government is not therefore, under the law of the State, a mere instrument or agent appointed by the law to carry out the will of the proprietors of a majority of the fronting ground: or in other words, the law does not make the paving of such streets, and the taxation consequent on it, the mere result of the will of the fronting proprietors of a majority of the ground, but leaves it still as the imposition of a duty upon the citizen by the city government.

In order to the exercise of these powers by the city government, the charter has also vested in the city a two-fold power of taxation, the nature of which is fully considered and determined by this court, in the cases of the City vs. Moore & Johnson, 6 H. & J., 380, 386, and also Same vs. Hughes, 1 G. & J., 480. These cases show that the city might, if she pleased, provide for the paving by a general tax on the citizens of the city, as well as by the particular or special power under the charter, of taxing any particular part [**15]  of the city for paving streets which may appear to be for the benefit of that part. And in reference to this power of taxing a particular part of the city, they, every where in their decisions, style the imposition on such part of the city "a tax," sometimes calling it "a special tax," (6 H. & J., 380,) and at other times "a local tax," (1 G. & J., 494;) and in reference to this special power of taxation they decide, that the power to tax the particular district, and the legality of the tax imposed under it, "do not depend, (to use their own words,) upon whether the paving does or does not in fact benefit the particular district that is taxed, but upon the object, the motive of the city, in causing the paving to be done," (1 G. & J., 492.) Under these powers the city, having adopted the particular mode of taxation, as to the paving of unpaved streets, has provided a uniform mode of exercising it by its ordinances, (see Rev. Ord. of 1828, 121, 122; and same in Rev. Ord. of 1825, 121:) and a reference to the general regulations there will show, that the expenses of paving any such street, are those provided for by what is not only there called "a tax," but is also in its nature "a tax,  [**16]  " and not "a mere assessment of ascertained benefits resulting from the improvement." The provisions are, "that a tax shall be levied upon the owner or owners of the property fronting," so as to make the proprietors of the ground on the two sides of the street pay the whole expense of the paving in front of their respective lots. Instead therefore of being an assessment of benefits ascertained by the judgment of commissioners, (as is the case in assessing the expenses of opening streets,) it is a direct imposition of a tax on each front proprietor, of the whole expense of the paving in front of his own lot to the middle of the street: and the city commissioners, instead of assessing the benefits, do nothing more than ascertain the amount of that expense. And it may here be remarked, as showing the distinction between the paving tax, and an assessment of benefits, that the Court of Appeals, speaking of this tax, say: "That it is not a tax imposed by the commissioners, nor could the corporation confer on them such a power, but it is imposed by the ordinance itself; and the assessing and levying of it was only an apportionment of it, a mere matter of figures and calculation, a ministerial [**17]  act to carry the law into effect, which it was the duty of the commissioners to perform," (6 H. & J., 391.) We have therefore the authority of this court for saying, that notwithstanding the intervention of the commissioners to aacertain the amount, it is still a tax or imposition imposed by the city itself.

The tax in question being, then, clearly a city tax, or imposition flowing from the exercise of its municipal or public authority, is there any thing in the uses to which the money raised by it is applied, or in the fact that the tax goes to defray the expense of an improvement in front of the payer's own lot, which strips it of its character as a city tax or imposition? Is there any thing in such an use or application inconsistent with the character of a tax or public imposition? If it be said, that a tax is a pecuniary burden imposed on persons or property for some public object, then surely a pecuniary imposition, imposed by public authority, for the paving of the street of a city, ordered and directed by public authority, is for a public object, whatever the incidental result of that improvement to individuals. If it were conceded not to be for such an object, it would [**18]  be difficult to find the authority of the corporation to impose it: and the fact that the corporation is authorized, under its charter, if it so pleases, to impose a general tax on all the citizens, for the paving of any particular street, or part of a street, of itself demonstrates the object to be a public one, for the accomplishment of which a tax may be properly imposed on the whole community within the city. We are aware that there are cases which hold, with reference to what are called street assessments, that the valuation and assessment of benefits by commissioners acting under public authority, are not, strictly speaking, "taxes:" but there is a marked distinction between those cases and the present, which we will briefly advert to. The leading case on that subject is, the Mayor of New York's case, 11 Johns., 80, to which, and the cases in 3 Wendell, 452, 254, 19 Wendell, 681, and the cases stated by the court in 6 Barbour's S. C. Rep., 224, we refer, as showing the character of the assessments, which are there spoken of. By reference to these it will be seen, that the improvement there is made by an assessment of the entire cost of it, and of the actual benefits which any [**19]  and every individual would derive from it: that if the aggregate of the actual benefits thus assessed to each individual is not equal to the entire cost, then the court will not confirm the report, and the improvement must stop: and that under this assessment of benefits, the commissioners assess upon each individual what, in their judgment, is the actual amount of the benefit he will derive from the improvement, and thus make him pay only what, in their judgment, is thus actually added to the value of his property. And of such an assessment the court say, (11 Johns., 80,) "But to pay for the opening of a street in a ratio to the benefit or advantage derived from it, is no burden. It is no talliage or tax within the meaning of the exemption, and has no claim to public benevolence; why should not the real estate of a minister, as well as of other persons, pay for such an improvement in proportion as it is benefited." And if that were the kind of imposition in this case, this cemetery company, instead of paying this large assessment upon the property, being the whole expense of the paving in front of its one thousand four hundred and forty-three feet, to the middle of the street, would,  [**20]  in all probability, have paid nothing, or, at least, but a small proportion of the cost of the improvement; inasmuch as the property being, by the charter, forever dedicated to the uses of a cemetery, is necessarily valueless for other purposes, and can, therefore, derive but little, if any benefit, when compared with that of those who own lots which may be built upon, or applied to any other profitable uses. The very cases referred to, strikingly illustrate this distinction. In the case from 11 Johns., 80, where the question was as to the assessment of church property, the court say, that such property, being devoted exclusively to religious purposes, the benefit must be small, in comparison with that of other property; and after speaking of some benefits which might be derived to it by giving more convenient access to it, &c., they say that these are small and remote benefits, and that to charge the churches equally with adjoining property, is unreasonable and extravagant, and the report was, therefore, set aside. And we also invite the court's attention to the cases in 11 Wendell, 149, 153, (the case of a cemetery,) as presenting the same views. Here, however, is a case in which [**21]  the cemetery company, by what is unquestionably a city tax or imposition, are required to pay for the cost of the paving in precisely the same ratio as all other owners of property along the street, and without regard to the comparative benefit they may derive from it; and, therefore, the reasoning, which would strip the assessment of the character of tax or imposition, upon the ground that it only makes them pay for the benefits or value actually added to their property, is entirely inapplicable. And yet, even these cases from New York, so far as they would seem to affirm, that even such an assessment of the actual benefits is not properly a tax, are greatly shaken as to this point, if not entirely overthrown, by the recent decision of the Court of Appeals of that State, in the Mayor of Brooklyn's case, 4 Comstock, 419. Misled by the decision above referred to, the lower court, in that case, had determined that such mere local assessments of benefits were not properly taxes, or acts done in the proper exercise of the taxing power; that they could only be justified under the authority to take private property for public uses; and that the assessment in question in that case could not [**22]  be sustained under the latter power. 6 Barbour's S. C. Rep., 209, 224. But the Court of Appeals, reversing this decision, affirm that even such an assessment is a tax properly so called; and that in the cases in which it had been said that they were not taxes, all that was intended to be said, or could properly be said, was, not that they were not taxes, but that they were not such taxes as were intended to be embraced by the particular exemption under consideration. And we refer the court particularly to their review of the anterior cases in 4 Comstock, 433 to 437.

With regard to these cases from New York, it is further to be observed, (as will appear from the court's review of them in 4 Comstock,) that the main point decided was, not that the assessment by public authority was not a tax, but that looking at the manner in which the exemption claimed was given, the place in which it was found, and the matter with which it was connected, the exemption in question was not intended to embrace all taxes, but only particular kinds of tax. Hence, in the case in 11 Johns., the exemption was found, in a general tax act, relative solely to the public taxes to be collected for the uses [**23]  of State, county, or town; and the exemption was, therefore, held to refer only to the taxes to which that act related. And we may add here, that such too was the character of the exemption in Dolan's case, 4 Gill, 394, which went off in this court upon another ground. There, too, the exemption was contained in the State tax act of 1841, ch. 23, which related only to the imposition of direct taxes by the State or city, for State or city uses; and in which the exemptions of that act clearly have reference only to the taxes to be imposed under that act. The mere fact of the exemption being found only in such an act, might be, of itself, sufficient to make it but an exemption from the taxes to which that act related; but the words make this obvious. The 1st section of this act of 1841, which contains the exemption relied on in Dolan's case, enacts, "that nothing herein contained shall be construed to authorize the assessment or levy of any tax upon," &c., and then specifies the exempt property, so that it is clearly nothing more than an exemption from the taxes provided for by that act. But, in this case, there are no such considerations to control the construction of the words of the [**24]  exemption, or to deny them their ordinary and proper import. The exemption is not found in a tax act, or any other act which, by its subject matter, or in any other mode, shows that any particular taxes were in the contemplation of the Legislature, or that, in making this exemption, it had reference only to a particular kind or class of taxes, and so far from there being any intention to use the words in a qualified or restricted sense, they are as comprehensive as language can make them, and expressly intended to reach "any tax or public imposition whatever," no matter what its kind or class. And it is found, too, in the charter of a company, the declared objects of which, as well as the words of the exemption, manifest that it was intended to have this comprehensive and all-embracing operation. On this subject we refer the court to the case of The King vs. Scot, 3 Term Rep., 602, where, in a charter for charitable purposes, there was a somewhat similar exemption, and where, it being contended that the exemption from any manner of public tax, assessment, or charge, only exempted them from the general public taxes, and not from the assessment from the poor's rate, which was a particular [**25]  local tax, the court affirm that the exemption embraces every imposition which can be called a public tax, and that the poor's rate, although particular and local, was such. This case clearly shows that such an exemption as the present, found in such a charter as ours, is to have its fullest signification.

Such being the comprehensive character of the exemption, it brings us back again to the simple enquiry, "Is this a tax or not?--and to what has been said above on that subject, we may add, that every act and ordinance, relative to such an imposition as this, speak of it as a tax, and nothing but a tax. In the opinions of this court, above referred to, not only is it every where called a tax, but, in fact, it is imposed, and can only be imposed, under the charter power to tax the particular district, which expressly gives it as a power to tax--and as the only power to impose it is expressly given as a power to tax, it would be singular, indeed, if the imposition under the power is not a tax, and especially where the very ordinances imposing it call it a tax, and impose it as such. And, if the purpose of the tax have any bearing on this question, it cannot surely be maintained,  [**26]  that any tax which public authority imposes to accomplish an object determined upon and directed by itself, is less a tax because the individual taxed may derive some benefit from its application. But there is another view of this question which, as it seems to us, conclusively demonstrates that such an assessment is a tax, and nothing but a tax. By the act of 1840, ch. 63, power is given to the Mayor and City Council to provide, by ordinance or otherwise, "for the prompt collection of taxes due to the city of Baltimore;" and under this authority, alone, was the ordinance of the city passed, which directs the sale of property assessed for paving taxes, (ordinances of 1843, No. 44.) The only power here given, is with reference to taxes due the city, and unless the paving tax be a tax due the city, then the ordinance directing the sale for paving taxes was unauthorized. It so happens, however, that the validity of that ordinance has been fully affirmed by a decision of this court at its present term, which, therefore, settles that paving taxes are embraced under the general denomination of taxes due the city. Eschbach vs. Pitts, 6 Md. Rep., 71, 76.

But if it were even conceded that [**27]  the word "tax," in the exemption, did not include such an assessment, there is surely enough in the remaining words to embrace it. These lands are, by it, exempt from any tax whatever, or any public imposition whatever, and it is a well settled rule in the construction of statutes, that where words are thus used disjunctively, it is not to be presumed that they mean the same thing and no more, as they would impute to the Legislature the absurdity of using the latter words only to repeat what was fully expressed by the first. Hence, in the case in 3 Wendell, 263, 266, where the tenant had covenanted with the landlord to pay "all taxes, charges, and impositions," and the question came up as to the liability of the tenant, under this covenant, to pay an assessment of benefits under the New York statute, (such as we have described above,) the court say, "these are not words without meaning, nor can we suppose that they are used as synonymous;" and then, after saying that such a mere assessment of actual benefits was not a tax, on the authority of the case above, from 11 Johns., they yet held it to be embraced by the other words of the covenant. In this case there is nothing but a flat [**28]  imposition, by the ordinances of the city, of one-half of the cost of paving in front of the lot, the commissioners merely ascertaining that cost; and it surely cannot be successfully maintained that such an assessment is not a public imposition, and especially within the meaning of an exemption, which is expressly against any public imposition whatever.  

JUDGES:
The cause was argued before LE GRAND, C. J., TUCK and MASON, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*532]  LE GRAND, C. J., delivered the opinion of this court.
This case comes before us on an appeal from a pro forma judgment, rendered by the Superior Court of Baltimore city on a case stated. The statement of the facts may be thus abbreviated: By the act of 1837, ch. 164, the appellees were incorporated. As a corporation they are seized and possessed, for the purposes mentioned in the charter, of a quantity of land whose western boundary is the York avenue, within the limits of the city of Baltimore. In the year 1851, an application was made by the proprietors of a majority of the feet of ground binding and fronting on the York avenue, in the city of Baltimore, between the north side of Oliver street and the north side of North avenue,  [**29]  in the said city, to have the aforesaid part of the York avenue paved, in conformity with the ordinances of the Mayor and City Council of Baltimore. After notice by advertisement, the proper authorities determined that the avenue, as asked, should be paved, which was accordingly 

 [*533]  done in the year 1852; and, in pursuance of the ordinances of the city, a tax was imposed upon the owners of property fronting on the said part of York avenue, equal in amount to the whole expense thereof, excluding the cross-streets, the amount assessed on the appellees being $ 3790.12. There is no question in the case in regard to the regularity of the proceedings of the corporate authorities of the city; the appellees resting their defence to the claim set up against them exclusively upon the language of their charter, the third section of which provides, that at least fifty contiguous acres of the land of the appellees "shall be forever appropriated and set apart as a cemetery, which, so long as used as such, shall not be liable to any tax or public imposition whatever."
The appellees insist, under this clause of their charter, they are exempt from all liability to pay for the paving in [**30]  front of their property, alleging that the demand is a "tax" and a "public imposition," and being such, they are expressly relieved from all responsibility for the same by the words of the grant to them from the State. The decision, therefore, of the case, depends entirely on the true interpretation of the words which we have quoted from the act of incorporation.
The ordinances of the Mayor and City Council expressly designate, and the Court of Appeals, in the case of Eschbach vs. Pitts, 6 Md. 71, recognize, the levy for paving as a "tax." There is, therefore, no question in regard to the fact of its being such: the only question being, is it such a tax as is within the meaning of the act of 1837, ch. 164?
The words, "any tax or public imposition whatever," most certainly are very comprehensive, and would, if strictly construed, apply to every possible form of taxation or imposition, and, as a consequence, necessarily include a paving tax. But, on the fullest consideration, we are unable to satisfy our minds that the statute in question should receive such an exposition. We think the legislature intended nothing more than to exempt the property of [**31]  the proprietors from all taxes or impositions levied or imposed for the purpose of revenue, and not to relieve it from such charges as are inseparably incident to its location in regard to other property. At the time of the passage of the 

 [*534]  act of 1837, the York avenue was designated as a public street, and as such, was liable to be paved within the discretion of the city authorities, on the application of the proprietors of a majority of the feet of the land fronting on it. The effect of words of exemption from taxation has never been decisively settled by the Court of Appeals, although the question was presented in the case of Dolan & Foy, vs. The Mayor & City Council, 4 Gill 394. In that, as in this case, the claim was for paving in front of a grave-yard. The appellants there claimed exemption under the 2nd sec. of the act of 1841, ch. 23, which provided, that nothing contained in it should be "construed to authorize the assessment of, or levy of any tax upon, the property belonging to the United States, to this State, or to any county or city within this State, or to any incorporated literary or charitable institution, county schools, houses of public [**32]  worship, burying-grounds," &c. Baltimore county court, sitting in equity, held that the exemption only extended to public taxes, and not to a release of all liability for benefits conferred; such as might result from the opening or paving of streets. And this view was not only taken in connection with the category in which "burying-grounds" was found in the act, but independently of it and in view of the nature of the thing itself. When the case on appeal came before this court, the decree was, by a majority of the court, affirmed on grounds having no bearing on this question; one of the judges, however, did pronounce on the question, concurring in opinion with the court below. The county court recognized the authority of the case of The Mayor, &c., of New York, 11 Johnson 80, as also did this court in the subsequent case of Alexander & Wilson, vs. The Mayor & City Council, 5 Gill 383. In the case reported in 11 Johnson, the commissioners appointed by the court for the enlarging of Nassau street made a report of the estimate and assessment of the damage and benefit to the parties interested in enlarging the street, by which it appeared [**33]  that they assessed the benefit of the proposed improvement to certain churches in the city of New York. The churches objected to the assessment, on the ground that they were not liable because of a general law, which provided, "that no real 

 [*535]  estate belonging to any church or place of public worship, &c., shall be taxed by any law of the State." But the court unanimously decided otherwise, and held that the word "taxes" meant burdens, charges or impositions, put or set upon persons or property for public uses; and that to pay for the opening of a street, in a ratio to the benefit or advantage derived from it, is no burden--is "no talliage or tax within the meaning of the exemption." The doctrine of that case has been fully sustained by a number of decisions. See Bleecker vs. Ballou, 3 Wendell 263. The Northern Liberties vs. St. John's Church, 13 Pa. 104.
But it is said there is a difference between the case reported in 11 Johnson and the one now before us; that there it was an assessment, whilst here it is a tax. That was the case of the opening of a street; this is for paving of a street. The language [**34]  of exemption in the New York statute would include just as well the paving as the opening of the street; and if it did not, as was decided, include the latter, it surely did not the other. The language of the New York statute was quite as comprehensive as the act of incorporation of the appellees. It exempted churches, &c., from all taxes imposed by "any law." The distinction, if any, between a tax and an assessment is not very palpable. The meaning of the words is the same in our laws. When a man is assessed to pay a certain sum, it is equivalent to, and nothing more than, the imposition of a tax on him to that amount. This is the popular understanding of the signification of the terms, as well as that of philologists. Thus, Webster: Tax--"a rate or sum of money assessed on the person or property of a citizen by government for the use of the nation or State." So, also, "an assessment is a valuation made by authorized persons, according to their discretion, as opposed to a sum certain or determined by law. It may be a direct charge of the tax to be paid." In principle, we are unable to discover any difference between the meaning of the words, whether applied [**35]  to the opening or to the paving of a street. In either case they ought to receive the same exposition; and they are regarded as synonymous by the court in The People vs. Mayor, &c., of Brooklyn, 4 Comstock 429, 

 [*536]  a case which, it was argued by one of the learned counsel for the appellees, overrules the cases we have cited from 11 Johnson and 3 Wendell. We do not, however, so understand that decision. For the most part, it deals with matters in no way involved in this case. Its consideration of the provisions of the constitution of New York, of the right to apportion taxes, or of the distinction between the sovereign powers of eminent domain and of taxation, do not concern the question before us. That the imposition of a paving tax is an exercise of the taxing power, and not of the right of eminent domain, we entertain no doubt, nor did we understand the counsel for the appellants to suggest any. There was no question of exemption in the case last referred to. The question there was, whether it was competent to assess on the lands benefited by the grading and paving of a particular avenue the cost of the same? It was contended that the statute [**36]  authorizing such assessment was unconstitutional, because it confined the assessment to those supposed to be benefited by the improvement. The Supreme Court sustained this objection, but it was reversed by the Court of Appeals, which held the act of the legislature authorizing such assessment to be perfectly constitutional.
Looking to the principles of the cases we have cited, and which have been recognized heretofore by this court, and to the nature of the thing itself, we do not consider this paving tax such a tax as is embraced in the exemption contained in the charter of the appellees. The property of the United States, of the city and county of Baltimore, are all exempted from taxes, and yet it has never, so far as we are informed, been contended that it was not liable for the paving done in front of it, and we can see no reason why that of the appellees should be. If the latter be not responsible, then, it is evident, the street must forever remain unpaved, or the expense of it be borne wholly and entirely by the proprietors of the lots opposite. Surely this never could have been the intention of the Legislature, nor can it be imagined it was its purpose to compel the city generally [**37]  to do it. It must be viewed practically as a benefit conferred on the property of the appellees, and the mere fact that they were indifferent to it, ought not to 

 [*537]  avail in their favor any more than the like indifference of an individual proprietor would shield him from liability to pay his quota when paving is done in front of his ground.
To the objection, that to subject the property of the appellees to liability for paving, would endanger its perpetuity as a cemetery--an object certainly very desirable, and of evident solicitude on the part of the Legislature--it may be replied, that however we may deal in words, there is nothing in this terrestrial sphere which is not liable to shocks and decay, and at some day, sooner or later, to final dissolution. However, its force, whatever it may be, equally applies to all the engagements and liabilities of the corporation. The building of a wall, of a church, or the improvement of the grounds, may superinduce debt, and, with it, disastrous consequences. Although fully sympathizing with the laudable spirit which, with pious zeal and watchfulness, seeks to preserve the undisturbed repose of the dead, we, nevertheless, feel ourselves [**38]  bound to declare, that we see nothing in the legislation of the State, nor in the nature of the demand itself, to exempt the appellees from liability.
Judgment reversed, and judgment for appellants for amount mentioned in the case stated.
TUCK, J., dissented.  

96 of 187 DOCUMENTS 

JOHN T. BERRY vs. THE CONVENTION OF THE PROTESTANT EPISCOPAL CHURCH OF THE DIOCESE OF MARYLAND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Md. 564; 1855 Md. LEXIS 19 

JUNE, 1855, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Baltimore city.

The original bill in this case was filed on the 24th of October 1848, by the appellant, against the appellee and the executor, widow and devisees of Robert W. Bowie, deceased.

It alleges, that on the 17th of December 1839, Robert W. Bowie executed to the complainant a bond of conveyance for a tract of land, and in the same year delivered possession thereof to him; that complainant, in compliance with this bond, executed to Bowie his four bonds for the purchase money, with a surety, all of which he has paid, except two, for $ 6,666.66 2/3 each, on which Bowie recovered judgments, the one at April term 1843, and the other at April term 1844, of Prince George's county court; that he has made several payments to Bowie on these judgments, and that the last of them is fully satisfied; that Bowie assigned the first judgment to the convention of the Protestant Episcopal church, and it stands now entered to the use of this assignee; that Bowie is dead, leaving a large but incumbered property, and his estate is insolvent; that Bowie's widow (Catharine Bowie,) has filed a bill for dower out of the land so sold him by her husband, and [**2]  he is advised that she has such a right, and that it is a valid incumbrance thereon, and if she recovers it, he will be unable to indemnify himself out of Bowie's estate; that the assignee of this judgment holds it subject to all the equities existing between him and Bowie at the time of the assignment, or arising out of his subsequent death, and his widow's refusal to relinquish her dower, and that as against said assignee he is entitled to deduct from the judgment the value of the dower aforesaid, but that said assignee is about to issue execution on the judgment, and ought to be enjoined, and that the widow ought to be enjoined from prosecuting her claim for dower till relief shall be done to all parties, and he tenders, if desired, the money due on the judgments to be brought into court.

The bond of conveyance was filed as an exhibit with the bill. It is in the penal sum of $ 30,000, dated the 17th of December 1839, and sets out a sale by Bowie to Berry, of a plantation containing six hundred acres, more or less, and that Berry has given Bowie four bonds, all of even date with the bond of conveyance, and bearing interest from the 1st of January 1840, the first for $ 10,000,  [**3]  payable the 1st of March 1840, and the other three for $ 6,666.66 2/3 each, payable respectively on the first days of January 1841, 1842 and 1843, and its condition is, that Bowie shall, upon their payment, make to Berry a good and sufficient conveyance of the premises, "free from all incumbrances."

With the bill were also filed, 1st, a short copy of the oldest judgment on the first unpaid bond, at April term 1843, the only credit on which is $ 370.42, being the interest to the 22nd of November 1843; 2nd, a similar copy of the junior judgment on the last bond, at April term 1844, which shows a credit of $ 2721.03, as of the 22nd of November 1843; 3rd, several receipts for other payments subsequently made on the last named judgment.

An amended and supplemental bill was filed on the 18th of December 1848, charging that at least $ 3500 of the purchase money paid to Bowie, was applied by him to obtain the legal title for the land in question, which was conveyed to him by deed from his vendor, dated the 25th of November 1843, and that other large payments were applied by Bowie in the same manner, and that these payments ought to be deducted out of the widow's claim for dower,  [**4]  and prays for an injunction restraining execution of the judgment, which was granted.

The answer of the convention admits, that to secure the repayment of a loan of $ 6105.89, made by respondent to Bowie, the latter, on the 27th of November 1843, assigned to respondent a judgment for that amount, which he had recovered against Berry and his surety in April 1843, which judgment was accordingly entered for respondent's use, and the whole amount thereof, with interest from the 27th of November 1848, is due and unpaid, and that respondent means to enforce the same by execution; that when respondent made this loan and received this security, it understood that the judgment had been recovered on an obligation for the purchase money of land in Prince George's county, sold by Bowie to Berry. The answer also admits Bowie's death, but respondent does not know whether his widow has sued for dower, as alleged, nor what her dower rights are, but denies that her claim can affect respondent, or the judgment assigned to it; that the judgment assigned was the elder judgment on account of the purchase money, and that the payments made by Berry on the junior judgment, were made when he was aware [**5]  of the assignment to respondent of the elder judgment, and was bound to make them according to the priorities of the judgments, and that he cannot, in equity, set up his payments on the junior judgment to affect the rights of the assignee of the elder judgment, who is a bona fide holder thereof, for a valuable consideration.

The answer further alleges, that in the summer of 1847, Berry being pressed for payment of this judgment, applied to respondent for indulgence and a further credit of twelve months; offered to pay all arrears of interest, and the interest in advance for twelve months, and to give additional security by a mortgage of negroes; that respondent consented, and received the arrearages of interest, and interest up to the 27th of November 1848, but that Berry never gave the mortgage on the negroes, though it was drawn up under his own direction by respondent's agent, and though he obtained, by such undertaking, the forbearance he had stipulated for, and that it is against equity for him to seek to impair respondent's rights under the judgment, with an agreement, unperformed on his part, to secure to respondent the amount of the judgment, the benefit of which he has [**6]  enjoyed.

In October 1854, a motion was made to dissolve the injunction, when it was agreed between the parties that the judgment assigned to the convention was recovered on a bond given by Berry to Bowie, in the manner and for the purchase money due on the contract stated in the bill; that at the time of the assignment the assignee had notice that the judgment was recovered on an obligation given by Berry to the assignor, for the purchase money of land in Prince George's county, sold by the assignor to him; that Thomas F. Bowie, the attorney by whom the judgment was recovered for the assignor, was, from and after the assignment, continued as the attorney of the assignee in respect to the judgment, and, as such, received payments thereon; that Bowie, the assignor, died about the 1st of January 1848, and that the assignment was made at the instance and by the act of Thomas F. Bowie, he being, at the time, the attorney of the assignor and of the assignee; that Berry, since the death of Bowie, has been sued by the widow of the latter for dower in this land, and compelled, by decree of the court, to pay to her, as of the 29th of July 1851, $ 2479.24, with interest on $ 2048.96, from [**7]  the 8th of July 1851, which he has accordingly paid; that all Bowie's estate, real and personal, has been sold to pay his debts, and is insufficient therefor; and that Berry had notice of the assignment of the judgment to the convention shortly after the entry of the same on the docket.

The deposition of Thomas F. Bowie was also filed, to the effect that he was attorney of the convention in regard to the judgment of April 1843, which was assigned to the convention on the 6th of December 1843, and the use entered on the docket; that as such attorney he caused a fi. fa. to be issued and levied upon the land sold to Berry. In this state of affairs Berry applied for further time and indulgence in the payment of the judgment; deponent referred him to Mr. Donaldson, of Baltimore, who acted on behalf of the convention in the matter, and gave him a letter, dated the 16th of June 1847, introducing him to Mr. Donaldson. This letter being shown to deponent he states that it is in his handwriting, except certain memoranda thereon, written by Mr. Donaldson after he received it. Deponent also recollects Mr. Donaldson's reply, and it is substantially what appears upon what purports to be a draft [**8]  or copy thereof shown to him. Deponent and Berry subsequently met in July 1847, and the arrangement was entered into which is set out in another letter from deponent to Donaldson, dated the 13th of July 1847. In pursuance of this agreement Berry requested deponent to prepare a mortgage of the negroes to be given by him as security, and promised to execute it when prepared, and furnished deponent a list of negroes for that purpose, and deponent prepared the mortgage accordingly. Berry informed deponent that he had paid the interest according to the arrangement, and deponent directed the sheriff, in Berry's presence, not to advertise or proceed with the execution. Berry agreed at the time to pay the sheriff his poundage fees. Since then nothing has ever been done upon the execution, and deponent from time to time expected Berry to call and execute the mortgage until he heard of his filing his injunction bill.

The first letter referred to in the preceding deposition from Thomas F. Bowie to Donaldson, dated the 16th of June 1847, introduces Mr. Berry to the latter; states the object of Berry to be to obtain further indulgence on the judgment by giving additional security; and expresses [**9]  the writer's opinion that the judgment in its present form is a safe investment. On this letter was a memorandum by Mr. Donaldson, to the effect that Berry proposes to pay the interest now due, and one year's interest in advance, provided he can have credit for one year, or until he can get the crop of 1848, when he pledges himself to pay the whole or greater part of the debt. He is desirous of getting his deed from Bowie, and if assented to he will immediately execute a mortgage upon eight hundred acres of land and twenty-five servants to secure the debt. The property cost $ 30,000, and has since improved in value. It is free from incumbrances and will be mortgaged clear of dower.

The letter of Donaldson to Thomas F. Bowie, in reply to the preceding, states that the board of trustees determined, if Mr. Robert W. Bowie will consent thereto, to grant further time to Berry on the judgment, on condition that he pay at once all arrearages of interest and one year's interest in advance. If Bowie should refuse to consent to a postponement of the proceedings then in progress on the judgment, the indulgence will be granted to Berry on payment of interest as above stated, and by giving [**10]  additional security other than his lands on which the judgment was a lien, this security to be approved of by Thomas F. Bowie, and placed on a basis to make it available in case it should be necessary to resort to it. The judgment to be kept alive, so that at the end of twelve months the fi. fa. can be enforced.

The second letter from Thomas F. Bowie to Donaldson, dated the 13th of July 1847, acknowledges the receipt of the preceding letter from Donaldson, and states that Berry had agreed to execute a mortgage on all his negroes, some thirty in number, to secure the judgment, Mr. Bowie still declining to consent to the indulgence without his being released; that this will (if further security were necessary) undoubtedly place the judgment in a condition to be realised at any time; that Berry is also to pay up all arrearages of interest and one year's interest in advance; that he has promised to bring up a list of the negroes, when the writer will prepare the mortgage and have it recorded; that besides being a judgment vs. John T. Berry, it is also a lien on the real estate of his brother and co-defendant, who has a fine landed estate. That it is also secured by a mortgage to Bowie [**11]  on all the negroes of Berry, and the assignment of the judgment carries with it the mortgage rights of Bowie, the assignor, so that even now the convention has, in the opinion of the writer, a mortgage on Berry's negroes by virtue of Bowie's assignment of the mortgage thus secured, but to make the matter doubly sure the writer will have a new mortgage executed.

There was also filed a copy of this unexecuted mortgage and a receipt from the treasurer of the convention, dated the 22nd of July 1847, for $ 641.21, paid by Berry for arrearages of interest, and interest in advance to the 27th of November 1848, on this judgment, for $ 6105.89, due the convention.

There was also filed an assignment of this judgment, signed by Robert W. Bowie and dated the 27th of November 1843, to the effect that he had that day assigned to the convention a judgment recovered by him in April 1843 against Berry for $ 6105.89, to secure the repayment of that sum loaned him by the convention, one-third of which was to be repaid in two, and the residue in three and four years from date, with interest, payable quarterly, according to the tender of certain promissory notes of this date drawn by him and [**12]  endorsed by George Rust, "And I do hereby consent and agree, that in case of default in payment of any one of these notes when due, the convention shall be and is hereby authorised to issue execution on the judgment for the recovery of the whole amount loaned me," &c. He also agreed to pay the taxes on the judgment, and acknowledged that it was for part of the purchase money for a farm sold by him to Berry, and was entitled to a preference in payment to the balance of the purchase money remaining due.

A paper containing a short copy of this judgment was also filed, upon which, immediately under the judgment, was the following acknowledgment, dated the 22nd of November 1843, and signed by John T. Berry:

"I do hereby acknowledge that the judgment obtained against me in Prince George's county court by Robert W. Bowie, of which the above is a short copy, was for a portion of the purchase money for the farm in said county sold by him to me, and that at this time there is due and unpaid on said judgment the sum of $ 6105."

On the same paper was also the following assignment under the hand and seal of Robert W. Bowie, dated the 27th of November 1847:

"For value received,  [**13]  I do hereby assign and transfer to the convention of the Protestant Episcopal Church of the Diocese of Maryland, incorporated by law, all my right, title, interest claim and demand, of, in and to the judgment obtained by me in Prince George's county court, at April term last against John T. Berry and Alfred M. Berry, of which the within is a short copy."

And it was admitted that the body of the certificate signed by Berry, and the body of the assignment of the short copy of the judgment, except the number of the day of the month, and the statement on the short copy of the interest paid thereon, are in the handwriting of Mr. Donaldson, one of the trustees appointed by the convention to manage the fund of which the judgment is a part. It was also agreed that all the preceding evidence should be received as if duly taken under a commission.

Upon this evidence the court below, (KREBS, J.,) passed an order dissolving the injunction, from which the complainant appealed.  

DISPOSITION:
Cause remanded, under the act of 1832.  

HEADNOTES:

A vendor sold land, and gave a bond of conveyance, covenanting to convey "free of all incumbrances," and the purchaser gave his several bonds to secure the payment of the purchase money, upon the two last of which the vendor recovered judgments. The elder of these judgments he assigned, and after this assignment the purchaser paid the amount due on the junior judgment. The assignee had notice that the judgment assigned to him was for land purchased by the judgment debtor from the assignor. The vendor afterwards died insolvent, never having executed a deed to the purchaser, and his widow claimed dower out of the land, which dower claim the purchaser was compelled to pay, and then filed his bill against the assignee, claiming a set-off, on account thereof, against the assigned judgment. HELD:

1st. The purchaser knowing that the previous judgment had been bona fide assigned for value, should have retained the money due on the last judgment, and having failed to do so, he cannot now fall back upon the debt due the assignee and discount from that the amount of the dower money paid by him to the widow.

2nd. The judgments should have been paid in the order in which they fell due, and any equitable claim like this for dower, should be set up against them in the inverse order in which they were payable.

3rd. But if the purchaser, at the time of the assignment of the judgment and his payment of the junior judgment, did not know that his vendor had a wife living at the time, he cannot be held answerable for laches in not providing against the consequences of a fact of the existence of which he was ignorant, but it matters not whether the assignee knew of this fact or not.

4th. If the purchaser is ultimately compelled to pay the whole amount of this judgment, he will be entitled to a decree as a general creditor against his vendor's estate, for the amount paid by him for the widow's dower. 

COUNSEL:
Charles E. Phelps and Robert J. Brent for the appellant:

1st. If this were a contest between the purchaser, Berry, and his vendor, Bowie, the former could certainly [**14]  deduct from the unpaid purchase money the value of the dower interest or incumbrance paid by him. This equity is derived from the title bond itself, which stipulates for a title clear of incumbrances, and that alone enables us to have relief against unpaid purchase money. 5 Monroe, 260, McKoy vs. Chiles. Independent of the bond, the purchaser has a right, before completion of the contract, to have all incumbrances removed, as a contract to sell implies a clear title. Atkinson on Titles, 565, 369, 379, quoted and approved in Duffy vs. Calvert, 6 Gill, 516. 3 Peere Wms., 307, Tourville vs. Naish. 2 Sugden on Vendors, ch. 12, sec. 2. Such would be the equities between the assignor of this judgment, and Berry the purchaser.

2nd. Does this equity attach to the assignee of the judgment? We say that it does. Here is an assignee purchasing with notice that the judgment is for unpaid purchase money, and that there were other portions of the purchase money unpaid. Were they not bound to know that before that purchase money was paid up, Bowie must give a clear title, and, if incumbrances existed, that the purchase money was applicable to extinguish them? Ignorance of the law in such a case [**15]  excuseth not. 15 Eng. Law & Eq. Rep., 112, Cockell vs. Taylor. They did not require Berry to waive in their favor his equity, inherent on the known facts, if incumbrances appeared on the land before payment of the judgment. Non constat that Berry knew of this inchoate dower right, or knew that Bowie was married. He had no right to know it until the purchase money was paid, and Bowie was ready to give him the deed, and if there was no incumbrance at that date, there was no breach of the bond. 5 Paige, 235, Brown vs. Haff. 1 Bland, 75, Rawlings vs. Carroll. The general rule as to assignees taking subject to all equities, is stated in 2 Johns. Ch. Rep., 479, Livingston vs. Dean. 1 Munf., 533, Mayo vs. Giles. 1 Paige, 319, Webster vs. Wise. 2 Murphey, 30, Jordon vs. Black. 3 Monroe, 510, White vs. Prentiss. These authorities show, that, as a general principle, a chose in action cannot be assigned, and that the assignee, when assigned, takes it subject to all the equities in the hands of the assignor. The distinction between a purchaser of a chose in action and a purchaser of real estate without notice, is clearly shown in the case of Cockell vs. Taylor, 15 Eng. Law & Eq. Rep., 110. But [**16]  the present case is different from all cited, in this, that here the assignee had full notice of the facts on which Berry's equity arose by law.

3rd. Has Berry forfeited his right to this equity by any subsequent act or laches on his part?

1st. As to the objection, that having paid the junior judgment first, he cannot now set up this equity. The assignee had Bowie's private stipulation not to collect the other bonds first. Yet they serve no notice of this stipulation, but on the contrary, give time to Berry for a valuable consideration, and leave Bowie free to press him on other judgments and bonds. But this objection is sufficiently answered by the fact that both judgments were due when Berry paid the junior judgment to Bowie, and if the church chose to let their over-due judgment sleep from November 1843, when they purchased it, until 1847, when they bargained to give time to the debtor, they cannot complain if Berry, in the years 1844, 1845 and 1846, paid the junior judgment, when he was under no notice not to do so. But a still more conclusive reason why it was right in Berry to pay the junior judgment first, appears in the fact that the church had made the loan to Bowie [**17]  on his notes, endorsed by Rust, at two, three and four years from the 27th of November 1843, and the judgment being assigned expressly to secure these notes, the church had no right to collect it by execution until the notes fell due, which would be, for the first, the 27th of November 1845, and for the last, the 27th of November 1847. It was before the maturity of these notes that Bowie collected the junior judgment, as he had a right to do.

2nd. As to the certificate signed by Berry. There is no evidence in the record that he knew when he was asked to sign this certificate, that Bowie was negotiating with the church for a loan of money on the faith thereof. This paper only shows the consideration on which the judgment was rendered, and the amount due on it, and the equity which Berry relies on now is perfectly consistent with this certificate. It was designed only to protect the assignee, whoever he might be, against secret payments, but says nothing about equities which might thereafter arise.

3rd. As to the extension of time given to Berry, and his promise to pay in connection therewith. When this extension was made, there was clear notice to the assignee that Berry had [**18]  not got his deed from Bowie, and, therefore, that by law he was entitled to a deed from his vendor, clear of incumbrances. The negotiation for this extension did not begin until the 16th of June 1847. The assignee is no worse off by the extension of the time of payment than before; 1st, because they received from Berry a valuable and stipulated consideration for the indulgence, and thus received equal benefit from the extension; 2nd, because if they had forced Berry to pay up this judgment, he then had a legal right, before he paid, to call for a clear title, and could then have obtained relief by injunction against the assignee, unless Mrs. Bowie's inchoate right of dower was relinquished. There is no difference in principle between rights of parties before and after extension, except that in one case the incumbrance was inchoate, and in the other was consumated by the survivorship of the widow. In either case Berry has a right to obtain his land clear of incumbrances, and the assignee took the judgment and extended the time of payment with notice of this right.

Again the promise of Berry to pay, if the extension should be granted, was to pay the whole or greater part of the [**19]  debt when he should secure the crop of 1848. He, therefore, did not promise to pay the whole, and if he is credited with the dower money, he still pays a greater part of the debt. According to his promise he was at liberty to retain an uncertain portion of the purchase money due on the judgment, and he now only claims to retain $ 2400 out of $ 6105. The case of Kemp vs. McPherson, 7 H. & J., 337, decides that if, after assignment, the obligor, with full knowledge of a charge against the bond, promises to pay the assignee, he cannot be relieved. But that is said in a case where the rights of the debtor existed at the time he promised payment, and yet were concealed, and the assignee had no actual or constructive notice of the equity. There was in that case a promise by Kemp to pay the bond, notwithstanding he should have to discharge the incumbrances upon the land, but here there was no promise by Berry that he would pay the judgment though he should have to pay the widow's dower, and in this essential particular the two cases are totally different.

Notice to the assignee of the facts will prevent a waiver of the equity, unless the debtor agrees to waive all equities at the time [**20]  he promises to pay; for a promise to pay is not inconsistent with the enforcement of the equity, especially when the equity is known to the assignee as much as to the debtor. Independently of notice of the equity to the assignee, the waiver of the equity is on the ground of deceit or concealment of an existing equity known to the debtor and unknown to the assignee, coupled with a promise to pay the assignee. 2 Md. Ch. Dec., 140, Hall vs. Purnell. The reason of the rule preventing the obligor from setting up equities concealed from the assignee, is that it is a fraud. 2 Spence's Eq., 864. 15 Eng. Law & Eq. Rep., 110. 2 Md. Ch. Dec., 140, Hall vs. Purnell.

Now here was a promise to pay to Bowie in the very bond itself, but that would not prevent Berry from relief on the final settlement, according to the contract known to Bowie, therefore a mere promise to pay is, of itself, no answer to the equity. Why should a promise to the assignee, even in consideration of forbearance, have greater effect? Bowie was alive in 1847, when this promise was made, and Berry was then ignorant of the existence of this equity. No one could foresee Bowie's death, insolvent, and the renunciation of his [**21]  widow, and her throwing herself upon her legal rights, and, under such circumstances, the law will not impute to him constructive notice, for this would be to impute to him a fraud. 15 Eng. Law & Eq. Rep., 110. The equity being, then, remote, unknown and speculative, it is not like the case of the concealment of a known existing equity, where there must be fraud, if it is concealed from the assignee. Berry could not anticipate the survivorship of Mrs. Bowie, and the subsequent insolvency of Bowie's estate. Non constat, from the evidence, that he even knew that Bowie was married. It is, therefore, a case of a promise to pay, in ignorance of any incumbrance at the time of the promise, and it is only a promise to pay an existing liability, subject to contingent and unascertained discounts, the promisee knowing all the facts.

There is no proof of any laches on the part of Berry that would relieve Bowie, and if Bowie's estate was solvent, this court could at once decree payment of this claim for dower on suit by Berry. The default of Berry, if there was any, does not add to the equity of the assignee, unless it amounts to such laches as would deprive him of his equity as against Bowie.  [**22]  2 Story's Eq., sec. 776.

Finally, it appears from the assignment that the judgment was only assigned as collateral security for the payment of certain notes of Bowie, endorsed by Rust. Now it is only consistent with principles of equity that before Berry should lose his equity as against this assignee, the insolvency of the endorser should be shown, because he was bound in the original debt of Bowie to the church. If he be able to pay, then the church must marshall its securities so as to collect, if possible, its claim, without inflicting irreparable loss on Berry, who has been made to pay money, for which he has received no consideration whatever.

J. Mason Campbell and Thos. S. Alexander for the appellees:

Whatever may have been the equity of Berry against Bowie, in regard to the claim for dower, he has estopped himself by his own certificate of the amount due upon the judgment held by the convention, to press that equity against the assignee who acted on his certificate given for the very purpose.

The facts of the case show that Bowie was the owner of this judgment in 1843, and then held another bond due at that time. Berry knew, at the time he signed the certificate,  [**23]  that it was to be signed by him for the purpose of an assignment, and a few days after he signed the certificate, he knew of the fact of the assignment, for he saw it. It was a certificate unquestionably given to induce and facilitate the assignment of the judgment to some one, and it makes no difference that he had no knowledge that the appellees were the particular parties to whom the assignment was to be made.

In 1847, when asking an extension of the time for payment of this very judgment, Berry speaks of the title to this very land, and says that it was then free of all incumbrances of dower of every body. If these equities had been then suggested, the church could have resorted to Bowie and his endorser, but we then granted indulgence to Berry without Bowie's consent, and therefore released him, and at Berry's request, and to grant indulgence to him have lost a part of our securities. If, then, we are now to lose this claim, it is undeniably because, in 1847, we consented to withhold the execution which then would have resulted in our recovery of the whole amount of the judgment, and this delay was granted at Berry's request, and for his indulgence. The possibility of dower [**24]  then existing, has ripened into a right only because of the laches of Berry. There was then but an inchoate right of dower dependant upon two contingencies, 1st, the survivorship of Bowie's widow, and 2nd, the omission of Bowie to convey the estate to Berry, for the chancellor, in the dower case, decides that he could convey the estate and defeat the right of dower. 3 Md. Ch. Dec., 362, and 1 Do., 454, Berry vs. Bowie.

Now what is the law applicable to these facts? 1st. Conceding there is an equity, we say the assignee is, under the circumstances, released. 2 White's Lead. Cases in Eq., 233. 15 Vermont, 269, Foot vs. Ketchum. 2 Md. Rep., 407, Doub vs. Mason. The case of Kemp vs. McPherson, 7 H. & J., 320, announces the doctrine that the effect of the statements of the debtor in such a case as this, is to deceive the assignee, and that he is bound by his statements. This case is the law of this State, and has never been disputed, but is recognized in 9 Gill, 431, Beard vs. Hubble. See also 1 Macnayhten & Gordon, 437, Mangles vs. Dixon. If Berry agreed to pay the whole debt (even conceding he had a claim to a set off,) in consideration of the indulgence for twelve months, it is [**25]  a contract which a court of equity will enforce. He cannot dispute the facts contained in his certificate. 2 Comstock, 278, L'Amoreux vs. Vischer. When he gave this certificate, he held in his hands the amount of the other and junior bond, which was abundantly sufficient to meet this claim.

2nd. There is no equity in the case. There is no case to be found where a party has been allowed to manufacture an equity out of his own laches, and yet this is precisely what Berry is seeking here to do. If he had paid his bonds and got his deed, the claim for dower never would have arisen; for when these bonds were due, Bowie held but an equitable title to the land, and the widow then had no claim for dower. We say, then, in conclusion, that Berry having notice of the assignment to the church, and dealing with the assignee directly as creditor, and obtaining time and indulgence for payment from the assignee, by covenanting to give further security, which he failed to give, has no equity against the church in regard to the dower of Mrs. Bowie, his present difficulty arising out of his own failure to secure himself against the dower out of his payments to Bowie on the unassigned judgment.  

JUDGES:
The [**26]  cause was argued before LE GRAND, C. J., ECCLESTON and MASON, J.  

OPINIONBY:
MASON 

OPINION:

 [*578]  MASON, J., delivered the opinion of this court.
An attempt was made by counsel, in the course of their 

 [*579]  argument, to reflect upon the motives and conduct of the respective parties to this record. We can discover in the facts before us no warrant for any accusations against either the complainant or defendants, in the course which they have pursued in this transaction, but on the contrary we regard both as being in court with clean hands.
The material facts, as alleged by the complainant in his bill, and as they are proved or admitted, are, that in 1839 R. W. Bowie sold an estate to the appellant, and executed to him a bond of conveyance, and in conformity therewith the latter executed and delivered to said Bowie his three several bonds, each for $ 6666.66 2/3, payable at different periods. Upon the two bonds last falling due judgments were confessed, one at April term 1843 of Prince Georges county court, and the other one year after. The judgment on the bond preceding the last was assigned to the convention of the Episcopal Church, the appellees in this proceeding. After  [**27]   this assignment the appellant paid to said Bowie the amount due upon the last judgment. The bond of conveyance stipulated, on the part of Mr. Bowie, for a title free from all incumbrances; no deed was in fact ever executed. The bill proceeds further to charge that Bowie is dead, leaving a large, but incumbered property, and that his estate is insolvent; and that Mr. Bowie's widow has filed a bill against the appellant, claiming dower out of the property so sold him by her husband, and that he is advised that she has such a right, and that it is a valid incumbrance thereon; and that if she recovers the same, he will be unable to indemnify himself out of the estate left by Bowie; that the assignee of said judgment holds it subject to all the equities existing between him and Bowie at the time of the assignment, or arising out of his subsequent death, and his widow's refusal to relinquish her dower; and that, as against said assignee, he is entitled to deduct from the judgment the value of the dower aforesaid, but that said assignee is about to issue execution on said judgment, and ought to be enjoined; and that Catharine Bowie ought to be enjoined from prosecuting her claim for dower [**28]  

 [*580]  till relief shall be done to all parties; and he tenders, if desired, the money due on the judgments to be brought into court.
He further states that Bowie left a will, and that letters thereon have been granted to Judge Tuck; and that his widow has refused to take, in lieu of her dower, the real estate therein bequeathed to her; and that a part of his real estate is devised to his executor to be sold for his debts; and that another part is devised to his nephew, Robert Bowie, in trust for her daughters, Caroline, wife of Osborn Sprigg, and Priscilla, wife of Richard L. Ogle, and another part devised to I. I. Bowie, his son; and that the daughters and son, above mentioned, with Robert Bowie, are the only children and heirs-at-law of said Robert W. Bowie, and are all parties to this proceeding. The convention had notice that the judgment assigned to them was for land purchased by the appellant from Mr. Bowie.
Mrs. Bowie subsequently sustained her claim to dower, and the question is, can the sum thus recovered by her be discounted from the judgment now held by the convention?
The complainant's case rests upon the theory, that as the defendants had knowledge that the debt [**29]  which was assigned to them, was due on a contract for the purchase of land, knowledge was therefore to be imputed to them of the provisions and incidents of that contract, one of which was, that the purchaser was to have a good title, and as there was an inchoate right of dower in Mrs. Bowie, it might ultimately mature, and subject the amount of purchase money to a reduction unless extinguished, and that therefore they took the assignment of the judgment subject to this equity. Concede this position to be correct, still the same knowledge would inform the defendants that at the time they took the judgment in question there was another and a junior instalment on the land still unpaid. Although they might not have been unmindful that this sleeping equity against the purchase money might be awakened into active life, still they must be supposed to have acted upon the correct assumption, that there was ample indemnity and protection both as to themselves 

 [*581]  as well as to the purchaser also, against such a contingency, in the defined or junior instalment still remaining unpaid in the latter's hands.
It was the duty of the complainant, knowing that the previous installment had [**30]  been bona fide assigned for value, (and knowledge of this fact is sufficiently inferable from the certificate given by Mr. Berry, as well as from other circumstances,) to have retained in his hands the money due on the last, as a protection, if any were necessary, against the consequences of a non-fulfilment by Mr. Bowie of his contract. Having parted with this means of protection or indemnity, which would only be availing in his own hands, he cannot now fall back upon the debt due the appellees, and have that discounted to the amount of the dower money recovered by Mrs. Bowie. The installments should have been paid in the order in which they fell due, and any equitable claim like the present, against the purchase money, should be set up against the several instalments in the inverse order in which they were payable.
These views, it will be observed, are based upon the hypothesis that Mr. Berry knew that Mr. Bowie had a wife living at the time these several transactions took place. If he did not, he could not be held answerable for laches in not providing against the consequences of a fact, of the existence of which he was ignorant, but it matters not, in any aspect of the [**31]  case, whether the convention knew or not of the existence of this fact of Mr. Bowie's having a wife.
Unless, therefore, the parties can come to some agreement upon this question, we will remand the case under the act of 1832, ch. 302, to enable the parties to amend their pleadings and take proof upon the point, without either affirming or reversing the decree of the court below.
Upon the bill and other proceedings now before us, the court are of opinion that if the decree in this case should ultimately be against the appellant, he will be entitled to a decree as a general creditor against the representatives of Mr. Bowie's estate, for the amount which he has been obliged to pay to Mrs. Bowie for her dower.

 [*582]  We do not think the appellees are entitled, under the peculiar circumstances of this case, to costs, and we therefore remand the case without allowing them.
Cause remanded, under the act of 1832.  

97 of 187 DOCUMENTS 

THOMPSON PEGG, and others, vs. RICHARD C. WARFORD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Md. 582; 1855 Md. LEXIS 20 

JUNE, 1855, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Baltimore county.

This was a case of issues from the Orphans court, to try the validity of two wills executed by Rachel Colvin, deceased, the one on the 30th of October 1845, and the other on the 6th of April, 1848. These issues were granted by the Orphans court for Baltimore city, and sent to the Superior court of said city for trial, but were afterwards, upon suggestion of the appellants, removed to the Circuit court for Baltimore county. They were in substance as follows:

1st. Whether the paper of the 6th of April 1848, was executed by Rachel Colvin as her last will and testament, when she was of sound and disposing mind, and capable of executing a valid deed or contract?

2nd. Whether it was executed by her under the influence of suggestions and importunities of some person or persons, when her mind, from its diseased or enfeebled state, was unable to resist the same?

3rd. Whether the paper of the 30th of October 1845, was duly executed and published as the last will and testament of said Rachel Colvin?

4th. Whether the paper of the 30th of October 1845, was revoked by the paper purporting to be the will of said Rachel, dated [**2]  the 6th of April 1848?

5th. Whether the paper of the 30th of October 1845, was revoked by the said Rachel in any other manner than by the will of the 6th of April 1848?

6th. Whether the said Rachel was prevented, by the fraudulent concealment of the will of the 30th of October 1845, by any person or persons, from revoking the same by burning, cancelling, tearing or obliterating the same, or otherwise?

7th. Whether said Rachel was of sound and disposing mind and memory, and capable of executing a valid deed or contract at the time of the execution of the paper of the 30th of October 1845?

8th. Whether she was prevented, by the fraud or false representations, or undue influence of any person or persons, from revoking the said paper of the 30th of October 1845, by cancelling, tearing, burning or obliterating the same, or otherwise?

At the trial of these issues, the appellants, who were the caveatees and the alleged heirs at law and next of kin of the deceased, were the plaintiffs, and the appellee, who was the executor and principal legatee and devisee under the will of 1848, was the defendant.

1st Exception. The caveatee, to support the issue on his part,  [**3]  offered to swear Rachel Jane Warford, who was a legatee or devisee in the wills of 1845 and 1848, and the caveators having objected to her competency on the ground of interest, the caveatee, to show her competency, produced and read a duly certified copy from the records of the Superior court for Baltimore city, of a deed dated the 2nd of February 1855, from the witness to one Hamilton Warford, of Delaware county, in the State of Ohio, by which the witness conveyed to the said Hamilton, her brother, in consideration of natural love and affection, all her interest "under either of the wills" of the said Rachel Colvin. He also produced and read a deed duly signed, sealed and delivered, from the witness to Frederick W. Brune, dated the 5th of February 1855, which, after reciting that whereas doubts had been expressed as to the efficacy of the preceding deed to Hamilton Warford, to pass all the interest of the grantor under both wills, and that whereas the grantor is desirous to divest herself of all and every interest remaining in or hereafter to accrue to her under both said wills, and each and either of them, "so as to render her a competent witness in relation to both said instruments,  [**4]  " proceeds to convey to the grantee, in consideration of the premises and the sum of five dollars, current money, all the grantor's interest under said wills, and each and either of them, subject to the legal effect of said deed to Hamilton Warford.

The caveatee further proved by a witness, that he knew Hamilton Warford, who was a brother of Rachel Jane Warford, and of the caveatee, and lives in Ohio, and had seen him in Baltimore in 1853. The delivery and acceptance of the deed to Brune was admitted, but there was no proof given touching the knowledge or acceptance of the deed to Hamilton Warford by him, other than what is above recited. The caveators still insisting upon their objection, the court (CONSTABLE, J.,) overruled the same, and allowed the witness to be sworn. To this ruling the caveators excepted.

2nd Exception. The caveatee, upon the cross-examination of St. George W. Teackle, a witness produced by the caveators, proved that he (witness) endeavored to get the testatrix, Rachel Colvin, to insert in the will of 1845 the name of Mrs. Mary Ann Ellicott, as a devisee, but the said testatrix refused, upon the ground that Mrs. Ellicott was the only child of a rich father.  [**5]  The caveatee also proved by this witness and others, that at other times the said Rachel gave as a reason why she had not made provision for Mrs. Ellicott in her wills, that Mrs. Ellicott would be sufficiently provided for by her father, who was a rich man.

The caveators then proved by Mrs. Ellicott, a competent witness, that in the year 1847, and in the fall of that year, the defendant, Colvin Warford, called upon her, and in the course of conversation during his visit, asked her if she knew how much her father was worth? to which she replied, "I do not." That Colvin Warford then said he had been to New Jersey, and would tell her how much he was worth, and that he was worth $ 100,000. The caveators then proved by the same witness, that about three or four weeks after this interview, witness went to see Miss Colvin, and Miss Colvin said, "I wanted to see you, to tell you I had made a will, leaving you a legacy, but Colvin says your father is worth $ 100,000, and you will have more than the others, and I must not give you any thing."

The caveatee then offered to examine Mr. Shrope as a witness, and having called him to the stand, he was objected to by the caveators' counsel,  [**6]  and the counsel for the caveatee being asked what they offered to prove by said witness, said, that they offered said witness for the purpose of contradicting Mrs. Ellicott, or impeaching her, by showing that she was mistaken as to the time of said conversation, if any was had, or that the statement of said Warford in said conversation, if it was had, was true. The caveatee then proved by said Shrope that he was one of the assessors of one of the townships of Hunterdon county, New Jersey, where Elisha Warford, the father of Mrs. Ellicott, resided; that he had been assessor of taxes for nine years, once in 1840 to 1846, and was again appointed in 1850, and has continued to act as assessor from that period until the present time. That in 1852, Colvin Warford called upon him to ascertain what was the amount and value of Elisha Warford's estate, that Elisha Warford was going security upon a bond in Maryland; that witness showed to Colvin Warford the assessment of Elisha Warford's estate, which was $ 10,000 worth of real estate, and that he owned lands in other places; that his personal estate was valued at $ 10,500, clear of debts due by him; this amount being handed in by Elisha Warford,  [**7]  and witness concurring with him, he was accordingly assessed therewith; that he was assessed with debts due to him on bonds, mortgages and notes to the amount of $ 10,000, and that his name or bond would be good in that county for $ 30,000; that defendant never called upon witness at any other time than that above mentioned, for the purpose of ascertaining the amount of Elisha Warford's estate, nor did he at any other time give to Colvin Warford any other statement than that above mentioned.

The caveatee also proved, that when Benjamin H. Ellicott was appointed, by the chancellor, committee of the estate of said Rachel Colvin, he offered his father-in-law, the said Elisha Warford, as his surety, and on that occasion the said Elisha Warford, who then lived and still lives in New Jersey, for the purpose of satisfying the chancellor of the sufficiency of such security, filed his affidavit in the chancery court, stating that he was worth, at least, $ 60,000, which affidavit, with certificates attached, as to the value and assessment of his property, are inserted in the record.

To the admissibility of all which testimony of said Shrope, for the purpose for which it was offered,  [**8]  the counsel for the caveators objected, but the court overruled their objection, and permitted the evidence to go to the jury. To this ruling the caveators excepted.

3rd Exception. The caveatee proved the execution and publication of the two wills of October 1845, and April 1848. (These wills make different dispositions of the large estate of the testatrix, and the latter contains a clause expressly revoking all former wills.) The caveators then proved, by various witnesses, facts and circumstances tending to show that Rachel Colvin was not of sound and disposing mind, and capable of executing a valid deed or contract at the periods of the execution and publication of these papers. The caveatee also proved by like competent witnesses, a variety of facts and circumstances tending to show the capacity of the testatrix to make these wills at their respective dates.

The caveators then proved by Mr. Teackle, that for a series of years, beginning in 1843, and ending in 1849, he had been the legal adviser of Rachel Colvin, and, as such, prepared for her, under her instructions, a will, which was duly executed by her in 1847, but at what period in that year witness cannot say, except [**9]  that it was in or after the spring of that year, and that in the opinion of witness, derived from the relation in which he stood towards her, and from various interviews and conversations had with her, she was, at the time of executing the same, of sound and disposing mind, and capable of executing a valid deed or contract; that the name of Richard C. Warford, the caveatee, was wholly omitted in this will of 1847, and the name of Mrs. Ellicott inserted at the request of witness, as devisee of certain property; that witness was the executor thereof, and he believes it contained a clause revoking all former wills, from his habit of inserting such clauses in his preparation of wills.

The caveators then further proved by competent testimony, facts and circumstances tending to show that the will of 1847 was destroyed by the testatrix while her mind was sound, and likewise tending to prove that the will of October 1845 was not in her possession, or in the hands of any person authorized by her to retain the same, at the time of the destruction of the will of 1847; and further proved by competent testimony, facts and circumstances tending to show that she, at the time of the preparation [**10]  and execution of the will of 1847, and also at the time of its destruction by her, if she did destroy the same, did not know that the will of October 1845 was in existence or in her possession. The caveatee thereupon offered evidence of facts and circumstances of a contrary tendency.

The caveators further proved by competent testimony, facts and circumstances tending to show that the caveatee, during the life of the testatrix, retained from her possession the will of October 1845, and concealed the same from her knowledge, with intent thereby to prevent its cancellation by her, and with a view and under the design, after her death, to set up said will for probate as a valid will, should his interest require it. The caveatee likewise offered testimony of a contrary tendency.

Upon this proof the caveators offered sixteen prayers, eleven of which were granted, with the consent of the counsel for the caveatee. Of these prayers thus granted, the following is the only one material to be stated.

"6th. If the jury find from the evidence, that Rachel Colvin, in excluding Mrs. Ellicott from the will of 1848, was influenced by the representation of Richard C. Warford, that her [**11]  father, Elisha Warford, was worth one hundred thousand dollars, and shall further find that such representation was untrue, and that the will of 1848 was the result of such representation, then the verdict on the 2nd issue must be for the caveators."

The other prayers were in substance as follows:

1st. If the jury find that Rachel Colvin duly executed and published a will in 1847, when she was of sound and disposing mind, and capable of executing a valid deed or contract, differing materially from the will of October 1845, and containing likewise a clause of revocation, the subsequent cancellation or destruction by her, or by her direction, of the will of 1847, (if the jury shall find such destruction or cancellation,) will not have the effect in law to revive the will of October 1845, as her will.

2nd. If the jury find the facts stated in the preceding prayer other than that the will of 1847 contained a clause of revocation, still, if they find that it disposed of the estate of the deceased, in a mode materially differing from the will of October 1845, still the cancellation or destruction by her, or by her direction, of the will of 1847, if the jury find such cancellation [**12]  or destruction, will not in law revive as her will the will of October 1845.

8th. If the jury find that Rachel Colvin duly executed and published the will of October 1845, and afterwards, in 1847, when she was of sound and disposing mind, and capable of executing a valid deed or contract, duly executed and published another will, purporting to dispose of all her property, and differing materially in its dispositions thereof from the will of 1845, and containing a clause revoking all former wills, then such execution and publication of the will of 1847 revoked the will of 1845.

10th. If the jury find that Richard C. Warford, during the lifetime of Rachel Colvin, retained from her possession the will of 1845, and concealed the same from her knowledge, with intent thereby to prevent its cancellation by her, and with a view and under the design, after her death, to set up the same for probate as a valid will, should his interest require it, then their verdict must be for the caveators on the 6th and 8th issues.

15th. If the jury find that the will of 1845 was not in the possession of Rachel Colvin, or in the hands of any person authorized by her to retain the same for her [**13]  at the time of the destruction or cancellation of the will of 1847, (if the jury shall find from the evidence that said last mentioned will was cancelled or destroyed by said Rachel Colvin while her mind was sound,) then the said cancellation of the will of 1847 does not revive the will of 1845.

These five last prayers the court rejected, and to this ruling the caveators excepted.

Five prayers were also offered on the part of the caveatee, and granted by consent of the counsel for the caveators, which need not be stated. The verdict was in favor of the caveatee upon all the issues, and the caveators appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

A deed executed by a legatee or devisee, conveying his interest for the purpose of restoring his competency as a witness for the will, cannot be assumed by this court not to have been executed in good faith, and whether it was or not, the grantor cannot assail it upon any such ground, and he is thereby made a competent witness.

The practice of restoring the competency of witnesses at the trial, by executing releases or deeds, has so long prevailed, and been sanctioned by the courts of this State, that it cannot now be disturbed.

An objection to a witness before he is examined, must be to his competency, and not to the admissibility of his testimony.

The legal presumption is in favor of the competency of every witness, and no objection to his competency should be entertained, unless the party making it, discloses at the time the ground on which it is based; a mere general, indefinite objection will not avail.

A party offering a witness is not bound to state any special purpose for which he is offered, or to show, until the contrary is at least prima facie established, that he is a competent and legal witness.

All legal and pertinent evidence, admissible for any purpose, may be offered generally.

If evidence offered for a particular purpose be inadmissible for that purpose, it is properly rejected, though admissible generally, or for some other object.

Where several purposes, for which testimony is offered, are specified, and it could have been offered for no others, the offer is virtually a general one, though, in point of fact, the evidence may not be legally applicable to all the specified purposes, and if admissible for any one of them, it is properly admitted.

To prevent the jury from applying the evidence to a purpose to which it does not relate, it is the duty of the party objecting, to point out specifically the purpose to which it has no legal application and ask of the court its exclusion for such purpose.

A general objection to testimony which is per se applicable to the case for any purpose, will not be sustained, though it be inapplicable to others.

Where evidence is offered generally, it must be assumed that it will be applied by the jury to the purposes to which it is legally applicable, and if a party wishes to guard against its misapplication, he must ask the court to point out the branch of the case to which it is not to be applied.

Where testimony is per se admissible, its sufficiency to establish the whole case is a question to be determined by the jury, upon a prayer properly framed and presented after the evidence is closed.

Proof by one witness that a party was worth $ 30,000, and owned land in other places, is admissible as a step towards establishing the fact that he was worth $ 100,000, which was the issue to be proved.

Such testimony, though referring to the party's condition in 1850 or 1852, is admissible to prove the truthfulness and honesty of a statement that he was worth $ 100,000, made in 1847, the issue being not so much the precise time when he was worth that sum, as the truthfulness of the statement on the subject, and the testimony being also rebutting evidence, and connected with other facts and circumstances.

Where the rulings of the court below, in regard to the validity of a subsequent will revoking a prior one, are sustained by this court, and the subsequent will is established, all questions presented in the record as to the prior will, are wholly unimportant, and will not be considered or decided.  

COUNSEL:
Henry Winter Davis, Grafton L. Dulany and John Johnson for the appellants.

1st. The first exception relates to the competency of Rachel Jane Warford as a witness for the caveatee. She was a legatee under the will of 1845 and a devisee under that of 1848. She comes into court and during the trial executes two deeds to restore her competency. Both were executed during the trial and will be regarded as part of the same transaction. The second deed refers to the first and states upon its face that it was executed for the purpose of making the [**14]  grantor a competent witness. Now it is clear that if the grantees in these deeds had brought suit to recover the legacies conveyed by them the grantor would not be a competent witness to sustain that suit; for that would be directly in the teeth of the decision in the case of Crawford vs. Brooke, 4 Gill, 213. The question is not whether the deed is good inter partes, but whether it is good as against strangers. The court in that case say the deed was not good as against strangers and that is the case here; for the attempt is here made to use it against, and to the prejudice of, strangers. As to strangers the court in that case have said that a deed executed for the purpose for which these were executed is mala fide. The practice of executing these releases at the trial table ought not to be encouraged and should not be carried beyond the decided cases. If Mrs. Ellicott is to be regarded with distrust as a witness because she was a disappointed legatee, how much more liable to distrust is the testimony of a witness who has released her whole interest under these wills for the sole purpose of rendering her a competent witness? Such an assignment is not a valid mode of restoring competency,  [**15]  but tends directly to encourage fraud and perjury by creating testimony to create the title to the very thing pretended to be transferred, which but for such testimony would have no existence.

2nd. The second exception relates to the admissibility of the testimony of Shrope for the purposes for which it was offered. When Shrope was called as a witness and was objected to, and the counsel for the caveatee were requested to state for what purpose they offered him, they said that they offered him for the purpose of contradicting Mrs. Ellicott, or impeaching her by showing that she was mistaken as to the time of said conversation if any was had, or that the statement of Warford in said conversation, if it was had, was true. Now these purposes being legitimate we could make no further objection until the testimony was in. When the testimony was given we then objected that it did not come up to the purpose for which it was offered, and insisted that it was the duty of the court below to have ruled it out. Now we say:

1st. That this testimony was inadmissible and utterly incompetent to sustain any one of the purposes for which it was offered. A witness can be impeached in one of [**16]  three ways only:--1st, by proving by a competent witness the opposite of the facts testified to by the witness sought to be impeached; 2nd, by showing that he has made contradictory statements in regard to the matter about which he testifies; and 3rd, by proof of general bad character for truth and veracity. 1 Greenlf. on Ev., sec. 461. 3 Md. Rep., 425, Steuart vs. Williams. Now this testimony does not impeach Mrs. Ellicott, by showing that she was mistaken as to the time of the conversation, and that this conversation occurred after 1852; for in 1851 Miss Colvin was a declared lunatic, and it was therefore impossible for Mrs. Ellicott to have held a conversation with her after 1852. As to this proposition therefore it is impossible for the human mind to doubt. There is again no clashing or inconsistency between the testimony of Shrope and that of Mrs. Ellicott. The fact that Colvin Warford went to New Jersey in 1852, does not prove that he did not go there in 1847, and has no tendency to prove that what Mrs. Ellicott testified to in regard to the conversation in 1847 was not true. There is therefore no process of ratiocination by which the testimony of Shrope can be regarded as impeaching [**17]  that of Mrs. Ellicott, and yet the court below said it was testimony, and it went before the jury with the impress of judicial sanction upon it, and that too under the offer to impeach Mrs. Ellicott.

Nor does this testimony show that the statement of Warford in regard to the wealth of Elisha Warford was true. It proves only that Elisha Warford was in 1852 worth $ 30,000, and we are asked to infer from this proof that he was worth $ 100,000 in 1847. Upon this part of the argument the case of Keedy vs. Newcomer, 1 Md. Rep., 241, is conclusive. It was held in that case that a fi. fa. returned "made" in one year, was no evidence to show that the party had property out of which another fi. fa. issued the year previously could have been satisfied. The court there say: "It might very well be that a person should have property in March 1840 sufficient to satisfy a writ, and yet wholly without any in March 1839. The vicissitudes of life, and especially of that of men extensively engaged in business, make such testimony very unsafe data on which to predicate the conclusion sought to be arrived at in this case. The period is entirely too remote and we think therefore the court did right [**18]  in rejecting it." How much stronger is the argument in this case that proof of a man's condition in 1852 is no evidence of what he was worth in 1847, five years previously? That proof of this character, so light and inconclusive as to afford unsafe data to warrant the conclusion sought to be arrived at, ought to be rejected, see also 5 Md. Rep., 434, Stewart vs. Spedden. 4 Do., 244, Balto. & Susq. Railroad Co. vs. Woodruff. 3 G. & J., 435, Sothoron vs. Weems. 8 Gill, 18, Maslin vs. Thomas. 4 Md. Rep., 509, Marshall vs. Haney. Mrs. Ellicott's silence when Miss Colvin told her what Warford had said in relation to her father's wealth, is in favor of the witness rather than against her; for she had said she did not know what her father was worth, and therefore like a truthful woman abstained from contradicting the statement of Warford when repeated to her by Miss Colvin.

But it is said on the other side that we must prove that the statement was untrue, and that this is a vital part of our case, because the jury found that it was true. This argument is illogical, because the jury were further to find under the prayer that the conversation was had in 1847 and influenced the will of [**19]  1848, and therefore they may have believed that the statement was untrue and yet have believed it did not influence the will of 1848. The court will not look to what effect the testimony may have had on the jury. If it is illegal it ought not to be admitted. 2 Wash. (Va.) Rep., 359, Lee vs. Tapscott. 1 Munford, 291, Brown vs. May. 13 Johns., 350, Penfield vs. Carpender.

2nd. But conceding the evidence of Shrope was admissible for one or two of the three purposes for which it was offered and admitted by the court, we still ask for a reversal of the judgment, if for the remaining purpose for which it was offered and let in the proof was not admissible. The purposes were stated in the alternative, and therefore unless the appellee was entitled to the benefit of the proof in support of each and every alternative, he has by the judgment of the court below obtained an advantage to which he is not entitled. We say that unless it was admissible to establish each one and all of the purposes for which it was offered the testimony should have been excluded. 3 G. & J., 435, Sothoron vs. Weems. In the case of Nailor vs. Bowie, 3 Md. Rep., 251, if evidence had been admitted for the purpose [**20]  of proving protest of both notes, and it was inadmissible for the purpose of proving protest of one of them, the court would have reversed the decision below, as they did upon the prayer which assumed that the plaintiff was entitled to recover upon both notes, when the evidence as to each, if it had not been rejected, was insufficient to maintain the action. Upon this point see, also, 4 Md. Rep., 296, Greenway vs. Turner. 3 Do., 67, Stewart vs. Redditt. 6 Do., 525, Warner vs. Hardy. 3 Gill, 198, Budd vs. Brooke. 1 Do., 129, Whiteford vs. Burckmyer & Adams. 4 Md. Rep., 499, Marshall vs. Haney. 5 G. & J., 159, Md. Ins. Co. vs. Bathurst.

3rd. The third exception relates to the refusal of the court to grant the 1st, 2nd, 8th, 10th and 15th prayers of the caveators, and involves the law of the revocation and revival of wills. The principle of the first prayer is, that the revocation of a subsequent revoking will does not, as a mere matter of law, without more, revive the former will, but that the first will can be revived only by republication, or if that be not requisite then it can be revived only by showing the revoking will to have been revoked with intent to revive the former.  [**21]  We maintain that there is no adjudication to be found where an antecedent will, not in the possession of the testator, and not known by the testator to exist, has been revived by the destruction of the subsequent revoking will. In all cases where the prior will is held to be revived, it has been in the custody and possession of the testator at the time of his death. Here the testatrix did not know of the existence of the will of 1845 at the time she destroyed the revoking will of 1847, and the prayers so put the case to the jury. On this point the counsel cited 35 Eng. C. L. Rep., 299, Reed vs. Harris. 2 Conn., 67, Witter vs. Mott. 3 Do., 576, James vs. Marvin. Burr., 2512, Goodright vs. Glazier. 1 How., Miss. Rep., 336, Bohanon vs. Walcot. 7 Johns. Ch. Rep., 258, Walton vs. Walton. Cowp., 87, Harwood vs. Goodright. 1 Phill., 375, Moore vs. De La Torre. 3 Curteis, 774, James vs. Cohen. 1 Hagg., 325, Kirkcudbright vs. Kirkcudbright. 2 Add., 116, Usticke vs. Bawden. 2 Am. Lead. Cases, 643, 661. 2 Dallas, 266, Boudinot vs. Bradford.

The second prayer is the same as the first, omitting the finding of a clause of revocation in the will of 1847, and resting therefore on the implied [**22]  revocation resulting from diversity of disposition.

The eighth prayer is, that the execution and publication of the will of 1847, with its clause of revocation, did operate a revocation of the will of 1845. It rests on the words of the statute of 1798, ch. 101, that such shall be the effect of a subsequent will duly executed, declaring the revocation of a former will shall have that effect.

The tenth and fifteenth prayers relate to the effect of the fraudulent concealment of the will of 1845. They go on the principle that the facts stated in them involve a fraudulent prevention of the revocation of the will of 1845, and the three last issues put that fact only to the jury. If they find that fact they should find the issues affirmatively. The effect of the finding is for the orphans court to pass upon when the whole record and evidence on other points, together with the facts found by the jury, shall be before them. 8 Watts & Sergt., 275, Jones vs. Murphy.

We further insist that all the issues relating to both wills form but one record. That a finding of part will be no response to the inquiry of the orphans court, and the omission of any makes the whole finding of the [**23]  others void. That for the same reason, if the finding on any issue be now reversed for error, the finding on all must be set aside and the whole be again submitted to the jury; for the court cannot know what effect a new or different direction to the jury on any point might have on their minds on the whole case. This court cannot know on what facts the orphans court may be called to pass on, and consequently this court cannot know but that the will of 1848 may be found not the will of Rachel Colvin and be refused probate by the orphans court, even though these findings be affirmed; and consequently the question may still arise as to the validity of the will of 1845. The instructions therefore touching that will of 1845 are fit subjects of argument on this appeal, and a reversal on any one of them must produce a general reversal of the finding of the jury, and consequently a new trial of the whole matter. 7 Gill, 10, 33, Brooke vs. Townshend. If this were not so the result will be that a part of the issues awarded may be found and certified, and a part remain subject to appeal, be reversed and tried, and retried, till by a succession of juries verdicts may be rendered of the most discordant [**24]  character on the same evidence on each of the various issues.

William Schley and Reverdy Johnson for the appellee;

1st. As to the question arising under the first exception, we contend that the witness, Rachel Jane Warford, properly transferred her interest in the result of the suit, and was thereby made a competent witness. Such is the every day practice, and it was her duty to do it, if she had valuable information to impart, and was willing to impart it. 7 G. & J., 311, Deakins vs. Hollis, But it is objected that under the act of 1829, ch. 51, no assignment can be made so as to enable the party to sue in his own name, when the assignment is made for the purpose of making the assignor a witness, and the case of Crawford vs. Brooke is cited to sustain this position. But in that case the court say, that the fact that the witness was an assignor, would make no difference, and would not render him incompetent, but the point there decided was, that under the pleadings in that case the evidence destroyed the plaintiff's right of action, not that the witness was incompetent. The court refused to permit a question to be asked which went to the plaintiff's right of action. That [**25]  case turns wholly upon the construction of the act of 1829, ch. 51. But here the court cannot, in this case, inquire into the bona fides of these deeds. The grantor is estopped from denying that they are valid, and she is therefore divested of all interest in the result of the suit. The first deed being on record, the delivery was complete. The recording is, at least, sufficient to warrant the presumption of delivery, and a copy from the office is sufficient. 3 Md. Rep., 79, Stewart vs. Redditt. 1 H. & G., 175, Betts vs. Union Bank.

2nd. On looking to the second exception, it will be seen that prior to the evidence of Mrs. Ellicott, stated in that exception, testimony had been given, without objection, by Mr. Teackle, that he had endeavored to get the testatrix to insert in the will of 1845 the name of Mrs. Ellicott, as a devisee, but that the testatrix refused, upon the ground that Mrs. Ellicott was the only child of a rich father. And testimony had been given, without objection, by Teackle and other witnesses, that the testatrix at other times gave as a reason why she had not made provision for Mrs. Ellicott in her wills, that she would be sufficiently provided for by her father,  [**26]  who was a rich man. Then the evidence of Mrs. Ellicott was introduced by the caveators, that in the fall of 1847, the appellee called upon her, and in the course of conversation, told her that he had been to New Jersey, and that her father was worth $ 100,000. This was followed by the further evidence of Mrs. Ellicott, that about three or four weeks afterwards, she paid a visit to Miss Colvin, who said, "I wanted to see you, to tell you I had made a will, leaving you a legacy, but Colvin says your father is worth $ 100,000, and you will have more than the others, and I must not give you any thing."

Now the only issue to which the evidence of Mrs. Ellicott had any application, was the second, and the object was to show by it that Miss Colvin was so influenced by the suggestion of the appellee, that Elisha Warford was worth $ 100,000, that no legacy was given to Mrs. Ellicott, the only child of Elisha Warford. It was therefore important that the appellee should contradict this testimony, so far as was in his power. If he went to New Jersey at all to ascertain the pecuniary condition of Elisha Warford, it was relevant to show that he went there for an honest purpose, unconnected [**27]  with the making of the will of 1848. It was therefore pertinent to show that when he did go thither, he went for the purpose of ascertaining the sufficiency of Elisha Warford, as the proposed surety of Mr. Ellicott, as receiver in the lunacy case. It was also important to show that the time of his visit was subseqnent to the date of the will of 1848. We wished to take from the testimony of Mrs. Ellicott some of the facts to which she testified, and we had the right to show that Shrope, the collector, to whom the appellee made application afterwards, and was the person to whom the application would probably be made, had not seen him in 1847. If the fact had been conceded, or if the statement had been permitted to pass as coming from himself without any effort on his part to show the contrary, that the appellee went to New Jersey in 1847, for the purpose of ascertaining the pecuniary condition of Elisha Warford, this circumstance would have greatly strengthened the evidence of Mrs. Ellicott. If, on the contrary, it was shown that he did not go there at that time, or at any time prior to the will of 1848, for any such purpose, then it would follow that he could not, in 1847, have said [**28]  to Mrs. Ellicott that he had been to New Jersey, and had there ascertained her father's wealth, unless he told her a wilful and deliberate lie, and by thus narrowing the question to the inquiry, whether he made such statement in 1847, the evidence of Mrs. Ellicott being unsupported by the collateral fact of an actual visit in 1847, and further evidence being offered tending to prove that his visit for such purpose was after the will of 1848 was made, the caveatee became entitled to the full benefit in his favor of the legal presumption of his innocence, and justified the argument that Mrs. Ellicott was mistaken as to the date of the conversation to which she had testified. How far this legal presumption, in connection with the temper and deportment of the witness as exhibited in court, the fact that she was a disappointed expectant of testamentary bounty, together with the other evidence in the cause, would have justified the jury in believing that she was mistaken, was not the province of the court to decide. The evidence was properly admitted for what it was worth for the consideration of the jury.

It will be noticed that the second exception is taken to the admissibility, not [**29]  to the effect of the offered evidence. They do not except to our offer, but make their objection in advance, and require us to state for what purpose we offered the witness. They then permitted us to go on and give the proof, and then except to all the testimony for the purposes for which it was offered. It is conceded that the purposes for which we offered the witness were legal, competent, admissible and material. Now what is the meaning of the objection? It is said, that if this testimony was not admissible for any one of the purposes for which it was offered, it was improper to admit it. But this is an entire misapprehension of the law, and is only applicable to prayers presenting alternate hypotheses, any one of which being erroneous, will vitiate the instruction. 5 G. & J., 223, 225, Md. Ins. Co. vs. Bathurst. The objection was a general one, that the testimony was not admissible for the purposes for which it was offered. The counsel for the caveators were therefore bound to frame a prayer asking that the testimony should be rejected upon a specific ground, which the prayer must point out; for if admissible for any of the purposes offered, it was properly admitted. 3 Md. Rep.  [**30]  , 251, Nailor vs. Bowie.

It was open to the caveators to argue before the jury that Mrs. Ellicott was not mistaken, and that proof of the affirmative fact, that the appellee was in New Jersey in 1852, and then saw Shrope for the first and only time, did not prevent the caveators from showing that he was, in fact, there in 1847, or, without proof of such presence, from contending that he was there in 1847, and saw some other person than Shrope, or from contending that on the unsupported evidence of Mrs. Ellicott, they ought to believe that he had made such representation precisely as stated by her. Besides this, the exception was to all the testimony of Shrope, for the purpose for which it was offered. If any part was admissible, the exception pro tanto was too broad. The evidence in part related to the actual pecuniary condition of Elisha Warford, and whether that evidence, in connection with the other evidence in the cause, proved that he was worth $ 100,000 or not, was for the jury to determine, and certainly on the point of alleged misrepresentation as to the condition of Elisha Warford, evidence of his actual condition was relevant and admissible.

But again, there is nothing [**31]  to show that Elisha Warford was not worth $ 100,000. The prayer assumes that it was true, and there is nothing in the case to show that he was not worth that sum. The onus is upon them to prove this negative. They must prove the statement to be false. This they have not done; on the contrary, Mrs. Ellicott does not deny it; she did not contradict it when repeated to her by Miss Colvin. We say, then, that even if the ruling in this exception was wrong, the judgment ought not to be reversed. Our positions therefore, upon this exception, are:

1st. That the evidence of Shrope was admissible for the purpose of showing (should it avail with the other evidence in the case,) that Mrs. Ellicott was mistaken as to the time of the alleged conversation with the appellee.

2nd. That it was admissible for the purpose of showing that the representation, if made by the appellee, as to the pecuniary condition of Elisha Warford, was true, and was not a misrepresentation. All that we had to do, was to show that this evidence tended in some degree to show that the statement was true. Does not this evidence do this? It shows that he was worth at least $ 60,000; he himself swears to this; and it [**32]  is uncontradicted; and, besides, it shows that he owned lands in other places.

3rd. That proof of the fact that the appellee never applied but once, and in 1852, to Shrope for information as to the pecuniary condition of Elisha Warford, was a circumstance which, with other facts and circumstances stated in the third exception to have been given on the part of the caveatee, tending to support his side of the second issue, the caveatee was entitled to have submitted to the jury as part of his rebutting evidence. 6 Md. Rep., 295, Townshend vs. Townshend. 1 Md. Rep., 14, Milburn vs. The State. As rebutting evidence that may be admissible which would be inadmissible as original testimony. 20 Conn., 254, Barnes vs. The State. 12 Pet., 151, Zacharie vs. Franklin.

4th. That it was admissible for all the purposes specified respectively in the preceding points.

5th. That if admissible for any of these purposes, this second exception is not well taken.

6th. That if any part of this evidence was admissible for any one of the purposes indicated, the exception being taken to the whole, cannot be sustained. 1 Md. Rep., 474, Waters vs. Dashiell. Ibid., 337, Middlekauff vs. Smith.  [**33]  In the search after truth, every door should be open, and every fact tending to illustrate, modify or rebut any fact proved in the case should be admitted, and especially where imputations of fraud are cast upon a party, any evidence, however slight and otherwise inadmissible, will be admitted as rebutting testimony. If any part of the testimony is admissible, it should be admitted, and the particular part of the objectionable testimony must be specifically excepted to and pointed out. 14 Penn. State Rep., 471, Brown vs. Clark. 1 Pet., 328, Elliott vs. Piersol. 2 Do., 44, Columbian Ins. Co., vs. Lawrence. 13 Do., 310, Moore vs. Bank of Metropolis. 3 Gill, 220, Budd vs. Brooke. 3 Md. Rep., 255, Nailor vs. Bowie. 6 Do., 295, Townshend vs. Townshend. Ibid., 407, Hatton vs. McClish. 3 Do., 178, Emory & Gault, vs. Owings, et al. 5 Do., 37, Wright vs. Brown. Ibid., 552, Tyson vs. Shueey.

7th. That the effect of this evidence was not necessarily involved in the question of its admissibility. 1 Md. Rep., 474, Waters vs. Dashiell.

8th. That the exception does not show that the points, or either of them, relied on by the appellants, were or was made and decided in the court below.  [**34]  

9th. That even if there was error in the admission of this evidence, still the appellants are not entitled to ask a reversal, as in any event they are not interested in the question of the validity or invalidity of the will of 1848. The findings of the jury in relation to the will of 1845, fully establish that that was a valid will, and had not been revoked, except by the will of 1848. The will of 1845 disposes of the entire estate, and therefore, in any event, the appellants claiming as heirs and distributees solely on the ground of alleged intestacy, have no cause of complaint against the will of 1848, because the will of 1845 shuts them out, and they have no interest to file a caveat against that of 1848. 5 Md. Rep., 324, Maurer vs. Naill.

3rd. If it be conceded that the rulings of the court in the third exception are erroneous, still the judgment will not be reversed, because the appellants have suffered no injury thereby, if the will of 1848 be sustained, and therefore they cannot complain. 9 Gill, 56, Ramsay vs. Glass.

But these rulings are correct. The destruction of a second will operates per se to revive and republish a preceding one. Upon this point the language [**35]  of the act of 1798, ch. 101, is conclusive.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and MASON, J.  

OPINIONBY:
MASON 

OPINION:

 [*602]  MASON, J., delivered the opinion of this court.
The first exception presented by this record, relates to the witness, Rachel J. Warford, a devisee and legatee under both of the wills of Miss Colvin. As such, she was supposed to be incompetent to give evidence, upon the ground of interest. Before appearing as a witness, she had duly executed two instruments or deeds, purporting to convey all her interest under said wills. We have no doubt that those papers were duly and legally executed, and that they were, upon their face, sufficient in law to pass the whole interest or title of the grantor. It was, however, with some show of reason, contended, that those deeds 

 [*603]  having been made merely to restore the competency of the witness, and not being bona fide conveyances, are to be regarded as a fraud upon the law, and therefore not effectual to accomplish the purpose intended. Though we have no doubt that such was the design of this transaction, still this court cannot assume as a legal fact, as the case is now presented, that the [**36]  deeds in question were not executed in good faith. But whether they were or were not, they are sufficient forever to conclude the grantor from assailing them upon any such ground, and for this reason her divestiture of all interest under these testamentary papers, may be said to be complete, by virtue of the deeds in question, and therefore she is a competent witness.
Besides, this practice, by which witnesses have been restored to competency at the trial, by executing releases, deeds, or other instruments, has so long prevailed in Maryland, and been so long sanctioned by all our courts, that it may now be regarded as so firmly established as not to be disturbed, however disposed we might be to discountenance it, if it were now for the first time resorted to. These views, we think, do not conflict with the principle settled in the case of Crawford vs. Brooke, 4 Gill 213.
We see no error in this exception.
The second exception relates to the testimony of the witness Shrope. When the caveatee proposed to examine this witness, he was objected to by the other side, but the record does not disclose upon what ground the objection then rested. Such an objection,  [**37]  at such a time, must go to the competency of the witness, and not to the admissibility of his testimony, for until the evidence is offered, no question of admissibility could arise. The legal presumption being in favor of the competency of every witness produced on the stand, no objection to the competency of such witness should be entertained, unless the party making it discloses at the time the ground upon which the objection is based. A mere general, indefinite objection will not avail. Hence the objection in this case, to Shrope, was improperly made, and the caveatee was not bound to state any special purpose for which he was offered, or to show, until the contrary was at least prima facie established, that the 

 [*604]  party was a competent and legal witness. The facts to be disclosed by this witness, if admissible for any purpose, might have been offered generally, as all legal and pertinent evidence for the most part may be offered.  Goodhand vs. Benton, 6 Gill & John. 481. But the caveatee did not avail himself of his legal rights in this particular, but proceeded to assign three several objects in the alternative, for which the evidence [**38]  was offered, each of which, in the then aspect of the case, was a legitimate subject of proof. By the case of Goodhand vs. Benton, just cited, it may be regarded as settled, that if evidence offered for a particular purpose, be inadmissible for that purpose, though admissible generally, or for some other object, it may be properly rejected. Acknowledging this principle to be sound, it would follow, that if the evidence of Shrope had been inadmissible for all the special objects for which it was tendered, though perchance it might be legal evidence for some other purpose, it should have been rejected; and the appellants contend that the principle should be carried to the extent of determining that unless admissible for each and all the several purposes for which it was offered, it should not have been received, and this is the main point involved in this exception.
The testimony of Shrope, if applicable at all to the issues in the case, might have been offered generally, as we have already shown. If it were competent testimony for any purpose, it must be presumed to have been for one or the other of the subjects for which it was alleged to be offered; at least no attempt [**39]  was made to use it for any other. If it could have been offered for no other purpose, does it not follow that the offer was virtually a general offer, even though, in point of fact, the testimony may not have been legally applicable to all of the points to which it was declared to relate? If there be any reason why the omission to mention all the purposes for which the testimony might be applicable, when you have attempted to name some, would be fatal to its admissibility for the purposes not mentioned, it must be because the opposite party might be thereby misled, and prevented from fortifying himself with rebutting testimony upon the point, in reference to 

 [*605]  which he may have been led to believe the testimony was not to be used. While the omission to mention all the purposes to which this testimony might relate, might have such an effect, it is difficult to imagine why such a result, or why any other inconvenience could follow from enumerating among the proper purposes for which testimony was offered, others for which it was not. The question resolves itself then into this, was the testimony admissible for any of the purposes for which it was offered?
An attempt [**40]  had been made on the part of the caveators to show, by Mrs. Ellicott, that Miss Colvin, the testatrix, had been deceived by false representations made by Colvin Warford, as to the pecuniary condition of Elisha Warford, the father of Mrs. Ellicott, by which the latter lost a legacy which she supposes she would otherwise have received. It is said he represented Elisha Warford to Miss Colvin as being worth $ 100,000. If this were a fact, or if he honestly believed it to be a fact, there was no impropriety in Warford's having mentioned it to Miss Colvin, let his motive for doing so be what it may. The caveatee offered Shrope, at this juncture of the case, as he stated, "for the purpose of contradicting Mrs. Ellicott, or impeaching her, by showing that she was mistaken as to the time of said conversation, if any was had, or that the statement of said Warford, in said conversation, if it was had, was true."
"The caveatee then proved by said Shrope that he was one of the assessors of one of the townships of Hunterdon county, New Jersey, where Elisha Warford, the father of Mrs. Ellicott, resided; that he had been assessor of taxes for nine years, once in 1840 to 1846, and was again appointed [**41]  in 1850, and has continued to act as assessor from that period until the present time; that in 1852 Colvin Warford called upon him to ascertain what was the amount and value of Elisha Warford's estate, that Elisha Warford was going security upon a bond in Maryland; that witness showed to Colvin Warford the assessment of Elisha Warford's estate, which was ten thousand dollars worth of real estate, and that he owned land in other places; that his personal estate was valued at ten thousand five 

 [*606]  hundred dollars, clear of all debts due by him; this amount being handed in by Elisha Warford, and witness concurring with him in that sum, he was accordingly assessed therewith; that he was assessed with debts due him on bonds, mortgages and notes to the amount of ten thousand dollars, and that his name or bond would be good in that county for thirty thousand dollars; that the defendant never called on witness at any other time than that above mentioned, for the purpose of ascertaining the amount of Elisha Warford's estate, nor did he at any other time give to said Colvin Warford any other statement than that above mentioned."
To the admissibility of all of which testimony of said [**42]  Shrope, for the purpose for which it was offered, the counsel for the caveators objected, but the court overruled the objection and permitted the evidence to go to the jury.
One of the purposes, then, assigned for offering this testimony, was to show that this statement of Warford was made in good faith. The issue thus collaterally arising was simply, was or was not the statement true, that Elisha Warford was worth $ 100,000? Nothing could be clearer than that if each of four witnesses had proved a separate estate in Warford, respectively worth $ 25,000, or more, that the affirmative of the issue would be established. To prove, as Shrope did, that Warford was worth $ 30,000, "and that he owned land in other places," is certainly a step, and an important step, towards establishing the issue in dispute. It was for the jury to say whether the whole amount of $ 100,000 was made up or not. Shrope surely proved a material part of that sum, and his testimony was therefore clearly admissible. This precise point was determined in the case of the Plank Road Co. vs. Bruce, 6 Md. 457. In that case the plaintiff was prevented by the inferior court from offering evidence to [**43]  establish a part of his case, unless he showed in advance his ability to prove his whole case. This court pronounced this ruling erroneous, as the testimony offered was per se admissible, and its insufficiency to establish the whole case, was a question to be determined by the jury, upon a prayer properly framed. In that case the court say: "These questions cannot arise upon the admissibility 

 [*607]  of evidence, but must be presented by prayers after the evidence has been closed." See, also, Nailor vs. Bowie, 3 Md. 251.
But it has been said, that as this evidence was received for all or either of the three purposes for which it was offered, unless it was legally applicable to each, the jury might have been misled, and applied it to one of the purposes to which it did not relate. To avoid such a result, it was the duty of the counsel objecting to have pointed out specifically the purpose to which the testimony had no legal application, and to ask its exclusion for such purpose. A general objection to testimony which is per se applicable to the case for any purpose, will not be sustained, though inapplicable for other purposes; and such general [**44]  objection would leave the testimony to go to the jury as if no objection had been made at all; in other words, it would be virtually an offer generally of competent testimony. Under such circumstances, suppose, in argument before the jury in this case, the counsel for the appellee had endeavored to show that besides the testimony's tending to establish that the statement of Warford was true, it also contradicted the previous statements of Mrs. Ellicott, when, in fact, if it had been offered solely for the latter purpose, it would have been rejected as illegal evidence, what would have been the effect? Could the judgment have been reversed upon the assumption that the jury made an improper, instead of a proper application of the evidence? Surely not! We must assume, where evidence has been offered generally, that it will be applied by the jury to the purposes to which it is legally applicable; and if counsel wish to guard against the contingency of a misapplication of the evidence by the jury, they should ask the court, as has been already said, to point out the branch of the case to which the evidence is not to be applied.
Again, it has been said this testimony was not admissible [**45]  for the particular purpose of showing that in 1848, Elisha Warford was worth $ 100,000, because it did not relate to that precise period, but referred to his condition in 1850 or 1852, and the case of Keedy vs. Newcomer, 1 Md. 241, is relied on to support this view. The cases are different in several particulars. 

 [*608]  In the case cited, the testimony which was excluded was primary evidence offered by the plaintiff to support his case. He had sued the sheriff, the defendant, for a false return of nulla bona to a fi. fa. The evidence was excluded because the precise time when the debtor had property was the very essence of the issue, while the testimony related to a period more than a year removed. The issue in the present case is not so much the precise time when Mr. Warford was worth $ 100,000, as it was the truthfulness and honesty of Colvin Warford's statement upon the subject. And again, in the case before us, the testimony was rebutting evidence; and it must be further remembered, that the testimony of Shrope was not the only evidence in the case upon this point. Mrs. Ellicott, the caveator's own witness, to refer to no [**46]  other, furnishes a most pregnant fact upon this part of the case. When Miss Colvin told her of the statement of the extent of her father's fortune, as a reason for not giving her any thing, she did not deny it. This circumstance might have been regarded by the jury as virtually an admission of the truth of the statement, and we think that upon this evidence, and that of Shrope alone, the court would have been right in submitting to the jury the question of whether Elisha Warford was or was not worth $ 100,000. As to the sufficiency of this evidence to establish the fact, we say nothing; it was for the jury alone, upon a properly framed prayer, to say whether the issue was proved or not. We are of opinion that the caveators have secured all they had a right to ask under the law, in the then aspect of the case, by having had granted by the court below the following prayer, which, we think, covers this entire branch of the case:
"If the jury find from the evidence, that Rachel Colvin, in excluding Mrs. Ellicott from the will of 1848, was influenced by the representation of Richard C. Warford, that her father, Elisha Warford, was worth one hundred thousand dollars, and shall further [**47]  find that such representation was untrue, and that the will of 1848 was the result of such misrepresentation, then the verdict on the second issue must be for the caveators."
The third exception relates to the refusal of the court to 

 [*609]  grant certain of the caveators' prayers, which relate to the wills of 1845 and 1847. The ruling of this court upon the two previous exceptions, render any decision upon the third unnecessary.
Upon a proper state of pleadings and evidence, and upon correctly framed prayers, the validity of the will of 1848 was distinctly drawn in issue upon this trial, and sustained by the verdict of the jury. That will revoked all prior wills. Does it not therefore follow, that all the questions presented in this record, as to the wills of 1845 and 1847, become wholly unimportant and valueless in this aspect of the case? What matters it, whether the will of 1845 was revived or not by the cancellation of the will of 1847? Or what matters it, whether the will of 1845 was surreptitiously withheld or not from Miss Colvin by Warford? These all might well have been all-important questions, if the will of 1848 had not been sustained. But there being no error in [**48]  the law, as disclosed by this record, upon which the will of 1848 was sustained, we are not willing, for the purpose of granting a new trial in regard to that will, to overrule the court below upon questions wholly immaterial and irrelevant.
Judgment affirmed.
ECCLESTON, J., dissented.  

98 of 187 DOCUMENTS 

MANNING, STIMPSON & CO., vs. DAVID HAYS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Md. 5; 1854 Md. LEXIS 24 

DECEMBER, 1854, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

Assumpsit by the appellee, as holder, against the appellants, as endorsers of the note, stated in the opinion of this court. Plea non-assumpsit.

Exception. The plaintiff offered the protest of the note, that part of it which refers to the notice of protest being as follows: "And on the same day I addressed written notices to the endorsers of said promissory note, informing them that it had not been paid, and that they would be held responsible for the payment thereof," and then proved the facts stated in the opinion of this court; the maker, Samuel Manning, being one of the firm of Manning, Stimpson & Co. The defendants then asked the instruction which is set out in the opinion of this court, which the court below, (FRICK J.,) refused to give. To this ruling the defendants excepted, and the verdict and judgment being against them they appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Though one partner cannot bind his co-partners in a transaction exclusively his own, yet the fact of its being such must affirmatively appear by some fact known, or properly deducible from circumstances which ought to inform a prudent man of the true nature of the transaction.

Where a note is signed or endorsed by one member of an existing firm in the partnership name, the legal presumption is, that it is a partnership transaction, until the contrary is shown on the part of the defence.

Any one partner has the same right to dispose of a note drawn in favor of the firm, as he has to dispose of any other portion of the partnership assets.

Notice in the protest of a note payable generally, stating that written notices were addressed to the endorsers, "informing them that it had not been paid, and that they would be held responsible for the payment thereof," is clearly defective.

Where endorsers have failed to take advantage at the trial below, of a defective notice, they cannot do it in this court, and the act of 1830, ch. 186, is a sufficient answer to an application for a procedendo, after the affirmance of the judgment against them.  

COUNSEL:
Chas. J. Pennington, for the appellants.

1st. The general authority of one partner to bind his co-partners being in law implied only, it is confined to transactions pertaining to the co-partnership business, and no partner can bind his co-partner in any [**2]  transaction out of the ordinary business of the co-partnership, without special authority to do so, and it is for the plaintiff to show such authority. 4 H. & McH., 350, Brown vs. Duncanson & Ray. 3 Wend., 417, Williams vs. Walbridge. 12 Pet., 229 to 232, Rogers vs. Batchelor, et al. Here the note sued on being the individual note of Samuel Manning, the law presumes it to have been for his separate use, and that fact, with the fact of the endorsement of the name of the firm being also made by him, in the absence of any evidence that it was known to, or made, or negotiated for, or went to the use of the firm, affords presumptive evidence that it was not drawn, endorsed or negotiated for the use of the co-partnership, and the court therefore erred in refusing so to instruct the jury. 1 Barr., 417, Tanner vs. Hall & Easton. 17 Wend., 47, Onondaga Co. Bank, vs. De Puy.

2nd. The form of notice contained in the protest is under the decisions of this court, (1 Md. Rep., 68, 511; 3 Do., 202, 258,) clearly defective, and does not bind the endorsers, and being the only proof of notice offered, was clearly insufficient to sustain the action. Our prayer is a general one, that the verdict [**3]  must be for the defendant, and the proof of notice being defective should for this reason have been granted. But if I am wrong in this, and this court should affirm the decision of the court below, and should be precluded from looking to the insufficiency of the notice, still the case has merits, as disclosed by the record, which entitle the appellants to a procedendo under the act of 1826, ch. 200, sec. 10, and the authority of the case of Kennerly vs. Wilson, 2 Md. Rep., 245.

Chas. H. Pitts for the appellee.

The only question open in this court on this record is, whether the court below committed any error in refusing the prayer offered by the defendants. This prayer presents a specific proposition, and is not a general one, as argued on the other side. It says, the jury are bound to infer that the note was a private transaction, not that they may so infer, and for this reason, if for none other, is defective. Prima facie this note was a partnership transaction. When the transaction appears to be a private one, the law of the cases cited on the other side is correct. All those cases show that the transaction was proved to be a private transaction; such was the case in 4 [**4]  H. & McH., 350. In the case in 1 Barr., 417, the note was drawn by one member of a firm, in favor of other parties who endorsed it for his accommodation, and he then added the endorsement of his firm. All these facts appeared in proof, and the court said they were sufficient to put the holder upon inquiry. But that is not this case, for here the note was drawn by one member of the firm in favor of the firm, and shows on its face an indebtedness by Manning to the firm. It therefore became a debt due the firm, part of the assets of the firm, and this being so, Manning, as one of the partners, had the undoubted right to negotiate it in the name of the firm. The case of Thurston vs. Lloyd, 4 Md. Rep., 283, is conclusive of this, for there can be no difference in principle between one partner signing the name of the firm as maker, and signing it as endorser of a promissory note.

No objection was taken to the form of the notice in the court below, and the case of the Farmers Bank vs. Bowie, 4 Md. Rep., 290, and the act of 1830, ch. 186, are conclusive answers to the application for a procedendo.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and MASON, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [**5]  
 [*8]  LE GRAND, C. J., delivered the opinion of this court.
This action was instituted against the appellants to recover the amount of a promissory note, dated the 23rd May 1850, at six months, for three thousand dollars, drawn and signed by the appellant Samuel Manning, in favor of "Manning, Stimpson & Co.," and endorsed by them in the handwriting of the said Samuel Manning, and also endorsed by Joseph C. Manning. The appellee is the holder of the note.
The plaintiff below proved the handwriting of Samuel Manning, and the co-partnership of the appellants, under the style and name of Manning, Stimpson and MacTavish. The note was protested for non-payment and notice of the same, given to the appellants by handing notice of protest to Samuel Manning. On this state of facts, at the trial below, the appellants asked the court to instruct the jury, that if they should find from the evidence that the signature of the note offered in evidence, is of the proper handwriting of Samuel Manning, and that the endorsement, Manning, Stimpson & Co., upon the said note, is also of the proper handwriting of the said Samuel Manning, then the jury must find their verdict for the defendants, upon [**6]  the assumption that the transaction in question was the private transaction of the said Samuel Manning, there being no evidence to show that the matter was known to his co-partners, or either of them, or that it was given or negotiated on co-partnership account.
This prayer the court refused and we think properly.
Although it is clear that one partner cannot bind his co-partner in regard to a matter which is exclusively his own, yet the fact of its being his private business must affirmatively 

 [*9]  appear by some fact known, or properly deducible from circumstances which ought to inform a prudent person of the true nature of the transaction. He has the right to sign the name of the firm, and the general rule is, that where a note is proved to have been signed by one member of an existing firm, in the partnership name, the legal presumption is, that it was given for a joint indebtedness in the regular course of partnership dealings, until the contrary is shown on the part of the defence.  Thurston vs. Lloyd, 4 Md. 283, and the authorities there relied upon. We can perceive no difference in principle, between the right to sign a note in the partnership name,  [**7]  and to endorse one in the same name. The note in the case before us, on its face, purported to be a part of the assets of the partnership, and it was undoubtedly within the scope of the authority and power of any one of the partners to dispose of it, as it was also to dispose of any other portion of the property belonging to the firm. Had it appeared from anything in the record that this was a transaction entirely for the private benefit of Samuel Manning, and not in any way connected with the business of the co-partnership, there might be a question as to the liability of the firm; but there is no such evidence in the record, and we cannot go beyond it. The case of Tanner vs. Hall & Easton, 1 Barr. 417, relied upon by the counsel of the appellants, is not like the one now before us. It there appeared that the note was for the accommodation of the partner who endorsed it. It is more like the case of Brown vs. Duncanson & Ray, 4 H. & McH. 350, where there was evidence from which a jury might infer the bill was drawn for the individual debt of one of the partners, and the acceptance was made by him without the knowledge or consent of his co-partner. In that [**8]  case the court left it to the jury to find these facts. There is nothing in the case we are now considering, from which the jury could properly deduce the belief, that the endorsement was without the knowledge or consent of the co-partners of Samuel Manning; but if there had been, the court were right in rejecting the prayer of the appellants, for it submitted no such 

 [*10]  inquiry to the jury, but asserted as matter of law, that the jury must find in favor of the appellants on the "assumption," that the signature and endorsement were in the handwriting of Samuel Manning.
The notice of protest was, under the decisions of this court, clearly defective and insufficient to charge the appellants as endorsers; but under the act of 1825, ch. 117, we are precluded from noticing the point, inasmuch as it was not made at the trial below.
In regard to the application for a procedendo, we remark, that there is nothing of merit disclosed to us by the record, by which we are to be governed, whatever may be the true state of the facts of the case. It was within the power of the parties at the trial, to have availed themselves of the defectiveness of the notice of protest. Not having [**9]  done it then, it is now too late. Besides the act of 1830, ch. 186, is a sufficient answer to the application.
Judgment affirmed. 

99 of 187 DOCUMENTS 

RICHARD H. ATWELL vs. WILLIAM D. MILLER and WILLIAM E. MAYHEW.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Md. 10; 1854 Md. LEXIS 25 

DECEMBER, 1854, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

Assumpsit by the appellees against the appellant, to recover a balance due the plaintiffs on account of the sale of certain goods, (fourteen bales of osnaburgs and twenty-five bales of drills,) alleged to have been first sold by the plaintiffs to defendant, and afterwards, at his request, resold by them on his account. The declaration contained the common money counts. Plea, non assumpsit.

The record not showing that all the exceptions were taken and signed by the court, it was agreed by counsel that the cause should be tried in this court as if the following exceptions had been duly taken and signed.

1st Exception. The plaintiffs, who were commission merchants, proved by Goodwin, their salesman, that in January 1850, defendant was in their store negotiating the purchase of certain goods and drills, and that after he left, Mayhew, one of the plaintiffs, made certain entries upon the blotter, in which the first rough account of daily sales is always entered. The witness here produced the book and referred to the entry which consisted of the sales of the goods in question to defendant. The defendant objected to the use of [**2]  the book and entry as proof of sale made, but the plaintiffs' counsel stated that he did not offer the entry for any such purpose, but only to be connected with proof thereafter to be offered, of a bill of the goods charged having been asked for by defendant and sent him, for which purpose alone the evidence was admited by the court, (FRICK, J.,) and to this ruling the defendant excepted.

2nd Exception. The plaintiffs further proved by the same witness, that the goods charged in said account, (fourteen bales of osnaburgs and twenty-five bales of drills,) were at once set aside and marked with the name of the defendant. They further proved by Grofflin, their book-keeper, that in February 1850, they received from defendant a note requesting, among other things, "a bill of the fourteen bales osnaburgs and twenty-five bales of drills," and that in compliance with this request witness made out from the entries in the blotter, before offered in evidence, a bill of the goods and sent it to defendant. The defendant objected to any proof of the contents of said bill, as no notice had been given him to produce it. Whereupon notice was given to him at the time to produce the same, and the [**3]  counsel for defendant on examining his papers declined to produce the same. The defendant still objected to the admission of proof aliunde of the contents of this bill, on the ground that no sufficient notice had been given to produce it, and to the overruling of this objection by the court, excepted.

3rd Exception. The plaintiffs then proved by Grofflin, that in the fall of 1850 he called upon defendant and had a conversation with him about the bill of osnaburgs and drills, before referred to, which were still lying in the plaintiffs' warehouse; that defendant then told witness to request the plaintiffs to sell said goods for him on his account and risk, and try to save him from loss, which message he communicated to the plaintiffs. The plaintiffs then called on defendant to produce a certain account-sales rendered him of said goods, but defendant declined to produce the same, though in the bundle of papers in the possession of his counsel at the trial table. To the admission of proof aliunde of the contents of this account the defendant also objected, on the same ground as in the preceding exception, and to the overruling of his objection excepted.

4th Exception. The plaintiffs [**4]  then proved by another of their book-keepers, that the account-sales produced by him was a correct copy of the account-sales of defendant's goods on the books of the plaintiffs, as sent him. They then produced the blotter of the firm, and proved by Goodwin that certain entries therein were in his handwriting, and that they were memorandums of the sales of part of defendant's goods made by him, as salesman, for full market prices, and that a copy of the account-current, offered in evidence, was sent to defendant in February 1851. The defendant then asked three instructions to the jury:

1st. That there is no evidence of a sale and delivery within the provisions of the 17th section of the statute of frauds.

2nd. That if the jury find from the evidence that there was no delivery of the goods alleged to have been sold, the plaintiffs are not entitled to recover.

3rd. That the plaintiffs are not entitled to recover, unless the jury shall find from the evidence that there was an actual delivery of the goods sued for.

All of which prayers the court rejected, and to this ruling the defendant excepted, and the verdict and judgment being against him, appealed.  

DISPOSITION:
Judgment [**5]  reversed and procedendo awarded.  

HEADNOTES:

A witness who was the salesman of a firm may refer to the blotter as an item of evidence to show that he sent a bill copied therefrom to defendant, and to ascertain, by referring thereto, of what the bill consisted.

But such evidence would only be admissible for the purpose of showing what articles were embraced in the bill of parcels, after the proper foundation had been laid for the introduction of secondary evidence of the contents of such bill.

Where evidence is admitted under the assurance that it will be followed up by proof of other material facts with which it would have an important connection, and such assurance is not fulfilled, it is the duty of the court, on application afterwards made, to direct the jury to disregard it.

Entries made in a blotter by one of the plaintiffs are not evidence per se in favor of the plaintiffs, and could only become so by being connected collaterally with other facts and circumstances.

Notice was given at the trial to the defendant to produce a paper, which his counsel, "on examining his papers," declined to do. HELD, that this was not sufficient notice to let in secondary evidence of the contents of the paper.

Notice given at the bar during the trial to produce a paper is not sufficient, unless it appears satisfactorily to the court that the paper is in court at the time and in possession of the party, or if elsewhere, that it would be of easy access.

A letter from the vendee to the vendor asking for a bill of parcels of the goods, though not a sufficient writing of itself to witness the contract of sale, is still a circumstance, in connection with other facts, which might tend to establish the contract.

Actual or manual delivery of goods is not necessary in order to gratify the statute of frauds, where they are ponderous and incapable of being handed over from one to another, and where the buyer so far accepts them as to treat them as his own, or where the delivery is symbolical, or where actual delivery is impracticable, and can only be by such symbolical means as the circumstances of the case will allow.

While delivery is a fact to be found by the jury, constructive delivery is a mixed question of law and fact, and the circumstances or facts necessary to constitute such delivery must be found by the jury as in the case of actual delivery.

Either party has the right to ask instructions of the court as to the legal effect of any particular circumstance which may be offered to the jury, and from which the delivery is to be deduced.

A prayer which assumes that in all cases of the sale of goods an actual delivery is necessary to make the sale a valid one, when it is to depend upon delivery alone, is erroneous.

It is the province of the jury to determine the sufficiency of proof to establish a valid contract of sale.  

COUNSEL:
J. Malcolm for the appellant.

1st. The court erred in admitting the blotter containing the entries made by one of the plaintiffs of the articles sold. The books of a firm are not evidence. 5 G. & J., 134, Owings vs. Low.

2nd. The court also erred in admitting secondary evidence of the bill of parcels and of the account-sales, upon notice given to produce the originals at the trial table. 3 Md. Rep., 312, Glenn vs. Rogers.

3rd. The court also erred in rejecting the defendant's prayers, because there is no evidence of a sale and delivery, as required by the statute of frauds, and there is no evidence to take the case out of the statute. Smith on Contracts, 70. There is no proof that defendant ever accepted the goods or received them; they were never, in fact, out of the control of the plaintiffs. There must be an actual acceptance and receipt of the goods to take a case out of the statute. Blackburn on Contracts of Sale, 89. The vendor's lien for the price must be gone before there is such an actual delivery. Story on Sales, sec. 279. Story on Contracts, sec. 499. 20 Eng. Law & Eq. Rep., 524, Hunt vs. Hecht. 1 Comstock, 261, Shindler [**6]  vs. Houston.

4th. Though a bill of parcels was sent to the defendant, yet that is not a sufficient contract in writing to gratify the statute, and the court therefore erred in admitting the blotter and evidence of the contents of the bill of parcels as evidence of such a contract. 5 H. & J., 117, Batturs vs. Sellers, et al. 2 Camp. N. P., 203, Wright vs. Dannah. Blackburn on Contracts of Sale, 77, 78. The plaintiffs' clerk had no authority to bind the defendant. 1 Md. Rep., 435, Ijams vs. Hoffman.

William F. Frick for the appellees.

1st. The notice to produce the copies of the papers which were offered in evidence was sufficient, the necessary inference from the record being, that when called for they were in possession of the defendant's counsel at the trial table. 3 Md. Rep., 320, Glenn vs. Rogers. 1 Greenlf. on Ev., sec. 562. But again, the papers were duplicate originals and could be offered without notice to produce the originals. 1 Greenlf on Ev., secs. 560 to 563.

2nd. This suit is brought, not to recover the price of goods as between vendor and vendee, but for a balance due the plaintiffs, as factors of the defendant, upon a sale of his goods, at his request,  [**7]  and on his account and risk. It is enough for the purpose of a recovery in this case that the defendant assumed to be the owner of the goods in question, and instructed the plaintiffs, as his factors, to sell them on his account, and that the plaintiffs recognized and acquiesced in his claim as owner, and did fairly sell them, and that there was a balance of account against him. He is estopped, in pais, by his acts from denying the value, sale and delivery of the goods to him. 44 Law Lib., 454, 466, note.

3rd. The original sale was valid and complete. The plaintiffs were commission agents of the owner of the goods, and as such sold them to the defendant. The latter asked in writing for a bill of parcels, and the plaintiffs sent him one. The making out and sending this by them, or their clerk, was a sufficient memorandum in writing under the statute of frauds. Story on Sales, sec. 266. 5 H. & J., 117, Batturs vs. Sellers & Patterson. But again, the delivery was sufficient, actual delivery is not required; a constructive delivery is sufficient if there is an act of acquiescence on the part of the vendee. Any act by either party, assented to by the other, implying a charge of ownership,  [**8]  is a sufficient constructive delivery. 57 Law Lib., 28, 29. Story on Contracts, sec. 510.

4th. The plaintiffs, if on no other ground, were entitled to recover upon their account-current rendered, the same having been received by defendant, and retained without objection for many months. The same thereby became, under the custom of merchants, an admitted account. 1 Greenlf. on Ev., sec. 197.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON, MASON and TUCK, J.  

OPINIONBY:
MASN 

OPINION:

 [*15]  MASN, J., delivered the opinion of this court.
This is an action of assumpsit, instituted by the appellees 

 [*16]  against the appellant, to recover the balance upon certain sales alleged to have been made by the former, as factors, on account of the latter, the controversy involving the sum of one hundred and twenty-two dollars.
The first question which is raised in the record, relates to so much of the evidence of Goodwin, which seeks to introduce the blotter of the store, containing the original entry of one of the plaintiffs, at the time the alleged transaction with the defendant took place. This evidence was objected to by the defendant, "as proof of sale made." But the [**9]  "plaintiff stated that they did not offer the entry for any such purpose, but only to be connected with other proof thereafter to be offered, of a bill of the goods charged having been asked for by defendant and sent him." The record further shows, that for this latter purpose alone the evidence was admitted.
It was competent, we think, for the witness to refer to the blotter as an item of evidence in the cause, to show that he had sent a bill copied therefrom to the defendant, and to ascertain by referring thereto, of what the bill consisted. This testimony however would only be admissible for the purpose of showing what articles were embraced in the bill of parcels, after the proper foundation had been laid for the introduction of the secondary evidence, of the contents of the said bill of parcels; and that foundation would have been a notice duly served upon the defendant to produce the original paper, and which notice had been disregarded.
In this instance, as the point is presented by the record, we think the book was properly admitted in evidence for the specific purpose for which it was offered. The assurance that this evidence would be followed up by proof of [**10]  other circumstances and facts material and competent, with which it would have an important connection, rendered its admission proper. If however it should turn out that this assurance was not fulfilled, it would be the duty of the court, in a subsequent stage of the trial, upon an application by counsel, to direct the jury to disregard or reject it. The entries in the blotter were made, it appears, by one of the plaintiffs 

 [*17]  himself, and therefore were clearly not evidence, per se in their favor. They could only have become so, as we have shown, by being connected collaterally with other facts and circumstances. In this case we think, as we shall presently show, the plaintiffs did not make good their pledge, inasmuch as they did not show that a legal notice had been given in order to lay the foundation for the introduction of the secondary evidence. This leads us to the consideration of the second question presented by the record.
In the progress of the trial, with the view of establishing the original contract of sale, out of which the present controversy arises, the plaintiffs offered to prove aliunde, the contents of a written paper, being the bill of parcels [**11]  of the goods. To authorise the introduction of this evidence, the plaintiffs, while the trial was in progress, served a notice upon the defendant in court, to produce the original paper, which the defendants' counsel, after having examined his papers declined to produce, and hence the attempt of the plaintiffs to give secondary evidence of its contents. Was this notice sufficient under the circumstances, to warrant the introduction of the secondary evidence, is the point to be determined. Notice given at the bar, during the progress of the trial to produce a paper is not sufficient, unless it appears satisfactorily, that the paper is in court at the time, and in possession of the party upon whom the demand is made, or if elsewhere, that it would be of easy access. In this case it does not affirmatively and sufficiently appear in the record, that the paper was in court and in the possession of the defendants, or of easy access when the demand was made. It is true he declined to produce it, but it might as well have been that he so declined, from inability to produce it, as from an unwillingness to do so. The secondary evidence of this paper therefore was improperly admitted, and [**12]  for that reason we reverse the ruling of the court upon this point.
From what we have said it follows, that the notice to produce the other paper referred to in the record, and which constitutes the third exception, was sufficient; the same 

 [*18]  appearing to have been in court, and in the possession of the defendant when the demand for its production was made.
The object of the plaintiffs, in this case, was to show such a sale as would be operative and valid under the statute of frauds, and in order to do this, evidence was proposed to be offered, that there was either a memorandum in writing signed by the parties witnessing the contract, or that there was such a delivery of the goods, either actual or constructive, as was sufficient to gratify the requirements of the statute.
Upon the whole evidence three prayers were offered by the defendant, all of which were rejected by the court below. The first, asked the court to say that "there was no evidence of a sale and delivery within the provisions of the 17th section of the statute of frauds." This prayer was properly rejected. Without expressing any opinion in regard to the weight of testimony in the cause, we do [**13]  not feel at liberty to say there was none tending to support such a proposition. The letter of the defendant in regard to this transaction, though not a sufficient writing of itself to witness the contract, might still well have been a circumstance, in connection with other facts, which might tend to establish the contract. The same may be said of the conversation of the defendant with the witness Grofflin, and of other circumstances proved in the progress of the trial.
In regard to the proof of a delivery of the goods in order to gratify the statute, it must be conceded that an actual or manual delivery is not in all cases necessary. Upon this subject the law is well settled and clearly defined, and may be thus stated: where the goods are ponderous and incapable of being handed over from one to another, and where the buyer so far accepts them, as to treat them as his own, exercising acts of ownership over them, from which possession as owner may be inferred;--or where the delivery is symbolical, such as the delivery of the key of the warehouse in which the goods are lodged;--or where actual delivery is impracticable, and can only be made by such symbolical means as the [**14]  circumstances of the case will allow, as in the case of 

 [*19]  a ship or cargo at sea, &c., actual or manual delivery is not necessary.  Franklin & Armfield, vs. Long, 7 G. & J. 407.
While delivery is a fact to be found by the jury, constructive delivery is a mixed question of law and fact, and the circumstances or facts necessary to constitute such a delivery must be found by the jury, as in the case of actual delivery.
We think there was evidence adduced upon the trial, which should properly have been submitted to the jury upon the question of delivery, and hence the additional error of the first prayer in assuming there was none.
The second prayer we think was improperly rejected. It submits nothing to the jury but the simple question of delivery, which is a fact to be found by the jury. When however the delivery is not actual, but symbolical or constructive, then, as we have already said, it is a mixed question of law and fact, and either party has the right to ask instructions of the court as to the legal effect of any particular circumstance which may be offered to the jury, and from which the delivery is to be deduced.
The third prayer [**15]  was properly rejected, because it assumes that in all cases like the present, an actual delivery is necessary to make the sale a valid one, where it is to depend upon delivery alone. We think on the contrary, when from the peculiar character of the goods sold they are not susceptible of an actual or manual delivery, as in this case, a symbolical or constructive delivery will be sufficient.
If this verdict and judgment stood alone upon the evidence in regard to the delivery, we might be disposed not to disturb them, but as it is impossible to know upon what ground the jury based their verdict, whether upon the ground that a written contract had been sufficiently proven, (the evidence in regard to which having been excluded by us,) or whether upon the proof of delivery, we must reverse the judgment. In doing so however we do not wish to be understood as intimating any opinion, as to the sufficiency of the proof to establish a valid contract between these parties. To determine that is the province of the jury.
Judgment reversed and procedendo awarded. 

100 of 187 DOCUMENTS 

DANIEL J. FOLEY and JOHN T. WOODSIDE, vs. WILLIAM MASON & Son, use of BIRCKHEAD and PEARCE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Md. 37; 1854 Md. LEXIS 28 

DECEMBER, 1854, Decided 

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

Trover by the appellees against the appellants, to recover the value of certain goods alleged to be illegally held by the defendants. The suit was begun on the 3rd of September 1849, and was entered for the use of Birckhead and Pearce, on the 14th of January 1851. Plea non cul.

1st Exception. It was admitted that William Mason, and William Mason, Jr., two of the legal plaintiffs, applied for the benefit of the insolvent laws, on the 5th of November 1849, and were finally discharged thereunder, and that McKim and Kennedy were their trustees and had bonded as such. The plaintiffs then offered William Mason as a witness for their cestui que use, but defendants objected to his admissibility, because he was a party plaintiff on the record and liable for costs. The plaintiffs then proposed to swear the witness on his voir dire, but defendants objected to his being so sworn. The court (FRICK, J.) overruled this objection, and the witness was then examined and sworn on his voir dire, and said that he was not interested in the event of the suit, and would not lose or gain thereby. The court then permitted him to be sworn in chief and [**2]  the defendants excepted. In the course of the trial William Mason, Jr., was also offered as a witness by the plaintiffs, and to his admissibility the defendants also objected on the same grounds as stated above, which objection the court also overruled, and it was agreed that the question as to his admissibility should be decided under this exception.

2nd Exception. The plaintiffs then proved by said William Mason, that in July and August 1849, the defendants purchased a quantity of cotton duck from the firm of William Mason & Son, of which witness was a member, for cash; that the duck was delivered without any demand of the payment at the time. The witness further said "that when he sells for cash, he delivers the article without the cash, if he considers the purchaser good for the money, and honorable; that this is the custom, the usage; that his right to the cash was not waived." A few days afterwards, when Mason & Son sent to defendants for payment, the latter offered to pay, in part, with the promissory notes of Mason & Son, past due, and the balance in cash, which offer was several times repeated and declined by the plaintiffs. The ownership and possession of the property [**3]  by Mason & Son, was then proved by William Mason, Jr., whose testimony was excepted to as stated in the first exception. The defendants then offered in evidence an assignment by the firm of Mason & Son, of all their property, debts and claims, including the claim against defendants, subject however to the claim of Birckhead and Pearce to McKim and Kennedy, for the benefit of their creditors, dated 8th of September 1849; and then asked the following instructions to the jury.

1st. If any part of the duck in controversy was the property of the legal plaintiffs, and in their possession when it was delivered to the defendants, under the agreement of sale mentioned in the evidence, then the legal plaintiffs had the right to sell and deliver said duck to defendants.

2nd. If defendants bought the duck in question from the legal plaintiffs, then the plaintiffs cannot recover, unless the jury believe that defendants obtained possession of it by false and fraudulent representations.

3rd. If the duck was purchased by defendants, and delivered to them by the plaintiffs, without any fraudulent and false representations, made by defendants to obtain possession thereof, then the right [**4]  of property in it passed to defendants, and the plaintiffs cannot recover in this form of action.

4th. If the plaintiffs in fact delivered the goods in question to defendants, under the contract of sale mentioned in the evidence, without a demand for the cash at that time, the defendants had a legal right to pay for them in the notes of the plaintiffs, and that the intention and offer of defendants to pay the plaintiffs in the notes mentioned in the evidence, did not authorise the plaintiffs to disaffirm the contract and sue in trover.

5th and 6th. These prayers, which denied the plaintiffs' right to recover, because they had parted with their legal rights in this case, by the assignment to McKim and Kennedy, or by their application for the benefit of the insolvent laws, were abandoned in argument in this court.

The plaintiffs then asked the court to instruct the jury as follows:

1st. If the jury find from the evidence that defendants purchased from the plaintiffs the duck in question for cash, and that plaintiffs delivered it to the defendants without demanding the cash simultaneously with such delivery, and that there is a usage amongst merchants in the city of [**5]  Baltimore, to deliver to purchasers merchandise sold for cash, without demanding the cash to be paid simultaneously with such delivery, without the vendor thereby waiving his right to such cash payment under the contract of sale, and that the plaintiffs in the delivery of said duck, without at the same time demanding such cash payment, acted with a view to such usage, and did not intend to waive such cash payment secured under their said contract of sale, and that after said delivery the defendants refused to pay cash for said duck, and have not yet paid it, and that the plaintiffs upon such refusal demanded the delivery of said duck to them, and that upon such demand the defendants refused to deliver it, then the plaintiffs are entitled to recover in this case.

2nd. If the jury believe from the evidence, that the defendants purchased the duck in question for cash, and at the time of such purchase did not intend to pay cash for it, but intended to deceive and defraud the plaintiffs, and that such intention was not known to the plaintiffs at or before its delivery, then the plaintiffs are entitled to recover in this case.

The court granted the plaintiffs' prayers, and also [**6]  the first prayer of the defendants, but rejected their second, third, fifth and sixth prayers, and also their fourth prayer, because in the opinion of the court the goods may have been so delivered in reference to the usage, which is the ground of the plaintiffs' prayer, and may not in fact have been intended as an unconditional delivery, nor is it necessary that he should have in his mind, at the time, any particular intention not to waive. The defendants excepted, and the verdict and judgment being against them appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

A legal plaintiff on the record, as a general rule, is not a competent witness to prove any issue in the pending controversy, he being in all cases prima facie liable for costs equally with the equitable plaintiff, which fact alone is sufficient to disqualify him on the ground of interest, but he may be divested of this interest so as to be made competent.

The right to swear a witness on his voir dire clearly belongs to the party objecting to his testimony, and it is error to permit the party who calls him so to swear the witness.

The discharge of a party who was a legal plaintiff on the record, under the insolvent laws, is not sufficient to divest him of his interest in the suit so as to render him a competent witness.

Where goods are sold for cash, yet if the delivery is unconditional and without fraud or mistake, the title thereby vests in the vendee, notwithstanding the cash was not in fact paid.

Evidence of usage is never admissible to vary or contradict the clear and manifest signification of the terms used by the contracting parties to express their meaning, nor to oppose or alter a general principle or rule of law, and upon a fixed state of facts to make the legal rights or liabilities of the parties, other than they are by the common law.

In any case a usage to be admissible must be proved to be known to the parties, or be so general and well established that knowledge and adoption of it may be presumed, and it must be certain and uniform.

Where a sale of goods is made for cash, and they are delivered to the vendee upon the condition of payment in cash, an offer by the vendee to pay in the vendor's own over-due notes, is a virtual compliance with the condition, and equivalent to a tender of payment in cash.

A creditor's note may be set-off or pleaded in discount by his debtor, though the latter may have obtained possession of the note at a discount and with a view to the set-off, after he became indebted to his creditor.

The only difference between a cash and a credit payment, is, that the former must be made at the time of sale or delivery, and the latter after the credit has expired: each must be made in the same way, and there is no more reason why the former should be made in money, than the latter.  

COUNSEL:
T. P. Scott and John V. L. McMahon, for the appellants.

1st. The first exception relates to the admissibility of the evidence of the Masons, which is the whole evidence in support of the plaintiffs' case, and presents the question, first, whether a legal plaintiff on the record is a competent witness for the cestui que use. We say he is not, because he is liable for costs, non obstante his application for the benefit of the insolvent laws and the entry for the use. 7 Gill, 240, Selby vs. Clayton. Ibid., 406, 416, Owings use of Green, vs. Emory & Gault. 5 How., 95, Bridges, et al., vs. Armour, et al. But it is [**7]  supposed that the fact that William Mason was sworn on his voir dire, and his saying that he had no interest in the result of the suit restores his competency. But the right to swear a witness on his voir dire, belongs to the party objecting to his testimony, and not to the party calling the witness. 1 Cowen's Philip on Ev., 131. The plaintiffs here call a witness who stands upon the record confessedly incompetent, and then offer to swear him upon his voir dire to remove his incompetency. This cannot be done, they cannot call an incompetent witness to give evidence to remove his incompetency. The witness cannot, by all that he has said or could say, remove his liability for costs. But the other witness, William Mason, Jr., was never sworn on his voir dire, and he stands confessedly covered with the objection of interest.

2nd. The second exception relates to the granting of the plaintiffs' prayers, and the rejection of the defendants' 2nd, 3rd and 4th prayers, and presents two separate and independent questions: 1st of usage and 2nd of fraud. On these we insist, 1st, that in the absence of any usage, even though the sale was for cash, the unconditional delivery under the sale,  [**8]  obtained without fraud, vested the title to the goods in the defendants. The unconditional delivery waives the conditional sale. All the books agree that this is undoubted law. 9 G. & J., 277, Powell vs. Bradlee. 6 Cowen, 110, 113, Chapman vs. Lathrop. 8 Wend., 256, Furniss vs. Hone. 3 Sandford, 208, 210, Smith vs. Lynes. Again, the burthen of proof is on the vendor to show that the delivery was conditional, and this can only be done by proof that the delivery was upon a condition agreed upon or understood by both parties at the time. A mere mental reservation will not do. 1 Selden, 44, 45, 46, Smith vs. Lynes. 4 Pick., 451, Whitwell vs. Vincent. 1 Eng. C. L. Rep., 257, 258, Ogle vs. Atkinson. The proof in this case shows that there was no express declaration made, at the time of delivery, of any condition, the presumption therefore is, that it was an unconditional delivery.

2nd. As to the alleged usage. This doctrine of usage is one of great inconvenience and lamented by all the judges. 1 Sandford, 137, Hone vs. Mutual Safety Ins. Co. 43 Law Lib., 417, 418. But proof of usage, if admissible at all, to control by its silent operation, contracts and acts under them, not made or [**9]  done with express reference to it, must be of an usage so general, certain and uniform, and well established, as to be presumed to be known to and acted under by the parties, and if available to control the effect of the unconditional delivery, it can only so avail upon the assumption that both parties acted with reference to it, in receiving as well as in making the delivery. Now what is this thing called usage, in this case? The witness says he delivers the article without the cash, only when he considers the purchaser good. This is not a usage, which must be something fixed, certain and universal. 3 Sandford, 212. A usage which differs upon the action of each particular person is no usage. One man may think the purchaser good, when his next neighbor may think otherwise, and this is said to be a usage! General usages the courts take notice of, but particular usages must be proved to be uniform, general and certain, or that the party had actual knowledge of it. The latter is not pretended. Now how are you to make out presumed knowledge? You must bring home knowledge of the usage by proof of the usage, (43 Law Lib., 415,) and the jury must find it. In this case there is no such proof [**10]  of the usage as there was in Powell vs. Bradlee. Nor was it so put to the jury as in that case. There is no proof whose usage it was, or where it was the usage, whether in Baltimore or in New York. In Powell vs. Bradlee, the usage was proved to be confined to sales of flour and cotton within the city of Baltimore, and was general and notorious. In all these points that case differs from this. But that case does not decide, that where usage is proved you need not prove the acts of the parties under it, or of but one of them. On the contrary the court in that case concede that the fact of usage found is not enough, and that the court below were right in putting to the jury to find the acting of the parties under it. The law does not make the usage a part of the contract. There must be in the minds of both the parties a knowledge of the usage, and they must both act in reference to it. 2 Kent, 497. 43 Law Lib., 414, 417, 418. 1 Sandford, 149, Hone vs. Mutual Safety Ins. Co. 9 Pick., 196, Salem Mill-dam Corp., vs. Ropes. 2 Wend., 501, 504, Wood vs. Hickok. 9 G. & J., 221, 230, 239. How does the usage act upon the delivery? The law does not apply it. You cannot do it by the act of one of [**11]  the parties, for it is impossible that the act of one can divest the title of the other, under an unconditional delivery.

3rd. As to the question of fraud. The plaintiffs' second prayer, which raises this question, makes no reference whatever to the question of usage. It presents only the case of an unconditional delivery, not obtained by any fraudulent representation, and the effect of the alleged undivulged intention of the purchasers in vacating the sale and delivery. There is not a tittle of evidence of any fraud in the case, unless the design of the defendants to pay the plaintiffs in their own over-due notes could be imputed to them as a fraud in law. The prayer is based on the unconditional delivery of the goods. If this be so the right to the cash payment was gone, was waived, was abandoned, and this gave us a clear right to set off the notes, or any thing else. The principle we maintain is, that the doctrine of fraud should not be carried further than it is in the case of Powell vs. Bradlee. The cases say there must be some fraud conducing to the contract. The case in 1 Greenleaf's Rep., 376 to 394, Cross vs. Peters, puts the test, would an action of deceit at common [**12]  law lie for the act influencing the contract. The fraud must be acted out. 21 Penn. State Rep., 367. 2 Eng. C. L. Rep., 25, Noble vs. Adams. 1 Selden, 44, Smith vs. Lynes. 6 Cowen, 113, Chapman vs. Lathrop. 1 Chitty's Gen. Pr., 666. 9 G. & J., 277. 1 East., 375, Eland vs. Karr, et al. But the offer to pay in the over-due notes of the vendor, is equivalent to an offer to pay in ready money. 8 Eng. C. L. Rep., 330, 331, Nayer vs. Nias. 22 Do., 383, 385, McGillivray vs. Simson. 2 Maule & Selw., 510, Cornforth vs. Rivett. 13 Ves., 180, Taylor vs. Okey. 2 H. & J., 77, Clarke vs. Magruder. The fraud, if any, was in the plaintiffs, in refusing such payment. The delivery was obtained without any fraudulent pretexts whatever, and the vendees had the right to get any legal advantage they could.

J. N. Steele for the appellees.

1st. There is no error in the first exception, because the witness had, in fact, no interest whatever in the result of the suit, and having no such interest, the mere fact that he was a party to the record, did not, of itself, render him incompetent to testify. 3 Gill, 431, Lizardi vs. Cohen. 7 Gill, 240, Selby vs. Clayton. 3 H. & McH., 152, Beard vs. Cowman.  [**13]  Peter's C. C. Rep., 301, Willings vs. Consequa. 3 Binney, 312, Steele vs. Phoenix Ins. Co. 7 Cowen, 358, Chaffee vs. Thomas. 17 Pick., 272, Pond vs. Hartwell. 6 H. & J., 172, Bank of Columbia, vs. Magruder. 4 H. & McH., 342, Peter vs. Beall. The entry for the use of Birckhead and Pearce, was an absolute assignment of the whole judgment. The inquiry then is, whether the liability for costs renders him incompetent? He swears positively that he would not gain or lose by the result of the suit. This testimony is in, unobjected to, and refers as well to his liability for costs as to his interest in the suit. The liability for costs is only a fact from which an interest in the suit may be inferred, and may be explained by testimony. There can be no doubt that this want of interest may be proved by parol. If funds are deposited in court sufficient to cover the costs, it will render the witness competent, as some of the cases above cited show. But it is said, the court had no right to swear the witness on his voir dire, at the instance of the party calling him. Why should he not be so sworn? It was a question of fact for the decision of the court alone. It was not the case of evidence aliunde,  [**14]  on the part of the objector, showing an interest, and then calling the witness to contradict it. But even if he was improperly sworn on his voir dire, this court has no right to decide the question, because the record does not raise it. The exception is only taken to his being sworn in chief. There are two distinct exceptions, the last of which only is signed, and the former therefore is no exception. 1 Md. Rep., 13, Milburn vs. The State.

2nd. The only question upon the second exception is, whether there was any evidence to go to the jury from which a rational mind could infer the existence of the usage? The error in the argument on the other side is, in not distinguishing between the sufficiency in law, and the sufficiency in fact, of the evidence. The first question is not before this court. There is evidence in the cause of the usage relied on, and the proper question to be submitted to the jury, if they found such usage, was, whether the plaintiffs acted with a view to the usage, and did not intend to waive their right to the cash? The binding effect of usage is stated in strong terms, in 1 H. & G., 239, Bank of Columbia, vs. Fitzhugh. The very question here presented is [**15]  decided, 9 G. & J., 247, 277, 278, Powell vs. Bradlee. When the usage is proved, the law presumes that the parties knew it, and that they acted in reference to it. The doctrine that both parties must intend to act in reference to the usage cannot be sustained. If such be the law, the doctrine of usage would be presented in a very strange light. If the vendee receives, with the intention that the cash payment shall be waived, the usage would be controled, and the intention of the vendor would be controled. But this point is settled by the case of Powell vs. Bradlee. So in 1 Selden, 44, and 3 Sandford, 208, cited on the other side.

3rd. As to the question of fraud. I say that if the defendants, when they made the purchase for cash, did not intend to pay cash, and this fraudulent intention remained unknown to the plaintiffs until after the delivery of the goods purchased, then this purchase was a fraud upon the plaintiffs, and as against them the subsequent delivery of the goods, without knowledge of the fraud, passed no title to the defendants. The notes of the plaintiffs were over-due. The firm was then in failing circumstances. These defendants then go to the plaintiffs to buy [**16]  goods for cash and offering to pay in cash, with the intention at that very time to buy up, and pay, in plaintiffs' over-due notes. They go then with a lie in their mouths, and effect a purchase by means of this lie. This surely is a fraud. 9 G. & J., 248. 10 G. & J., 226, Harris vs. Alcock. These cases show, that when a party effects a purchase for cash without an intention to pay cash, it is a cheat and a fraud. See also 1 Story's Eq., secs. 186, 192, and Chitty on Contracts, 406. Story on Contracts, sec. 165. The case in 20 Eng. C. L. Rep., 237, Irving vs. Motley, explains the case of Noble vs. Adams, and removes the idea, that nothing short of obtaining goods under false pretences will vacate a bargain. The cases all show, that if there was an intent not to pay cash when the parties bought for cash, it is a fraud.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and MASON, J.  

OPINIONBY:
MASON 

OPINION:

 [*47]  MASON, J., delivered the opinion of this court.
This is an action of trover, to recover the value of certain goods alleged to be illegally held by the defendants.
The plaintiffs' whole case rests upon the testimony of the two Messrs. Mason, who are the legal plaintiffs [**17]  upon the record. These witnesses were objected to, and if their testimony is deemed inadmissible, the plaintiffs have no case in court.
As a general rule, the legal plaintiff on the record, is not a competent witness to prove any issue in the pending controversy. The legal plaintiff in all cases is, prima facie, liable for costs equally with the equitable plaintiff, which circumstance of itself is sufficient to beget such an interest in the controversy, as to disqualify him from giving evidence against the defendant. It is not to be denied, however, that a party under such circumstances may be so far divested of that interest, as to be made a competent witness, and the point in this case is, does the record disclose that the Masons have been so far discharged from their liability for costs, as to qualify them to give evidence? We think not.
In the case of William Mason the elder, who was called on behalf of the plaintiffs, he was sworn, as the record says, (upon his evidence being objected to by the defendants,) upon his voir dire, at the instance of the party offering him as a witness. To the propriety of which the other party, the defendants, objected.
It has been insisted,  [**18]  that the first exception in its present form, does not properly present the question as to the correctness 

 [*48]  of allowing this witness to be sworn on his voir dire, at the instance of the party calling him. As the case will go back upon procedendo, without deciding whether the exception raises the question or not, we will take the occasion to say, that the right to swear a witness upon his voir dire, clearly belongs to the party objecting to his testimony, and hence it was error in this instance to permit the plaintiffs, who offered the witness, to do so.
The objection to William Mason, Jr., as a competent witness, was well taken and ought to have been sustained. In his case there was no effort to divest him of his interest in the suit, by reason of his being the legal plaintiff on the record, nor no attempt, (except the offering of the discharge under the insolvent laws,) to show such an absence of interest as to authorise the witness to testify. We have no difficulty in reversing the court below upon this exception.
As it is possible that the plaintiffs may, upon another trial, qualify these witnesses to give evidence, or may prove the same facts by other [**19]  competent witnesses, we will proceed to express our views upon the case as presented by the record, as if the same had been disclosed by legal and competent proof.
The case thus made, is this: The defendants below purchased from the Messrs. Mason, a quantity of cotton duck, for cash, which was delivered without any demand for payment at the time, and without any express conditions. A few days afterwards, the defendants upon having payment demanded by the Masons, offered to pay them in part with their own notes, over-due, and the balance in money. This offer was several times repeated, before the suit was brought, and as often declined by the Masons upon the ground of its not being a compliance with the terms of the sale, which was a sale for cash. In addition, the witness stated, "that when he sells for cash, he delivers the article without the cash, if he considers the purchaser good for the money and honorable, that this is the custom, the usage; and that the right to the cash was not waived by the delivery."

 [*49]  We will proceed to express our views upon the case as thus made in general terms, without referring in detail to the several prayers or exceptions [**20]  in the order in which they are presented by the record.
Although the sale was for cash, yet if the delivery of the goods was made unconditionally and without fraud or mistake, the title to the goods thereby became vested in the vendees, notwithstanding the cash was not in fact paid, and of a consequence this action could not be maintained if the case rested here.
But it is said by the appellees, that the delivery cannot be regarded as unconditional, inasmuch as there was evidence that there existed among the merchants of the city of Baltimore an usage, "to deliver merchandise sold for cash, without receiving the cash simultaneously with the delivery, and without the vendors thereby waiving the right to the cash," and that this usage must be regarded as having entered into, and formed part of this contract. For this principle the case of Powell & others, vs.  Bradlee & Co., 9 G. & J. 220, is relied on. In many particulars the two cases are strikingly alike, but in others they are wholly dissimilar, as we shall presently attempt to show. The theory of the law of usage rests upon the presumption, that in certain transactions the parties did not intend [**21]  to expressly stipulate the whole of the contract by which they designed to be bound, but that they intended to contract with reference to the known usages upon the subject, and that those usages were to be regarded as part of the contract. And although evidence of usage is sometimes admissible to add to, or to explain the terms of an agreement, yet it will never be permitted to vary or contradict the clear and manifest signification of the terms which the contracting parties may think proper to employ to express their meaning. Nor is evidence of usage admissible to oppose or alter a general principle or rule of law, and upon a fixed state of facts, to make the legal rights or liabilities of the parties other than they are by the common law. 2 Burr., 1216. 2 Johns., 327. 2 Wash. C. C. Rep., 24. 3 Watts, 178. 

 [*50]  And in any case, a usage to be admissible, must be proved to be known to the parties, or be so general and well established that knowledge and adoption of it may be presumed; and it must be certain and uniform. Indeed it may be added that usages, in general, have fallen, in later years, much into disfavor [**22]  with the courts, as they have been disliked and discountenanced in all times by the ablest of judges. In the case of Stoever vs. Whitman, 6 Binney 416, C. J. Tilghman says, "Miserable will be our condition if property is to depend, not on the contract of the parties, expounded by established principles of law, but on what is called the custom of particular places, so that we may have different laws in every town and village." And also Judge Story remarks, in the case of Donnell vs. Insurance Co., 2 Sumn. 366, "I am among those judges who think usages among merchants should be very sparingly adopted as rules of law, by courts of justice, as they are often founded in mere mistake, and still more often in the want of enlarged and comprehensive views of the full bearing of principles."
The evidence of usage in this case, was manifestly too vague and unmeaning, to warrant, upon any principles, the court to submit any proposition to the jury based upon it. It is difficult to conceive of a commercial transaction between any parties and relating to any subject matter, and wherever negotiated, that might not be as readily controlled by such a usage as the one now [**23]  before us. In this particular, this case is wholly unlike the case of Powell vs. Bradlee, 9 G. & J. 220. There, one witness proved "that it was then, and now is, the general usage among flour dealers in the city of Baltimore," &c.; and by another witness, "that in sales of flour for cash in the city of Baltimore, it is the general and constant usage," &c. Thus it will be seen, that this evidence confined the usage, first, to the article of flour, and to flour dealers; secondly, it showed it to be general; thirdly, that it related to the city of Baltimore; and fourthly, that it was in existence at the time the contract and delivery were made. Upon this evidence the court said, very properly, that the question of usage was rightly left to the jury.

 [*51]  Another prayer of the plaintiffs presents the question of fraud, on the part of the defendants, in the purchase of the goods. This fraud is to be gathered, not from any direct proof upon that point, but is to be inferred from the circumstance alone of the defendants having tendered, after obtaining possession of the goods, payment for the same in the plaintiffs' own over-due [**24]  notes. Such an inference from such a fact, is wholly unwarrantable. On the contrary, we regard such a transaction, in the absence of direct and independent proof of fraud and circumvention, as legitimate and usual among merchants. Conceding that both the sale and delivery in this case were conditional upon payment in cash, that the alleged usage was clearly established, and that this transaction took place in reference to that usage, still we regard the offer of the defendants to pay for the goods in the plaintiffs' own over-due paper, to be a virtual compliance with the condition, and for all practicable purposes was equivalent to a tender of payment in cash. A cash payment, in ordinary parlance is understood in contradistinction to a credit payment, and there is no more reason for supposing that the first is to be made in money, than that a deferred or credit payment is, when due. Each payment must be made in the same way. The only difference, as before remarked, is, that one must be made at the time of sale or delivery, the other when the credit has expired. What discharges the one will also discharge the other. Since the case of Clarke vs. Magruder,  [**25]   2 Harr. & Johns. 77, was determined, it has been regarded as the settled law of this State, that a note drawn by the creditor may be set off, or pleaded in discount, by his debtor, although the latter may have obtained possession of the note, at a discount, and with the view of the set-off, after he became indebted to his creditor. Upon the same principle, we cannot see why, in this case, the possession of the plaintiffs' notes by the defendants, should not, of itself, have constituted a just and legitimate ground for the purchase of the goods, with the view, in that way, of the liquidation of the notes, and without incurring the imputation of a fraudulent design 

 [*52]  in so doing. Indeed, if fraud is inferable at all from this transaction, as presented by the proof in the record, it should rather be imputed to the vendors, who while they were over anxious to make the defendants pay their debts, were yet unwilling to pay, or even recognise their own.
Judgment reversed and procedendo awarded. 

101 of 187 DOCUMENTS 

ROBERT J. BRENT Trustee of REBECCA P. MAGRUDER, vs. HENRY J. TAYLOR and ABIEL MARKS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Md. 58; 1854 Md. LEXIS 30 

DECEMBER, 1854, Decided 

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

The proceedings in this case instituted by the appellees, were by way of attachment against the property of a married woman, under the act of 1842, ch. 293.

The appellees, citizens of New York, trading under the firm of Taylor & Marks, filed a petition in Baltimore county court, on the 12th of January 1850, alleging that in 1849, Rebecca P. Magruder wife of J. H. Magruder, purchased of them goods to the value of $ 874.57, suitable to the business of a milliner, which she carried on in the city of Baltimore, acting as a feme sole, her husband having nothing to do therewith: that she had a stock of goods worth $ 1000, acquired or earned by her skill, industry or personal labor, since the passage of the act of 1842, ch. 293, liable for the balance of $ 547.57, due on their debt, and praying that an attachment might issue according to the course of the attachment law, against the property of said Rebecca.

The account (the first item of which was "to merchandise per bill rendered, $ 579.21,") on which the said Rebecca was so indebted, was annexed to the petition, and both were verified by the affidavit of Marks, one of the [**2]  appellees, made before a judge of the court of Common Pleas for the city and county of New York. On the same day the court (PURVIANCE, A. J.,) ordered a writ of attachment to issue against the property of said Rebecca, to the value of $ 1000 or less, earned by her skill, industry or personal labor, to answer unto the appellees the sum of $ 524.57, and costs, and the writ was accordingly issued on the same day, by the clerk of said court, commanding the sheriff to attach the property of said Rebecca, to the value of $ 524.57, and costs of attachment, and containing the usal scire facias clause, to the parties in whose hands the attachment should be laid, to appear and show cause why the property attached should not be condemned for the use of the appellees.

On the 14th of January 1850, being the return day of the writ, and after the adjournment of the county court for that day, the writ was laid on the goods in the store of said Rebecca specified in a schedule annexed to the return, and returned "attached as per schedule." On the 15th of January 1850, the day following the service of the writ, the said Rebecca voluntarily appeared by counsel and moved to quash the attachment. 1st.  [**3]  Because no summons or capias issued at the same time with the writ. 2nd. Because no short note was filed in the case, according to the course of the attachment law. 3rd. Because the writ was not served or executed until after the rising of the court on the return day thereof. And 4th. Because the proceedings are otherwise defective and irregular. But this motion the court (LE GRAND, A. J.,) overruled.

On the same day, viz., the 15th of January 1850, the said Rebecca and her husband, executed a deed to Brent, the appellant, of all her property, in trust to sell the same and distribute the net proceeds among her creditors as a feme sole trader. It was subsequently agreed that the property should be sold by the trustee, the proceeds to remain liable in his hands, for the claim of the appellees, as the property was under the attachment, reserving however the right to the said Rebecca, to object to the regularity of the attachment and the proceedings thereunder. On the first of May following, the death of said Rebecca was suggested by her counsel, the appellant.

Subsequently the appellant, as trustee, appeared and claimed the property, under the deed to him. After this, various [**4]  pleas were filed by the claimant on which issues were joined, all of which it is not necessary to state, as by agreement all errors in pleading were waived, and liberty reserved to either party, to rely on any facts as if the same were specially pleaded.

An agreement was subsequently filed in the case, admitting the marriage of the said Rebecca P. and J. H. Magruder, more than fifteen years ago; that she had in 1843, and ever since, up to the time of executing the deed of trust to the appellant, carried on business as a milliner in the city of Baltimore, on her separate account and in her own name, and acquired and earned property therein, by her own industry, skill, credit and labor, with the assent of her husband, who took no part therein; that she purchased the goods charged in the account of the appellees, and that this account was due and unpaid as charged; that the writ of attachment in this case was returnable on the 14th of January 1850, and was on that day, in the evening thereof, and after the adjournment of Baltimore county court, for that day, laid on the goods in the schedule specified, and the appraisement thereof was made and signed on the day following; that said [**5]  goods were at the time of the seizure in the store of said Rebecca, and in her possession, that all her property in said business at that time amounted to the sum of $ 529.31, and is embraced in said appraisement, and that no capias or summons or other process was served on her or her husband other than appears in the sheriff's return.

The case was tried in the Superior court for Baltimore city, at its September term 1852.

Exception. The plaintiffs having offered in evidence the aforegoing proceedings and agreements, the claimant then read his deed of trust above referred to, and prayed the court to instruct the jury, as follows:

1. That the plaintiffs cannot rely on their writ of attachment and the proceedings thereunder, if the jury shall find that said writ was served on the return day in the afternoon, and after the court to which it was returnable had adjourned for that day, and that the schedule and appraisement offered in evidence were made out on the next day.

2. That the proceedings and proof offered in evidence, are not sufficient to enable the plaintiffs to recover, because there was no summons or capias issued against the said Rebecca.

3. That said [**6]  proceedings are not sufficient, because there was no short note, according to the course of the attachment law.

4. That they are not sufficient, because the order of Baltimore county court, for the issuing said writ, and the writ issued thereon, authorise the seizure and attachment of the lands, tenements, goods, chattels and credits of said Rebecca, which she may have earned by her skill, industry or personal labor, to the value of $ 524.57, and costs of attachment.

5. That the writ and proceedings thereon are inoperative and void to divest the title of said Rebecca, to the goods and chattels in controversy, because no capias or summons issued with said writ, according to the course of the attachment law.

The court (FRICK, J.,) rejected these prayers for the reason, that the same propositions had been decided by the associate judge of Baltimore county court, upon the motion to quash the attachment. The claimant excepted, and the verdict and judgment being in favor of the plaintiffs, he appealed.  

DISPOSITION:
Judgment reversed and procedendo refused.  

HEADNOTES:

In proceedings against the property of married women, under the act of 1842, ch. 293, sec. 8, the provisions of the attachment laws so far as consistent with the design and purpose of that act should be observed, and without the short note as means of notice to the debtor, the proceedings are coram non judice and void.

The proceedings under this act are in rem and not in personam: their object is not to compel the appearance of the debtor, with a view to a judgment against her, nor to seize her property by way of execution, but to obtain a lien on it with a view to the payment of the claim, and hence the capias or summons is not necessary.

It is not necessary that there should be a petition and answer and proof of claim, before the writ of attachment issues: it is sufficient if the creditor lays a foundation for the writ by affidavit and the proper voucher according to the practice under the attachment laws.  

COUNSEL:
Robert J. Brent for the appellant.

I contend that the proceedings should have been quashed on motion, if they were in anywise [**7]  defective. 1 H. & McH., 504, Thompson vs. Towson. 3 Do., 535, Campbell vs. Morris. 6 G. & J., 345, Bruce, et al., vs. Cook. 10 Do., 383, Stone vs. Magruder. 2 Md. Rep., 338, Lambden vs. Bowie. The act of 1842, ch. 293, sec. 8, on which this proceeding is based, subjects the property of a married woman acquired by her labor, &c., "to the payment of any claim or debt incurred by such married woman," and it is "to be proceeded against by attachment from the county court, to compel such payment, upon petition and proof of claim, according to the circumstances of each case, according to the course of the attachment law." My view of this law is, that the property of married women is not to be seized in limine, but only liable to attachment after petition and proof of claim, according to the circumstances of each case. It is true the law does not expressly provide for an answer to the petition, but it follows from principles of general justice, that an opportunity should be afforded of answering, in order that the proof may be taken to support the petition, where necessary. By the terms, "upon petition and proof," the law could not mean ex parte proof, much less the petitioner's own oath [**8]  to an account of more than $ 500. It is most consistent with reason and natural justice, that the court should decide the validity of the claim by judicial evidence or proof upon notice to the adverse party, and this notice should be either positive or constructive. 4 Pet., 475, Hollingsworth vs. Barbour. The judgment is void if no notice to defendant. 6 How., 164, Shelton vs. Tiffin. I regard the order for the attachment as the final and conclusive judgment upon the petition and proof, and there must be previous notice, or the judgment is void. I therefore submit that the opportunity to contest this claim was legally before the judgment or order for the attachment, and yet there is no proof of notice to the married woman.

But it is said this view is wrong, because the case is to be according to the course of the attachment law. That is a mistake; the property "is to be liable to attachment from the county court, to compel the payment upon petition and proof of claim according to the circumstances of each case," and it is only when the attachment is awarded that we are to look to the course of the attachment law. Hence the words are "upon proof of such claim according to the circumstances [**9]  in each case," and the attachment is to go by judgment on that proof. What is proof? Is the oath of a plaintiff any thing like proof? Is it more than his claim? And if it is but the claim itself, can the court give judgment without other "proof of such claim?" This law contemplated that the court before ordering the attachment, should, upon petition, notice and legal proof, be satisfied, first, that there was a debt, and secondly, that the married woman had property, acquired by her industry, &c., liable for her debt, and which they could order to be attached. Yet this proceeding tells the sheriff, a ministerial officer, that he is to attach generally, such property as she may have acquired by her industry, &c., not exceeding $ 1000 in value. How is the sheriff to ascertain these judicial questions? Would he be protected if he took other property, and if not, then the court have delegated to their officer that judicial matter which it became them to ascertain before ordering the writ. In the case of Barney vs. Patterson, 6 H. & J., 182, it was sought collaterally to impeach the judgment of the United States court, because in a proceeding by attachment upon two non ests, under the act [**10]  of 1715, ch. 40, sec. 3, the court had not taken the requisite proof of the claim before issuing the attachment, and the Court of Appeals decided that the particular proof to the satisfaction of the court, need not appear. But it will be observed in that case: 1. That the record of the attachment suit, stated that the plaintiff proved its damages to the court. 2. That the question of the sufficiency of the proof, was raised in another suit collaterally. 3. That the act of 1715, specially delegated the sufficiency of the proof to the court, after two non ests returned against the debtor, and there was therefore every legal effort to notify the debtor before taking the proof ex parte, and before ordering the attachment. While in this case the proof is the party's own claim, and no effort to serve or notify the feme covert trader, and a judgment of attachment ordered, altogether ex parte. Now here is no proceeding, even according to the course of the attachment law of 1715, because it was admitted in that case, that there must be independent proof to the court before ordering the attachment. If the action of the court below is correct, the cause is ended and decided before process against,  [**11]  or parties in court, for the petition and proof can only be required once.

But suppose I am wrong in this, and that the course of the attachment law required the attachment to be in limine, and the litigation afterwards, then we must test the proceedings by the course of the attachment law in cases where the creditor proceeds by attachment before judgment, and not by way of execution on a judgment. Here the creditors have proceeded in part upon the terms of the act of 1795, ch. 56, and why not adopt the other equitable requirements of that act, the capias and the short note, there being equal propriety in notifying the debtor feme covert? 10 G. & J., 383, Stone vs. Magruder. And why not the return of the sheriff to the scire facias clause to the party in possession? 6 H. & J., 201, Barney vs. Patterson. The goods were seized in Mrs. Magruder's possession, and no return of the sheriff scire feci. Again, the appraisement was necessary, first, to value the goods under the $ 1000; secondly, because it is the settled law. Evans' Pr., 84. Yet here is the appraisement to fix that value and to enable the sheriff to make his levy made on the 15th January, after the return day of his writ.  [**12]  If the appraisement is necessary to make a legal seizure to a given value, there could be no legal attachment until that appraisement, and the facts show that the writ was not served until after the adjournment of the court on the return day. Whatever the English cases may decide about serving writs on the return day, this case must be governed by the language of the act of 1715, ch. 40, sec. 3, which expressly requires the attachment to be returned on the return day, and if the scire facias is served on the party in possession, and he does not on the return day show cause why condemnation should not be had, the court are directed to enter judgment. How is it possible for the party in possession to show cause on the return day, when the writ is not served on him until after the adjournment of the court? The writ is functus officio if not served before the return day. 3 Harrison, 22, State vs. Kennedy. 2 Do., 11, Chapman vs. Cumming. 3 How., (Miss. Rep.,) 70, Calhoun vs. Matlock. 12 Verm., 22. Here in point of fact nothing was done, but the seizure of the goods on the return day, after the court had risen for the day. In this case therefore the plaintiffs have not proceeded "according [**13]  to the course of the attachment law" in any respect, except in the form of their affidavit to the claim and the writ of attachment itself; there is no capias, no short note, no proof of claim, but their own oath, and no appraisement, and no return of notice to show cause to the party in possession.

Again, I submit that the husband should be made a party defendant. Even where his wife is sued as executrix, or in equity as a feme sole in respect to separate property, he is made a joint defendant. Jones vs. Harris, 9 Ves., 488. Calvert on Parties, 268, in 17 Law Lib., 153. But if she is to be sued as a feme sole and her husband not joined, then at the date of the inception of this proceeding she was privileged from arrest, even if the capias had issued, and she might have appeared and contested the attachment without special bail. Act of 1824, ch. 206. Evans' Pr., 89, 97, 98. 1834, ch. 79, sec. 2.

The other ground of the motion to quash is that the proceedings are otherwise defective and irregular. This sufficiently raises the question touching any other defect than those specified as the particular grounds of the motion. See 6 G. & J., 347, Bruce vs. Cook. 4 G. & J., 407, Charlotte [**14]  Hall School vs. Greenwell. 5 G. & J., 102, Sasscer vs. Walker. 1 Gill, 379, Boarman vs. Israel. 4 Md. Rep., 514, Price & Martin, vs. Thomas & George. The account produced with the affidavit is defective and this is fatal. 12 G. & J., 53, Dawson vs. Brown. The account says, Mrs. Magruder is indebted so much as "per bill rendered;" the bill should have been produced.

John Carson and George W. Brown for the appellees.

The act of 1842, ch. 293, sec. 8, prescribes no particular form of procedure by which the property of a married woman, there specified, can be reached in satisfaction of her debts. The form of proceeding must be framed by the courts in accordance with the law itself. We say that an attachment under this act is a proceeding in rem, and not in personam. The attachment is to issue from the court on "petition and proof of claim according to the circumstances of each case." The attachment only is to be "according to the course of the attachment law."

The act says nothing about a preliminary trial, and it would indeed be a curious anomaly if the court were to sit and adjudicate the claim, and then issue an attachment, for if there is to be a final trial upon the [**15]  debt before the attachment issues, the proper writ would be a fi. fa. against the property itself; an attachment would then be useless. Again, if there was to be a preliminary trial the property would be, in the meantime, made way with, and thus the very object of the law would be defeated. An attachment is not a final judgment, and under all our laws, except in cases where it is issued by way of execution, it issues upon ex-parte proof. The scire facias clause requires the party to come in, and then the plaintiff must make out his case. This clause was inserted in this writ and gave legal notice of the proceedings to Mrs. Magruder, in whose possession the goods were which were attached under it.

But it is said that although the attachment is to go upon ex-parte proof, yet there must go with it a short note and capias, and that to this the defendant is to appear. We insist that the short note and capias are not parts of the attachment, but collateral proceedings, designed to obtain a personal judgment against defendants in cases in which the law requires them to issue, but the act of 1842 does not contemplate a personal judgment against the defendant, who is a married woman, and [**16]  therefore no short note, capias, or summons, is necessary or would be proper. The act says the attachment is to go upon petition and proof of claim. This was to be the substitute for the short note and capias. What is to be done with the petition if that is not its object? Again, a married woman may contract debts to any amount, yet she can hold as of her own earnings but $ 1000, and if a short note and capias can be issued, there may be a personal judgment recovered against her for $ 10,000, when she has but $ 1000 to answer it. What is to become of these personal judgments? Are they binding on her future earnings or against her husband? The attachment is a separate, independent, process, and the short note and capias is another and distinct proceeding. 7 Gill, 415, Bank of the U. S. vs. Merchants Bank; 3 Gill, 326, Barr vs. Perry; 2 Md. Rep., 339, Lambden vs. Bowie, and Act of 1835, ch. 201, sec. 14. The intention of this law evidently is, that the preliminary proof should be left to the sound discretion of the court "according to circumstances of each case," and then the attachment goes. There is no difficulty in this view. The attachment gives ample notice by the scire facias clause.  [**17]  The defendant comes in under that and shows cause why the judgment of condemnation should not go. This is the usual course in all attachment causes, and is also like the ordinary proceeding in rem.

The other special objections to the proceedings in this case cannot be sustained. The service of the writ on the day on which it was returnable was sufficient. 46 Law Lib., 100. 7 Law Lib., 44. 2 Burr., 812, Maud vs. Barnard. The appraisement is entirely aside from the writ, is no part of it, and if it had never been made the attachment would still have been good. 3 H. & McH., 614, Davidson's Lessee vs. Beatty. That an attachment may be issued upon an account charging for merchandise as "per bill rendered," was decided in the Superior Court of Baltimore after full argument. But the credits must be applied to the first items in the bill, and then the balance due would be more than enough to cover these proceeds.  

JUDGES:
The cause was argued before ECCLESTON, MASON and TUCK, J.  

OPINIONBY:
TUCK 

OPINION:

 [*68]  TUCK, J., delivered the opinion of this court.
The questions arising on this record relate to the validity of proceedings under the 8th section of the act of 1842, ch. 293, which authorises [**18]  an attachment against the property of a married woman, trading as a feme sole. The appellant claims the property as trustee for the benefit of creditors under a deed executed by the husband and wife.
Several propositions were presented in the court below, and argued here, but as we think that the objection raised by the third prayer is fatal to the plaintiff's right to recover, we shall not express any opinion upon the others.
The proceedings under this act are required to be "by attachment from the county court to compel payment, upon petition and proof of claim, according to the circumstances of each case, according to the course of the attachment law." We are of opinion that the provisions of the acts relating to attachments should be observed, as far as the same are not inconsistent with the design and purposes of this act of Assembly. The proceeding and the judgment are in rem, and not in personam. The object is, not to compel the appearance of the debtor with a view to a judgment against her, nor to seize her property by way of execution, but to obtain a lien on property acquired in a specified manner, with a view to the payment of the claim, if it should appear [**19]  that the party is indebted as charged. Hence the capias under the former, or summons under the present practice, is not necessary. But the act does not deny to the feme covert 

 [*69]  debtor the right of protecting her estate against claims of this kind. On the contrary, she is entitled to the same means of becoming acquainted with the existence of the proceedings as are secured to other debtors, "according to the course of the attachment laws." It would be a harsh construction to place upon this act to say, that while it professes to encourage the skill, industry and personal labor of married women, by allowing them to hold separate estate thereby acquired, they shall be liable to have it wrested from them by an ex parte proceeding, when all other persons are protected by the very laws according to which the creditor is required to proceed against her. It confers the privilege of trading as a feme sole, but, at the same time, her creditor is distinguished above those of other persons, by having the benefit of a summary process by way of attachment and lien, for the recovery of his demand, without the delays and embarrassments attending the ordinary forms of judicial [**20]  proceedings, and he cannot reasonably complain if his debtor be allowed an opportunity of challenging the justice of his claim. It is manifestly unjust to deprive a party of his property without notice, or what the law declares to be equivalent to notice. An eminent jurist has said, that all judgments rendered anywhere against a party who had no notice of the proceeding, are rendered in violation of the first principles of justice, and are null and void. 2 Kent 109. This right, given in terms to others, is not denied to this party, and cannot be taken away by construction.
The filing of the short note and sending a copy with the attachment, to be put up at the court house door, as a means of notice to the debtor, is indispensable under the act of 1795, ch. 56; Stone vs. Magruder & Brooke, 10 G. & J. 383; and we think that it is equally important in cases under the act of 1842. It was said in argument that the scire facias clause in the writ of attachment can accomplish all or more than the short note will probably effect. This may be so, but not necessarily, and the same argument might be used, and with greater reason, against the employment of the short  [**21]  

 [*70]  note in attachments against absconding or non-resident debtors, yet the law will not dispense with this means of notice as to them. Again, the sheriff is required to make the writ known, not to the debtor, but to the party in whose hands the attachment may be laid, and this may not be the debtor, but some other person in whose possession her credits or property may be found, and condemnation may be obtained without any knowledge, on her part, of the pendency of the proceedings. As far as this record discloses, if Mrs. Magruder had had no other means of knowledge, the property in this case might have been condemned, notwithstanding this clause in the writ, for it does not appear by the return of the sheriff that she had the benefit of it, either as debtor or as the party in whose possession the property was found.
The objection is not obviated by the fact that the party appeared voluntarily. The want of the short note is fatal to the proceedings. Without it they are coram non judice and void. 6 G. & J. 335, Wever vs. Baltzell. Ibid., 345, Bruce vs. Cook. 10 Do. 386.  5 H. & J. 132.
It is proper to say that we do not agree with the appellant [**22]  that the property of the debtor cannot be taken in limine, but only after petition, answer and proof of the claim. This might--nay probably in most cases would--defeat the very object of the party in suing out the attachment. It is sufficient if the creditor lay a foundation for the writ, by affidavit and the proper voucher, according to the present practice.
As the objection which we have noticed is fatal to the proceedings, the judgment must be reversed without a procedendo.
Judgment reversed and procedendo refused. 

102 of 187 DOCUMENTS 

JOHN ESCHBACH vs. CHAS. H. PITTS, Trustee of GEO. E. DONALDSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Md. 71; 1854 Md. LEXIS 31 

DECEMBER, 1854, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Court of Common Pleas for Baltimore city, from an order in insolvency, passed in the proceedings upon the application of Donaldson, for the benefit of the insolvent laws.

The facts agreed upon by the parties are briefly these: A paving tax for the paving of Biddle street in the city of Baltimore was assessed upon the real estate of one Alcock, who subsequently sold the property in fee to Hall, who afterwards leased a part of it to Donaldson. Subsequently, viz., on the 18th of June 1851, Donaldson applied for the benefit of the insolvent laws, and Pitts was appointed his trustee, and on the 16th of July following, sold the said leasehold property for $ 900, which sale was duly ratified. Under the notice to creditors to file claims, the appellant filed an account for this paving tax of $ 186.37, which was admitted to be correct, but which it was contended was barred by limitations. This account was allowed by the auditor in his report of the 17th of December 1851, to which allowance certain other creditors, holders of mechanics' lien on the property, excepted. These exceptions the court (MARSHALL, J.,) sustained, and delivered the following opinion, in conformity [**2]  with the act of 1849, ch. 88, sec. 4.

"The points decided by me were these: 1st. That the act of 1840, ch. 63, does not make the taxes of the city of Baltimore, a lien upon the real estate upon which the tax is imposed, but simply gives a power to the city to provide by ordinance for the sale of real estate for taxes. The act of 1797, ch. 90, gave the power to sell lands in the counties for taxes, but has not been thought or decided, so far as I have been informed, to have made taxes a lien upon real estate in the counties. On the contrary I have not supposed taxes to be a lien upon real estate, except so far as they are declared to be by act of Assembly of 1843, ch. 208, secs. 6 & 7.

"2nd. I did not suppose that the right to distrain the personal property existed in the collector for payment of taxes due and incurred by Alcock, he having in the meantime sold the property in fee to Hall and Hall leased to Donaldson. Had I thought the personal property of the purchaser from the trustee found on the premises, liable to distress for Alcock's taxes, I should have held the insolvent estate of Donaldson liable for the taxes, but being of the opinion that the purchaser, not holding [**3]  under Alcock, was not liable to be thus disturbed for Alcock's debt, I saw no equitable reason to charge the insolvent estate with Alcock's obligations.

"3rd. The statute of limitations was relied on. For these reasons I have overruled the allowance of the claim for taxes, and sustain the exceptions referred to in the above statement."

From the order sustaining these exceptions, Eschbach appealed.  

DISPOSITION:
Order reversed and cause remanded.  

HEADNOTES:

It is the duty of the trustee of an insolvent debtor, to sell the property of the insolvent free and discharged of all liens and incumbrances, reserving the settlement of all priorities and liens, until the final distribution of the fund.

The taxes for paving streets in the city of Baltimore, are imposed on the property and not on the owner, and though a personal action for them may be maintained by the city against the owner, this does not affect the specific liability of the property.

The ordinance of the mayor and city council of Baltimore, of March 9th 1841, authorising the sale of real as well as personal property, for the payment of taxes due the city, is a legitimate exercise of the power conferred by the act of 1840, ch. 63, and makes the taxes a lien on the realty, as much so as a judgment at law; per Le Grand, C. J.

A judgment is a lien on lands, only because they are liable to be sold in satisfaction of the judgment: it is the right to make the debt out of the land which creates the lien; per Le Grand, C. J.

There is no principle of limitations, except that recognised in statutes, which limits the duration of a lien, and the statute of limitations of this State applies to actions therein specified and not to liens upon property for payment of taxes.  

COUNSEL:
J. Malcolm and J. M. Campbell for the appellant.

The act of 1849, ch. 88, which authorises this appeal, prescribes what questions shall be argued in the appellate court. No point not appearing in the statement or certificate of the judge to have been decided by the court below can be argued here. The question of limitations does not so appear to have been decided, and is therefore out of the case. But suppose it to be an open question. When the trustee sold the property he was bound to discharge the liens upon it. The city at that time had an undoubted power to distrain upon the property for taxes, (act of 1817, ch. 148, sec. 4,) and limitations are therefore out of the case, even if that objection had any foundation in fact, for if [**4]  the taxes were a lien, limitations is no bar. 6 Gill, 58, Farmers Bank vs. Iglehart. 10 Pet., 598, Brent vs. Bank of Washington. 3 Gill, 445, Dallam vs. Oliver's Excrs. But we must take it to be true, that the principal of the taxes was due on the 1st of January 1849, for this appears upon the face of the bill which is admitted to be correct. This disposes of the question of limitations, because three years had not elapsed before the filing of the claim.

But the taxes are expressly made a lien, by the act of 1840, ch. 63, and the ordinances, Nos. 13 and 24, of the mayor and city council in pursuance thereof. The act gives the power to sell real estate for the payment of taxes, and makes the city authorities, so to speak, a sheriff to execute this power. If these taxes were a lien upon the estate in the hands of Alcock, they were so upon the same property in the hands of his alienee, for if there be any thing in a lien it cannot be defeated by alienation. The question then is, were the taxes a lien upon the property in the hands of Alcock? The principle is, that the city stands in the same relation to the property that a judgment creditor would. Now how does a judgment creditor [**5]  get a lien? It results solely from his right to sell the land to pay his judgment. It was the consequence of the right to sue out an elegit. 4 Pet., 136, United States vs. Morrison. 5 Pet., 367, Taylor vs. Thomson. 3 G. & J., 359, Hanson vs. Barnes. 8 G. & J., 38, Miller vs. Allison. The lien attaches to the land, the ordinance makes it a lien on every estate or interest in the land. If this is so limitations cannot bar it. Where do you get limitations from except from the statute? But the statute does not apply to liens, it only bars actions at law, and is only adopted by analogy in courts of law. No one ever supposed limitations was a bar to a distress, because we do not go into a court of law to enforce it. The same rule applies to liens.

William B. Perine for the appellee.

The paving of Biddle street was determined upon in April 1848, and on the 6th of July 1848, a warrant was issued to the collector to collect the sums assessed. At that time Alcock was the owner in fee of the property. The benefit was to him, it was a debt due by him, and there was a personal liability on him to pay it. He remained owner until July 1850, when he conveyed to Hall who owned it in fee till [**6]  January 1851, when he leased it to Donaldson. Up to this time nothing is heard of this claim for taxes, which was not filed with the trustee until July 1851. Unless it be a lien, therefore, the claim is clearly barred by limitations.

I insist that these paving taxes are not a lien upon the insolvent's estate. If they are, they can only be made so by virtue of legislative authority. The mayor and city council have no right to pass an ordinance constituting taxes a lien upon real estate. I see no such authority in their charter, or in any subsequent legislation. There is none such in the acts of 1796, ch. 68, or 1797, ch. 54, or 1797, ch. 90. The act of 1840, ch. 63, only enables the city to provide for the speedy collection of taxes, by authorising a sale of the property for that purpose, but it does not constitute the claim in reference to which the sale is made a lien. The same act provides also for the sale of personal property, but this cannot give a lien: it will not be pretended, that if Alcock had personal property on the land he could not pass a valid title to it by sale. So it is with real estate. The ordinance No. 13, even suppose the city had power to make the taxes [**7]  a lien does not do it, and the ordinance No. 24, only makes them a lien upon the property on which the assessment is made, and this claim therefore can only be a lien on Alcock's estate in the land.

But suppose it be a lien, when is it to terminate? The paving was done in 1848. The taxes are due on the making out of the list and delivery to the collector. They are not a judgment lien, and must be barred by limitations.  

JUDGES:
The cause was argued before LE GRAND, C., J., ECCLESTON and MASON, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*75]  LE GRAND, C. J., delivered the following opinion.
This is an appeal from the court of common pleas of the city of Baltimore, under the act of 1849, ch. 88.
It appears from the record that Mr. Pitts, as permanent trustee of Mr. George E. Donaldson, an insolvent debtor, sold his leasehold interest in a certain lot of ground in Biddle street, in the city of Baltimore. Against the fund arising from the sale certain claims were interposed, among which, is that of the appellant for the paving of Biddle street. When the paving was done the property belonged to a Mr. Alcock, who subsequently sold it to a Mr. Hall, who leased it to the insolvent Donaldson. Exceptions [**8]  were filed to the allowance of the claim of the appellant, which were sustained by the court. The appellant insisted, that the claim for the paving tax was a lien on the property which the trustee sold; this was denied by the other creditors, and their view of the matter was concurred in by the learned judge who decided the case below.
By the act of 1805, ch. 110, sec. 7, and the decision in the case of Alexander vs. Ghiselin, 5 Gill 138, it is made the duty of the trustee of an insolvent debtor to sell the property of the insolvent, free and discharged from all liens and incumbrances, reserving the settlement of all priorities and liens, until the final distribution of the fund. If, therefore, the paving tax is a lien on the property, the appellant is entitled in the distribution of the estate of Donaldson to a priority over the exceptants.
The tax is not imposed on the owner of the property but 

 [*76]  on the property. It is true, a personal action against him may be maintained by the city, but this in no manner affects the specific liability of the property. The exigencies of society require there should be a summary mode for the collection of the public revenue,  [**9]  and accordingly, from time to time, the legislature have passed acts authorising the collection of public taxes by sale and distress. The act which particularly bears on this case, is that of 1840, ch. 63. It authorises the Mayor and City Council of Baltimore "to provide by ordinance or otherwise, for the prompt collection of taxes due to the city of Baltimore, and to that end may and shall have power to sell real as well as personal property, anything in any act or acts of Assembly, to the contrary, notwithstanding." In pursuance of the power thus conferred the Mayor and City Council passed the ordinance No. 13, which was approved March 9th, 1841. The second section provides, where the taxes are not paid within a certain specified time, that it "shall and may be lawful for the collector of the city, and he is hereby authorised and required, after thirty days previous notice by advertisement as aforesaid, to sell to the highest bidder such lot or lots of ground, or such parts thereof, as may be sufficient to discharge the said taxes, costs and charges." The third section of the same ordinance relates more specifically to "paving" tax, and makes it the duty of the collector [**10]  to enforce the payment of the same.
I regard this ordinance as but a legitimate exercise of the power conferred by the act of 1840, ch. 63. It authorises the sale of real as well as personal property. There can be no doubt, that prior to the passage of these laws, personal property found on the premises could be sold for taxes due on the realty, and I regard the act of 1840, and the ordinance of 1841, as designed to give the same control over the realty as was previously possessed in regard to the personalty, which being easily removed, and the parties owning the lot on which the tax was imposed frequently becoming insolvent or removing from out the jurisdiction of the State, the city was subjected to great loss. It was to remedy this evil the 

 [*77]  ordinance was passed. I regard, therefore, the tax as a lien on the realty; as much so as though it were a judgment rendered in a court of law. It is true, it is not said in so many words, anywhere in the act of Assembly, nor in this ordinance, that it shall be a lien. Nor is it said in so many words in any act of Assembly, that a judgment rendered in a court of law shall be a lien on realty, but it has been so held for a [**11]  long time in this State and in England. A judgment is a lien on lands, because--and for no other reason--the lands are liable to be sold in satisfaction of the judgment. This was the view of the Court of Appeals, in the case of Miller vs. Allison, 8 Gill & Johns. 35. The principle being adopted in analogy to the statute of Elegit, Westminster the 2nd, 13th Edward 1, ch. 18. Prior to the passage of this statute a judgment was no lien, because until then the land could not be taken in execution. The statute does not point out any particular mode or manner of execution, but simply authorises the debt to be made out of the land. It is this right, however, to make the debt out of the land, which creates the lien. This being so, I can perceive no difference in principle, between an authority in the Mayor and City Council of Baltimore to make the debt out of the land, and the power of a judgment creditor to do the same thing.
But whatever doubt there may be anywhere, as to the effect of the ordinance of 1841, there ought to be none, I think, in regard to the ordinance No. 24, approved March 28th 1843. That ordinance expressly makes the paving tax [**12]  "a lien" on the property.
In regard to the plea of limitations, it may be remarked, that it does not very satisfactorily appear, whether the court held the plea good or not. It is admitted that the claim which is set out in the record is correct, its payment being resisted on grounds independent of its verity. It does not appear from anything in the record when the work was done, and I cannot therefore see whether it was filed within three years or not. But, apart from this, I know of no principle of limitation, except that recognized in statutes which limits 

 [*78]  the duration of a lien. Our statute of limitations applies to actions therein specified, and not to a proceeding like this. Had an action of assumpsit been instituted, perhaps the plea of limitations could have been successfully availed of. In such a case the proceeding would be in personam, and it well might be, that the debtor could avail himself of the statute; but where the claim is enforced against the thing, I repeat, I know of no principle which limits the duration of the lien, except such as is set out in some statute, or which is adopted in analogy to its provisions. There is none such applicable [**13]  to this case. For these reasons, I am of opinion the ruling of the Court of Common Pleas ought to be reversed and the cause remanded.  

CONCURBY:
ECCLESTON; MASON 

CONCUR:

By Judges ECCLESTON and MASON: We concur with our brother, that the order of the Common Pleas ought to be reversed, but do not think it necessary to decide anything in regard to the ordinance No. 13, of 1841. We think that of 1843 all sufficient for the purposes of this case.
Order reversed and cause remanded. 

103 of 187 DOCUMENTS 

WILLIAM P. PRESTON and H. P. HEPBURN, vs. SIMON LEIGHTON, use of KELLY, BALL and CO.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Md. 88; 1854 Md. LEXIS 33 

DECEMBER, 1854, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

This is the second appeal in this case, the first being reported in 9 Gill, 201. The action was assumpsit by the appellee against the appellants. The pleadings and all the facts in the case are the same as in the former appeal, with the exception of the additional proof by the defendants, that Rosenthal and Mosher applied for the benefit of the insolvent laws, on the 31st of January 1845, showing by their schedule $ 9000, of debts due by them, and no property but that sold by the defendants, and that Glenn was duly appointed and bonded as their permanent trustee.

The only other facts necessary to be stated for an understanding of this appeal are, 1st. That the mortgage by Rosenthal and Mosher, to the appellee Leighton, of the 21st of January 1845, purported to convey all the goods, wares and merchandise, and all the fixtures, then in the store occupied by the mortgagors, and "also any and every increase, accumulation or accession of goods, wares and merchandise, which may be made or added to the present stock on hand or in store, from this day forth until the above debt or sum of $ 330 is fully liquidated and paid," which mortgage [**2]  was not recorded until the 3rd of February 1845. 2nd. That at the date of this mortgage the property embraced in it was under a distress for rent of the store, laid on it on the 18th of January 1845, for rent in arrear, due on the 1st of said month, and was also levied on by a fi. fa. at the suit of one Wyeth. 3rd. That the mortgagors remained in possession of the mortgaged property, from the date of the mortgage until the 25th of January 1845, the date of the deed of trust to the appellants including all the property real and personal of said Rosenthal and Mosher, and all debts due to them, and all vouchers, evidences and writings, touching or concerning the same, which was recorded on the 29th of the same month, and during that time the mortgagors, with the knowledge and consent of the mortgagee, sold some of said goods and bought others, which they put into the store, together with those on hand at the date of the mortgage, but the witness could not say how many or to what amount or value they so sold or bought. And 4th. That on the 27th of January 1845, the appellants, under their said deed of trust, took possession of the said property, and upon undertaking to satisfy the said [**3]  distress for rent, and fi. fa., sold the same on the 7th of February following, for the net amount of $ 1203.01.

Exception. Upon the aforegoing evidence, the defendants asked the instructions in substance as follows:

1st. If the jury find that after the execution of the mortgage to the plaintiff, goods were brought into said store and others sold out of it, with the privity of plaintiff, in the manner stated by the witness, then the mortgage did not pass the title to the goods so subsequently acquired, and to enable the plaintiff to recover for a specific amount, it is necessary he should satisfy the jury by evidence, of the proportion of money received by defendants, as the proceeds of the goods remaining in the store at the execution of the mortgage, as distinguished from those afterwards brought therein.

2nd. If they find that at the time of executing said mortgage, it was understood and agreed between the parties thereto, that Rosenthal and Mosher were to remain in possession of the mortgaged property, until the note therein recited fell due, and were in their own name to sell and convey to any purchaser, as of the goods thereby conveyed, and to buy others which [**4]  were to be considered as between the parties, subject to said mortgage, then the defendants, being subsequent purchasers by their deed of trust, cannot be charged by virtue of said mortgage, unless they had actual notice thereof.

3rd. This prayer was abandoned in argument in this court by the appellants.

4th. If they find that the deed of trust to the defendants was recorded prior to the recording of the mortgage, under which plaintiff claims, then it takes precedence over said mortgage, provided they find it was made bona fide.

The plaintiff then asked the following instructions.

1st. This prayer is the same as the first prayer of the plaintiff on the former appeal, (see 9 Gill, 202,) with the following proviso. Provided the jury shall further find, that after deducting whatever money may have been proved to have been paid by the defendants, out of the proceeds of sales, enough for that purpose, of the goods which belonged to the mortgagors at the date of said mortgage, and which were so mortgaged by them, came into the possession of and was solely the defendants, and that the burthen of proof that there was not enough for that purpose lies on the defendants.

2nd.  [**5]  If they find the facts stated in the foregoing prayer, the plaintiff is entitled to recover as therein stated, even if they believe that Rosenthal and Mosher were actually insolvent at the date of the mortgage, unless they also find that the plaintiff had, at the time of the execution thereof, actual notice of their insolvency, derived from a knowledge of their condition.

The court (FRICK, J.,) rejected all the defendants' prayers and granted those of the plaintiff, and to this ruling the defendants excepted, and the verdict and judgment being against them appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Where a case comes up upon a second appeal, and the facts are substantially the same as those upon which the first appeal was tried, whatever was decided on that appeal must govern on the second.

Where a prayer asserts two propositions it is properly rejected if either be erroneous, though the other may be correct.

A mortgage was executed of all the goods and fixtures then in a certain store and covering also the subsequently acquired goods. After this mortgage, and after some of the goods had been sold by the mortgagors, and others purchased, parties claiming under a subsequent deed tortiously took possession of all the property and sold it, HELD:

That the burthen of proof was on such parties, to show what proportion of the property which was in the store at the date of the mortgage came into their hands: every presumption is made against a wrong doer.

Where there is no evidence upon which to base the hypothesis of a prayer it is erroneous.

The appellants cannot complain of error in a proviso added to a prayer, which would operate for their benefit

The notice which would vitiate a conveyance, under the act of 1834, ch. 293, is not a technical or constructive notice, but an actual notice derived from a knowledge of the condition of the grantor.  

COUNSEL:
Robert J. Brent for the appellants.

The first point which arises in this case is in regard to the rejection of the first prayer of the appellants. The first proposition in this prayer, that the mortgage did not pass title to the goods subsequently brought into the store, is undoubtedly well founded in authority. 50 Eng. C. L. Rep., 379, Lunn vs. Thornton. 53 Do., 850, Gale vs. Burnell. 46 Do., 245, Tapfield vs. Hillman. 2 Cushing, 295, Barnard vs. Eaton. The remark of Judge Chambers in the case of Robey vs. Hannon, 9 Gill, 440, that a deed would pass after acquired property is a mere [**6]  obiter dictum, and is not sustained by the authorities.

The second proposition contained in this prayer merely claims to throw upon this mortgagee the onus of distinguishing his mortgaged goods from that confusion with other goods which was the result of his own conduct and acquiescence, while we assert that the prayer might well have asked much more by claiming a forfeiture of all the mortgaged goods as the legal consequence of the fraudulent conduct of the mortgagee. The mortgage does not allow the mortgagors to remain in possession, and the mortgagee might have stopped their selling the mortgaged goods at once by taking possession before the maturity of the note. 6 G. & J., 72, Jamieson vs. Bruce. But this would not answer his and their purpose. Hence the mortgage is drawn to cover all goods that the mortgagors might subsequently buy on credit. But he does more; he stands by and allows this ostensible ownership over his property with full knowledge of the facts, and no objection is shown on his part. Now would the law enable him to set up his secret mortgage against those who subsequently purchased goods at that store? In such case it would rather hold that he has waived his [**7]  legal rights by acquiescing in the sale of the property without disclosing his lien. But he not only waives in favor of purchasers, but he must equally do so in favor of creditors who are induced to sell goods on the credit furnished by this ostensible ownership, or who grant indulgence to their pre-existing debtors on the faith that they are doing business on an unincumbered stock in trade, and this is the principle on which the law postpones even a dormant or sleeping execution in favor of subsequent creditors. 17 Johns., 276, Kellogg vs. Griffin. 2 Kent, 528. If execution creditor after levy on goods suffers them to remain in the hands of the debtor an unreasonable time, it is legal evidence of the delay being his act and fraudulent towards creditors, (Wallace's C. C. Rep., 178, United States vs. Conyngham. 1 Smith's Lead Cases, 77,) and those who represent creditors are in fact creditors. 1 Md. Rep., 474, Waters vs. Dashiell.

The suppression of the mortgage under the circumstances is a suspicious circumstance, and shows a quo animo to defraud, which would forfeit the otherwise legal mortgage. 2 Md. Ch. Dec., 281, Gill, vs. Griffith & Schley. 53 Eng. C. L. Rep., 862. Where [**8]  property is perishable and consumable in the use, the debtor's continuing in the use and possession is evidence of fraud in fact, (3 Yearg., 502, Darwin vs. Handley. 4 Do., 541, Sommerville vs. Horton. 3 Metcalf, 117, Robbins vs. Parker. 2 Do., 263, Briggs vs. Parkman,) a fortiori, where the debtor is allowed to sell the property or to have a beneficial use in it. 3 New Hamp., 415, Coburn vs. Pickering. 6 Alabama, 178, Wiswall vs. Ticknor. 7 Humph., 179, Gibbs vs. Thompson. 16 Ohio, 547, Collins vs. Myers. 2 Kent, 515, 516. But these trustees do not merely represent creditors. In a court of law they stand as legal purchasers of the goods for valuable consideration, without actual or constructive notice. That the consideration stated in the deed is valuable in law, being a trust to pay debts and responsibilities incurred, see 2 Story's Eq., sec. 1229. 9 Ves., 99. 8 B. Monroe, 68, Collier vs. Baptist Education Society. 13 Wend., 570, Root vs. French. 2 Fairfield, 227, Trott vs. Warren. 8 Cowen, 238.

In a court of law the seal affixed to their deed imports a full and valuable consideration. Lewin on Trustees, 116. 2 Kent, 465. The appellants then are to be taken as bona fide purchasers [**9]  of the mortgaged goods, with no notice, actual or constructive, at the date of their acquiring title and possession. Why should they be bound to show what belongs to the plaintiff and what to them, out of a confused or blended mass of goods and merchandise? In such a case the onus should be upon the party who caused such confusion, especially when that conduct is marked with the badges of fraud, and not upon the innocent purchaser. For cases on the doctrine of confusion and intermixture of goods, see 15 Ves., 432, Lupton vs. White. 1 H. & G., 70, Ringgold vs. Ringgold. 2 Do., 428, Hudson vs. Warner & Vance. 2 Kent, 364. From all these cases it undoubtedly is the rule that if the bailee confuses his goods with those of the bailor, and without the latter's consent, he would forfeit all that could not be distinguished from the bailment. But suppose the bailee sells the confused mass to a purchaser who is ignorant of the bailment, can the latter suffer a forfeiture, especially in favor of the bailor who was privy to this confusion, and who was actuated by a fraudulent purpose towards subsequent creditors of and purchasers from the bailee?

The evidence on which our second prayer rests [**10]  is found in the fact, that the mortgage itself contemplates that the mortgagors should make additions to the stock in trade, and in the further fact that they went on with the knowledge of the mortgagee to sell the goods in the regular course of their business. This conduct of the parties, with the purpose indicated on the face of the mortgage, was evidence on which the jury might find the understanding set forth in the prayer, and if found the law would clearly annul the mortgage in favor of creditors or purchasers, as is clearly established by the cases above cited. See also 1 Kent, 523, 524. 43 Law Lib., 50. Our fourth prayer should have been granted as it is fully authorised by the act of 1825, ch. 203, sec. 1.

The prayers of the appellee must fail if the preceding views are correct. Besides it will be seen that the sale made by the appellants was after the insolvent application of Rosenthal and Mosher, and the prayers of the appellee exclude the idea of title in the insolvent trustee, and are for this reason erroneous. 5 Gill, 179, Alexander vs. Ghiselin. 1 Md. Rep., 470, Waters vs. Dashiell. 9 Gill, 179, Malcolm vs. Hall.

J. M. Campbell for the appellee.

1st. Their [**11]  first prayer affirms, that the title to the goods subsequently bought did not pass by the mortgage, and that the burthen of proof to show that enough of the original stock remained to satisfy his claim lay on the appellee. It is answer enough to the first part of this prayer that the appellee set up no title, as appears by his first prayer, to the goods subsequently acquired, and that the point therefore as to the title to them was immaterial. As to the burthen of proof, it clearly lay on the appellants to show what goods were subsequently bought. The appellee could not possibly prove the fact. Had the mortgagors made such a point in any dispute between them and the appellee, they would have been bound to furnish such evidence, as they alone would have the power to do it, and the appellants represent them, and under the deed have possession of all their books and accounts. There is no question of fraud in the case; it is simply a question of evidence. The confusion arises from the acts of the appellants; they made the sale and thus rendered the identification of the goods impossible.

2nd. Their second prayer proceeds on the hypothesis, that the appellants were purchasers by the [**12]  deed of trust, and their title good against the mortgagee, unless they had actual notice of it, if the jury found that the mortgagors were, by agreement at the time of the mortgage, to remain in possession until the note secured fell due, and make sales in the meantime. This position is affirmed not merely as to the subsequently acquired property, but also to that which was owned at the time of the mortgage. There was no evidence of any such agreement as the prayer assumes. Under the mortgage the appellee could have taken possession at any time, and there is nothing to show that he ever restricted himself in the exercise of that right. But waiving this consideration, it is perfectly clear that the appellants are not purchasers. 2 White's Lead. Cases, 104 to 106. 11 Paige, 564, Wyckoff vs. Remsen. 2 Story's Eq., secs. 1038, 1229.

3rd. Their fourth prayer assumes, that by force of the act of 1825, ch. 203, their deed as first recorded has priority over our mortgage. The first objection to this is, that it submits to the jury as a question of fact, determinable by them, the times of recording the deed and mortgage. There was no conflicting testimony on this subject, and the fact,  [**13]  therefore, was for the court to find. 3 Gill, 231, Budd vs. Brooke.

The second objection is, that by the act referred to the deed first recorded has precedence only where it is made bona fide, and on a good and valuable consideration, and the prayer omits any mention of the consideration, and only requires the jury to find bona fides without consideration. But apart from all technical objections, the conflict between the conveyances contemplated by the act does not exist in the present instance. There is no conflict as to the property conveyed, because the conveyance to the appellants is not of the same property which is embraced by the conveyance to the appellee. The conveyance to the appellants is not of the goods in the store, nor of the goods in the possession of the grantors, but only of the goods, &c., of, or belonging to, the grantors, which, of course, excludes what they had already conveyed to the appellants. It only conveys what the grantors had the right to convey; that is, the equity of redemption so far as the goods covered by our mortgage are concerned. 2 White's Lead. Cases, 104. Neither is the character of the appellants' deed such as to entitle it to a preference,  [**14]  even if both conveyed the identical property. It is not a deed founded upon a consideration both good and valuable, within the meaning of the act of 1825. 11 Paige, 564.

4th. Our first prayer is in the language of that on the former trial, which the Court of Appeals, in 9 Gill, 205, say ought to have been granted. The proviso added does not change the prayer thus sanctioned. It merely restricts the right of recovery within narrower limits, and sets up no title to the proceeds of the after purchased goods. Allowing the appellant such proceeds, and also all their payments, but at the same time casting the burthen of proof as to the amount of the after purchased goods upon the appellants. The grounds on which this addition as to the onus probandi rests are set out in the observations above made on the appellants' first prayer.

5th. Our second prayer is a repetition of the first, with the addition of the fact of the technical insolvency of the mortgagors, and asserts the proposition that such insolvency cannot defeat the mortgage, unless the mortgagee had actual notice and knowledge at the time the mortgage was executed of the insolvency of the mortgagors. This proposition is [**15]  taken verbatim et literatim from the opinion of the Court of Appeals, in the case of Cole vs. Albers & Runge, 1 Gill, 422, and is for that reason correct.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and TUCK, J.  

OPINIONBY:
TUCK 

OPINION:

 [*97]  TUCK, J., delivered the opinion of this court.
The present record is the same with that on which the former appeal was decided, with the addition of proof that Rosenthal and Mosher applied for the benefit of the insolvent laws, on the 31st of January 1845, and that Glenn was appointed their trustee.  9 Gill 201. This additional evidence does not vary the law of the case, because by the deeds of January 21st and 25th, 1845, all the interest and title, legal and equitable, of the petitioners, had been conveyed away, and there was nothing as to this property, on which the insolvent laws could operate.  Malcolm vs. Hall, 9 Gill 177. The case being substantially the same, whatever was decided on the former appeal must govern on this.
The first prayer of the appellants asserts that the mortgage did not operate to convey subsequently purchased goods, and that the onus of showing what proportion of the property,  [**16]  which was in the store at the date of the instrument had passed into the hands of the defendants, was upon the plaintiff. If either of these propositions be erroneous, the prayer being an entirety, was properly rejected Budd vs. Brooke, 3 Gill 198.
The burden of proof was upon the defendants. All the goods, fixtures, &c., in the store, had been conveyed to the plaintiff by a deed that is not impeached. Afterwards the defendants took possession of this property, or of what remained, together with the accounts and books, from which the extent of the new purchases might probably have been ascertained, and sold it at public auction, by which, the Court of Appeals said, they committed a tort. A few days before the execution of the deed of trust the property was abundantly sufficient to pay the plaintiff's claim, and, but for their interference, might have so remained, until disposed of according to law and the rights of persons interested. If they have by a tortious act, deprived the plaintiff of the means of proving his case, as fully as they insist he should have done, or, if, having possessed themselves of the books and accounts, they will not produce them for [**17]  the purpose of explaining or rebutting 

 [*98]  the case as presented on the part of the plaintiff, they cannot complain of the consequences. Every presumption is made against a wrong-doer.  Armory vs. Delamirie, 1 Strange 504, was decided upon the ground, that the defendant had suppressed the means of ascertaining the truth by withholding the jewel, for the value of which the suit was brought. It would be unreasonable, under the circumstances in which the plaintiff was placed by the act of the defendants, to cast this burden upon him. 1 Greenlf. on Ev., secs. 79, 196. For this cause the whole prayer was properly rejected, even if the first proposition therein mentioned was correctly stated as matter of law, on which we express no opinion.
The appellants' second prayer was properly refused, because there was no evidence of the supposed agreement or understanding between the appellee and his debtors, on which this prayer is based.
The appellants' third prayer was abandoned. Their fourth assumes that the deeds of the 21st and 25th of January 1845, were for the same interest in the same property. But this is not so. The plaintiff held the legal [**18]  title as a security for his debt: the defendants under their deed, were entitled to the equity of redemption only. This was distinctly decided on the former appeal. The facts on which this prayer was submitted were then before the court, and the question was raised by the plaintiff's first prayer, which the court said should have been granted. Yet they held that the defendants were only entitled to the proceeds of sale, provided they satisfied the mortgage debt.  9 Gill 205. The act of 1825, ch. 203, therefore, cannot be said to have any application to the case.
The appellants have no reason to complain of the plaintiff's prayers, as granted. The first is identical in terms with one that had been approved of on the former appeal, with the addition of a proviso limiting the plaintiff's recovery to a portion of the proceeds of sales in the defendants' hands. Of this qualification they cannot complain, because, if erroneous, it would operate for their benefit, besides being the view of their liability, as presented by their first prayer, except as to 

 [*99]  the onus of proof, which, as we have seen, the law placed upon themselves and not upon the plaintiff. The [**19]  second of the plaintiff's prayers, merely affirms what the Court of Appeals in Cole vs. Albers & Runge, 1 Gill 412, had said, was the true construction of the act of 1834, ch. 293, viz: "That 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."
Judgment affirmed. 

104 of 187 DOCUMENTS 

GEORGE MCDOWELL and others, vs. SAMUEL H. GOLDSMITH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Md. 319; 1854 Md. LEXIS 53 

DECEMBER, 1854, Decided 

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

The bill in this case was filed in the equity side of Baltimore county court, on the 25th of August 1845, by McDowell and others, creditors of Elizabeth Osborne, to vacate three conveyances made by her to Goldsmith. The first, dated the 14th of July 1841, conveying a lot of ground for $ 2000. The second, dated the 5th of November 1842, being a mortgage of real and personal estate, subject to the acts of 1833, ch. 181, and 1836, ch. 249, to secure an indebtedness of $ 21,500, payable in five years. The third, dated the 16th of February 1844, conveying her equity of redemption in the mortgaged premises in consideration of the mortgage indebtedness, and of the further sum of $ 7550.

The bill alleges that all these conveyances are fraudulent in fact; that they embrace all the property of Osborne; that by them Goldsmith claims the whole of it as absolutely his own; that there is no other property out of which complainants' debts can be paid; that Goldsmith did not pay the consideration mentioned in said deeds, but that they were executed without any legal consideration, and for the purpose of protecting the grantor's property from her creditors;  [**2]  that shortly before, at the time of, and repeatedly after their execution, she declared they were executed without consideration, and merely for the purpose of protecting her property from her creditors, who were urgent for the payment of their claims against her; that the property mentioned in the two last deeds continued in her possession, and that Goldsmith repeatedly admitted that it did not belong to him, but that he held the title nominally to protect it from her creditors; that he executed, before a justice of the peace, an instrument acknowledging that he held the property for her benefit, and to protect it from her creditors; that it stood on the tax books in her name, and she paid all the taxes thereon up to the time of her death, in April 1845; that she received the rents for her own use, and paid the ground rents thereon; that the insurance was in her name down to the 1st of January 1845, and that Goldsmith did not, during her life, effect any insurance thereon.

The bill further charges that Goldsmith was not, at the time of the execution of these deeds, engaged in any business or possessed of any means or credit by which he could possibly have raised or commanded [**3]  the large amount of money pretended to have been paid and advanced by him to said Osborne, and calls upon him to answer particularly how she became indebted to him in the sum of $ 21,500; if for money loaned, at what times, in what sums, and in whose presence it was loaned? if it was his own money, how he acquired and became possessed of it, with what bank or individual he had it on deposit, and whether it consisted of coin or paper? if not his own money, to whom it belonged, and upon what terms and in what sums he obtained it; in what money, at what time and place and in whose presence he paid the $ 7550, the alleged consideration in the last deed? where he has resided for the last ten years, what business engaged in, what capital he had in business, and what were his annual profits? what property he had owned in that time, to whom he had disposed of it, and what he now owns? whether he did not execute and deliver to said Osborne a writing acknowledging that he had no legal title to said property, or only a lien upon it for a sum much less than the considerations mentioned in the deeds, if he did, whether he has seen that paper since her death? if he has, then when, where, and in [**4]  whose possession he saw it, and what has now become of it?

Goldsmith, in his answer, puts the complainants to proof of their claims, and pleads and relies upon the statute of limitations against such as may be shown to exist. He admits the execution of the first deed, and avers that the consideration of $ 2000, therein expressed, was parcel of a much larger sum then owing to him by said Osborne, and was paid by discounting the same from said debt; that it was executed bona fide and absolutely, and without any view, either by himself or her, of delaying, defrauding, or injuring her creditors, and that before this suit he had sold the property. He further avers, that confiding in her solvency, he continued to loan her money from time to time, until the 5th of November 1842, when, upon settlement, she was found indebted to him for money loaned by himself and wife, in the sum of $ 21,500, for which he demanded security, and at his solicitation she executed the mortgage of that date. He admits that she was then indebted to others, but he did not consider her in insolvent or failing circumstances. He denies that, in making this mortgage, either of them was influenced by any desire or [**5]  motive to protect the property against her creditors, or to defraud, delay or injure them. He admits that she remained in possession of the property until the 6th of December 1842, when, finding the interest remained in arrear, he filed his petition in Baltimore county court, as a court of equity, in pursuance of the provisions of the acts of Assembly under which the mortgage was executed, and on the same day obtained a decree for the sale of the mortgaged premises. That subsequently, on the 16th of February 1844, she, having determined to remove to New York, and having no other means of paying him, proposed that he should buy her equity of redemption in the mortgaged premises, to which proposition he assented, and agreed to pay her therefor the sum of $ 7500, which was, as he believes, the full value thereof, and more than he would have given under any other circumstances, and to carry this agreement into effect, the last of said deeds was executed.

He avers that the consideration in said deed was bona fide paid by him, in part by the discount of the balance of his account for interest, by advances since the mortgage of $ 3250, and the residue of $ 4500 paid in money the day [**6]  the deed was executed. He denies all motive or intention thereby to protect the property against said Osborne's creditors, or to delay, defraud or injure them, nor does he believe that she was influenced by any such motive. He denies that she ever declared to him, or in his presence or hearing, that either of these deeds was executed without consideration, and for the purpose of protecting her property from her creditors, nor does he believe that she ever made such declarations to others, but if she ever did, he is advised they cannot prejudice his title. He denies that he ever admitted that the property did not belong to him, or that he held the title nominally to protect it from her creditors, or that he ever executed any writing acknowledging that he had no legal title thereto, or had only a lien thereon for a sum less than is mentioned in said deeds, but admits that at the time of the execution of the last deed, he verbally promised that he would resell the property therein described to said Osborne at any time she should become able and willing to repay him the money he had advanced her, as aforesaid.

He then states, that after the execution of the last deed, said Osborne [**7]  became his tenant of the premises, and paid him rent therefor. That he is unable to state the particular times at which he made the loan to her of the $ 21,500; that said Osborne was indebted to his wife in a considerable sum at the time of their intermarriage in 1832, and that from that time to 5th of November 1842, he made numerous loans to her, and said sum was the result of all their dealings, including the sum so due his wife. He avers that he has no book or books of accounts. In making said loans he sometimes took said Osborne's note, at other times he would make a loose memorandum thereof, and again he would suffer the loan to rest in the recollection of the parties. From time to time settlements were made, when he would take her note for the balance due, and surrender or destroy all previous securities. That in addition to his individual means, he occasionally obtained money from his wife, who had a valuable separate estate. That he has been his own banker, (excepting a short time, in 1836, when he made deposits with the Messrs. Cohen,) taking care to keep his money actively employed. That he dealt indiscriminately in coin and paper, and doubtless made some of said advances [**8]  in coin, though for the most part they were made in bank paper. That his dealings with said Osborne were, for the most part, at his dwelling house, and either without a witness or in presence of his wife alone, and sometimes the advances were made by his wife, in his absence. He is unable to specify any instance in which he made advances in the presence of any particular individual, or to discover in what kind of money, in whose presence, at what places and at what times he paid her the sum of $ 7550, except as before stated. That he has for the last fifteen years resided in Baltimore, and for a number of years has been engaged in loaning money and dealing in securities and property. Of all the particulars of his business during that series of years, and of the profits and losses on each transaction, he submits he is not bound to speak, nor to discover what is the value or what are the particulars of his present estate, and to all such interrogatories, therefore, declines an answer.

The questions decided in the case render unnecessary any statement of the voluminous testimony taken under the commissions, except that of Julia McGee and Grafton D. Spurrier, as to the declarations [**9]  of said Osborne, in reference to the last of the deeds referred to.

The first of these witnesses, McGee, states that the circumstances attending the execution of the deed of the 16th of February 1844, were that some few of Osborne's creditors had presented their claims; that Goldsmith came to her house and told her that her creditors were pushing her and would seize on her property; that Osborne then got witness to go round and see her creditors, to ask them for time; this was about January 1841; the creditors whom witness called on were all willing to wait for their money except one; that a few days after this, Goldsmith called on Osborne, and was there several times in the day, and said Osborne told witness, on the morning he called, that Goldsmith wished her to make over her property to him, and witness overheard him say to said Osborne, "this is the only way in which you can save your property, Betsy;" Goldsmith remained a few moments and then went out with some papers which looked like deeds, and immediately after he left, said Osborne went out without speaking to any one; that she remained away some time and returned crying; that witness being called, then went into her [**10]  room, when she told witness that she had made over her property, or some of it, to Goldsmith.

Spurrier, the conveyancer, who prepared the mortgage of 1842, and the deed of 1844, states that when the mortgage was prepared, Osborne and Goldsmith were both present in his office, and the instructions for its preparation given in presence of both; that as regards the deed of 1844, Goldsmith first called and told witness that Osborne would call on him about said deed, which she did, and gave him instructions as to its preparation. When Goldsmith came, he said that such a deed was to be prepared, and that Betsy Osborne would call and give deponent instructions about it. When said Osborne called on him in relation to said deed, witness asked her if it was possible that she was about to convey her interest in said property to this man, and if she knew what she was about? She said it was not to be an absolute deed of the property; that she had every confidence in Goldsmith, and that he would reconvey back to her the property upon the payment to him of the sum of from $ 6000 to $ 8000, (he cannot recollect the precise sum,) and that Goldsmith would give her a written agreement to that effect;  [**11]  she stating at the time that creditors were pressing her, and that she made the deed absolute then to prevent her creditors from seizing her property, and dragging her furniture about and taking it from her house. Goldsmith was not present at this conversation, nor at any conversation between witness and said Osborne, except at the taking of the memoranda on instructions for the mortgage.

To the testimony as to these declarations of said Osborne, the defendant filed exceptions. The other proof in the case, and the facts as to the claim of Sarah Ann Truitt, are sufficiently stated in the opinion of this court.

The Chancellor (JOHNSON,) decided that the plea of limitations set up by the defendant was available against the claims of all the complainants, except said Truitt, and passed a decree vacating the deed of 1844, as against her, as the holder of a promissory note of said Osborne for $ 1100, dated 6th of November 1843, and such other of the creditors of said Osborne as shall hereafter come in under the decree and prove their claims, and for a sale of the equity of redemption in the premises included in said deed to pay the said claims. The decree then reserves for further [**12]  directions all questions in regard to the claim of said Truitt on the note for $ 2800, dated the 21st of October 1844, dismisses the bill without prejudice so far as it asks relief against the deed of 1841, and the mortgage of 1842, and dismisses it absolutely as to all the complainants except said Truitt. The opinion of the Chancellor, accompanying this decree, is reported in 2 Md. Ch. Decisions, 370, where, also, a more extended statement of the allegations of the bill and answer will be found.

From this decree both Goldsmith and the complainants appealed.  

DISPOSITION:
Decree affirmed and cause remanded.  

HEADNOTES:

Where a deed is impeached by the creditors of the grantor as fraudulent in fact as against them, the fraudulent grantee may plead and rely upon the statute of limitations as a bar to their claims.

Limitations will bar as to trusts created by operation of law, though it may not as to express trusts.

A mortgage was executed under the provisions of the act of 1833, ch. 181, and a decree obtained thereon in the equity side of Baltimore county court. Afterwards a bill was filed in chancery by the creditors of the mortgagor to set the mortgage aside as fraudulent as against them. HELD:

That the decree in equity, under the said act, was sufficient to protect the mortgagee against inquiry in this case into the question of fraud in obtaining the mortgage.

Where a promissory note is in the hands of the holder, endorsed by the payee, the inference is, that it was endorsed, if not on the day of its date, at least before its maturity.

As a general rule, a party will not be permitted, by his own declarations, to defeat his prior deed, but in some cases the declarations and admissions of a grantor will be received where the effect may be to impair the title of persons claiming under him.

The quality and intention of acts may be proved by evidence of declarations accompanying or so nearly connected with them in point of time, as will serve to explain their true character and purpose.

The declarations need not be made immediately with the occurrence of the act, but may be before and sometimes after, provided they be calculated to unfold the nature and quality of the facts they are intended to explain, and so to harmonize with them as to constitute one transaction.

Declarations of a grantor, made, not in the presence of the grantee, to the conveyancer who prepared the deed, tending to show that it was fraudulent, are admissible, as part of the res gestae, against the grantee, in a case where the grantor's creditors seek to vacate the deed as fraudulent as against them under the the statute of 13th Elizabeth. 

COUNSEL:
S. T. Wallis and Chas. H. Pitts, for the creditors, insisted on their appeal, that this being a case where the deeds were impeached for fraud in fact, they could be so impeached by subsequent as well antecedent creditors, (3 Md. Ch. Dec., 477, Brinton vs. Hook. 8 Wheat, 229, Sexton vs. Wheaton. 1 Md. Rep., 470, Waters vs. Dashiell. 1 Story's Eq., sec. 356,) and then argued the following points:

1st. That the proof in the case, in reference to the transactions impeached, is abundantly sufficient to fix fraud in fact both upon Osborne and Goldsmith, and the chancellor should have [**13]  pronounced the mortgage of 1842 void, against the creditors of Osborne, notwithstanding the decree of Baltimore county court passed thereon, ex-parte, under the act of 1833, ch. 181. The proceedings under that act are ex-parte, the decree is not the result of judicial determination. The court investigates nothing, no party could come in and contest the right to a decree, and until the fund is in court, no contest can arise. 3 Md. Ch. Dec., 39, Eichelbergher vs. Harrison. The mortgage and the decree are but parts of the same proceeding, the decree is a mere accessary to the mortgage, and if the latter is fraudulent the former must fall with it: as to the effect of the act of 1833, see 7 Gill, 305, Williams vs. Williams. But the purchase of the equity of redemption by Goldsmith is an estoppel to all proceedings by him, under the decree. He has by this purchase merged all his rights under the decree, and in fact become a defendant in the suit in which it was passed. But again, the deed of 1844, is a subject of inquiry, in this case, including its entire consideration, part of which was this very mortgage of 1842.

2nd. The declarations made by Elizabeth Osborne, before and at or about [**14]  the time of making the respective conveyances impeached, were entirely competent to show her fraudulent intention with regard to those conveyances. 4 Excheq. Rep., 78, Ford vs. Elliott. 11 G. & J., 28, Franklin Bank vs. Steam Navigation Co. 12 Iredell, 247, Harhaw vs. Moore. 3 G. & J., 188, Kolb. vs. Whitely. 9 Gill, 234, Powles vs. Dilley. 5 Day, 341, Merrill vs. Meachum. 8 Gill, 143, Miller vs. The State. 7 Do., 5, Garner vs. Smith. 3 H. & J., 426, Dorsey vs. Dorsey. 7 Gill, 374, Richards vs. Swan.

3rd. The chancellor erred in applying the three years bar of the statute of limitations to the claims of creditors in a case not of constructive fraud, but of gross fraud in fact, concocted between the grantor and grantee, for the express purpose of defrauding the grantor's creditors, especially as there is a total absence of allegation or proof, that the fraud had been discovered by any of the creditors, or that they had knowledge or notice of it at any time prior to the respective dates of their applications for relief. In such a case, the fraudulent grantee becomes a trustee ex maleficio for the creditors of the fraudulent grantor, and cannot plead limitations against their claims;  [**15]  he is not substituted in the place of the grantor so as to plead it. 2 Whart., 245, Englebert vs. Blanjot. As a general rule, whenever in equity fraud is alleged, and proved, the statute will not run, and the exception is, that it runs only from the discovery of the fraud. 2 Story's Eq., sec. 1521, (a,) and note. It is strictly a legal defence, and courts of equity are not, in terms, embraced by it, but they adopt it by analogy, or in obedience to it, according to circumstances, as where the jurisdiction is concurrent, because the party shall not, by electing his forum, avoid the defences which would be pleaded against him at law. The case of Hertle vs. McDonald, 3 Md. Rep., 366, refers to Dugan vs. Gittings, 3 Gill, 138, as containing the true Maryland doctrine on this point, which is, that limitations is a legal bar only where the remedy at law and in equity is concurrent. Now is that the present case? We do not seek to establish our claims against Osborne, but the question is as against Goldsmith, is he the bona fide holder of the property covered by the deeds? as against him what possible remedy had we at law? The fact of indebtedness is not the main issue as between us and Goldsmith,  [**16]  but a collateral one. If Osborne had been sued by us at law, and had pleaded non assumpsit only, would any court in the land have permitted Goldsmith to come in and plead limitations? and if not, how can he set it up in her absence in this case? Where deeds are assailed and set aside for fraud, the property is to be dealt with as if no deed had been executed. 1 Bland, 69, Strike's Case. 2 H. & G., 191, Strike vs. McDonald. 1 Md. Rep., 455, 470, Waters vs. Dashiell. Here the fund was in court for distribution according to equity; it was taken from a party who had committed a fraud, and the chancellor says he has been guilty of fraud, and yet he is allowed to pollute the temple of justice by pleading limitations to the claims of those whom he has defrauded. Such a miscreant should be spurned from the court. Such a doctrine is iniquitous and cannot and ought not to be sustained. That lapse of time will not purge a fraud, see 2 Eden, 280, Alden vs. Gregory. 3 Eng. Law & Eq. Rep., 24, Irvine vs. Kirkpatrick. 4 How., 503, Michoud vs. Girod. At least they should have averred and pleaded as a defence, that we knew of the fraud for more than three years before suit brought. On this point see,  [**17]  also, the following cases: 2 Sch. & Lef., 634, Hovenden vs. Annesley. 11 Clark & Finnelly, 714, Charter vs. Treveylan. 8 Geo. Rep., 1, Pendergrast vs. Foley. 1 Dana, 373, Frankfort vs. Markly. 3 Ala. Rep., 756, Wood vs. Wood. 1 J. J. Marsh, 402, Pugh vs. Bell. 4 Do., 77, Crane vs. Prather. 3 Dessa, 223, Croft vs. Townsend. 4 Dana, 220, Baker vs. Dobyns. 3 Monroe, 40, Haddix vs. Davison. 3 Leigh, 729, Shields vs. Anderson. 1 Hill's Ch. Rep., 121, Eigleberger vs. Kibler. 4 Blackf., 84, Raymond vs. Simonson. 20 Johns. 47, Troup vs. Smith. 3 Sumner, 486, Baker vs. Whiting.

3rd. It is said Sarah Ann Truitt has no standing in court as to her claim of $ 1100. But this position cannot be sustained. The note of Osborne for this sum is dated the 6th of November, 1843, payable in three years, and by its terms was therefore due before this bill was filed. The presumption of law is, that the endorsement of a note was made at the time the note was given, and it was incumbent on the other side to show, that it was endorsed after it was past due. Chitty on Bills, 240, note 1. She had possession of the note and filed it as her claim, and the presumption is, that her possession was a continuing [**18]  one from the date of the making of the note.

On the appeal of Goldsmith they argued: That the fraudulent combination between Goldsmith and Osborne, to defraud the creditors of the latter, was abundantly made out by competent proof, and especially by the declarations of Osborne to Spurrier, when she made the deed annulled by the chancellor, and relied upon the authorities cited upon the 2nd point on their own appeal. That the answer of Goldsmith was suspicious, evasive, and false upon its face, and therefore not of that character which requires the evidence of two witnesses, or of one with pregnant circumstances, to overthrow it. He says he kept no book or memorandum, or account of this large amount of money, and there was no witness to their dealings. Goldsmith was a Jew, and there never was a transaction to the amount of $ 30,000 or $ 40,000, conducted in this manner by any Israelite from the time of the Exodus, down. The testimony of Julia McGee, was also competent and admissible; it is true she was a common prostitute, but it does not lie in the mouth of Goldsmith, who was the banker to this house of prostitution, to make this objection against her.

Thomas S. Alexander [**19]  and John V. L. McMahon for Goldsmith, upon the appeal by the creditors, said that the only question of fraud open on this appeal is as to the mortgage of 1842, which the chancellor said he could not interfere with because of the decree of Baltimore county court, and because there is no allegation of fraud in obtaining this decree, and no prayer that it shall be set aside. This and the question of limitations are the only ones now open for discussion. They then argued:

1st. That the claims of the creditors are barred by limitations, each of them having matured more than three years before the claimants intervened in this cause. The legal remedy had been barred by limitations, and as the jurisdiction of equity over the subject matter of this suit was concurrent with that at law, and not exclusive, the remedy in this court was equally barred. Of all these claims but one was contracted before the deed was executed, and all of them had matured more than three years after the deed was put upon record, and more than five years before the bill was filed attacking it for fraud. The first inquiry in all cases where deeds are attacked as fraudulent as against creditors is, has the creditor [**20]  attacking it an enforceable claim against the property covered by the deed? There is no doubt but that these creditors could have sued at law, and their claims would have been barred as against Mrs. Osborne and her heirs, if the deed was out of the way. The rule is that the statute attaches proprio vigore to every legal claim, and follows it whenever it goes into equity for a peculiar equitable remedy, and that court applies the bar, not by analogy, but in obedience to the statute. The test is not whether the remedy is legal or equitable, but whether the claim is legal or equitable, and if the latter, equity follows the law as to limitations. 6 B. Monroe, 479, 481, Field vs. Wilson. 16 Wend., 476, McCrea vs. Purmort. 24 Do., 605 to 608, Humbert vs. Trinity Church. 3 G. & J., 389, Green vs. Johnson. 3 Gill, 161, Dugan vs. Gittings. 7 Johns. Ch. Rep., 90, Kane vs. Bloodgood. 7 Gill, 76, Sindall vs. Campbell. 3 Md. Rep., 383, Hertle vs. McDonald. It is also settled that limitations will count up to the time of filing the claim. 12 G. & J., 48, Hall vs. Creswell.

We start then with the concession that these are legal claims, against which three years is a bar, and that the statute [**21]  had twice run, and now the question is, can Goldsmith avail himself of it? Is this plea one personal to the debtor, so that no one in privity with him, as heir, devisee or grantee, can plead it? It is settled that if an executor does not plead it, volunteers or creditors may come in and do so. 4 Cond. Eng. Ch. Rep., 458, Shewen vs. Vanderhorst. A creditor may do it, and why? because he is interested in the fund. A devisee can plead it and he is but a grantee under the will. The fraudulent debtor can plead it. Anterior to the act of 1835, ch. 380, you could not reach property fraudulently conveyed without first obtaining a judgment at law, where limitations clearly could be pleaded by the debtor. That act says you may proceed at once, but the grantee is put in the shoes of the debtor, and if the indebtedness is disputed he may demand an issue to try that question, and this issue unquestionably allows the plea of limitations. The fraudulent grantor is not by his fraud stripped of his right to plead it. The theory on which a fraudulent grantee is said to be deprived of this right, is, that he is a constructive trustee, but there is no foundation for this theory. Equity never proceeds [**22]  against him on such grounds, for it removes the deed out of the way by annulling it. Strike's case, in 1 Bland, 94, has settled that there is no trust. See also 1 Md. Rep., 470, Waters vs. Dashiell. The only difference between a voluntary deed and one for value is, that in the former the fraud of the grantor is that of the grantee, because he has given no consideration, whereas in the latter there must be fraud both of the grantor and grantee to vacate the deed. But the very point that a fraudulent grantee may rely upon the statute, has been decided in this State in the case of Farmers Bank vs. Mulliken, at December term 1840 of the Court of Appeals, where the deed was set aside for fraud, and limitations pleaded by the children of the fraudulent grantee, and allowed. See also 4 Florida Rep., 283, Carter vs. Bennett, and 3 Texas, 192, McClenney vs. McClenney.

The fraudulent grantee therefore may rely upon the statute, and the question then is, how far does the fraud, if conceded to exist, suspend the operation of the statute? At law fraud could not be replied to the plea of limitations, and even in a case like this, it is a question whether you must not take the statute with its [**23]  savings, for equity does not extend legal rights, but only aids them, and you must first show a perfect legal title before you can ask the deed to be set aside. But the utmost that fraud can do to stop the statute, is that the creditor must make out that it has kept him in ignorance down to time within the statute. Ignorance caused by fraud is the exception, and now on whom is the onus to prove this fact? Who is to aver and prove the complainant's own rights? Upon principle this belongs to the complainant and not the defendant, for he knows it, and it is within his knowledge alone, Upon authority, too, it is clear that the complainant must allege and prove ignorance and the recent discovery. 3 Peere Wms., 143, South Sea Co. vs. Wymondsell. 2 Ball & Beatt., 129, Blennerhasset vs. Day. 7 How., 829, Stearns vs. Page. 2 Daniell's Ch. Pr., 736. Mitford's Pl., 312. 6 B. Monroe, 481, Field vs. Wilson. Here the deed was upon record, giving notice to all the world of its existence for more than six years before the filing of these claims. Upon every point, therefore, the chancellor was right in deciding that the claims were barred.

But the mortgage was executed under the act of 1833, ch.  [**24]  181, and a decree obtained upon it, and the bill does not ask that this decree shall be annulled. What is the use of setting aside the deed if the decree is left to stand? The decree is rem adjudicatam, and has passed into a record debt, which has merged the former debt. It would therefore be a useless and improper act to go behind the decree to set aside the deed. But again, the conflict of jurisdiction in such cases is a sufficient reply to all this. 4 G. & J., 480, Brown vs. Wallace. 7 Gill, 482, Albert & wife, vs. Winn & Ross. 1 Md. Ch. Dec., 351, Brooks vs. Delaplaine. Ibid., 295, Snyder vs. Snyder.

On the appeal by Goldsmith, they said two questions are presented:--1st, whether the claim of Sarah Ann Truitt, one of the original complainants, as the holder of Mrs. Osborne's promissory note for $ 1100, is established; and 2nd, whether the deed of 1844 ought to have been set aside as having been made with intent to defraud this claimant? Upon these questions they argued:

1st. That the bill does not describe the note, and as the ordinary remedy was barred by limitations before it was filed, it was incumbent on the claimant to show that she had become the holder of it before [**25]  the bar attached, and in the absence of such proof the claim ought to have been rejected. This note was not filed until five years after the bill was filed, and it is not shown when or how it came to her possession. It was incumbent upon her to show that she held the claim before the filing of the bill. 37 Eng. C. L. Rep., 388, Anderson vs, Weston.

2nd. The deed of 1844 can be avoided only at the instance of antecedent creditors; subsequent creditors must wait until it is avoided before they can come in. 2 Younge & Collyer, 178, Ede vs. Knowles. 5 Gill, 449, Worthington vs. Shipley. 3 Johns. Ch. Rep., 481, Reade vs. Livingston. 5 Ves., 384, Lush vs. Wilkinson. 12 Do., 147, Kidney vs. Coussmaker. 2 Beavan, 340, Townsend vs. Westacott. 1 Md. Rep., 455, Waters vs. Dashiell. Here there was no attempt to execute the deed in anticipation of future creditors, because it was placed upon record as soon as executed, and as to the effect of enrolment as notice and as rebutting the inference of fraud, see 3 Md. Ch. Dec., 174, Cole vs. O'Neill. But we say further, that the deed was not made with intent to delay, hinder or defraud this claimant, Truitt. On the contrary the answer, which in [**26]  these respects is strictly responsive, denies fully every imputation of fraud, and affirms and vindicates the good faith of the entire transaction. Fraud is never to be presumed, but must be proved; strong suspicions will not be sufficient. 2 Md. Rep., 374, Faringer vs. Ramsay. The effect of the answer must stand until disproved by one witness and pregnant circumstances; here it is neither discredited or disproved in any material averment. As to the effect of such an answer, see 3 Md. Rep., 226, Glenn vs. Grover. 3 G. & J., 433, Roberts vs. Salisbury. 6 Do., 54, Joice vs. Taylor. 2 Brown's Ch. Rep., 90, Stephens vs. Olive. 9 Gill, 236, Powles vs. Dilley.

The witness chiefly relied upon by the complainants, is Julia McGee, who acknowledges that she was, at the date of these transactions, boarding with Mrs. Osborne, and there supporting herself by open prostitution, and there is nothing to show that her manner of life is changed, and conceding that her depraved manner of life does not utterly disqualify her as a witness, it will subject all she urges to suspicion. And when she speaks, as in this case, of events which transpired years before, and in which she had no interest, and [**27]  her statements are found to be evasive, inconsistent and contradictory, and are sustained by no collateral and well authenticated facts, her testimony is entitled to no credit whatever. It will be difficult to determine whether she means to refer her testimony to the mortgage of 1842, or to the deed of 1844. It is certain that on or before the year 1842, Mrs. Osborne was erecting costly improvements on her property, and furnishing it at great expense. And with the exception of a small sum of $ 78.12, claimed by Walter Crook, and some few others, secured by mortgage, it is not shown that she was indebted to any other person than Goldsmith in 1842. And it is shown, also, that in February 1844, she was under no sort of embarrassment or apprehension from her creditors.

As to the testimony of Spurrier: This testimony is fully and accurately stated in the report of the case in 2 Md. Ch. Dec., 382. Mrs. Osborne goes to the conveyancer to make an absolute deed, and when there, states her own motives for making such a deed, and then her anterior agreement with Goldsmith. Now these declarations are sought to be sustained as admissible, 1st, on the ground of agency; 2nd, as part of the res [**28]  gestae; and 3rd, as part of the fraud. It is clear that they would not be admissible as between her and Goldsmith, and therefore they cannot be admissible as against her title. They can only be admissible against her as part of the fraud. This disposes of the first two grounds. It cannot be said that a grantor, sent to convey her own title, is an agent for the grantee to whom she is about to convey it. See 5 Cushing, 585. And was it ever heard of, that a declaration directly opposing the act, can be admitted to explain the act itself as part of the res gestae? In the case in 5 Day, 341, the declarations were not made to the party who accepted the deed, and the case of Barrett vs. French, in 1 Conn., 354, 365, shows that they could not be admitted to invalidate the title of the grantee for the benefit of the grantor or her creditors. See, also, 4 Day, 284, Beach vs. Catlin, and 1 Stewart & Porter, 317. But all that can be said of them is, that they illustrate her design; they do not show what was his design, and unless he was cognizant of the design which she entertained, there was no fraud in him, and it is essential, to vacate a deed as fraudulent as against creditors, under the statute [**29]  of 13th Elizabeth, that there should be a fraudulent intent in both the grantor and grantee. To admit declarations of the grantor, made out of the presence of the grantee, to invalidate the title of the latter, would be a precedent fraught with danger in the extreme. It would permit parties to fabricate testimony to avoid their own acts for their own benefit. We therefore say that these declarations were inadmissible here, as there is nothing to connect him with the design which she may have had.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and TUCK, J.  

OPINIONBY:
TUCK 

OPINION:

 [*336]  TUCK, J., delivered the opinion of this court.
It is conceded that there is no question before us as to the deed of the 14th of July 1841.
Of all the creditors who offered proof of their claims, none was such prior to the 5th of November 1842, the date of the mortgage, except Walter Crook, Jr.; and if the plea of limitations can avail the defendant, none of them have a standing in court except Sarah Ann Truitt, whose claim can be enforced, if at all, only against the equity of redemption conveyed by the deed of the 16th of February 1844. The first question then to be disposed of relates to [**30]  the plea of limitations, relied on by Goldsmith.
There are decisions to show that, in cases like the present, this defence has been rejected, but whether correctly or not we are not at liberty to inquire, because the point has been definitively settled in this State. The chancellor, after having discussed the question upon principle as well as authority, referred to the case of The Farmers Bank vs. Mullikin, in this court, December term, 1840. We have carefully examined that record and the proceedings on the appeal, and find that it fully sustains the view taken here on behalf of the defendant below. The amended bill and answers distinctly raised the issue of fraud in fact. It was asserted that the deeds were made by contrivance and conspiracy between the parties, with intent and for the purpose of defrauding the complainants and other creditors of the grantor, and that that unlawful purpose would be accomplished if the deeds were allowed to 

 [*337]  stand as valid, inasmuch as the grantor had no other property wherewith to satisfy his creditors. It appears by the minutes for the decree, taken down by the clerk of the court, and by the decree itself, that the deeds were "adjudged [**31]  to have been made in fraud of the creditors of the grantor," and that the defence of limitations relied on in the answers of three of the defendants was sufficient to protect the interests of two of them; but that the benefit of that defence was denied to the other only because it had been waived by him. It was urged in argument there, as here, that the grantee should be treated as a trustee for the creditors, and as such, could not interpose this defence against those for whose use he held the property. This point is thus answered in the minutes for the decree: "Limitations will bar as to trusts created by operation of law, though it may not in express trusts." There being no difference between the cases, we must yield to its authority without reference to the decisions in other courts.
This view of the case disposes of all the claims except those of Truitt and relieves us from the necessity of passing upon the mortgage of the 5th of November 1842, there being on party in court in whose behalf it can be assailed. Moreover, we agree with the chancellor as to the effect of the proceedings in equity, under the act of 1833, ch. 181, as a protection to the defendant against inquiry, in [**32]  this case, into the question of fraud in obtaining that deed.
The remaining questions on these appeals relate to Truitt's claims and the charge of fraud as to the deed of the 16th of February 1844. This complainant did not set out her cause of action in the bill of complaint, but subsequently filed two notes of Osborne under the commission to take proof, one for $ 1100, dated the 6th of November 1843, and another for $ 2800, dated the 21st of October 1844, which was not due when the bill was filed. We can express no opinion as to the last of these claims. The chancellor has neither allowed nor rejected it; but, on the contrary, has reserved it for further directions.
We think that her claim on the note for $ 1100 was properly allowed. It was signed by Osborne and endorsed by 

 [*338]  Goldsmith, the payee. The objection is, that it does not appear that she held this note when the bill was filed, but we are of opinion that she must be regarded as the owner at that time until the contrary appears. She is described in the bill as a creditor, and at the proper time for proving her case she filed and proved this note under the commission. It does not appear when Goldsmith endorsed it,  [**33]  but the inference is that it was endorsed, if not on the day of its date, at least before its maturity.  Pinkerton vs. Bailey, 8 Wend. 600. Anderson vs. Weston, 37 Eng. Com. Law Rep. 388. Burckmyer vs. Whiteford, 6 Gill 1.
The decision of the question of fraud depends on the bill, answer and proofs. We might rather say on the proofs, as we do not attach much consequence to the answer. The evidence on the part of the creditors was assailed as general, contradictory, and unworthy of credit. This affirmation, we think, was more justly applied to the answer, for the contradictions are striking and irreconcilable, while the gross carelessness and want of system and precaution in large money transactions, which, according to the answer, appear to have signalized the defendant's habits of business, are calculated to impair the weight which an answer should have when furnishing no reason to suspect unfairness in the transactions of which it speaks. Concurring with the chancellor in what he has said respecting the case as disclosed by the answer, we proceed to consider the proofs; and, first, the admissibility of the declaration [**34]  of Osborne, as proved by Spurrier and McGee.
It is a general and very salutary rule of evidence, that a party will not be permitted by his own declarations to defeat a prior deed; but it is also well settled, that in some cases the declarations and admissions of a grantor will be received where the effect may be to impair the title of persons claiming under him.  Dorsey vs. Dorsey, 3 H. & J. 410. Walls vs. Hemsley, 4 H. & J. 243. 1 Greenl. Ev., secs. 189, 190. Another principle is, that all such facts as have not been admitted by the party against whom they are offered, or by some one under whom he claims, ought to be proved under 

 [*339]  solemn sanctions by persons having knowledge of the facts, but to this certain exceptions have also been recognized, some from very early times, on the ground of necessity or inconvenience; and among these is proof of the quality and intention of acts by evidence of declarations accompanying, or so nearly connected with them in point of time as will serve to explain their true character and purpose. We are informed by Professor Greenleaf, (Vol. 1, sec. 108,) that it is very difficult to bring this class of cases within [**35]  the limits of a particular description. The points of attention are, whether the circumstances and declarations are cotemporaneous with the main fact, and whether they are so connected with it as to illustrate its character. Where a party does an act material to be understood, his declarations expressive of the character, motive or object of it are regarded as "verbal acts indicating a present purpose and intention." Their admissibility is to be determined according to the degree of their relation to the principal subject matter of dispute, in the exercise of a sound discretion by the court. The cases will show that they need not take place immediately with the occurrence of the act, but may be before and sometimes after, provided they be calculated to unfold the nature and quality of the facts they are intended to explain, and so to harmonize with them as to constitute one transaction. 1 Greenl. Ev., secs. 108, 109, 110. Broom's Maxims, 442, (50 Law Lib.) 7 A. & E. 384, (34 Eng. C. L. Rep.) Kolb vs. Whitely, 3 G. & J. 188. Cross vs. Black, 9 G. & J. 198. Burckmyer & Adams, vs. Whiteford, 6 Gill 1. [**36]  Garner vs. Smith, 7 Gill 1. Miller vs. State, 8 Gill 141. Handy vs. Johnson, 5 Md. Rep. 450.
This doctrine has been applied in cases like this, in which the object was to vacate deeds at the instance of creditors.  Merrill vs. Meachum, 5 Day 341, cited by the chancellor, is clearly in point, where the declarations of the grantor, "tending to show that the deed was executed for the purpose of securing the land against the attachments of his creditors," were admitted. But the correctness of the principle had been questioned, if not denied, in Beach vs. Catlin, 4 Day 284. The case of Barrett vs. French, 1 Conn. 354, relied on by 

 [*340]  the defendant, is not like the present. It does not appear that the declarations of the grantor were offered in evidence as part of the res gestae.
In Harshaw vs. Moore, 12 Iredell 247, where a deed was impeached for fraud as against creditors, the declarations of the grantor, immediately before and in contemplation of the act, were received to show his object in doing it, as strong evidence bearing upon the very [**37]  point in issue against the party claiming under him. See also Ford vs. Elliott, 4 Excheq. Rep. 78.
Cases like the present have also occurred in Maryland, in which the declarations of the grantor were introduced, to impeach the deeds. Duvall vs. Waters, 1 Bland 569. Birely vs. Staley, 5 G. & J. 432. Strike vs. McDonald, 2 H. & G. 191. In the latter case one of the grantors was also examined for that purpose. The Court of Appeals did not pass upon the question, although the point was made. However, the chancellor in Duvall vs. Waters, appears to have relied on the grantor's declarations as evidence of the alleged fraud.
But there is a class of decisions in England, as well as here, so analogous that it seems to us they should be governed by the same rules of evidence. We allude to cases in bankruptcy, and those arising under our insolvent laws, in which deeds and transfers of property have been held to be good or bad, according to the intent of the party in making them. In both these classes of cases, the quality of the act depends upon the same principle. "In questions respecting acts of bankruptcy the intention [**38]  is almost always the very point in issue, and this is commonly to be collected from the conversations importing the existence of those apprehensions which give a character and quality to the concomitant actions." 2 Evans Pothier 247; Appendix, No. 16, sec. 11. 1 Ph. Ev. Hearsay 3 Gill & Johns. 188. In Bateman vs. Bailey, 5 Term Rep. 512, a declaration of the debtor made the day after the act, was held admissible; and the established doctrine in England, now is, that the court will, in each case, consider whether the declaration proposed to be received does or does not come within a reasonable time of the disputed act. As, if the question arise, whether a security were given by way of fraudulent preference, 

 [*341]  the material inquiry will be, what was the situation, conduct, and language of the bankrupt with reference to the whole transaction? Broom's Maxims, 441.  9 Bing. 352, 355. And this doctrine is fully recognized in Kolb vs. Whitely, 3 Gill & Johns. 188, as applicable to cases under the insolvent laws. There, certain entries in the books of the insolvents, and the declarations of one of the [**39]  firm, made a few days before the property was delivered to the appellant, were received to show that, at the time of the transfer, the parties contemplated becoming insolvent debtors. The rule stated is, that, "where it is necessary, in the course of a cause, to inquire into the nature of a particular act, and the intention of the persons who did the act, proof of what the person said at the time of doing it, is admissible evidence for the purpose of showing its true character." And "in general, where the evidence is offered as a mere fact which is connected with the matter in dispute, and not with a view to affect the party otherwise than as the actual existence of the fact affects the nature of the transaction itself, then, although it was a transaction between others, yet, as a mere fact, and part of the res gestae it is evidence." We do not understand the court as having admitted the evidence, as might be inferred from the last clause of the opinion, because there was no reason for supposing that the insolvent had made the declarations under sinister motives, or as having designed to qualify the general rule announced; but rather as using those remarks in answer to the argument [**40]  of the appellant's counsel. It is true, that generally the declarations of a party under whom another claims, are received, when made against his own interest, and at a time when he had no motive to misrepresent the truth; but we apprehend that the doctrine of res gestae is not governed by this principle. Greenleaf states the general rule, sec., 109, but he adds, "no reason is perceived why every declaration accompanying the act of possession, whether in disparagement of the declarant's title, or otherwise qualifying his possession, if made in good faith, should not be recieved as part of the res gestae; leaving its effect to be governed by other rules of evidence." Indeed, such declarations are admissible in some cases, where the party 

 [*342]  has a manifest interest at the time, as where an entry is made to take advantage of a forfeiture, to defeat a disseizin or to foreclose a mortgage, or the like. Green. Ev., sec. 108. For the same reason, in actions by bailor against bailee, for loss by negligence, the declarations of the latter, cotemporaneous with the loss, were held to be admissible in his favor, to show the nature of the loss. Story on Bailments, sec.  [**41]  , 339. The explanations or admissions of bankrupts, are received, no matter in whose favor they may operate in the suit in which they are offered; but we have not found a case in which the question of their admissibility was determined with reference to any supposed considerations of interest of the debtor, at the time of making them. If they may fairly be regarded as resulting from the cotemporary motives acting on his mind and influencing his conduct, they may be received. 2 Ev. Poth. 248.
Several cases have occurred in this court under the insolvent laws. It appears, by the record in Dulaney vs. Hoffman, 7 Gill & Johns. 170, that one of the insolvents was examined, and his declarations were also offered in evidence, to show that the assignment was fraudulent in view of these laws, and the case was decided on this proof. In Hickley vs. Farmers and Merchants Bank, 5 G. & J. 377, and in Davis vs. Beatty, 9 Gill 211, the grantors were examined; and in Powles vs. Dilley, 9 Gill 222 at 229, the conversations and declarations of the debtor were received, to show the true character of the acts alleged [**42]  to be void as against creditors. The court held, that the declarations and conversations, (though occurring some time before,) were part of the res gestae, concomitant with the principal act, and served to explain the motives and circumstances surrounding the assignment. The transfer was also assailed as void under the statute of Elizabeth.
If, as in the three cases last cited, the declarations or evidence of the debtor may be invoked as proof of an honest purpose, why may not the party who denies the validity of the act, resort to the same source for evidence of his intent, when the act is done with an illegal purpose? The rule being, that wherever the nature and quality of the act depends on the intent of the parties, cotemporaneous statements may be taken to 

 [*343]  show the intent, there appears to be no stronger reason for receiving such evidence in one case than in the other.
The same doctrine has been applied to assignments under the act of 1829, ch. 51. In Crawford vs. Brooke, 4 Gill 213, the assignor of a chose in action was called by the defendant in an action by the assignees, to show that he had made the assignment for the purpose of qualifying [**43]  himself as a witness to establish the claim, and to take it without the statute of limitations, by proving a promise on the part of the debtor within three years. His testimony was admitted, because an assignment so made could not be regarded as bona fide within the meaning of the act of 1829, and was liable to be assailed on the ground of the fraudulent character of the transaction, and that the assignor was a competent witness to discover the motives that governed him in making the transfer.
Under the statute of Elizabeth, the insolvent laws, and the act of 1829, ch. 51, transfers of property or choses in action, are void or not, according to the intent of the parties, in view of their provisions respectively. If the grantor or assignor may be called, or his declarations given in evidence, to impeach his own act, in cases within these acts of Assembly, there is not perceived any reason for excluding them when offered to ascertain his motive in a transaction denounced as fraudulent under the statute. The doctrine, that "in questions of fraud or bona fides an adequate judgment can, in general, only be formed by having a perfect view of the whole transaction, which,  [**44]  of course, includes the conversation which forms a part of it, and, according to the phrase usually applied to this subject, the language which is used on any occasion forms a part of the res gestae," (2 Ev. Poth. 247,) equally applies to this, as any other case of fraud; and upon the authorities, as well as analogies of the law, we feel warranted in receiving the declarations of Osborne, made before the execution of this deed, as given in evidence.
It was argued that there is danger in admitting such proof, because of the temptations it holds out to grantors to arm themselves, in advance, with testimony, by making such 

 [*344]  declarations as will defeat their own act. All rules of evidence are liable to abuse, and not unfrequently fail to accomplish their real object, the ascertainment of the truth. The objection, however, cannot apply here. It must be observed that in cases like the present the grantor is bound by the deed, and has no interest in setting it aside. What does not go to the creditors remains in the grantee. The declarations or explanations made at the time of the act cannot avail the grantor in any controversy between him and his grantee, involving the [**45]  title. As between them the deed is conclusive, except it be different in terms from that which the parties intended it should be. In which cases relief is granted on the ground of accident, mistake or fraud. But as to strangers assailing the deed the principle is different.  4 Gill 220. This case is not varied by Osborne's statement of an agreement on the part of the defendant to execute a writing for the reconveyance of the property. If this was really so the fraud is established. On the other hand we cannot assume that the sale was bona fide on the part of Goldsmith, and that she made the declarations for the purpose of fabricating testimony for the recovery of the property, without ascribing to her a degree of ignorance that the law does not impute to any one, for she knew, in legal contemplation, that her own statement, that such an agreement existed, could not have that effect. In addition to this, the declarations, when admitted, do not per se establish the fraud as against the grantee. They are only part of the case, to be considered in connection with the rest, and to be governed as to their effect by other rules of evidence. Fraud shrouds itself in [**46]  mystery. Parties may seek to protect themselves by various subterfuges and pretences, which it is impossible to detect and expose by direct evidence, though when all the circumstances are combined and considered together, they may be such as to show that both parties to the deed were influenced by the same illegal purpose.
Upon a careful consideration "of all the facts and circumstances of the case, and drawing such inferences as a jury 

 [*345]  might reasonably make," (5 Gill & Johns. 450,) we think there cannot be a well founded doubt that the parties to this deed designed to hinder and delay the creditors of the grantor. Independently of the suspicion that surrounded the dealings between them, as disclosed by the answer itself, the evidence shows that Osborne was under great apprehensions lest her creditors would press for settlements and take her property; and that this fear was excited by Goldsmith; and that he advised the transfer to him as the only means of saving her property. He informed Spurrier that she would call and give directions about a deed, and her declarations made at that time, when the fraud was in course of being perpetrated, (9 Gill & Johns. 211,) [**47]  show that this was her understanding of the transaction. We cannot exclude the testimony of these witnesses. Spurrier is not impeached, nor is McGee's veracity directly assailed. Some portions of her evidence may be inconsistent with other portions, but the whole is not to be rejected on this account alone. In narrating transactions long past the memory of a witness may be at fault as to some particulars, and be correct as to others, and especially where they were such as the witness had no reason to suppose he would be called on to explain afterwards. She had no interest in misstating the transactions between Osborne and Goldsmith, nor any motive, as far as we can discover, for testifying on one side rather than on the other. In the main points of the ease, bearing on the question of fraud, she is corroborated by other proof in the record. It is urged that she should be discredited because she states the deed to have been executed in January 1841, when it bears date in Februarry 1844. But she does not state this positively; she expresses her belief of the time, and though in error as to the date of the transaction she may remember that it occurred, and recollect the principal facts [**48]  connected with it. The question is, whether the circumstances stated by her took place with this particular instrument? The interrogatories on both sides and her answers relate to the deed of 1844. She speaks of declarations and acts of the parties in connection with a deed executed, when 

 [*346]  certain creditors, (the complainants among them,) were demanding payment of their claims. It so happens that these complainants were creditors in 1844, and not in 1841 or 1842, when the other deeds were executed, and this is shown, not by this witness, but by their causes of action. The identity of this instrument, as the one referred to by her, is also sustained by its relation in point of time to the declarations of Osborne, as proved by Spurrier, and to the period of her removal to New York, which occurred in the year 1844.
It may be that the defendant paid his money as a consideration for this deed; but we cannot believe, from the whole case, that it was a bona fide purchase, and not designed to defraud the creditors of the grantor. If it was actual and bona fide, and Goldsmith cannot explain the transaction in the face of the evidence offered by the creditors, it was his [**49]  error, if not fault, to have carried on for a number of years large dealings with an illiterate woman, without the guards and precautions generally observed in business with such persons, as well for his own protection as hers. Upon the whole case we think the decree of the chancellor was correct and must be affirmed on both appeals, and that the case should be sent to the circuit court of Baltimore city to carry the same into effect.
Decree affirmed and cause remanded. 

DISSENTBY:
ECCLESTON (In part) 

DISSENT:

ECCLESTON, J., dissented in part, and delivered the following opinion:
The deed of the 14th of July 1841, is not now in controversy.
I concur with the chancellor in his views respecting the mortgage deed dated the 5th of November 1842, and the decree passed by Baltimore county court for a sale of the mortgaged property, and therefore unite with my brethren in affirming so much of the chancellor's decree as dismisses the bill, without prejudice, in regard to the deed of 1841 and the mortgage of 1842. But I do not concur with the majority of this court in the propriety of affirming that portion of the decree which vacates the deed bearing date the 21st of October 1844.  

105 of 187 DOCUMENTS 

JOHN H. ALEXANDER and PHILIP T. TYSON, vs. HENRY WEBSTER and JOS. J. SPEED, Adm'rs of PATRICK MACAULEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Md. 359; 1854 Md. LEXIS 55 

DECEMBER, 1854, Decided 

PRIOR HISTORY:
 [**1]  CROSS-APPEALS from the Superior Court of Baltimore city.

Assumpsit by Alexander and Tyson against Webster and Speed, as administrators of Macauley, to recover damages for the non performance of the following contract, entered into between the said plaintiffs on the one part and the said Macauley on the other, dated the 26th of July 1836:

"It is hereby agreed and admitted, that John H. Alexander and Philip T. Tyson have bargained and sold unto Patrick Macauley one undivided fifth part of the tract of land called "Commonwealth," for the sum of $ 4000, current money, to be paid in manner following, to wit: The sum of $ 1500, with interest from the 26th day of March last, to be paid on or before the 8th day of September next, and the remaining $ 2500 to be paid so soon as the said Macauley shall sell or otherwise dispose of his aforesaid interest in said land, provided the same at that time shall be worth $ 4000; and if the said interest in said land shall not sell for or be worth the sum of $ 4000, then the said Macauley shall be bound to pay only so much as shall be equal to the difference between the sum of $ 1500 and the proceeds of sale or value of said land, the design of [**2]  the parties hereto being, that the payment to be made by the said Macauley, other than the first payment of $ 1500, shall be made out of the profits of his adventure; and it is further understood, that if the said land called "Commonwealth" shall be subscribed as capital stock in the Georges Creek Coal and Iron Company, according to the provisions of the act incorporating the Georges Creek Mining Company, and the supplement thereto, such subscription shall be considered as a sale, and the valuation made thereof by the commissioners shall be considered as the value of said land, and the contingent payment of $ 2500 shall be paid by a transfer of stock to the amount of the par value of said sum."

The case was submitted to the court below upon an agreed statement of facts, in substance as follows: "Commonwealth" contained about three thousand, eight hundred and seventeen acres, and with another tract called "Beatty's Plains," containing about seven thousand acres, of which Macauley owned one-half and the plaintiffs the other, was appraised by commissioners appointed pursuant to the act referred to in the above agreement, and Macauley's one-fifth thereof was appraised by them at about [**3]  $ 50,000. Subsequently on the 10th of January 1837, the two tracts were subscribed as capital stock of the Georges Creek Coal and Iron Company, and on the 4th of March following, at the first meeting held for the purpose of organising said corporation, the plaintiff, Alexander, transferred to Macauley two thousand, seven hundred and twenty-eight shares of the capital stock of said company, as representing his interest in the two tracts, and at the same time the then stockholders subscribed for an additional quantity of $ 30,000 worth of said stock. On the 20th of January 1846, the plaintiffs, for the first time, demanded of Macauley payment of the second instalment mentioned in said agreement, and he then offered and did transfer to their names twenty-five shares of the said stock, intending said transfer to be a compliance with said demand and in full satisfaction of his part of said agreement, but the plaintiffs denying that they had by said agreement ever agreed to take stock in payment of said instalment, except at its current or market value, refused to accept said twenty-five shares in full of their demand, and insisted that Macauley was bound, as he had always been by said agreement,  [**4]  to pay the said $ 2500 in ready money, or in as many shares of said stock as would produce said sum if sold in the market. At this time the stock was worth in the market about $ 5 per share, the nominal or par value being $ 100 per share. During the month of March 1838, there were sold in England four thousand shares of the stock of this company at $ 80 per share. It was admitted that the stock has never been a current stock in the market at Baltimore or elsewhere; that it has been chiefly held by the original owners, who sold some of it at private sale, at various times between the 4th of March 1837 and the 1st of July 1838, at $ 20 and $ 25 per share, and in July 1838, fifty shares were sold in London at private sale at $ 82 per share. The plaintiffs purchased the two tracts of land in 1835 and 1836, and paid $ 1.25 per acre for "Commonwealth" and $ 2.12 1/2 per acre for "Beatty's Plains." It was further admitted, that Macauley fully paid the first instalment of $ 1500, and had at all times during his life, from the date of the transfer of said two thousand, seven hundred and twenty-eight shares to the 26th of January 1846, standing in his name more than twenty-five shares of said [**5]  stock, and that his administrators are now and have always been willing to execute any paper or do any act necessary more effectually to secure said twenty-five shares to the plaintiffs, if it can be done.

Upon this statement of facts the plaintiffs claimed $ 2500, with interest from the 10th of January 1837, and the defendants denied that any thing was due them, and either party was to have the right of appeal. The court, (FRICK, J.,) gave judgment for the plaintiffs, and assessed the damages at $ 1054.69, with costs, from which both parties appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

By a written contract, the plaintiffs sold to the defendant one-fifth of a tract of land for $ 4000, of which $ 1500 was to be paid on a certain day, and the remaining $ 2500 so soon as the vendee should sell or otherwise dispose of his said interest in the land; and it was further agreed, that if the land should be subscribed as capital stock in a certain incorporated mining company, such subscription should be considered a sale, and the $ 2500 "shall be paid by a transfer of stock to the amount of the par value of said sum." This land, with others, was so subscribed in January 1837, and on the 4th of March 1837, the company was organised and more than five hundred shares of the stock were assigned to the defendant, as representing his interest in said land. HELD:

1st. That the words "par value" refer, not to the stock, but to the sum of $ 2500, and in the connection in which they are used, are superfluous and useless.

2nd. That this contract gave to the defendant, the vendee, the privilege to pay the said $ 2500 in stock, at its nominal or par value.

3rd. The vendee, if he intended to pay in stock, was bound to make the transfer within a reasonable time after the 4th of March 1837, and without request on the part of the vendors; and failing to do so, the latter were not bound to receive the stock, but had a right to demand payment in money equivalent to the actual value of the stock at the time it should have been transferred.

The vendors demanded payment of the $ 2500 in January 1846, and the vendee transferred to them twenty-five shares of stock at its par value of $ 100 per share, but the stock was worth in the market but $ 5 per share. This the vendors refused to accept, insisting that the vendee was bound to pay them $ 2500 in money, or stock of that value in the market. HELD:

That this refusal, for the reasons assigned and the tender of the stock then made, did not defeat the vendor's right of action, because the reasons assigned for the refusal was a clear denial that this tender was a compliance with the contract by the vendor.

When an objection to a tender is to operate as a waiver, it cannot be a waiver of anything which is clearly within the objection, if true, and if the objection is true in part only, it will not make the tender good; provided the part which is true shows the tender is defective, and not a compliance with the obligation resting on the party making it.

The judgment of a court below, coming up by appeal, is prima facie correct, and the party asking for its reversal must show that it is erroneous.  

COUNSEL:
Thomas S. Alexander for the plaintiffs below, argued:

1st. That by the true construction of the contract in this case, the second instalment became payable immediately after the transfer of stock to Macauley and the organization of the company on the 4th of March 1837. On that day stock sufficient to make the payment was transferred to him, and therefore Macauley had the option to pay in money or stock, and having failed to pay in stock he became liable to pay the instalment in money, and the plaintiffs were therefore entitled to recover the sum of $ 2500, with interest from the 4th of March 1837.

2nd.  [**6]  But conceding that by the agreement he was bound simply to pay in stock, and that he was in default by reason of his failure so to pay on the 4th of March 1837, the question then is, what is the measure of damages? The agreement is not that the payment should be made in stock at its par value, but it says the "$ 2500 shall be paid by a transfer of stock to the amount of the par value of said sum." The expression par is by the agreement associated with the sum to be paid, and not with the value of the stock; it is equivalent to principal. We say therefore that the measure of damages, as assessed by the agreement itself, is $ 2500 in money, or stock which will bring in the market that sum, and on this point see 5 Wend., 393, Pinney vs. Gleason. 2 Penn. Rep., 63, Roberts vs. Beatty. 3 Conn., 58, Brooks vs. Hubbard. 12 Verm., 509, Harrington vs. Wells. 1 Halsted, 464, Grieve vs. Annin. 1 Wash. C. C. Rep., 376. 6 H. & J., 273, Lyles vs. Lyles. Ibid., 301, Cannell vs. M'Clean. If Macauley had sold the land for money he would have been compelled to pay the $ 2500 in money. The subscription of the land as stock was made on the 10th of January 1837, and this the agreement says shall be regarded [**7]  as a sale, and the valuation of the commissioners be considered the valuation of the land. But suppose he was bound to pay in stock at its market value only on the 4th of March 1837, when, according to our construction of the agreement, he was bound to pay, what was then the value of the stock? The presumption is that it was at par; the stockholders at that time paid $ 100 per share for it, and afterwards a large sale was made in England at $ 80 per share. There is no proof or admission from which it can be assumed that the stock was on that day worth less than its par value.

3rd. We deny that a request on the part of the plaintiffs was necessary to put Macauley in default, but if he had time to make the transfer until hastened by request, we then insist that he was obliged to transfer so much stock as on the day of demand, to wit, in January 1846, would have produced in the market the par or principal sum of $ 2500. The transfer on that day of twenty-five shares at its par value was no performance of the agreement, for the breach was in March 1837. But this performance after breach is sought to be made available to defeat the plaintiffs' right of action on account of the reasons [**8]  assigned for the refusal to receive the stock; it is said this constitutes a waiver of their right to require the payment in money. But the case of Gould vs. Banks, 8 Wend., 562, cited to sustain this position, is not law, and is not sustained by the cases cited in it. These cases only go to the extent of saying, that if an objection is not made which could have been obviated if disclosed at the time of tender, shall not afterwards be relied on, and the ground is that such objections are made in bad faith; for example, where a tender is made in bank notes which is not objected to on that ground, the creditor will not be allowed afterwards to object at the trial that the tender was not made in gold and silver, because had it been made at the time the debtor could have removed it by changing his notes for specie. But such is not the present case, for here the objection goes to the whole case, the construction of the agreement, and is valid and substantial; the very objection is that Macauley was bound to pay $ 2500 in money.

Henry Webster and Grafton L. Dulany for the defendants below, argued:

1st. That according to the true construction of the agreement, the second instalment [**9]  was to be paid by Macauley in stock at its nominal value; he had no option to pay it in money. The terms of the agreement are, that in case a subscription of the land is made to this stock the $ 2500 "shall be paid by a transfer of stock." Suppose the stock had been worth $ 200 per share, would not the plaintiffs have claimed it under this contract? In the expression "par value of said sum," as used in this agreement, the word "par, cannot qualify or apply to a sum of money, for money is that which has a fixed and certain value, and is the standard by which the value of all other property is determined. It is never said that money is at par, for this is nonsense, but to say that stock is at its par value is the common language of business men, and to the stock, therefore, the word must be applied in this case. It would make nonsense to apply it to any thing else, and the whole spirit of the agreement contemplates such an application.

2nd. But we say the plaintiffs have no cause of action whatsoever against us, because Macauley performed all that the contract imposed upon him. He discharged this obligation on the 4th of March 1837, for he then assented with others in interest that [**10]  the entire tract called "Commonwealth" should be conveyed to the Georges Creek Coal and Iron Company, and the whole stock of said company for said land should be issued by Alexander, one of the plaintiffs, acting for himself and the other. By this proceeding the legal title to this stock was vested in the plaintiffs, together with the equitable interest also, to the extent of as many shares as they were entitled to in their own right under this agreement with Macauley. By this means they took the absolute, legal and equitable interest in this stock; this was a transfer to them by Macauley of his equitable interest in the land and stock. By this arrangement therefore, he did indirectly that which he was bound to do directly, and where one promises to do a thing and does a thing equivalent to it, or where the thing is done by operation of law, it is in law a performance. Worthington on Wills, 89, 90, in 60 Law Lib., 48. 2 Ves., Jr., 463, Richardson vs. Elphinstone. 3 Do., 516, Hinchcliffe vs. Hinchcliffe. 13 Wend., 95, Lamb vs. Lathrop. 1 Peere Wms., 324, Blandy vs. Widmore.

3rd. But if we are wrong in the preceding proposition, we then insist that as no day is fixed by the contract [**11]  for the payment or transfer of the stock by Macauley, he had his whole lifetime in which to make the transfer, unless quickened by the request of the plaintiffs, and consequently his transfer on the 10th of January 1846 was a valid fulfilment and discharge of his contract, though refused by the plaintiffs. Coke Litt., 208, b. By the terms of the contract he was not bound himself to make the transfer.

4th. But the tender of the stock made by Macauley on the 20th of January 1846, in reply to the plaintiffs' demand, and the refusal to accept by the plaintiffs for the reasons assigned by them, it not being an absolute refusal, amounted to a waiver of their right to require payment in money, and the transfer then made defeated any right of action by them. 8 Wend., 567, Gould vs. Banks. 3 Term Rep., 554, Wright vs. Reed. 2 Bos. & Pul., 526, Grigby vs. Oakes. 6 Bac. Abr., 470. 1 Peter's C. C. Rep., 15, Blight vs. Ashley.

5th. But if Macauley violated his agreement by not making the transfer of the stock on the 4th of March 1837, then we insist that the measure of damages is the value of twenty-five shares of stock in the market on that day. Story on Cont., secs. 341, 344. 3 Cranch,  [**12]  298, Douglas vs. McAllister. 6 Wheat., 109, Hopkins vs. Lee. 8 Pet., 181, Robinson vs. Noble. 2 Taunt., 257. 6 H. & J., 297, Cannell vs. M'Clean. 1 H. & G., 464, Williamson vs. Dillon. 4 Md. Rep., 508, Marshall vs. Haney. Now according to the proof the actual market value of the stock on that day did not exceed the sum of $ 5 per share. It in fact had no market value then; the only sale made in the city of Baltimore was in 1838, but this furnishes no test of its value in 1837, when the contract was to be performed. The land was bought for $ 1.25 per acre, and there is no evidence that the stock was worth more than the value of the land subscribed, and we say therefore that the court must take this value to be the value of the stock, and consequently the measure of damages.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and TUCK, J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*367]  ECCLESTON, J., delivered the opinion of this court.
In these cross-appeals, the plaintiffs below, (Alexander and Tyson,) insist, that the judgment should be reversed, because it does not give them a sufficient amount of damages. The defendants say the judgment ought to have been in their favor, and if they are [**13]  wrong in this, that the damages allowed are too much.
One of the most difficult questions to be settled is, what is the meaning of this strangely worded contract, for it certainly is a most singular one in its terms. A portion of it is sufficiently plain to show, that on the 26th of July 1836, the plaintiffs agreed to sell to Patrick Macauley, the defendants' intestate, one undivided fifth part of the tract of land called "Commonwealth," for the sum of $ 4000. Of this sum, $ 1500, with interest from the 26th of March previous, was to be paid on or before the 8th day of September ensuing. The remaining $ 2500 to be paid so soon as he, (Macauley,) should sell or otherwise dispose of his aforesaid interest in the land, provided the same should at that time be worth $ 4000. And if his interest in the land should not sell for or be worth that sum, then he should be bound to pay only so much as should be equal to the difference between the sum of $ 1500 and the proceeds of sale or value of the land. The design of the parties, as stated in the contract, being, that the payment to be made by Macauley other than the first payment of $ 1500 should be made out of the profits of his adventure.  [**14]  Then follows the provision which has given rise to this controversy. The language is: "And it is further understood, that if the said land called "Commonwealth" shall be subscribed as capital stock in the Georges Creek Coal and Iron Company, according to the provisions of the act incorporating the Georges Creek Mining Company and the supplement thereto, such 

 [*368]  subscription shall be considered as a sale and the valuation made thereof by the commissioners shall be considered as the value of said land, and the contingent payment of twenty-five hundred dollars shall be paid by a transfer of stock to the amount of the par value of said sum."
It has been made a question in argument, whether the words "par value" are to be considered as having reference to the stock to be transferred or to the sum of twenty-five hundred dollars. Although they are strange words to be used in connection with a sum of money, whilst they are quite common and very appropriate in regard to stock, yet their position in this sentence is such, that we cannot consider them as having reference to the stock, but to the sum of twenty-five hundred dollars. And taking them in this connection, they are superfluous [**15]  and useless, because the par value of a given sum of money is nothing more or less than the sum itself.
Notwithstanding these words, by the express terms of the contract, cannot be considered as applicable to the stock, still we think that instrument is to be understood as imposing upon Macauley the obligation, or rather giving him the privilege, to pay the balance due from him in stock, at its nominal or par value.
In Robinson vs. Noble's Adm'rs, 8 Pet S. C. Rep. 181, payment was to be made, one-half in specie and the other half, in Cincinnatti, in the paper of banks current therein. A memorandum at the foot of the argument says: "It is understood, that the payment to be made in Cincinnati is to be in the paper of the Miami Exporting Company or its equivalent." When the payment should have been made, the notes of that company were worth, in specie, not more than sixty-six and two-thirds per cent. It was contended, that as the payment had not been made in notes at the time agreed upon, the plaintiff had a right to demand satisfaction in specie, and to the full amount of the sum agreed to be paid in the depreciated paper. But the Supreme Court say: "In what does this covenant [**16]  to pay differ from an agreement to deliver a certain quantity of flour, or any other commodity, on a given day?" They speak of the damage which resulted from the non-payment 

 [*369]  as certainly being no more than the value of the notes if they had been paid, and then say: "Had these notes been equal to specie on the day of payment, Robinson was bound to pay them or what was of equal value. If they had depreciated to fifty cents in the dollar, Noble was bound to receive them in discharge of the covenant." And as Robinson could only be liable to make good the damages resulting from his default, the specie value of the notes, at the time they should have been paid, was held to be the rule by which such damages were to be estimated. That case is so much like this in principle, that we do not see why the rule there adopted should not apply here.
In Hopkins vs. Lee, 6 Wheat. 109, it is stated to be a settled rule in the Supreme Court, that where a vendee is sued for breach of contract for not delivering the article, its value or price at the time of the breach is the measure of the damages. And the court say: "The price being settled by the contract, which is generally [**17]  the case, makes no difference, nor ought it to make any."
In Cannell vs. M'Clean, 6 H. & J. 297, the real value of the land at the time the conveyance should have been made was held to be the amount of damages which the plaintiff was entitled to, not withstanding the price of the land was mentioned in the bond of conveyance. See, also, Marshall vs. Haney, 4 Md. 498.
The decisions in regard to contracts similar to the present have not been uniform. Some have held, that when the period has passed at which the payment in property might be made but has not, the party entitled to receive has a right to claim payment in money, and the sum mentioned in the agreement, with interest, is the amount to be paid. But thinking the cases in the Supreme Court, which have been mentioned, are more consistent with correct legal principles, and are also in unison with our own decisions, which have been cited, so far as they have any bearing on the subject, we deem it proper to adopt the ruling of the Supreme Court.
It has been said in defence, that Macauley was not bound to transfer the stock until the plaintiffs demanded it of him. But we do not think so. The transfer [**18]  was to be a substitute for 

 [*370]  the payment of the twenty-five hundred dollars, which was to have been made so soon as Macauley effected a sale of the land. If the land should be subscribed as stock, the subscription was to be considered as a sale. If, instead of converting the land into stock, it had been sold for four thousand dollars or upwards, Macauley would have been bound to pay the twenty-five hundred dollars; and had he failed to do so, the plaintiffs might have sued him for a breach of the contract, without having demanded payment. If so, as the transfer of stock was only substituting another mode of payment, no demand of the transfer was necessary. In Thomas vs. Roosa, 7 Johns. Rep. 461, the second count in the nar was upon a note, in which the defendant promised to pay the plaintiff "in a good horse, to be worth, with saddle and bridle, eighty dollars, and goods out of the store, amounting to twenty dollars." The court held that a request was not required to be specially averred and proved, and that a request was not parcel of the contract. See, also, Chitty on Cont., 629, (Ed. of 1851.) Shrewsberry vs. Buckleys, 4 Bibb. 260. [**19]  Townsend vs. Wells, 3 Day 327. 1 Saund. Rep. 33, a, 33, b.  Wallis vs. Scott, 1 Strange. 88. Radford vs. Smith, 3 Mees. & Wels. 258. 1 Saund. on Pl. & Ev., 130, (Ed. of 1829.)
On the 20th of January 1846, the plaintiffs called on Macauley for payment of the $ 2500. The latter answered this requisition by transferring into their names twenty-five shares of stock, which, at par, amounted to $ 2500, but were worth, at that time, in the market, no more than $ 5 per share. The plaintiffs refused to accept this stock, insisting that Macauley was bound to pay them $ 2500 in money, or stock of that value in the market at the time of transfer.
It has been contended, that this transfer or tender of stock by Macauley and the refusal to accept it for the reasons stated, will defeat the plaintiffs' right to recover in this suit. To this we cannot yield our assent.
We have seen that the transfer of stock was intended as a substitute for the contingent payment of $ 2500, which payment was to have been made so soon as the land should be 

 [*371]  sold; and the agreement stipulates, that the land being subscribed as [**20]  capital stock, should be considered as a sale; of course, the transfer was required to be made within a reasonable time after such subscription, no particular day being named by the contract either for the payment in money or in stock. The subscription was made in January 1837. And on the 4th of March 1837, at the first meeting held for the purpose of organizing the company, Alexander transferred to his associates capital stock proportioned to the value of their respective interests in the lands subscribed. Macauley's interest in the tract called "Commonwealth" was valued at more than $ 50,000, and for this he received upwards of five hundred shares of capital stock, of the par value of $ 100 per share. Upon the receipt of this stock he was in a condition to make the transfer to the plaintiffs, and was bound to do so if he intended to pay them in stock. But failing to make the transfer within a reasonable time, the plaintiffs were not bound to receive payment in stock, and had a right to insist upon compensation in money, equivalent to the actual value of the stock at the time when it should have been transferred.
The defendants, however, contend, that the tender of stock which was [**21]  made by Macauley on the 20th of January 1846, and the refusal to accept by the plaintiffs for the reasons assigned, amounted to a waiver of their right to require payment in money, and that the transfer then made defeated any right of action on the part of the plaintiffs. The case of Gould vs. Banks, 8 Wend. 562, is relied upon to sustain this position, but we do not perceive that it does. The defendant was under a contract to deliver to the plaintiff six hundred and twenty-five copies of the 8th volume of Johnson's Reports, as soon as the same should be out of press and ready for delivery. After this edition of the book was printed the plaintiff demanded the six hundred and twenty-five copies, but the defendant refused to deliver them. Within six months after the publication the copies were tendered to the plaintiff, who refused to receive them because they were unmerchantable. At the trial the plaintiff made an effort to prove that the copies 

 [*372]  tendered were unmerchantable, but this evidence being objected to was held to be inadmissible under the pleadings. Upon motion of the defendant the plaintiff was nonsuited, the judge being of opinion that [**22]  the tender of the six hundred and twenty-five copies was a bar to a recovery on the contract in relation thereto. When the case came before the Supreme Court, upon a motion to set aside the nonsuit and for a new trial, it was decided that the refusal by the defendant to deliver when the demand was made upon him, gave to the plaintiff a right to compensation in damages, to the extent of his loss, and the subsequent offer to deliver could not bar the recovery, if the plaintiff insisted upon his right, even if no suit had been commenced by him. The commencement of the suit was not, what prevented the subsequent fulfilment of the contract by the defendant, but his previous default, and the plaintiff's right of action consequent upon that default. And Judge Nelson, in delivering the opinion of the court, says: "It is, however, competent for the party to waive this right of action and accept a performance of the contract, and I think the plaintiff did so at the time of the tender of the six hundred and twenty-five volumes. He then put his refusal to accept the same, not upon the former default or lapse of time, but solely upon the ground that the books were unmerchantable." This was considered [**23]  to be a waiver of all other objections to the tender, and if he was mistaken in the one urged, the tender was good, and a bar to the suit.
But it appears that the decision of the judge below, in rejecting the evidence as to the unmerchantable character of the books, was overruled. In relation to this subject Judge Nelson says: "It cannot be necessary to enter into an argument or cite authorities to show that if the books were unmerchantable, either as to material or execution, the tender would be defective, and no legal performance of the agreement." And in conclusion he adds: "The judge erred in excluding testimony that the 8th volume was not printed in a merchantable or workmanlike manner, in answer to the evidence of tender."

 [*373]  If this decision is to be taken as authority, (which is neither affirmed or denied,) it shows that although the plaintiff's mode of refusing to accept the tender might operate as a waiver of his prior right of action for the original breach of the contract, yet it could only do so provided the books were not unmerchantable. In other words, the waiver would avail the defendant nothing provided his tender was subject to the objection urged against [**24]  it by the plaintiff. And he having made none other must be confined to that alone, because relying upon that, expressly, justified the inference of his intention to abandon all others. When an objection to a tender is to operate as a waiver, it cannot be a waiver of any thing which is clearly within the objection, if true. And if the objection to its full extent may not be true, but is so in part, yet it cannot be a waiver which will make the tender good, provided that portion of the objection which is true shows that the tender is defective, and not a compliance with the obligation resting upon the party when he makes the tender, otherwise an inference would be permitted inconsistent with the negation of the objection itself. Whatever the objection denies, surely cannot be considered as admitted or waived.
In our opinion, when Macauley was called upon in January 1846, the plaintiffs had a right to demand of him, in money, a sum equivalent to the real value of twenty-five shares of stock in March 1837. Instead of paying such a sum Macauley tendered to them twenty-five shares of stock, which, according to the proof, was worth at the time of the tender only $ 5 per share, or $ 125 [**25]  in the whole, this being, in our estimation, considerably less than the actual value of the stock in March 1837. The plaintiffs refused to accept, and insisted that Macauley was bound to pay them $ 2500 in money, or stock of that value in the market. Admitting the reason thus assigned for refusing was a waiver of the right to demand money, and conceded that payment might be made by Macauley in stock, was it not a clear denial that the tender of twenty-five shares was a compliance with, or fulfilment of, the obligation 

 [*374]  then resting upon him under the contract? It would be a strange constructive waiver to say that because the plaintiffs refused to accept the offer, and claimed more than they were entitled to by law, they waived what they had a right to demand, and, consequently, were bound to take the stock tendered, or could get nothing. If, in the case of the Johnson's Reports, the plaintiff might prove the books were unmerchantable, and if he could succeed in doing so, the tender would be no bar to the action, why may not these plaintiffs avail themselves of the proof here, which shows the tender to be less than they had a right to demand, especially as they refused to [**26]  accept the tender on account of its insufficiency in amount?
Considering, as we do, the actual, and not the nominal, value of twenty-five shares of stock in March 1837, with interest, to be the amount in damages which the plaintiffs are entitled to claim, it remains to be ascertained what that amount is. And upon this subject we feel great difficulty in coming to any satisfactory conclusion, for the want of sufficient data on which to form a correct judgment. The court below allowed the sum of $ 1054.69. The plaintiffs ask for a reversal because that sum is too small. Before we can reverse on their appeal for such a reason they must satisfy us, by the proof in the cause, that they are entitled to a larger sum. The defendants insist that the judgment gives the plaintiffs too much. To authorize a reversal on their appeal they must convince us that less should have been allowed. The facts relied upon by the plaintiffs to show that the actual or market value of the stock in March 1837 was sufficient to entitle them to a larger sum than the amount of the judgment, are not, in our estimation, of such a character as will authorize us to decide that the court erred in not giving them [**27]  enough. We think, however, the allowance is not more than they were entitled to under the facts disclosed in the statement.
The facts on which the defendants rely, for the purpose of showing that the court committed an error, by allowing too much, have not produced such a conviction upon our minds. 

 [*375]  It is true the stock was sold as low as $ 5 per share, but these sales were long subsequent to March 1837, the time at which the value is to be ascertained. And between that date and the time of the five dollar sales, other sales, at a much larger price, were made.
A judgment below coming up by appeal is prima facie correct, and cannot be reversed by the appellate court unless they are convinced it is erroneous.
After a careful examination of the case we are not prepared to say we are satisfied that there is error in the present judgment, and therefore it must be affirmed.
Judgment affirmed. 

106 of 187 DOCUMENTS 

STATE OF MARYLAND vs. PHILIP SHILLINGER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Md. 449; 1854 Md. LEXIS 65 

DECEMBER, 1854, Decided 

PRIOR HISTORY:
 [**1]  ERROR to the Circuit Court for Howard County.

This writ of error was sued out by the State, from the equity side of the circuit court for Howard county, alleging error in the judgment of said court, (BREWER, J.,) remanding this cause to the criminal court of Baltimore city. The facts of the case are stated in the opinion of this court.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Under the present constitution of the State, Baltimore city is not a part of Baltimore county, but is a separate and distinct part of the State for purposes of government.

Under the provisions of the constitution authorising the removal of cases for trial, a criminal case can only be removed from the criminal court of Baltimore city to a county adjoining said city. 

COUNSEL:
John T. B. Dorsey, States Attorney for Howard county, for the plaintiff in error, argued.

1st. The right to remove a cause for trial does not depend upon the constitution, but is a common law right. 1 Chitty's Crim. Law, 201. The criminal court of Baltimore city, unlike the other courts of the State, is a court of peculiar jurisdiction. By the 13th section of the 4th article of the constitution, it has conferred upon it "all the jurisdiction formerly exercised by Baltimore city court." This latter court was the successor of the old court of oyer and terminer, and by various acts of Assembly, had all the jurisdiction, rights and powers, which that court had and exercised. Now I insist, that if the court of oyer and terminer had the right to remove a case to a county adjoining Baltimore county, the present criminal court [**2]  of Baltimore city has the same power and right, and that there is no provision of the present constitution restricting such power. And that the court of oyer and terminer had the power to make such removals, is clear from the authorities. 6 H. & J., 268, State vs. Dashiell. 8 Gill, 295, Price vs. The State. 1 Md. Rep., 129, Stewart vs. The State.

2nd. All the rights and powers of the court of Howard district of Anne Arundel county, attach to the court for Howard county, by the 1st section of the 8th article of the constitution. The right of removal to the court of Howard district of Anne Arundel county, from Baltimore city court, is recognised by the acts of 1838, ch. 22, sec. 4, and 1846, ch. 159. See also 1 Md. Rep., 129, Stewart vs. The State. Ibid., 135, State vs. Manly.

No counsel appeared for the defendant in error.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and TUCK, J.  

OPINIONBY:
TUCK 

OPINION:

 [*450]  TUCK, J., delivered the opinion of this court.
Philip Shillinger was indicted in the criminal court of Baltimore city for selling liquor on Sunday. Upon his suggestion and affidavit, the criminal court ordered the record of proceedings to be transmitted to [**3]  the circuit court for Howard county. The traverser, by his counsel, moved "that the cause be remanded to the criminal court of Baltimore city," upon the ground "that the circuit court for Howard county had no jurisdiction--Howard not being an adjoining county to Baltimore city." Upon this motion the circuit court ordered the record to be returned to the criminal court, "being of opinion that the said court had no jurisdiction in said cause." The case is now in this court on a writ of error.
It has been decided by this court, in Wright vs. Hamner, 5 Md. 370, that Baltimore city and county are separate and distinct parts of the State for purposes of government. The city is no longer a part of the county for such purposes, but must be regarded as an adjoining jurisdiction. Upon this view of the relation of the city and county to each other it was held, that a civil case might be removed from the Superior Court of Baltimore city to the circuit court for the county. It cannot be maintained, that the city is separate from the county as to the civil jurisdiction of its courts, and a part of it as to the administration of criminal law. The proviso in the 28th section of the [**4]  4th article of the constitution does not affect the point before us. The power of removal to any adjoining 

 [*451]  county in criminal causes is general. In civil cases it is restricted to an adjoining county within the circuit, except as to the city of Baltimore, whose courts are authorised to remove such cases to an adjoining county, because otherwise there could be no removal in these cases, inasmuch as the city of Baltimore is a distinct jurisdiction and does not form a part of any judicial circuit. The removal cannot be sustained under this section of the constitution.
But it is said on the part of the State, that because Baltimore and Howard counties adjoin, the removal may be made in virtue of the 13th section of the 4th article, which confers on the criminal court all the jurisdiction exercised by the former Baltimore city court, and, without doing violence to the 28th section, limiting removals to adjoining counties in criminal cases. It is true, that under the constitution and laws prior to the present constitution, Baltimore city court had power to remove indictments to counties adjoining Baltimore county and to Howard District.  Price vs. State, 8 Gill 295. [**5]  Stewart vs. State, 1 Md. 129. But the question here is, whether that power has not been restricted by the constitution? If we give this construction to the 13th section, we should nullify that provision which expressly limits removals to adjoining counties; whereas, by interpreting it as restrictive of the right previously exercised, and as placing causes in the criminal court on the same footing with indictments in other courts, both clauses may well stand together, and be more consonant with the separate and distinct character which the city of Baltimore now sustains towards the counties of the State under other clauses of the constitution.
It is immaterial whether the right is founded on the common law, or derived from the constitution, so far as concerns this question. Its exercise by the courts is regulated at present by the constitution, and until some "further remedy in the premises be provided by law," the courts must be governed by its provisions.
Concurring with the court below in its opinion that the record was improvidently transmitted to Howard county, we affirm the judgment.
Judgment affirmed. 

107 of 187 DOCUMENTS 

HENRIETTA D'ARCEY WILSON and others, vs. MARY NETTERVILLE WILSON and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Md. 487; 1854 Md. LEXIS 71 

DECEMBER, 1854, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Equity Side of the Superior Court of Baltimore city.

William T. Wilson died in June 1852, leaving a will executed on the 2nd of June 1849, by which he devised the whole of his estate, real and personal, of which he might die possessed, to Thomas J. Wilson, in trust for the benefit of the appellants. After the execution of this will the testator, in his lifetime, acquired a fee-simple title to a certain lot in the city of Baltimore, which was sold under the bill in this case for the purpose of partition amongst those entitled. The proceeds of sale were distributed by the auditor's report to the heirs at law of the testator. To this report the appellants excepted, claiming the entire proceeds under the will by virtue of the act of 1849, ch. 229. This exception the court, (FRICK, J.,) overruled, on the 10th of September 1853, and passed an order confirming the auditor's report, from which this appeal was taken.  

DISPOSITION:
Order reversed and cause remanded.  

HEADNOTES:

The act of 1849, ch. 229, operates upon wills made before its passage, where the testator dies after the first day of June 1850.  

COUNSEL:
Brown and Brune for the appellants.

James A. Buchanan for the appellees.  

JUDGES:
The cause was submitted to the court, LE GRAND, C. J., ECCLESTON, MASON and TUCK, J., on the record, without argument.  

OPINIONBY:
TUCK 

OPINION:

 [**2]  
 [*488]  TUCK, J., delivered the opinion of this court.
The sole question arising on this appeal is, whether certain real estate acquired by William T. Wilson, after the execution of his will, passed to his devisees, or descended to his heirs at law?
The order from which the appeal is taken, was passed after the decision by the Circuit Court of the United States on M. B. Carroll's will. Since then this court has decided that the act of 1849, ch. 229, operates upon wills made before its passage, where the testator dies after the first day of June 1850. As the testator, in this case, executed his will in June 1849, and died in June 1852, it follows that, according to the construction of the act of 1849, as established by this court, his after-acquired real estate must pass under the will, and not to the heirs at law.  4 Md. Rep., 335. 5 Md. Rep., 471.
The order of the Superior Court, assigning the proceeds of sale as of lands descended, will be reversed, and the cause remanded for a new audit, and appropriation of the fund under the will, the costs to be paid out of the estate.
Order reversed and cause remanded. 

108 of 187 DOCUMENTS 

CHARLES F. CLOUD vs. JOHN NEEDLES.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Md. 501; 1854 Md. LEXIS 74 

DECEMBER, 1854, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Court of Common Pleas for Baltimore City.

This was an action by the appellee against the sheriff of Baltimore city, (the appellant,) under the statute of 8th Anne, ch. 14, for taking in execution the goods of a tenant to the plaintiff, without paying the rent due on the lease. Plea non cul.

Exception. On the 1st of April 1850, a party became tenant of the plaintiff of a house and lot, at the annual rent of $ 560, payable quarterly, and continued such up to the time of this suit. On the 1st of August 1851, a fi. fa. upon a judgment against the tenant, was issued and delivered to the sheriff, who soon after levied it upon the tenant's household furniture found in the house aforesaid. The property was advertised and sold by the sheriff on the premises, early in October following, and the whole nett proceeds of sale paid over to the plaintiff in said judgment. At the time of this levy one quarter's rent accruing from the first of April to the first of July 1851, was due, an account for which was made out and left with the sheriff. It was further proved that after the levy and before the sale, the landlord's agent called upon the sheriff and stated the amount of [**2]  the claim for rent, and the sheriff told him to make out the account, and the agent afterwards saw the sheriff's deputy who promised to pay the amount of rent claimed. Another witness proved that sometime before the sale, in the presence of the deputy sheriff, the tenant, and the landlord's agent, it was understood that the rent claimed should be paid out of the proceeds of the sale, and the deputy sheriff so promised.

The defendant then proved that the landlord was not present at the sale, though he knew when it occurred, and never, so far as the witnesses know, objected to it; that the goods were bought by a purchaser who afterwards deeded them in trust for the tenant's wife, and that none of said goods were ever removed by the sheriff or any other person from the house, either before or after the sale, and that they are still in said house, which the tenant still occupies under the original agreement for rent as aforesaid.

The defendant then asked of the court four instructions to the jury; the first three were in substance, that the plaintiff is not entitled to recover, unless the jury find that the goods levied upon and sold by the sheriff, were in part or in whole removed [**3]  from off the premises by the sheriff or his officer: the fourth is fully stated in the opinion of this court. The court below, (MARSHALL, J.,) rejected these instructions, except the fourth, which was granted with the modification stated in the opinion of this court. "To which instructions" (as the record states,) the defendant excepted, and the verdict and judgment being against him for the whole amount of rent due, he appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

Where a court refuses to grant several prayers and grants one with a modification, and the party offering the prayers excepts, "to which instructions" the rejected prayers are not open for review in this court, because there is no exception to their rejection.

If a landlord consents to a sale of his tenant's goods taken in execution by the sheriff, under a promise from the latter made after the levy and before the sale, that he will pay the rent claimed, it is in law a waiver by the landlord of his right to sue the sheriff under the statute of 8th Anne, ch. 14.

To render such waiver available to the defence, it is not necessary that the jury should be required to believe that, in point of fact, the landlord had actually waived the right so to sue under the statute, and it is error to submit such an enquiry to them.  

COUNSEL:
William B. Perine, for the appellant, argued that the judgment should be reversed.

1st. Because the goods though sold by the sheriff were not removed, and he is therefore not responsible in this form of action, under the statute of 8th Anne, ch. 14. 46 Eng. C. L. Rep., 1001, Smallman vs. Pollard. 20 Eng. Law & Eq. Rep., 212, 213, White vs. Binstead.

2nd. Because the landlord consented to the sheriff's sale. 3 Camp., 24, Rotherey vs. Wood. This point arises under our fourth prayer. The modification annexed to this prayer by the court, was clearly erroneous, because it submits the subject of waiver, which is a question of law, to the jury. 2 Saund. on Pl., 303. Chitty on Bills, 174. 4 H. & J., 538, Beck [**4]  vs. Thompson. 1 Md. Rep., 437, Ijams vs. Hoffman. As modified the prayer presented an involved and conflicted proposition, and tended to mislead the jury. 1 Gill, 153, Whiteford vs. Burckmyer & Adams. 9 Do., 160, Clements vs. Smith.

J. Shaaff Stockett & Thomas S. Alexander for the appellee, argued.

1st. The only question open on this appeal, under the exception as taken, is the propriety of the modification by the court to the defendant's fourth prayer. This modification simply leaves it to the jury to find whether the plaintiff regarded the notice he gave the sheriff of his claim for rent, as a waiver of his rights. This it was clearly competent for the jury to find, and this modification, therefore, caused no injury to the defendant, and the judgment should not be reversed.

2nd. There is no reported case in this State, in which this question under the statute of Anne has been decided. The sheriff is not bound to find out that there is rent due, but the landlord must give him notice. This was done in this case, and the sheriff having proceeded to sell without paying the rent, after he had due notice of the claim, has made himself liable under the statute. 58 Eng. C.  [**5]  L. Rep., 233, Cocker vs. Musgrove. 3 Taunt., 400, Smith vs. Russell. There was nothing in the notice which we gave of our claim, which can be regarded as a waiver of our rights under the statute.

3rd. The promise of the sheriff to pay the rent out of the proceeds of sale, and the absence of objection to the sale by the landlord, did not debar him of his right of action under the statute, for at no time after the seizure of the goods by the sheriff, they being thereby in custodia legis, could he have enforced his claim for rent by distress. 6 Eng. C. L. Rep., 154, Peacock vs. Purvis. 11 Johns., 185, Alexander vs. Mahon. 7 H. & J., 60, Cromwell vs. Owings.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and MASON, J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*504]  ECCLESTON, J., delivered the opinion of this court.
The court refused to grant the first, second and third prayers offered on the part of the defendant, but such refusal not being excepted to, those prayers are not before us.
The defendant's fourth prayer is, "That the plaintiff is not entitled to recover in this action if the jury shall find from the evidence that the sheriff, or his officer, promised the plaintiff, or his [**6]  agent, after the levy and before the sale of the goods taken in execution by the sheriff in the case against the tenant, to pay the amount of rent claimed by the plaintiff; and if they further find that the plaintiff consented to said sale." This prayer was granted by the court with the following proviso or qualification: "Provided the jury believe, that in making such assent the plaintiff waived, in virtue of this agreement, his rights as asserted in the claim and notice offered in evidence, and relied upon the promise of the sheriff, referred to in this prayer." To this action by the court the defendant excepted.
 Rotherey vs. Wood & Atkins, 3 Camp. Rep. 24, was a suit like the present against a sheriff, under the statute of 8 Anne, ch. 14, sec. 1, for taking in execution the goods and chattels of a tenant to the plaintiff without paying the rent due on the lease. There the sheriff received regular notice from an agent of the plaintiff that a year's rent was due; but the same agent took from the sheriff's bailiff and auctioneer a written agreement or undertaking in these words: "We undertake to pay Mr. Rotherey one twelve-months' rent for the premises [**7]  occupied by Mr. Clarkson if so much rent appears to be due."
The goods were then sold with the consent of the plaintiff's agent, but the rent was not paid.
Lord Ellenborough held, the plaintiff had waived the benefit of the statute, and that no tort had been committed by the sheriff in taking the goods in execution without first paying the 

 [*505]  rent, as it was done with the consent of the plaintiff. And although some doubt seems to have been intimated whether the written undertaking expressed on its face a sufficient consideration to render it available as a contract, it was considered to be a clear justification to the sheriff, whether valid or invalid as a contract. And the opinion concludes by saying, "In future, it will be better for landlords to have their rent before they suffer their tenants' goods to be sold in execution; but if they will give trust, they cannot afterwards resort to an action on this statute against the sheriff."
According to the decision in that case, if the jury believed the present plaintiff consented to the sale under the circumstances stated in the prayer, it operated in law as a waiver of his right to sue under the statute. And to render [**8]  such waiver available to the defence, it was not necessary the jury should be required to believe, that in point of fact the plaintiff had actually waived the right so to sue. Submitting such an enquiry to them was therefore erroneous. Instead of tending to enlighten the jury, the proviso or qualification was well calculated to embarrass and mislead them, by requiring them not only to find the facts submitted in the prayer, but also that the plaintiff had actually waived his rights. Granting the prayer, with the qualification, was a virtual rejection of it as presented, and equivalent to saying to the jury, although they might believe every thing submitted therein to be true, yet such belief could avail nothing to the defendant unless they should also find it to be true, in fact, that the plaintiff had waived his rights under the statute and relied upon the promise of the sheriff.
In regard to what may or may not render a sheriff liable to a landlord for rent under the statute, see Smith vs. Russell, 3 Taunt. 401. White vs. Binstead & Prebble, 20 Eng. Law and Eq. Rep., 212; and Smallman vs. Pollard, 6 Man. & Gran., in 46 Eng. Com. Law 1001. [**9]  
Judgment reversed and procedendo awarded. 

109 of 187 DOCUMENTS 

JONATHAN H. ELLICOTT and BENJAMIN H. ELLICOTT, vs. JOHN H. EUSTACE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Md. 506; 1854 Md. LEXIS 75 

DECEMBER, 1854, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

Assumpsit by the appellee, as holder, against the appellants, as acceptors, of a foreign bill of exchange.

The suit was docketed by consent at the January term 1852 of the court below, and a rule laid upon the defendants to plead within fifteen days. On the 29th of April 1852, they filed their plea of non assumpsit, accompanied by an agreement of counsel, that at the call of the trial docket they might move to put in a plea of usury, as of that day, which should be received if the court should decide it could be received after the rule day. At the following September term they moved to amend their plea, so as to plead the statute of usury of the State of Virginia, where the bill was drawn. This amendment the court (FRICK, J.,) refused to allow, and from this refusal the defendants appealed.

The case was then tried and verdict and judgment rendered for the plaintiff, and from this judgment also the defendants appealed.  

DISPOSITION:
Appeal dismissed.  

HEADNOTES:

An appeal will not lie from the refusal of a court to allow an amendment of pleadings.  

COUNSEL:
Grafton L. Dulany for the appellants, argued:

1st. That with or without the agreement they had the right to the amendment which they sought, secured to them by statute of which [**2]  they could not be legally deprived by the judgment of the court. That the discretion allowed by the act of 1809, ch. 153, is a sound legal discretion, an erroneous exercise of which is the subject of appeal and review in this court. 5 G. & J., 64, McPherson vs. Israel. 1 Bland, 5, Ringgold's case. Fearne on Contingent Remainders, 535, note. Coke Litt., 227, (b.) 6 H. & J., 302, Thompson vs. McKim. 1 H. & G., 324, Union Bank vs. Ridgely. 5 H. & J., 459, Warfield vs. Warfield.

2nd. The plea of usury is a plea in bar and goes to the action, and is therefore a plea to the merits, and was not offered too late. 1 G. & J., 393, Burch vs. Scott. Stephen's Pl., 159, 274. 1 Chitty's Pl., 469, 470, 477. 4 Pet., 410, Craig vs. State of Missouri. 1 H. & G., 324. 2 Pet., 527, Bank of the United States vs. Owens. 8 Gill, 59, Merrick vs. Bank of Metropolis. 5 Wend., 595, Rice vs. Welling, and the Ms. Opinion of Ch. J. Taney, in the case of Thomas, Trustee of Lloyd, vs. Watson, in the Circuit Court of the United States.

E. W. Blanchard and James A. Buchanan for the appellee, argued:

1st. That this appeal should be dismissed, because there is no exception in the case presenting any question [**3]  for the review of this court. The plea of usury tendered was rejected, and therefore forms no part of the record of the cause in the court below, which is all that an appeal from the judgment can bring up. Where facts are to be brought up for the consideration of this court, they must be verified and certified to by the hand and seal of the judge who tried the case below, and without this no notice can be taken of them by this court. Evans' Pr., 111, 112. Bac. Abr., 529. Coke Litt., 426. 1 Md. Rep., 13, Milburn vs. State. 4 Md. Rep., 426, Cross vs. Hall.

2nd. The appeal should be dismissed, because no appeal lies from the court's refusal to allow an amendment; amendments are, by the act of 1809, ch. 153, in the discretion of the court. 1 Gill, 41, Gordon vs. Downey. 5 H. & J., 174, Anderson vs. The State. 2 H. & G., 79, Wall vs. Wall. 4 Wheat., 213, Barr vs. Gratz. 3 Md. Rep., 454, Cain vs. Warford. 7 Gill, 237, Crockett vs. Parke.

3rd. They also argued that the plea of usury tendered was defective in various particulars, but as no decision was made upon this point the argument need not be reported.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON, MASON and TUCK,  [**4]  J.  

OPINIONBY:
MASON 

OPINION:

 [*508]  MASON, J., delivered the opinion of this court.
One of the questions in this case, which lies at the foundation of the appellants' right of appeal, has been so often determined in our own courts, and elsewhere, as to be no longer an open question.
The present appeal was taken from the refusal of the court below to allow the defendants to amend their pleadings. It has been decided that from such a judicial act no appeal will lie, because it rests in the sound discretion of the court. In the case of Crockett vs. Parke, 7 Gill 237, the court expressly except from the operation of the act of 1785, ch. 87, allowing the right of appeal, the cases of "motions for new trials, for the postponement or continuance of a cause, for the amendment of pleadings, or any other matter resting exclusively in the sound discretion of the county court."
And in the case of Gordon vs. Downey, 1 Gill 41, the court say, that "an application for an amendment of pleadings is not a demand of a matter of right, but is an appeal to the sound judicial discretion of the court." See also 4 Md. 493, and Thomas vs. Doub, 1 Md. 252. [**5]  
The same principle is recognised in a number of other cases, which we need not particularly refer to. The rule itself, and the philosophy of it, are perhaps stated more fully and satisfactorily in the case of the Marine Insurance Company of Alexandria, vs. Hodgson, 6 Cranch 206, than in any other case that we have seen.
In what we have said we do not wish to be understood as admitting, that the present record properly presents the question which we are asked to review. We have only said that the ruling by the court below, however presented, was not a subject to be reviewed in this court, and therefore the present appeal must be dismissed.
Appeal dismissed. 

110 of 187 DOCUMENTS 

JONATHAN H. ELLICOTT and BENJ. H. ELLICOTT, vs. MARTIN, LOVE & CO.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Md. 509; 1854 Md. LEXIS 76 

DECEMBER, 1854, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

Assumpsit, by the appellees against the appellants, as acceptors of a draft, drawn by Edwin Farrar, of Richmond, Va., on them for $ 750, payable to the order of T. & R. Crouch, by whom it was endorsed. Plea, non assumpsit.

Exception. The plaintiffs offered in evidence the draft and protest, which stated, the defendants in reply to demand of payment said: "No funds placed in hands of drawer, as promised." They then proved, that after the draft was placed in the hands of their counsel for collection, one of the defendants called on said counsel and asked to see the draft, which was shown to him, and on looking at it he said it was all right, and that they (the defendants,) would pay it to the plaintiffs, and indeed had already promised the plaintiffs so to do, but that as it was an accommodation acceptance and as the drawers had not forwarded funds or goods, as they had engaged to do, to meet it, the defendants would have to take as much time thereon as the law would allow, and would therefore stand suit to obtain such time; that defendants were pressed for money and time was an object to them.

The defendants then proved [**2]  by Joseph C. Grant, (whose testimony was taken subject to exception,) that he was acquainted with the firm of Davenport & Co., of Richmond, Va.; that one of said firm had been in Baltimore, and informed witness that the Ellicotts had not paid their draft and he had sued them, but did not say what draft he referred to. That on his way to court to testify in this cause, witness called at the counting house of the plaintiffs, where he saw Martin, one of the plaintiffs, and asked him what the suit was about, to which Martin replied, that he knew nothing about it, that it was not his, and that it belonged to Davenport & Co. They then further proved, that they had given notice in writing to the plaintiffs to prove the consideration of the draft at the trial; and also, that the plaintiffs' endorsement, written on said draft, had been erased by their counsel at the trial table after the swearing of the jury, (said erasure took place while the first prayer was under discussion,) and the testimony was here closed.

The defendants then offered the following prayer: 1st. "If the jury believe the witness, Grant, then the plaintiffs are not entitled to recover." The plaintiffs still maintaining [**3]  their objection to Grant's testimony, the prayer was discussed, and rejected by the court; "to which rejection the defendants excepted."

The defendants then asked leave to offer another prayer, to the effect, that notice having been given to the plaintiffs to prove consideration, the onus of such proof was upon them. The plaintiffs assented to this, and the court then adjourned to give the defendants' counsel time to offer his prayer and prepare his bill of exceptions. When the court met on the following morning, the defendants' counsel appeared and informed the court that they had withdrawn the prayer which the court had rejected, and waived their exception thereto, and then offered the following prayers:

2nd. If the jury find from the evidence that no value was ever paid to the defendants in consideration of their acceptance of said draft, and that notice was given to the plaintiffs to prove the consideration given by them therefor, then, in the absence of any such proof, the plaintiffs are not entitled to recover.

3rd. If the jury find the plaintiffs have no beneficial interest in this case, or the draft upon which it is brought, but are the mere agents of Davenport [**4]  & Co. in assuming the character of plaintiffs therein, and that the plaintiffs' endorsement has been by them erased from the draft, then the plaintiffs have no legal interest therein and cannot sustain this action.

The plaintiffs then objected to the reception of the third prayer as being an alteration of the first, which the court had rejected, a re-opening of the case on a point already concluded and not within the reservation of the day previous, and in violation of the 36th and 37th rules of court, (which are set out in the record.) The first of these rules provides, in substance, that after the testimony on both sides is closed, all the prayers of both parties must be offered and discussed together, and the court, upon the whole case, will give such instructions as may appear requisite to place the case fully before the jury. The second provides, that after the jury shall have been so charged, no additional prayer will be received, nor additional evidence given, unless by permission of the court.

The court then entertained and rejected the second prayer, and refused to receive the third; "to which rejection and refusal the defendants excepted."

The defendants then [**5]  offered a fourth prayer, as follows:

4th. If the jury find that the plaintiffs were not the owners of the draft sued on at the time of the institution of the suit, and that they acted therein at the request of Davenport & Co., to whom the said draft belonged, and for their use and benefit, and as their agents in bringing this suit, then the plaintiffs are not entitled to recover.

The court, (FRICK, J.,) refused to receive this prayer, also, as in violation of its rules above mentioned; "to which refusal to receive the defendants also excepted and asked the court to sign and seal this their first bill of exceptions, which is done," &c. The verdict and judgment being in favor of the plaintiffs, the defendants appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

In action by the endorsee against the acceptor of an accommodation draft, possession is prima facie evidence of consideration and title, and the fact that it was an accommodation acceptance does not throw the onus upon the plaintiff to prove that he paid value for it; such onus is on the defendant.

But where the defence relied on is fraud or illegality in the inception of the draft, then the onus is upon the plaintiff to prove affirmatively that he paid value for it.

The fact that the drawer did not place the acceptor in funds or goods to meet the draft at its maturity, as he had promised to do, is not evidence of fraud in its inception.

Where the party suing is in possession of the bill, the court will never inquire whether he sues for himself or as trustee for another, nor into the right of possession, unless on an allegation of mala fides.

The prima facie case made in favor of the plaintiff by his possession of the draft, cannot, in the absence of mala fides, be rebutted by evidence that the title to the draft was in some other party.

Each distinct exception which embraces an independent proposition of law, must be signed and sealed by the court below, before it can be regarded as a valid exception to be considered by this court.

Where, in the course of a trial, the court makes several rulings, which are successively excepted to but not signed and sealed, the fact that the last is so signed and sealed does not make the whole one continuous exception, but each separate exception must be signed and sealed.

But where a series of consecutive prayers are presented, and the court grants, rejects or modifies them, this is but one act, and one exception properly taken and executed will embrace the whole.  

COUNSEL:
Grafton L. Dulany for the appellants, argued:

1st. That the court below should have entertained the defendants' third prayer and decided upon its merits, because it contained substantially the same proposition of law as the first, which was withdrawn in order to introduce a fact, to wit: the erasure of the plaintiffs' endorsement, which was done after the first prayer was offered to the court. This fact was new proof by the plaintiffs,  [**6]  and hence a case for the application of the rules of the court below did not occur, and the court therefore erred in refusing to receive the defendants' fourth prayer. But again, the refusal of the court to receive each of these prayers, or give any opinion thereon, was against law and the right of the litigant, and could not be justified by any rule of court. 6 H. & J., 415, Allegree vs. Md. Ins. Co. Coke Litt., 227, (b.) Fearne on Contingent Remainders, 535, note. 1 H. & G., 324, Union Bank vs. Ridgely. 1 H. & J., 206, Somervell vs. King. Ibid., 752, Williams vs. Williams. The ruling of the court below goes to the extent of saying, that no amendment of a prayer can take place after it is once submitted, and this entirely sets aside the act of 1809, ch. 153, relating to amendments.

2nd. The draft sued on was an accommodation draft, and the plaintiffs before suit brought were informed of this fact, and notice was given to them that they would be required to prove its consideration, and the question then arises, were they bound to prove that they paid value for it? We say such onus of proof was upon them. There is no difference between a contract evidenced by a bill of exchange [**7]  and any other: a consideration is essential to its validity. Story on Bills, secs. 179, 180, 193. 3 Eng. C. L. Rep., 377, Green vs. Deakin. 22 Do., 79, Heath vs. Sansom. Ibid., 301, Mann vs. Lent. The proof of Grant shows that the plaintiffs had no beneficial interest or title in the draft, and that they were the mere agents of Davenport & Co., who were the substantial owners of it. The question then is, does the mere possession of the draft give the plaintiffs the right to sue upon it? We say this is not enough in such a case as this. The plaintiff must have either a beneficial or a technical legal interest to entitle him to sue. A mere agent cannot sue. Possession alone is nothing: it is because it carries with it the title that gives it efficacy. But possession and title are separable. If the holder of a draft comes into court under circumstances of suspicion, the title is at once separated from the possession and he cannot recover. 1 Gill, 145, Whiteford vs. Burckmyer & Adams, and the same case in 6 Gill, 16, and 9 Gill, 500. The plaintiffs here show that they had no title to the draft, no interest in it, and nothing to do with it. This presents a case of mala fides, for it shows [**8]  a total divestiture of any title or interest in the draft.

T. K. Howard and S. T. Wallis for the appellees, argued:

1st. Independently of the question of want of consideration passing to the defendants for their acceptance, it is matter of no importance whether the plaintiffs were owners of the draft or only sued as agents of the owners, their simple possession entitling them to sue and recover in the absence of mala fides alleged and proven. Story on Promissory Notes, secs. 246, 381. 1 Gill, 127, 145, 146, Whiteford vs. Burckmyer & Adams, and the same case in 6 Gill, 16, and 9 Gill, 500. 3 Gill, 251, Chesley vs. Taylor. 7 Do., 216, 232, Bell vs. Hagerstown Bank. 8 Do., 59, Merrick vs. Bank of Metropolis.

2nd. Even if the second prayer of the defendants properly raised the question of want of consideration, (which we deny,) it still should have been rejected, because the mere proof that the acceptance was an accommodation acceptance, as between drawer and acceptors, and the notice given did not throw on the plaintiffs the onus of proving that they were holders for value, no fraud or mala fides being alleged or proven. The former practice of requiring the plaintiffs to [**9]  prove consideration in such a case as this, sustained by some authorities, is overruled by the modern cases. 1 Mees. & Welsby, 425, Mills vs. Barber. 41 Eng. C. L. Rep., 645, Arbouin vs. Anderson. Chitty on Bills, (10 Amer. Ed.,) 650. Byles on Bills, 122. 4 Watts & Seargeant, 445, Knight vs. Pugh. 2 Greenlf. on Ev., sec. 172. 16 Pet., 15, Swift vs. Tyson. 2 Md. Rep., 356, Renwick vs. Williams. 5 Do., 400, Yates vs. Donaldson. 9 Mees. & Welsby, 307, Smith vs. Martin.

3rd. The defendants by admitting their responsibility on the draft, as proven, promising to pay it, causing the plaintiffs to sue therefor, and professing to have no object but to gain time, estopped themselves from raising the questions presented in all their prayers. 1 Greenlf. on Ev., secs. 207, 208.

4th. The court under its rules properly refused to entertain the defendants' third and fourth prayers. 2 H. & G., 79, 82, Wall vs. Wall. 11 G. & J., 92, 97, Dunbar vs. Conway. But even if the court erred in this, it is no ground for reversal, because if they had been received they must have been rejected, as we have already shown.

5th. But we say that the only exception in this case, is to the refusal to receive [**10]  the fourth and last prayer. The mere noting of the other exceptions without the seal and signature of the judge, does not constitute them exceptions of which this court can take notice. Each exception must be signed and sealed. 9 Pet. 442, Scott vs. Lloyd.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and MASON, J.  

OPINIONBY:
MASON 

OPINION:

 [*514]  MASON, J., delivered the opinion of this court.
Whether the action of the court below, in regard to its refusal to receive the defendants' prayers, was in conformity with its rules upon the subject, and whether those rules were 

 [*515]  passed in the due and proper exercise of the legal functions of the court, are questions we need not decide on this appeal.
If all the defendants' prayers had been duly submitted and considered by the court, they should not have been granted, upon the case as made by the proof.
This is an action against the acceptors of a bill of exchange, accepted for the accommodation of the drawer, and which by endorsement has passed into the hands of the plaintiffs. The plaintiffs now maintain, that the possession of the draft is prima facie evidence of consideration and title, while the defendants insist,  [**11]  that they having given notice to the plaintiffs to prove the consideration of the draft in question, the onus has thereby been thrown upon them to show affirmatively that they did give value for it.
As a general proposition it may be true, that where a plaintiff has not given value for a bill of exchange, for which no consideration had been previously obtained, he cannot recover upon it. But the question is, upon whom is the onus of proving the want of consideration in such a case thrown? The answer to this question has been given in a number of cases. In the case of Arbouin vs. Anderson, 1 Adol. & Ellis 503, (41 Eng. C. L. Rep. 645,) Lord Denman says, "We must hold that the owner of a bill is entitled to recover upon it, if he has come by it honestly; that that fact is implied prima facie by possession." And in the case of Mills vs. Barber, 1 Mees. & Welsby 425, the court say: "If a man comes into court without any suspicion of fraud, but only as the holder of an accommodation bill, it may fairly be presumed that he is a holder for value:" and it is added, "in such cases the onus probandi is cast upon the defendant."  [**12]  
It is true, a contrary doctrine was at one time held, but the cases upon which it rested have been overruled. We may safely say, that the law is now well settled, that evidence of want of consideration as between the original parties to a note or bill, will not shift the burden of proof in an action by an endorsee, nor put him to show that he is a holder for value. Otherwise, however, when the defence relied on is 

 [*516]  fraud or illegality in the inception of the paper, and not merely that it was given or accepted for the accommodation of the payee or drawer. Knight vs. Pugh, 4 Watts & Sergeant 445. Munroe vs. Cooper, 5 Pick. 412. 1 Gill 145. Renwick vs. Williams, 2 Md. 356.
The only ground for alleging fraud in the inception of the present bill was the circumstance, that the drawer had not placed the defendants in funds or goods to meet the draft upon its maturity, as he had promised to do. We presume that in every case of an accommodation acceptance the same pledge is made, and the fact that suit is afterwards brought, is presumption that the pledge was not kept; and if such a defence be good,  [**13]  it would follow, that an action could rarely ever be maintained against the acceptor or maker of an accommodation paper.
The evidence of the witness Grant, is insufficient to defeat the right of the plaintiffs to recover. The prima facie case which is made in favor of the plaintiffs by the possession of the draft, cannot be rebutted, under such circumstances, by evidence that the title to the draft was in some party other than the plaintiffs. In the case of Whiteford vs. Burckmyer & Adams, 1 Gill 127, this court have said, that courts of justice will never inquire, where the party suing is in possession of the bill, whether the party sues for himself or as trustee for another, nor into the right of possession, unless on an allegation of mala fides. No mala fides having been alleged or proven in this case, the testimony of Grant becomes of no avail.
Although we have decided this case upon other grounds, yet we deem it proper to express an opinion upon another question raised by the record, which relates to the sufficiency of the exceptions--a question frequently presented, and of considerable importance in practice, but as yet not decided by this [**14]  court.
It has been supposed by some, that where the court in the progress of the trial makes several rulings, which are successively excepted to, but which are not severally signed and 

 [*517]  sealed, that notwithstanding, they should be considered and decided in the appellate court, provided the last ruling is signed and sealed; in other words, that the whole should be considered as one continuous exception, sufficiently certified by the last signing and sealing. We cannot concur in this view of the law, but are of opinion that each distinct exception, which embraces an independent proposition of law, should be signed and sealed by the court below, before it can be regarded as a valid exception. This remark does not apply to a series of consecutive prayers offered by the counsel. In such a case the ruling of the court, in either granting, rejecting or modifying the prayers, may be regarded as a single act, and one exception, if properly taken and executed, may embrace the whole.
There are cases in the Maryland Reports, which might favor the idea, that a different practice has to some extent prevailed in this court. In all those cases we think it will be found, upon examination,  [**15]  that a strict compliance with the law was not insisted upon. We have been able to find no case where the practice has been expressly decided to be regular and proper, but on the contrary, wherever the question has been distinctly presented, this court has adhered to the strictness which we have herein pointed out as necessary.  2 Har. & Johns. 345. 1 Md. 13.
The same practice prevails in the Supreme Court of the United States, of requiring each exception to be signed and sealed by the court below.  9 Peters 442, Scott vs. Lloyd. We refer to this case to illustrate, more particularly, our meaning in reference to the signing and sealing of the different exceptions.
Judgment affirmed. 

111 of 187 DOCUMENTS 

THOMAS H. FULTON and others, vs. JOHN A. NICHOLSON and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Md. 104; 1854 Md. LEXIS 89 

DECEMBER, 1854, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

The record in this case shows, that a decree was passed by Baltimore county court, sitting in equity, for the sale of certain mortgaged real estate, which had been mortgaged by Thomas H. Fulton and wife by deed of mortgage, dated the 19th of June 1847. The property was sold, and, by the auditor's report, dated the 2nd of July 1852, the trustee was allowed the sum of $ 386.92 on account of taxes due on the property so sold. A party interested excepted to this allowance, because said Fulton died on the 12th of January 1851, and personal estate sufficient to pay funeral expenses and said taxes had come to the hands of his administrator and now remain in his hands unadministered; and by the 11th section of the act of 1843, ch. 208, these assets ought to be applied to the payment of said taxes.

At the hearing of this exception it was admitted, that the facts above stated are true, and that said taxes, as claimed by the late sheriff and collector, were duly levied and are unpaid, as set forth in the tax bills filed. He claims the allowance by virtue of the 6th and 7th sections of the act of 1843, ch. 208, and the several provisions [**2]  of the laws in regard to taxes. It was also admitted, that the proceeds of the sale of the mortgaged property were insufficient to pay the mortgage debt.

The court, (FRICK, J.,) overruled the objections to this allowance and ratified the auditor's report. From this decision the exceptant appealed.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

Where mortgaged real estate of a deceased party is sold under a decree in equity, the taxes due the State are, by virtue of the 6th and 7th sections of the act of 1843, ch. 208, to be first paid out of the proceeds of sale.

But when this is done, the mortgagee, or party entitled to the fund, will be substituted to the rights of the State or county and entitled to a preference, according to his proper priority in the administration of the deceased's personal estate.

County taxes duly levied are a lien upon real estate under the act of 1797, ch. 90.  

COUNSEL:
Grafton L. Dulany for the appellant, argued:--

1st. That the 6th and 7th sections of the act of 1843, ch. 208, do not apply to the case, as that law was only designated to give a lien to the State upon real property due to it, and the taxes in question, or at least the largest portion of them, were not due to the State, but were levied for local purposes.

2nd. That the personal property should be first exhausted before resort can be had to the sale of the land or the proceeds of the sale of the land. 2 G. & J., 376, Mayor and City Council vs. Chase.

3rd. That the 11th section of said act gives preference to the payment of all taxes out of the personal estate of the deceased in the hands of his administrator over all other claims against such estate, except funeral expenses; and that under the facts disclosed in this record, equity will compel the [**3]  State to seek payment for taxes in arrear from the administrator, rather than out of the proceeds of the land sold; and even if it has a lien upon such proceeds, as they were insufficient to pay the mortgage debt, the State will still be forced to seek payment out of the personal assets, upon the principle, that where a party has two securities, he will be compelled to exhaust first that one which is free from any other charge, rather than avail himself of the benefit of the other, which is also subject to the lien of a third party.

Edwin H. Docwra for the appellees, argued:--

1st. That under the act of 1843, ch. 208, sec. 6, no doubt can arise that the taxes are a lien upon the real estate.

2nd. That under the 7th section, whenever any sale is made by a trustee, it "is the duty" of the trustee to pay out of the proceeds of sale, "all sums due and in arrear for taxes from the party whose property is so sold." This section makes it imperative upon the trustee to pay the taxes; if he fails to do so, the property itself is liable and bound for them; therefore, when the trustee performs his duty by obeying the law, of course the auditor must allow him the amount of the taxes [**4]  due, which allowance the court, as a matter of course, will ratify.

3rd. In reference to the 11th section, we hold that it does not apply to the case; if it did, the State would be delayed in the collection of its revenue, to prevent which delay this act was passed. If the act contemplated that the tax collector should be compelled to look to the administrator of a deceased person's estate for payment of taxes, and in default of his paying, force the collector to put his bond in suit, what meaning can be drawn from the preceding sections 6 and 7? they would be a nullity.

4th. Section 11 was passed, evidently, to meet cases where chattels had been or might be sold by the administrator, or removed from the premises before the payment of taxes due thereon, in either of which cases, the collector of the tax would not be able to levy on the sold or removed property, by way of distress, for the collection of the public revenue. Therefore, in such cases, the State might sustain the loss of its taxes; and it was to obviate this, and protect the public treasury, that the 11th section of this act was evidently embodied therein, whereby the administrator's bond is liable for such taxes [**5]  as may be due upon chattel property. But where any estate is sold by a trustee, the trustee is bound to, and must, pay the taxes out of the proceeds of sale, under the 7th section of this act, whether the estate sold be "real or personal property." We do not see any inconsistency in the several sections referred to; they were embodied to meet different cases, and when applied to their respective places, will be found to fill the wants which the legislature doubtless intended to provide for.  

JUDGES:
The cause was argued before LE GRAND, C. J., TUCK and MASON, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*107]  LE GRAND, C. J., delivered the opinion of this court.
We are of opinion that the taxes due the State are to be first paid out of the fund, because of the 6th and 7th sections of the act of 1843, chapter 208; and we are also of opinion, that the taxes due to Baltimore county are also a lien, under the act of 1797, chapter 90, it being admitted that they were "duly levied." We affirm the order so far as it allows these taxes out of the fund in this proceeding, but add thereto the declaration, that in our judgment the mortgagee will be entitled to a preference, according to his proper priority in the [**6]  administration of the personal estate. We regard him as substituted to the rights of the State and county. Bank of United States vs. Peter and others, 13 Peters 123.
But for the 7th section of the act of 1843, we should say these taxes were payable first out of the personal estate. Judgments, although binding real estate, are given a preference over other claims against the personal assets, and we think the same principle applies to taxes. They have always been allowed as preferred claims against the personalty. But by the 7th section, it is made the duty of the trustee to pay the taxes out of the proceeds. When this is done, the party entitled to the fund may be substituted in place of the collector or other party, to whom the taxes may be paid.
Order affirmed 

112 of 187 DOCUMENTS 

JAMES MANLY vs. THE STATE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Md. 135; 1854 Md. LEXIS 92 

DECEMBER, 1854, Decided 

PRIOR HISTORY:
 [**1]  ERROR to the Criminal Court of Baltimore city.

The plaintiff in error was indicted at the May term 1851 of Baltimore city court for an assault, with intent to kill and murder one George Konig, and the indictment contained also a second count for a simple assault and battery upon the same party, at the same time.

On the 10th of July 1851, at the same term and before the same court, the prisoner made a suggestion and affidavit for the removal of his case for trial. The record then states, that afterwards, at the May term 1853 of the Criminal Court of Baltimore, to which the said indictment had been transferred under and by virtue of the new constitution, the prisoner asked leave to withdraw his suggestion and affidavit aforesaid, which the court, (STUMP, J.,) granted.

The case was then, upon the suggestion and affidavit of the prisoner, that a material witness on his part was absent, continued to the September term of said court, when it was tried and the jury rendered a general verdict, as shown by the record, that the prisoner "is guilty of the premises aforesaid, in the indictment aforesaid above specified, and laid to his charge in manner and form as by the said indictment [**2]  is above charged upon him."

The prisoner then moved for a new trial, upon several grounds, which need not be stated. He also moved in arrest of judgment:--1st. Because the whole matter was coram non judice, there being in view of the law no indictment in this court against the said Manly. 2nd. Because the verdict is uncertain: the indictment containing one count for a penitentiary offence, and another for the common law offence of assault and battery, requiring punishments different in degree and kind, and the court, under a general verdict in such a case, can render judgment upon neither.

The court overruled both these motions, and sentenced the prisoner to confinement in the penitentiary until the 26th of October 1859. To correct this judgment, the prisoner sued out a writ of error from the Superior Court of Baltimore city.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Prior to the adoption of the present constitution a party convicted of a misdemeanor was entitled to a writ of error ex debito justitiae, and the convention did not intend to, nor does the constitution, deprive the people of the State of the benefit of this process.

The constitution gives to the judges of the circuit courts "all the power, authority and jurisdiction" the court of chancery then possessed, and as the chancellor had the power to issue writs of error, the constitution devolves the same power upon the circuit judges for the counties.

Though the same comprehensive language is not used by the constitution in creating the Superior Court for Baltimore city, yet this writ having always belonged to the applicant as matter of right, and the framers of the constitution having no intention to impair this right in any degree, the judge of that court has the same power to issue it as the judges of the circuit courts.

The constitution is not to be interpreted according to the words used in particular clauses; the whole must be considered to ascertain the sense in which the words were used, and they must be taken in their common acceptation, in which they are presumed to have been understood by the framers and the people who adopted it.

The constitution, unlike acts of the legislature, owes its whole force and authority to its ratification by the people, who judged of it by the meaning apparent on its face, according to the general use of the words employed, where they do not appear to have been used in a legal and technical sense.

In granting equity jurisdiction to the Superior Court, the constitution intended to secure to the people of Baltimore the same rights, and as fully in all respects, as by other clauses it gave the rest of the State in reference to the powers of equity courts.

A suggestion and affidavit by a prisoner for the removal of his case does not oust the jurisdiction of the court where the indictment is found, but the case remains pending there until the order for removal is passed, and at any time before this is done the prisoner has the right to withdraw his suggestion.

An indictment contained two counts, both relating to the same transaction, one charging the traverser with an assault with intent to kill, and the other with a simple assault and battery, and the jury rendered a general verdict of guilty. HELD:

This verdict was in effect a finding as to both counts, and the higher offence of the assault with intent to kill merged the simple assault and dispensed with a finding of non cul. as to that count, and judgment for the higher offence was properly passed.

The offence of an assault with intent to kill and murder is defined and prohibited by the act of 1809, ch. 138, by which a severer punishment is prescribed than at common law.

It is a common practice to insert several counts, stating the occurrence in different terms, but as it is liable to abuse, the prisoner may, when the nature of the case will permit, require the prosecutor to elect on which count or counts he will proceed, and in some cases he may demur.

Where general verdicts are rendered in such cases, the general practice in England and in this country has been to pass judgment according to the count charging the highest grade of offence.

It is the settled law of this State, that if a general verdict of guilty be found on an indictment containing several counts, it is sufficient if one is good, though all the rest are bad.  

COUNSEL:
T. Yates Walsh for the plaintiff in error, argued:

1st. That the writ of error in this case properly issued from the Superior Court of Baltimore city. It is impossible, at this day, precisely to trace the origin of the practice of applying to the chancellor for writs of error to the common law courts. Some lawyers falling [**3]  into the mistake that the writ in Maryland is a prerogative writ emanating from the sovereign, believed, as a matter of course, it should be authenticated by the sovereign's seal, which, by positive enactment, was placed in the custody of the chancery court. A more probable origin of the practice may be found in the fact, that in the earlier days of Maryland all her law courts of record were common law tribunals, and it would have been invidious and impolitic to have allowed a process in the nature of a positive command, to be issued by one of them to another, its equal in dignity and power. The lawyers of that period, while disdaining the idea of prerogative, may have seen in this state of the case the propriety of a resort to the great principle of equity, that its jurisdiction will furnish a remedy whenever law is inadequate to do so. Indeed it may be well doubted, whether under a fair construction of the statute passed in the 12th year of queen Anne, an invocation of this principle was necessary. It may be well suggested, that the course marked out by the 5th section of that act, did dispense with the necessity of making any application, save to the clerk of the court, by which [**4]  the judgment had been pronounced. But this inquiry is immaterial. For a long series of years a writ of error has been considered as a proper emanation from the chancery court. And accordingly this Court of Appeals has held, that writs of error issued by the county circuit courts, sitting in equity, to their law side, are in all respects legal. And this because they have, under the new constitution, all the rights, powers and authority possessed by the court of chancery. I have already said that this is not a prerogative writ. A party is entitled to it ex debito justitiae; so the Court of Appeals have decided more than once. See the case of Anderson vs. The State, 5 H. & J., 174, and Buchanan's case, Ibid., 362. It would be a reflection upon the framers of our organic law, which I am unwilling to cast, to intimate that they secured this writ of right to the people of the counties, and at the same time disfranchised the metropolis of their State with its two hundred thousand inhabitants. It will be observed that the argument of the State's attorney comes to this result. He waives the inquiry as to the power of the Chancery Court, under its prolonged existence, by virtue of the constitution,  [**5]  and insists, that the Superior Court for Baltimore city cannot, at this day, issue such a process as is now before this court. I do not perceive the force of the suggestion, that Baltimore county court, sitting as a court of equity, did not possess coordinate powers with chancery in relation to writs of error. We are called upon to give a fair and just construction to that constitution which destroyed the tribunal, where all concede the right rested. Did the professional men, assembled in grave and deliberate council, intend, not only to break down the court, but also the law? Were they such architects of ruin? Did they not rather mean to distribute the powers exercised under a general jurisdiction, among the local courts as more adequate to further the purposes of justice? The clause in the constitution relating to the circuit courts, to be sure, declares, that the judges thereof shall have and exercise, in their respective circuits, all the power, authority and jurisdiction of the present Court of Chancery; while that providing for the Superior Court declares, that it shall have equity jurisdiction within the limits of the city, and jurisdiction in all other civil cases not assigned [**6]  to the Court of Common Pleas. Now if the proposition, that this is a common law writ, be correct, here is a common law court with the amplest powers. It is indeed a mistake to suppose that the Criminal Court is not inferior in power and authority to the Superior Court for Baltimore city. It is a mistake to argue that the Criminal Court is a common law court at all. It has a special jurisdiction marked out by particular laws, which, in effect, are adopted by the new constitution. The Superior Court, on the contrary, is the depository of all the common law powers and authority which originally belonged to the King's Bench in England, in addition to the particular authority given by the law of its creation. By the provisions of the constitution, the chancery court was prohibited from entertaining jurisdiction over new cases. To issue a writ of error was the business of the chancery court, whether as an act of law or of equity, is immaterial. If such business had been transacted after the 4th of July 1851, it would have been a violation of the constitutional enactment. I submit, then, that this writ of error is proper and regular, and should not be quashed.

2nd. Upon the first reason [**7]  for the motion in arrest, viz., that the whole matter was coram non judice, I have this to suggest: The indictment against Manly was found at May term 1851, and on the 10th of July in that term, he filed his suggestion and affidavit for removal. All these proceedings took place in Baltimore city court. Under the constitution, had the Criminal Court jurisdiction to try cases that had originated in the time of its predecessor? and if so, was this in contemplation of law a pending case? The very moment the affidavit and suggestion were filed, the whole matter became coram non judice, except for the purpose of removal. If the record once got into the hands of the clerk of the court to which it was removed, what act of Assembly gave the power to remand it to the City court? The City court ceased to have jurisdiction the instant the suggestion was filed, and having no jurisdiction over this case, it could not be transferred to the Criminal Court; the subsequent withdrawal of the suggestion did not restore the jurisdiction.

3rd. As to the form of the verdict: The indictment contained two counts; the first for the penitentiary offence created by the statute of 1809, ch. 138, and the second [**8]  for the common law misdemeanor, and it is conceded these two counts are meant as descriptions of the same transaction. The first charges an assault with malice, and the other an assault without malice. It is a mistake to say that an assault with intent to kill is simply an assault and battery; it is an assault and battery with aggravating circumstances, but these circumstances constitute the statutory offence. 3 G. & J., 10, State vs. Dent. Now I cannot understand how an assault without malice can be part and parcel of an assault with malice. The circumstances surrounding the act must make the offence one or the other. The jury, therefore, in this case have in one breath declared the traverser guilty of the penitentiary crime, and in the next not guilty of that but guilty of an inferior one. These general verdicts were for a series of years sustained upon the ground, that whenever there were good counts and bad counts, or inconsistent counts, upon which a general verdict was rendered, the court would apply the verdict to such counts as were proper under the law and sustained by their view of the evidence. But this doctrine was discovered, in O'Connell's case, 11 Clark & Finnelly, 155,  [**9]  to be an invasion of the province of the jury and repudiated. It is a concession that the jury is to judge of the evidence, and yet the court was to be authorised to pass judgments upon counts which the jury might have believed there was no evidence to sustain. It is believed that the case of State vs. Sutton, 4 Gill, 494, sustains the decision in O'Connell's case. The subsequent case of Queen vs. Gompertz, 58 Eng. C. L. Rep., 823, is supposed to be in conflict with O'Connell's case, but it will be observed that is not a case of inconsistent findings, and the court say the evidence proved all the counts. In the case of Campbell vs. The Queen, 63 Eng. C. L. Rep., 799, the several counts called for the same sort of punishment, and Lord Denman there expressly approves of O'Connell's case, and says that a verdict "bad for uncertainty when delivered, cannot be made good by the court choosing to apply it as they may think fit." The American authorities are also in accordance with this view of the case. In 2 McCord, 258, State vs. Montague, it was held, that a general verdict of guilty, where the indictment contained two counts charging different offences for which the law prescribed different [**10]  punishments, was bad for uncertainty. This position is sustained in 1 Water. Arch., 175--1, and the citations there made from Chitty. If the verdict contains inconsistent and contradictory findings, it is bad. 1 Mason, 170, Stearns vs. Barrett. See also 3 Grattan, 615, Clere's case. 1 Strobhart, 455, State vs. Anderson. 1 Spencer, 404, Stone vs. The State. A general verdict may be right where there is no inconsistency in the findings, and that is all that the cases cited on the other side establish. But here the jury say the traverser is guilty of the penitentiary offence, and then that he is guilty of the common law misdemeanor. Now for these offences different punishments are prescribed, and how is the court to determine which to inflict? It is submitted, that if the court can punish at all in such a case, they must sentence for the lesser offence. 2 Strobhart, 12, State vs. Thompson.

But again, looking to the grammatical construction of the language of the verdict, it is a verdict upon the second count only in the indictment. The terms, "Guilty of the premises aforesaid," point to the last antecedent as the premises meant, which is the second count in the indictment. The terms,  [**11]  "in the indictment aforesaid specified," are also gratified by reference to the second count, and the verdict therefore is precisely in meaning as if the jury had said, "Guilty upon the aforesaid second count in the aforesaid indictment contained." See 1 Moody & Robinson, 177, and 1 Russell & Ryan, 531.

Charles J. M. Gwinn, State's Attorney for Baltimore city, for the State, argued:

1st. That the case was properly before the Criminal Court of Baltimore city at the time of the trial. The constitution gives to it all the jurisdiction of the old city court, and it therefore clearly had jurisdiction if the case was pending in the City Court at the time of the adoption of the constitution. Can there be a doubt that it was so pending? There was no order passed for its removal from that court, and the suggestion and affidavit for removal were withdrawn by the prisoner who made them. There is no power to prevent his doing this; the provision for removal was made for the benefit of the prisoner; suppose he had filed an imperfect suggestion, he would clearly have the right to withdraw it and file a new one.

2nd. That the writ of error should be quashed. On this point the learned [**12]  counsel argued, that under the charter of Maryland, sec. 4, the lord proprietor had the rights of the bishop of Durham. That he had his chancellor as early as 1692, with a right in that officer to issue writs of error. That this palatinate right to a chancellorship existed to the date of the constitution of 1776, and that the chancellor, under the constitution, had all the powers of the chancellor of the bishopric of Durham, and that this right to issue writs of error was in him alone and his powers were entire and undivided. A writ of error, therefore, is a prerogative common law writ, issued by the chancellor, not by virtue of any equity jurisdiction vested in him, but as the depository of a portion of the supreme power of the State, after the manner that this officer represents the king at common law. Now my argument is, that if the present circuit courts of the State have the power to issue writs of error, the county courts had the same power prior to the adoption of the present constitution: for the act of 1815, ch. 163, gives to the county courts all the power, authority and jurisdiction of the chancellor, in precisely the same terms that the 8th sec. of the 4th art. of the constitution [**13]  gives all the power, authority and jurisdiction of the court of chancery to the circuit courts. The two grants are in totidem verbis, and yet it was never imagined that the old county courts had power to issue writs of error, because it is no part of equity jurisdiction whatever, but was a power exercised by the chancellor because he possessed the prerogative of the State to see that the courts did not exceed their jurisdiction, and this power is indivisible. But at any rate, it is clear that the Superior Court of Baltimore city has no such power, for the 11th sec. of the 4th art. of the constitution, creating this court, confers upon it equity jurisdiction only within the limits of the city. No act of Assembly can give to it jurisdiction larger than that given by the constitution, and the act, therefore, of 1852, ch. 16, sec. 1, conferring upon it chancery powers, is unconstitutional and void. 5 Md. Rep., 337, State vs. Mace.

3rd. The general verdict in this case was well taken. The first count is only the second count stated with the statutory aggravation. The act of 1809, ch. 138, does not create a new offence in making assaults with intent to kill punishable by confinement [**14]  in the penitentiary. Arch. Pl. & Ev., 194. The circumstance of aggravation is only a guide to the punishment. The indictment for an assault with intent to kill, is but an indictment for an assault and battery. 3 G. & J., 11, State vs. Dent. The offence is the same, the only difference being, that if aggravating circumstances are alleged and proved, the statute makes the punishment severer, but the offence does not cease to be an assault because the intent to kill is added. An indictment may well set out counts on which the punishment is different, and a general verdict of guilty is good, and the judgment is good if it correspond with the count affixing the greatest punishment. 1 East's Pleas of the Crown, 408, Rex vs. Lord Thanet. 1 Starkie's Crim. Pl., 342. Wharton, 864, 865. 4 East, 179, King vs. Darley. 1 Wood. & Minot, 305, United States vs. Peterson. 3 Do., 166, United States vs. Stetson. 5 Wheat., 184, 201, United States vs. Pirates. 20 Ohio, 28, Wilson vs. The State. 14 Sme. & Mar., 124, Wash vs. The State. 2 Bailey, 73, State vs. Crank. 10 Geo. Rep., 60, Bulloch vs. The State. 11 Metcalf, 575, Crowley vs. The Commonwealth. Ibid., 581, Kite vs. The Commonwealth. 2 H. & J., 429,  [**15]  Burk vs. The State. It is well settled in this country, that if there be one good count in an indictment, the general verdict of guilty will be referred to that count which is good, although others are defective. 3 Strobhart, 508, State vs. Brown. 8 B. Monroe, 30, Parker vs. The Commonwealth. 18 Ala. Rep., 547, Shaw vs. The State. 3 McLean, 410, United States vs. Burroughs. 7 Iredell, 275, State vs. Miller. 3 Brevard, 416, Poole vs. The State. 12 Verm., 300, State vs. Davidson. 3 Scammon, 328, Townsend vs. The People. 2 McMullan, 399, State vs. Turner. 2 H. & J., 429, Burk vs. The State. Any inferences to be drawn from O'Connell's Case, 11, Clark & Finnelly, 155, are rebutted by the subsequent cases of Queen vs. Gompertz, 58 Eng. C. L. Rep., 823, and Campbell vs. The Queen, 63 Do., 799, which are directly inconsistent with it. If when one count is bad the judgment on a general verdict is to be referred to the good counts, ought not the judgment where all the counts are good, to be referred after general verdict to that count which carries with it the gravest punishment.

The question whether the verdict relates to the first or second count can be thus settled. If it relates to [**16]  the second the prisoner can be tried again on the first. If the State had so proceeded to try him, could he not have pleaded autre fois convict, and would not the verdict rendered in this case have sustained this plea? It being conceded, that the two counts described the same act, the word "aforesaid" can be properly referred to every count which describes the act in its most general statement in the indictment. Nor do I see how the verdict could be stated clearer than it is. The usual form has been followed, (2 Ev. Har., 209,) and the verdict and the form of the judgment stand upon the long settled practice of the State, and are both in strict conformity with exact technical law.  

JUDGES:
The cause was argued before LE GRAND, C. J., TUCK and MASON, J.  

OPINIONBY:
TUCK 

OPINION:

 [*145]  TUCK, J., delivered the opinion of this court.
The present indictment was found in Baltimore city court at May term 1851. The traverser filed a suggestion and affidavit for the removal of the record to an adjoining county. Afterwards, at May term 1853, of the Criminal Court of Baltimore, "the indictment," (as we are informed by the record,) "having been transferred under and by virtue of the new constitution,"  [**17]  to that court, he obtained leave to withdraw his suggestion and affidavit, and having pleaded not guilty, was convicted and sentenced to the penitentiary.
The first question arises, on the motion on the part of the State to quash the writ of error, on the ground that the Superior Court of Baltimore city had no authority to issue it.
Prior to the adoption of the present constitution, a party convicted of a misdemeanor was, ex debito justitiae, entitled to prosecute a writ of error. Anderson vs. State, 5 H. & J., 174. We have no idea that the Convention intended to deprive the people of the State, of the benefit of this process, nor do we think that by any reasonable interpretation of the constitution, such a purpose can be deduced. The chancery court was abolished, but the system of equity jurisprudence was no otherwise disturbed, than by transferring the jurisdiction to other courts. As to the circuit courts for the counties this was done in the most ample manner. Not content with devolving upon these courts all the powers, authority and 

 [*146]  jurisdiction which the county courts then exercised, the constitution expressly declares, that the "judges in their [**18]  respective circuits shall have and exercise all the power, authority and jurisdiction of the present court of chancery." By the act of 1815, ch. 163, the county courts had equity jurisdiction conferred upon them in the most comprehensive terms, but it seems that they were never considered as having had authority to issue writs of error. If the Convention intended to restrict the circuit courts to the exercise of powers before possessed by the county courts, the first grant of jurisdiction, by the eighth section of the fourth article, would appear to have been sufficient for the purpose, and the assignment to the judges of the same powers that belonged to the chancery court would have been unnecessary, unless their design was to charge them with functions before exercised by the chancellor, and not previously conferred on the county courts "or their judges." As the chancellor had this power, it is manifest that the constitution has devolved it upon the circuit judges for the counties.
But the argument is, that the eleventh section of the judiciary article, by which the superior court for Baltimore city was created, only confers "equity jurisdiction" within the limits of that city;  [**19]  and that as the right to grant this writ was no part of the chancellor's equity jurisdiction, but was vested in him as the depository of a portion of the supreme power, after the manner that this officer represented the king, at common law, it does not appertain to the judge of the Superior Court, as a portion of his equity jurisdiction. It is unnecessary to inquire into the origin and nature of this writ. It is enough for us to know that it has always been considered in this State, as belonging to the applicant as matter of right; and, believing, as we have said, that the framers of the constitution had no intention to impair it in any degree, we are clear in the opinion, that the judge of the Superior Court possessed the power equally with the judges of the circuit courts.
It is true that the same comprehensive language is not 

 [*147]  employed as to both these courts. But constitutions are not to be interpreted according to the words used in particular clauses. The whole must be considered, with a view to ascertain the sense in which the words were employed, and its terms must be taken in their ordinary and common acceptation, because they are presumed to have been so understood [**20]  by the framers and by the people who adopted it. This is unquestionably the correct rule of interpretation. It, unlike the acts of our legislature, owes its whole force and authority to its ratification by the people, and they judged of it by the meaning apparent on its face, according to the general use of the words employed, where they do not appear to have been used in a legal or technical sense. State vs. Mace, 5 Md. 337.
Applying this mode of construction, it ought not to be doubted that the constitution, in granting equity jurisdiction to the Superior Court, intended to secure to the people of Baltimore the same rights, and as fully, in all respects, as by other clauses it extended to the rest of the State, in reference to the powers of the courts clothed with equity jurisdiction. If, by these other clauses, the writ of error may be claimed elsewhere, it would be unjust to the city of Baltimore, by a strict construction of these words, to deny the same power to the only court then administering equity jurisprudence within her limits. Believing that, under the constitution, the writ was not improvidently issued, it is unnecessary to express any opinion upon [**21]  the act of 1852, ch. 16.
Two questions arise under the motion in arrest of judgment. 1st. As to the jurisdiction of the Criminal Court. 2nd. As to the form of the verdict.
1st. The point, on the part of the traverser, is, that, after the suggestion and affidavit for removal of the record, the Baltimore city court ceased to have jurisdiction, and could transfer none to the Criminal Court, and that the subsequent withdrawal of the suggestion did not restore the jurisdiction. We are of opinion that the jurisdiction was not ousted by the suggestion and affidavit. It does not appear that any order 

 [*148]  was passed, and until then, the indictment remained pending in the City Court. Indeed we cannot say but that the court would have deemed the suggestion insufficient, or for some other reason have refused to remove the record.
The case being before the Criminal Court, under the constitution, the question is, whether the accused had the right to withdraw his suggestion? We think he had this right, in either court, before the order for removal was passed. The constitution authorizes the change of venue for the benefit of the party making the application. Circumstances may arise, in [**22]  the progress of the cause, to render this resort unnecessary. The objection, with the party, may be to the judge, the jury, or the sheriff. ( State vs. Dashiell, 6 H. & J. 268.) If, in consequence of a change in these, the ground for the removal no longer exists, we perceive no reason against the party's submitting the case to the court, in which the suggestion may have been made. On the contrary, convenience as well as justice, might often be promoted by this course.
2nd. As to the alleged error in rendering the verdict. Each of the counts in this indictment is sufficient, and standing alone, would have authorised a judgment against the party if found guilty. It is manifest that the two counts, though alleging offences of different degrees, relate to the same transaction. The one set out in the first count "is defined and prohibited" by the act of 1809, ch. 138, (3 Gill & Johns. 8, State vs. Dent,) by which a severer punishment is prescribed than at common law. This was necessary in order to bring the case within that act, with which the count for assault and battery might well be joined. It is quite common to insert several counts, stating the occurrence [**23]  in different terms, that the indictment may, at the trial, correspond with the proof, for the State cannot always know what the evidence will be. This mode of pleading apprises the prisoner of the accusation in more precise language, and, at the same time, aids the jury in finding their verdict. But, as it is liable to abuse, the law allows the prisoner, where the nature of the case will permit, to require the prosecutor to 

 [*149]  elect on which count or counts he will proceed, and in some cases he may demur. The general practice in England and in this country, with very few exceptions, has been to pass judgment on general verdicts in these cases, according to the count charging the highest grade of offence. And even where some of the counts are good and others bad, the practice has been to pass judgment on those which are good. This doctrine does not appear to have been questioned, until the case of O'Connell & al., vs. The Queen, 11 Clark & Finnelly 155. If the law had been so understood in this State, before that judgment, it could not change it, and that such was the practice we have no doubt. The elementary writers, as well as reports, show this. In Burk vs. State,  [**24]   2 H. & J. 426, Judge Buchanan said, "There is no principle better established than that if a general verdict of guilty be found on an indictment containing several counts, it is sufficient if one is good, although all the rest are bad." The judgment, on rendering which this opinion was delivered, was affirmed, and, we believe, has ever since been considered as the law of this State. 1 Ch. Cr. Law 249, 640. Starkie's Cr. Pl., 378, ch. 20. Rex vs. Lord Thanet, East's Cr. Law, ch. 8, folio 408. Regina vs. Ingram, 1 Salk. 384.  1 B. & P. 185. 2 Lord Raymond 886. Cowp., 276. Arch. Cr. Pl., 175. Wheat. Cr. Law, 618. 1 Spencer 408.  2 Strobhart 17. 10 Ga. 60. There are decisions the other way, but we think that the weight of authority is greatly in favor of the practice pursued in this case. This branch of criminal jurisprudence was examined and discussed in 1 Woodbury & Minot 305, where many cases are collected and arranged, to which we refer without citing them here.
It may be observed in reference to O'Connell's case, that the judgment was pronounced by Lords Cottenham and Campbell,  [**25]  against Lords Lyndhurst and Brougham, the latter sustained in the most direct terms by all the judges, whose opinions had been required, except Parke & Coltman. It was not questioned, that this had always been the practice, but its correctness upon principle was denied.

 [*150]  The counsel for the plaintiff in error contends, that, whatever the doctrine may be as to other cases, it cannot apply to an indictment like the present, because there is a manifest incongruity between the counts, one charging an assault with and the other without malice, and that the general verdict is necessarily repugnant. We think the inconsistency would be more apparent if the jury had found guilty on the first, but not guilty on the second count, because, as they relate to the same transaction, that finding would affirm, in one breath, that the party had committed an assault with intent to murder, and in the next, that he had committed no assault at all. We must presume that the jury understood the issues they were to try, and the consequences of their verdict, and that if they had intended to have acquitted the party of the intent charged, they would have said so.  10 Ga. 60. [**26]  In this case two offences, growing out of the same transaction, are connected together. One merged the other. No evidence could have been admissible on the second count that was not applicable to the other, which meets the argument of the counsel as to the confusion that might occur at the trial.  4 H. & J. 432. The case is unlike State vs. Sutton, 4 Gill 494, where the party was convicted of the minor offence, and the court held that the verdict should have been rendered on all the issues. Where a general verdict is rendered, it is in effect or finding as to all the counts. On an indictment like the one before us, the jury must, where the party is guilty on either count, find the assault to have been committed, and if guilty of an assault with the intent charged, he is necessarily guilty on both counts. So on an indictment containing counts for robbery, and an assault with intent to rob, the crime is made by the law of a higher grade by the consummation of the illegal intent. If the accused be convicted of the actual robbery, how could the jury with any consistency say that he was not guilty of the intent to rob? It appears to us that in such cases, where all [**27]  the counts relate to, and are but various statements of the same occurrence, the general verdict establishes that all the circumstances exist that are 

 [*151]  embraced in either charge. The higher crime necessarily merges the inferior offence, and dispenses with a finding of non cul, as to that count.
Judgment affirmed. 

113 of 187 DOCUMENTS 

WILLIAM H. DAVIS vs. THE STATE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Md. 151; 1854 Md. LEXIS 93 

DECEMBER, 1854, Decided 

PRIOR HISTORY:
 [**1]  ERROR to the Criminal Court of Baltimore city.

By the act of 1821, ch. 77, entitled, "An act to provide for the inspection of ground black-oak bark intended for exportation," it is provided, that no such bark "shall be exported from the port of Baltimore until the same shall be inspected by a person to be appointed annually by the governor and council." The act then specifies particularly the manner in which this officer was to perform his duties, and what fees he was to receive; and the 7th section imposes a penalty upon any person who shall ship from any other port in the State, than Baltimore, "any bark not inspected as directed by this law." By the act of 1853, ch. 100, this officer was required to inspect all such bark "for sale in the city of Baltimore, or for exportation therefrom."

The act of 1854, ch. 200, entitled, "An act to regulate inspections in the city of Baltimore," provides, by its first section, "that from and after the first day of May" 1854, when the act was to go into effect, "any free white citizen of the State," on application to the clerk of the Court of Common Pleas in the city of Baltimore, and paying the sums thereinafter named, "shall be entitled [**2]  to receive a license to act as inspector of the articles mentioned in the license." The sums to be paid for licenses to act as inspectors of various articles are then fixed, and among these, "for a license to act as inspector of ground black oak bark, one hundred dollars;" it then provides, that "no license shall authorise any inspector to act as such out of the limits of the city in which the same may have been granted; and any person licensed to act as inspector in said city, and who shall act as such in any city or county in which he has no license," shall be subject to the penalties hereinafter "provided for the punishment of persons acting as inspectors without license." The second section enacts, "that any person not having a license to act as such inspector, who shall act as inspector of any of the articles named in the first section of this act," shall forfeit a sum double the price of his license, "to be imposed as a fine by the court having criminal jurisdiction in the city on presentment or indictment and conviction." The third section provides, that any person may buy or sell or export any of the articles mentioned in the first section "without having the same inspected,  [**3]  measured or gauged by any inspector; but in all cases of difference between the buyer and seller as to the quantity, quality or measurement of any of the said articles, either party may call in any inspector of the article authorised to act in the city where the article may be situated, and the judgment of the inspector shall bind the parties." The fourth section provides, "that the fees for inspections shall be the same as those now fixed by law," and "that before any person shall act as inspector under the provisions of this act," he shall take an oath "faithfully to discharge the duties of said office," to be administered to him by the clerk granting his license. The provisions of the other sections of this law are not material to the present case.

At the time this last law was passed, the plaintiff in error was the inspector of ground black oak bark, duly commissioned to act as such; and after the expiration of his then term of office, which expired on the first Monday of May 1854, he was reappointed by the governor and a new commission issued to him, under which he duly qualified and continued to act under the old law, by virtue of his commission, without taking out a license.  [**4]  For so acting, he was indicted at May term 1854 of the Criminal Court of Baltimore city, and to this indictment he filed a general demurrer for the purpose of testing the validity and constitutionality of the new law. This demurrer the court, (STUMP, J.,) overruled, and gave judgment in favor of the State for the penalty of $ 200. To correct this judgment, a writ of error was sued out from the Circuit Court for Baltimore city.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

The provision in the 17th section of the 3rd article of the constitution, that "no law shall be revived, amended or repealed by reference to its title or section only," was inserted to prevent incautious and fraudulent legislation; to enable members to act knowingly on all subjects, and to guard them from the contingency of voting for the repeal or revival of laws through mistake or accident, under the deceptive language often employed in the title of acts.

But this provision does not apply to an independent act establishing a new or reversing some previous policy of the State; in such a case, the enactment of one law is as much a repeal of all inconsistent laws as if the latter were repealed by express words.

The provision, in the same section of the constitution, that "every law enacted by the legislature shall embrace but one subject, and that shall be described by the title," was intended to prevent grafting upon subjects of great public benefit and importance foreign and pernicious matters for local or selfish purposes.

The act of 1854, ch. 200, entitled, "An act to regulate inspections in the city of Baltimore," relates to inspections and to such other matters only as are inseparably connected therewith, and therefore embraces but a single subject, which is sufficiently described by its title.

A whole law, otherwise constitutional, would not be rendered void by the introduction of a single foreign or irrelevant subject not indicated in the title; in such case, the irrelevant matter would be rejected as void and the principal subject of the law, if properly described in the title, would be valid.

But where an act is composed of a number of discordant and dissimilar subjects, so that no one can be clearly recognised as the controlling or principal one, the whole law is void.

The 11th section of the 2nd article of the constitution gives to the governor the power to fill all offices in the State, whether created by the constitution or by act of Assembly, unless otherwise provided by the one or the other.

When the legislature creates an office by act of Assembly, it can designate by whom and in what manner the person who is to fill the office shall be appointed; and if it is silent on this subject, the governor makes the appointment, the same as if he were specially authorised by the act to do so.

Where an office is of legislative creation, the legislature can modify, control or abolish it; and within these powers is embraced the right to change the mode of appointment to the office.

The act of 1821, ch. 77, created the office of inspector of bark and gave the governor the power to appoint the officer, and as the legislature has the power to withdraw the authority to appoint from the governor, the mode provided by the act of 1854, ch. 200, by which inspectors under that act are to be designated and qualified, is a constitutional exercise of legislative power.

Whether the act of 1854, ch. 200, abolishes the office of inspector of bark as it formerly existed or not, it nevertheless requires the inspector who may be appointed by the governor to take out a license as any other person.

The Circuit Court for Baltimore city has concurrent jurisdiction with the Superior Court in all cases in equity, and generally such jurisdiction as the chancellor had in regard to the fifth judicial circuit, and this is ample enough to warrant the issuing of writs of error. 

COUNSEL:
Daniel M. Thomas and Cornelius McLean for the plaintiff in error, argued:

1st. That the writ of error in this case was properly issued from the Circuit Court for Baltimore city. (On this point the counsel for the plaintiff in error were stopped by the court, who said they did not desire to hear any thing further upon that subject, as it had been fully discussed in the preceding case of Manly vs. The State.)

2nd. As to the points arising upon the writ of error, they contended that the judgment below ought to be reversed:

1st. Because the old laws creating the office of inspector of ground black oak bark are not expressly repealed by the law of 1854, as there is no repealing clause in that law; and there can be no repeal [**5]  by implication under the new constitution, art. 3, sec. 17, and therefore the law of 1854 can only stand in so far as it is not inconsistent with previous laws on the same subject. 9 Law Lib., 31. 4 G. & J., 152, Canal Co. vs. Railroad Co. The powers of the inspector appointed by the governor under the old law extended all over the State, whilst the act of 1854 applies only to the city of Baltimore. Because the office of inspector of ground black oak bark, under the title of this law, can only be regulated and modified, and not abolished, as the constitution, (art. 3, sec. 17,) requires the subject matter of every law to be correctly described in the title. 15 Barbour, 657, Mosier vs. Hilton. And because the act of 1854 did not intend to abolish the old office, since by the title the design appears to have been merely to regulate it; since the fees and duties of office are left the same as under the old system; since the persons authorized by it to act under licenses are called by the old name of office; and since it does not in fact destroy the character of the office, inasmuch as, notwithstanding the third section of the law, inspections are still to some extent compulsory, and independent [**6]  of the consent of individuals; and the inspector's brand, when imposed, is an index of the value of the article, in the truth or falsity of which the public is interested. These are all duties concerning the public and pertaining to a public officer. 2 Cowen, 26, Seymour vs. Ellison. 7 Bac. Abr., 279, 280. 2 Hill, 196, People vs. Bedell. 20 Wend., 596, 598, People vs. The Comptroller.

2nd. Because if the old office be not abolished, the governor alone has the right to appoint the officers, under art. 2, sec. 11, of the new constitution, which gives him the appointment of all civil officers whose election or appointment is not otherwise provided for, "unless a different mode of appointment be prescribed in the law creating the office," and the legislature, by attempting to interfere with that right, step beyond the limits assigned them by the constitution, and encroach upon the executive branch of the government. 2 Denio, 272, Warner vs. The People. 9 G. & J., 410, University of Maryland vs. Williams. 1 G. & J., 463, Crane vs. Meginnis. 6 Barr., 511, Parker vs. The Commonwealth.

3rd. Because even if the law does abolish the old office and create a new one, yet the authority [**7]  thereby given to all persons to discharge the duties of the same on paying for and obtaining a license, is not a "mode of appointment," as the term appointment implies a selection based upon an exercise of judgment, nothing of which is involved in the buying a license. And therefore the governor only could appoint to the new office, as no mode of appointment, according to the correct definition of that word, is pointed out in the law creating it.

4th. Because the license system sought to be established by the law of 1854, is against the spirit of the constitution, as it authorizes persons to exercise public functions without prescribing for those persons any qualifications of skill or integrity, but only the bare qualification of ability to pay the costs of the license, and is against public policy, in putting public offices up for sale, and in not limiting the number of the officers, which leads to competition and corruption. 7 Bac. Abr., 279, 296, 311.

5th. Because if the license system be bad, all the rest of the law of 1854 must fall with it, as having been based entirely upon it, and intended only to apply to it. Therefore the appointees of the governor need not pay [**8]  the license fee, and cannot be affected by the third section, which makes inspections to some extent voluntary.

6th. Because at any rate the commissioned officer may act concurrently with the licensed ones, as the right of appointment has not been taken away from the governor, and he will be entitled to act without paying the license fee, which would amount to a double tax, as his commission is already taxed under the act of 1847, ch. 54. The conclusions insisted upon are, that the whole law of 1854 is bad and the old laws remain unchanged. Or that Davis can act under his commission without a license, and to the exclusion of the licensed officers, but cannot compel parties to have their bark inspected. Or, at any rate, that he can act under his commission concurrently with the licensed inspectors and without a license.

Charles J. M. Gwinn, State's Attorney for Baltimore city, and Frederick W. Brune, for the State, argued:

1st. That the writ of error should be quashed, because the Circuit Court for Baltimore city had no power to issue it. (Their argument on this point was the same as that in the preceding case of Manly vs. The State.)

2nd. As to the points arising [**9]  on the writ of error, they contended:

1st. That the act of 1821, ch. 77, creating the office of inspector of ground black oak bark, made the inspection of this material, by a person appointed by the governor, obligatory.

2nd. That the legislature had an undoubted right to declare afterwards that said inspection should not be obligatory, and that this declaration was made by the act of 1854, ch. 200.

3rd. That the act of 1854, ch. 200, was not unconstitutional, because it did not repeal the act of 1821 in so many words. If it had undertaken to repeal the act of 1821 by reference to its title, it might have been in contravention to art. 3, sec. 17, of the constitution. But the constitution does not affect the common law principle, that a statute may be constructively repealed by the passage of a subsequent statute which is inconsistent with its provisions, or which dispenses in terms with its requirements. 3 Gill, 154, Dugan vs. Gittings. 20 Pick., 410, Goddard vs. Boston. 21 Do., 376, Commonwealth vs. Kimball. The party who assails an act of the legislature upon the ground of its unconstitutionality, must make out a clear case of legislative usurpation. 9 Gill, 305, Baugher [**10]  vs. Nelson.

4th. That where the existence of an office is created by a statute which makes submission to the authority of such officer imperative, it may well be considered that his office is abolished when a subsequent statute makes it unnecessary for the public to require his services.

5th. That if the right of the governor to appoint to office under the constitution is not interfered with by the act of 1854, since the provisions of this act with relation to licensed inspectors makes them officers, holding appointments by the operation of law, when they comply with the conditions necessary to obtain office; and such a case is provided for in the constitution, because the right of the governor to appoint to office is expressly confined to cases in which a different mode of appointment is not provided for in the law.

6th. That if the office, under the act of 1821, ch. 77, was not abolished, the legislature had the right to affix any new conditions to an office created by a former act of the legislature, and that the requirement of a license from all who undertake to inspect under the act of 1854, is, in the nature of such a condition to the exercise of the functions [**11]  of an office, conferred by the governor under the law of 1821, as well as upon the exercise of the occupation by a private citizen.

7th. That although the appointment of an inspector may be the best system, yet the law of 1854, which allows persons to qualify, who may act as inspectors if called upon, is not against public policy. The law provides only for a voluntary submission to the licensed inspector, of the differences between buyer and seller.

8th. The law of 1854 prescribes the conditions and terms under which these persons licensed to inspect shall act, and therefore virtually appoints them; it makes the appointment just as effectually as if made by the governor. The legislature, by this act, dealt with the inspection system; its title is sufficiently broad, for if there is anything in the law that regulates this system, it is legitimately within the purview of the title.  

JUDGES:
The cause was argued before LE GRAND, C. J., TUCK and MASON, J.  

OPINIONBY:
MASON 

OPINION:

 [*158]  MASON, J., delivered the opinion of this court, and his own, in part, dissenting opinion.
We did not understand the counsel for the appellant as contending, that the legislature had no power to amend,  [**12]  modify or even repeal the act of 1821, ch. 77, creating the office of inspector of bark. We understand, that while they clearly admit the power, they insist that the legislature in passing the act of 1854, ch. 200, entitled: "An act regulating inspections in the city of Baltimore," have exercised that power in a mode not warranted by the constitution, and that therefore the law is of no avail.
Under our former constitution, there could have been no doubt, that as the act of 1854 was inconsistent with that of 1821, the last act would operate as a repeal of the former, in so far as they were repugnant to each other. It is supposed that under art. 3, sec. 17, of our new constitution, which provides, that "no law or section of law shall be revived, amended or repealed, by reference to its title or section only," there can be no repeal of a preexisting law, by the implication resulting from a subsequent inconsistent or contradictory legislative enactment. We do not so understand the new constitution.

 [*159]  The particular clause to which we refer, was evidently inserted in the constitution, for the purpose of preventing incautious and fraudulent legislation, and to enable members [**13]  to act knowingly upon all subjects, and to guard them from the contingency of voting for the repeal or revival of laws, through mistake or accident, under the deceptive language often employed in the title of acts. Under our former system of legislation, a good or a bad provision might slumber in the body of a law, of which the title gave no intimation, and hence members of the legislature might suppose from the title of the law, that they were voting for one thing, when in fact they were unwittingly voting for another directly the opposite; at least the title afforded often little or no information, as to what was contained in the body of the law, which was its office to have done. Not so however with an independent act of the legislature, establishing a new, or reversing some previous policy of the State. The very fact of establishing a particular rule of conduct for the public, presupposes an intention on the part of the legislature, that a contrary rule should not prevail, and therefore the enactment of one law, is as much a repeal of all inconsistent laws, as if those inconsistent laws had been repealed by express words. It could never surely have been the intention of the framers [**14]  of the constitution, that a positive enactment by the legislature upon a subject within their legitimate powers, was to be defeated, because a previous law, not in terms repealed, was inconsistent with it. If this strict test were required, many wholesome laws would be rendered wholly inoperative, because of the inability or neglect of members to search thoroughly the statute books for laws which might be inconsistent or repugnant; a work in many cases of so great difficulty, as to amount almost to impossibility.
The next objection urged to the validity of the act of 1854, is, that if its purpose was to create a new system of inspections, and to repeal the act of 1821, then the subject of the law is not sufficiently described by its title, as required by the 3rd article and 17th section of the constitution. The language 

 [*160]  of the constitution is: "Every law enacted by the legislature shall embrace but one subject, and that shall be described by the title." We think the act of 1854, ch. 200, has sufficiently been made to conform to these requirements. The law relates to inspections, and to such other matters only as are inseparably connected with it, and to none other,  [**15]  and therefore can be said to embrace but a single subject. It could hardly be successfully urged against a law, that it does not embrace and dispose of the whole subject to which it relates. If it could be, few laws, if any, could stand such a test.
The object of this constitutional provision is obvious and highly commendable. A practice had crept into our system of legislation, of engrafting, upon subjects of great public benefit and importance, for local or selfish purposes, foreign and often pernicious matters, and rather than endanger the main subject, or for the purpose of securing new strength for it, members were often induced to sanction and actually vote for such provisions, which if they were offered as independent subjects, would never have received their support. In this way the people of our State, have been frequently inflicted with evil and injurious legislation. Besides, foreign matter has often been stealthily incorporated into a law, during the haste and confusion always incident upon the close of the sessions of all legislative bodies, and it has not unfrequently happened, that in this way the statute books have shown the existence of enactments, that few [**16]  of the members of the legislature knew any thing of before. To remedy such and similar evils, was this provision inserted into the constitution, and we think wisely inserted.
We are not prepared to say, that a whole law, otherwise constitutional, would be rendered void by the introduction of a single foreign or irrelevant subject into it, and where such subject was not indicated in the title. In such a case the irrelevant matter would be rejected as void, while the principal subject of the law would be supported, if properly described in the title. But if an act of Assembly, be composed of a 

 [*161]  number of discordant and dissimilar subjects, so that no one could be clearly recognised as the controlling or principal one, the whole law would be void.
The appellant, in the next place, contends, that the law of 1854 is unconstitutional and void, inasmuch as it seeks to take from the governor the appointment of the inspector; and art. 2 and sec. 11 of the constitution is relied on to support this position. That section provides, that the governor shall appoint all officers "whose appointment or election is not otherwise herein provided for, unless a different mode of appointment [**17]  be prescribed by the law creating the office." In few words, we think this provision means, simply, that the governor shall have the power to fill all offices in the State, whether created by the constitution or by act of Assembly, unless otherwise provided by the one or the other. When, therefore, the legislature has created an office by act of Assembly, the legislature can designate by whom and in what manner the person who is to fill the office shall be appointed. If the source of appointment is not thus designated, the governor, by virtue of the above section, makes the appointment, the same as if he had been specially authorised by the act to do so. The act of 1821, ch. 77, authorises the governor to make the appointment of inspector, and the same power that conferred this authority upon the governor can take it from him. The office we are now considering is one of legislative creation; and by the legislature it can be modified, controlled or abolished, and within these general powers is embraced the right to change the mode of the appointment to the office. We have only to add, that as the legislature has the power to withdraw the authority to appoint from the governor, the mode [**18]  pointed out by the act of 1854, by which inspectors under that act are to be designated and qualified, was a constitutional exercise of legislative power, and we need not say whether the inspectors under the act of 1854 are technically officers in point of law or not.
This leads us to the consideration of another question raised by the record. Conceding the act of 1854 to be in all respects constitutional, and that the mode pointed out for designating or 

 [*162]  appointing the inspectors under it was legal and valid, still, is that act so far repugnant to the act of 1821, and to the other acts relating to the inspection of bark, as to operate as a total repeal of them?
A majority of the court are of opinion, that whether the act of 1854 abolishes the office as it formerly existed or not, it nevertheless must be construed to require the inspector who might be appointed by the governor to take out a license as any other person, and in deciding this point they have said enough to dispose of the case as made by the record.
Upon this point the judge who delivers this opinion thinks differently. In the first place, there is no attempt at an express repeal, and a repeal by implication [**19]  can only result from a clear, palpable conflict between the last and the previous law. The true test by which we are to ascertain whether such conflict or repugnancy exists, is, can the two laws stand together and be executed at one and the same time? By the act of 1821, no one could inspect bark but the officer appointed by the governor. This provision is clearly repealed, because by the act of 1854, any one can do so who takes out a license as directed by the act. The privilege, however, is not extended to any other than to those who take out a license, and any person who may attempt to exercise the privilege without such license is subjected to a penalty, and in this way it is supposed that the act is made, by implication, to exclude from the right to inspect the duly commissioned officers appointed by the governor under previous laws, unless they take out a license. I do not so construe the law of 1854. Its object simply was to permit other persons, upon certain conditions, to exercise the privilege of inspecting in common with the commissioned officers. I do not understand the act of 1854 as affixing a new condition to the exercise of the right to inspect under the act of [**20]  1821, but as merely extending the rights or privileges of that act to all private citizens who may think proper to take out a license. If, therefore, the inspectors appointed by the governor be not subject to the penalty, and I think they are not, there can be no doubt that they might, concurrently with the licensed inspectors, continue to discharge the duties of their office as 

 [*163]  formerly, subject only to the changes and modifications made in the system by the act of 1854. Their doing so would in no way bring them in conflict with the licensed inspectors, and their powers could not therefore be said to be repugnant to each other.
By the act of 1821, chap. 77, sec. 7, it was obviously the design of the legislature to empower the inspector of bark for Baltimore city to exercise his office beyond the limits of Baltimore should occasion call for it, though perhaps he might not have been required to do so. So far from the act of 1854 repealing this provision, it clearly, by implication, recognises it. I cannot read the latter act without clearly discovering that the legislature contemplated that inspections were still to be made outside of the limits of Baltimore. It provides,  [**21]  that "no license shall authorise any inspector to act as such out of the limits of the city in which the same may have been granted;" and the act grants no authority to any one else than the clerk of the Court of Common Pleas of Baltimore to issue such license. Who then is to make inspections of bark out of Baltimore? Certainly not the inspectors created by the act of 1854, and unless they are made by the appointee of the governor, they could not be made at all. From this circumstance, so far from discovering a purpose to destroy the office as it originally stood, I find a manifest recognition of it by leaving certain duties to be discharged exclusively by its incumbent.
We do not perceive, in the act of 1854, anything so repugnant to good morals and public policy as to render it void.
The remaining question relates to the jurisdiction of the Circuit Court of the city of Baltimore to issue writs of error.
In the case of Manly vs. The State, decided at this term, we have said, that the Superior Court of Baltimore has the power to grant writs of error by virtue of its general equity jurisdiction conferred by the constitution. The constitution authorises the creation by the legislature [**22]  of the Circuit Court, and in the exercise of that power, in the passage of the act of 1853, chap. 122, "concurrent jurisdiction with the Superior Court of Baltimore city, in all cases in equity," and generally, such cases "as have heretofore been conferred on the chancellor 

 [*164]  of this State, so far as regards the fifth judicial circuit," has been given to the Circuit Court of Baltimore city. This jurisdiction is ample enough to warrant the issuing of writs of error.
Judgment affirmed.
MASON, J., dissenting in part.  

114 of 187 DOCUMENTS 

THE BALTIMORE CEMETERY COMPANY vs. THOS. COBURN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Md. 202; 1854 Md. LEXIS 97 

DECEMBER, 1854, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Court of Common Pleas for Baltimore city.

Assumpsit by the appellee against the appellants, to recover compensation for building two windows in a gateway, which the plaintiff, by a written contract under seal, had agreed to build for the defendants. The declaration contained a count for work and labor, and materials furnished, and the common money counts. Plea, non assumpsit.

Exception. The plaintiff proved by the architect, employed by the defendants to superintend the erection of the gateway at the entrance to their cemetery, that the plaintiff built it after a certain plan under his superintendence, and under a written contract which the witness had not read; that he had built two windows in the gateway not contemplated in the plan, but which, in the opinion of the witness, were necessary to symmetry and good appearance, in consequence of the change of the location of two chimneys therein by the direction of the defendants, which made room for the windows; that plaintiff refused to build these windows unless he was paid extra for them, or a price in addition to that stipulated in the contract; that witness considered himself authorised to make changes rendered [**2]  necessary by the chimneys, without consulting the defendants upon the details and without special directions from them, and in the exercise of this power he directed the plaintiff to build the windows, and told him if he would do so, he, (the witness,) would see him paid, whatever they should, in his judgment, be worth, and he thought them worth $ 150; and that witness passed the work when finished as complete.

The defendants then produced the written contract, signed and sealed by the plaintiff and defendants, under which the gateway was built, and which provided for the completion of the same, in every particular, at a stipulated price, and contained the clause stated in the opinion of this court; and proved by cross-examination of the plaintiff's witness, that he did not believe the defendants knew of the erection of these windows, or of his agreement to pay for them, until the gateway was finished, when they objected to pay for them because they knew nothing of the alteration, and that it had never been mentioned to them or endorsed upon the contract. There was also evidence as to the character of the work upon the gateway, and that other alterations were made tending to benefit [**3]  the plaintiff, which need not be stated.

The defendants then asked three instructions to the jury, the first two of which were granted and need not be stated; the third was in substance, that if the jury find the execution of the written contract in evidence, and that the work and labor done, and materials furnished, for which the plaintiff seeks to recover in this case, were done and furnished in executing said contract, either in carrying out the original design or any alteration thereof, the plaintiff cannot recover.

The plaintiff then asked two instructions:--1st. That if they find his claim is based upon a contract for separate or additional work, requested or required by the defendants, and that he objected to such work unless some additional sum should be allowed him therefor, and that this was agreed to on the part of the defendants or their agent, then he is entitled to recover such additional sum as the jury shall find to have been agreed upon for such additional services; and shall also find that such extra work was not endorsed on the written contract, through neglect or inadvertence, or other causes not fraudulent upon the part of either party.

2nd. Though [**4]  the jury may find that alterations were made in the original plan by which the plaintiff was benefited, the defendants cannot set off for such benefit in this case against the plaintiff's claim, if they shall find that such alterations were made at the instance and request of the defendants.

The court, (MARSHALL, J.,) granted the plaintiff's prayers, and the first two of the defendants, but rejected their third. To the granting of the plaintiff's prayers, and the refusal to grant their third prayer, the defendants excepted, and the verdict and judgment being against them, appealed.  

DISPOSITION:
Judgment reversed, and no procedendo.  

HEADNOTES:

By a written contract for the building of a gateway to a cemetery according to a specified plan, it was "mutually agreed, that should any alteration be contemplated from the present design it may be done, provided the parties beforehand agree upon the price and endorse it upon the contract, and unless such agreement be so entered, it is to be taken to be an agreement to make the alteration without any change in price of the original contract." HELD:

1st. That the builder could not recover for erecting two windows in the gateway not contemplated in the original plan, it being an alteration, and the agreement and price therefor not being endorsed upon the contract, and there being no evidence of a promise by the owners to pay for the same.

2nd. The architect appointed to superintend the work according to the plan, with such alterations as the parties might agree upon, had no power to bind the owners by promising in their name to pay for this alteration. 

COUNSEL:
William S. Bryan for the appellants, argued, that the judgment should be reversed:

1st. Because there was no evidence that the appellant assented to the construction of any work as additional to that contracted for by the sealed instrument, or that it agreed to pay an additional sum for the same; or that the architect was authorised to bind it by a bargain in this matter; or that any thing was done by the appellant calculated to induce the appellee to believe that the architect was so authorised; and because the sealed instrument furnished uncontradicted [**5]  evidence negativing all these assumptions.

2nd. Because there was no evidence of an intention to endorse upon the sealed instrument an agreement to pay for additional work, and of a failure to execute this intention through "neglect, inadvertence, or other causes, not fraudulent upon the part of either party."

3rd. Because there was proof of a valid agreement under seal, recognised by the parties as subsisting, and acted upon by them throughout the whole of this transaction, which provided for "the entire completion of the gateway in every particular" for a certain compensation set forth in said agreement, subject to be varied only in the manner therein provided, and containing only certain special exceptions, not referring to the windows mentioned in the evidence, and the plaintiff is bound thereby and cannot recover upon a quantum meruit. 3 Taunt., 52, Ellis vs. Hamlen. 9 Barr., 245, Miller vs. McCaffrey.

4th. Because if any excuse had been shown, wherefore an agreement to pay for additional work was not endorsed upon the sealed instrument; yet, nevertheless, the action should still have been brought upon the contract under seal, and the special matter of excuse set [**6]  forth in proper averments. 4 Cranch, 239, Young vs. Preston. 12 East, 179, Randall vs. Lynch.

5th. We further insist, that in this case no procedendo ought to be awarded, because, upon the evidence contained in the bill of exceptions, the appellee cannot recover on a subsequent trial.

Coleman Yellott for the appellee, argued:

1st. Although there was a written contract under seal for the building of the gateway, according to a specified plan, yet if that plan was varied from, and extra work done by the plaintiff and accepted by the defendants, the plaintiff may recover for such extra work on the common counts in assumpsit. The defendants' third prayer was therefore properly rejected, and the plaintiff's first prayer properly granted. 5 G. & J., 263, Watchman & Bratt, vs. Crook. 4 Cowen, 564, Jewell vs. Schroeppel. Platt on Covenants, 554. 1 East, 619, Heard vs. Wadham. 9 Gill, 288, Rodemer vs. Gonder, et al. 1 Do., 342, Howard vs. Wilmington & Sus. R. R. Co. 44 Law Lib., 24, 30. 7 Pick., 184, Hayward vs. Leonard.

2nd. The omission, through "neglect or inadvertence," to endorse upon the sealed contract the terms of the special parol agreement in reference to the erection [**7]  of the extra windows, as made by the defendants' agent with the plaintiff, which extra windows were made necessary by the defendants' change of the original plan, is no bar to the present action of assumpsit upon the parol agreement. 9 Gill, 288. 9 Pick., 298, Munroe vs. Perkins. 21 Pick., 417, Mill-Dam Foundery vs. Hovey.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and TUCK, J.  

OPINIONBY:
TUCK 

OPINION:

 [*206]  TUCK, J., delivered the opinion of this court.
The parties entered into a written agreement for the erection, by the appellee for the appellant, of a gateway, according to a specified plan. The contract contained this clause: "It is hereby mutually agreed that should any alteration be contemplated from the present design, it may be done, provided the parties beforehand agree upon the price, and endorse it upon the contract, and unless such agreement be also entered, it is to be taken to be an agreement to make the alteration without any change in price of the original contract." Some changes were made in the progress of the work, about which there is no controversy. The appellee sues to recover compensation for two windows, placed in the gateway by direction of the [**8]  architect, which it is said became necessary to its symmetry and beauty, in consequence of the two chimneys having been placed in a position different from that contemplated by the original plan.
It is said, on the part of the appellee, that these windows were additional work, not part of the original design, and, therefore, not such an alteration as was necessary to be 

 [*207]  endorsed on the contract. In this we do not agree. Why should the change of place of the chimneys be within the agreement, and not the change as to the windows? It makes no difference whether the number of the windows was increased or not. In one sense these two new windows would be additional work, but might they not require an alteration in the plan? If the original design had been completed according to the contract, and other work done after the contract had been discharged, it would present a different question.
This is not like the cases cited, in which the parties charged acquiesced in, or accepted the work when finished. It does not appear that the company ever acquiesced in this change. Indeed if the order had been given by it for the work, would it not have been within the clause we have given [**9]  from the contract? It is impossible to conceive the use for inserting any such provision, if it is to have no effect in a case like the present. Owners are very much in the power of builders and architects. Changes, apparently unimportant, are often made, the first knowledge of which comes to the owner in the shape of an additional charge for extra work. It may have been to prevent this, and the controversy that often arises from verbal arrangements suppletory to written agreements, that the parties had this cautious provision inserted. It was a clause for the benefit of both, especially for that of the owner. The plaintiff must have known that he could not make the alteration and charge for it, unless the assent of the parties was endorsed on the contract. The stipulation provides, not only that the price shall be agreed upon beforehand, and endorsed, but also, that if this is not done, it shall be taken as an agreement to make the alteration without any change in the price from the original contract. If the plaintiff, relying on the assurance of the architect, chose to perform this work without placing it within the protection afforded to the parties by an endorsement on the contract,  [**10]  he must bear the consequences.
There is nothing to show the assent of the defendants, or 

 [*208]  their acquiescence in the alteration; on the contrary, the first we hear of them in reference to it, is their refusal to pay the extra charge. Even if they had had knowledge tending to show their assent, it might have been inferred by them, that, as no agreement had been made and endorsed, the contractor was changing the places of the windows, only in conformity with the alteration of the design as to the chimneys, and that no additional charge would be made.
The case of Miller vs. McCaffrey, 9 Barr. 245, furnishes some very wholesome suggestions on this subject. There the written contract provided how alterations were to be made, and stipulated that "no extras should be allowed under any pretext whatever." The contractor claimed compensation for extra work which he had done without the previous agreement of the other parties, but, of which they had knowledge during its progress, and made no objection. The court held, that in the absence of an express promise to pay they were not liable. It must be so, else there is no sense in making a contract. When one of the parties reposes [**11]  on his written agreement, and is willing to abide by its requirements, shall the other make alterations to suit his own taste, or that of the superintendent, and compel the owner to pay an extra price for what, probably, if consulted, he never would have allowed. There is no evidence of a promise to pay for this work. On the contrary, the witness states that he did not believe the company knew of the erection of the windows, nor of his (witness') agreement to pay for them, until the gateway was finished and the bill for the windows rendered, when the company objected to pay for them, on the ground that they knew nothing of the alteration, and that it had never been mentioned to them, nor endorsed upon the contract. There is no foundation in law, nor warrant in reason, for saying, that in a case like the present, where a party stipulates that he will not pay for alterations in the work unless they are agreed upon, and reduced to writing beforehand, he shall nevertheless be held responsible upon a quantum meruit. It would be to deny to him the benefit of written evidence, and subject him 

 [*209]  to the uncertainties of parol proof, depending on the fluctuating opinions of other [**12]  persons as to the character and the value of the work, and to bind him against his will.
We do not say that a stipulation of this kind may not be waived in such manner as to render the party liable for extra work; but in the present case we do not discover any thing on the part of the appellants, or of any person authorized to act for them, to exclude them from the benefit of this clause in the contract. The witness was appointed merely to superintend the work according to the plan, with such alterations as the parties might have agreed upon. As such superintendent, he had no power to bind the company by promises in their name, whatever he may have thought of the extent of his authority. Indeed the inference from his testimony is, that the plaintiff looked to him and not to the company, for he no where says, that he promised that the defendants would pay for the work, but that he would see the plaintiff paid what the windows were worth, which he thought was $ 150.
From the view we have taken of the obligations of the parties under the contract, we are of opinion that the court erred in granting the plaintiff's first prayer, and that the judgment must be reversed. As a procedendo [**13]  will not issue, it is unnecessary to express any opinion on the court's refusal to grant the defendants' third prayer.
Judgment reversed, and no procedendo. 

115 of 187 DOCUMENTS 

JOHN A. FIELD and others, vs. WILLIAM ADREON and others, Garnishees of JAMES KENNEDY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Md. 209; 1854 Md. LEXIS 98 

DECEMBER, 1854, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Court of Common Pleas for Baltimore city.

This was an attachment on warrant procured by the appellants, and issued on the 17th of November 1851, out of the Superior Court for Baltimore city, against James Kennedy, as an absconding debtor; and on the same day laid in the hands of the appellees, as garnishees, who appeared and plead "non assumpsit" for Kennedy and "nulla bona" for themselves. The affidavit of the plaintiffs to their account before the magistrate states, that Kennedy "was a citizen of the State of Maryland at the time" the debt due them was contracted, and "that they are credibly informed, and verily believe, that the said James Kennedy is actually runaway and fled from justice, and removed from his place of abode with intent to injure and defraud his creditors."

Exception. At the trial the plaintiffs proved their claim, the absconding of Kennedy, funds belonging to him in the hands of garnishees, and that he had resided in the city of Baltimore for twelve months previous to his absconding, and for that period kept a dry goods store in said city. The garnishees then proved by a competent witness, that about nineteen years ago, witness knew Kennedy [**2]  in Ireland, when he was seven or eight years old; that he next saw him in Baltimore, in 1850; that his parents were Irish and lived in Ireland. They then asked two instructions to the jury:

1st. If they believe that Kennedy was born in Ireland, of Irish parents, and did not come to America until 1850, being then twenty four or twenty-five years of age, then he was not a citizen of the State of Maryland within the meaning of the attachment laws of this State: there being no proof of his having made any declaration of his intention to become a citizen of the United States, or of his having been naturalized.

2nd. If they believe that Kennedy was only a resident alien, and not at any time a citizen of this State, then the plaintiffs are not entitled to recover.

The court (MARSHALL, J.,) granted these instructions, and to this ruling the plaintiffs excepted, and the verdict being in favor of the garnishees, appealed.  

DISPOSITION:
Judgment reversed, and judgment for appellant.  

HEADNOTES:

A party may abscond, and subject himself to the operation of the attachment laws against absconding debtors, without leaving the limits of the State.

An unnaturalized foreigner, residing and doing business in this State, is, for commercial objects, in contemplation of our attachment laws, a citizen of this State, and liable to be proceeded against as an absconding debtor.

A party may be a citizen, for commercial or business purposes, and not for political purposes.  

COUNSEL:
George W. Dobbin for the appellants.

The evidence shows that Kennedy was a trader or merchant, resident and domiciled in Maryland; and the question is, whether he is a citizen of Maryland within the meaning [**3]  of the attachment laws of 1795, ch. 56, and 1839, ch. 39, sec. 2? The former act uses the word "citizen," and the question is, does it mean only that class of persons who have all the rights of citizenship, or does it include those also who have a commercial domicil but have not the political rights of citizens? We say the latter. There is a clearly recognised distinction between citizenship for commercial purposes and citizenship for political purposes. The former may exist without the latter. Story's Confl. of Laws, sec. 48. 1 Kent's Com., 74 to 76. 8 Term Rep., 31, Wilson vs. Marryat. 1 Maule & Selw., 726, Bell vs. Reid. 3 Bos. & Pul., 113, McConnell vs. Hector. 1 Do., 430, Marryat vs. Wilson. 3 Rob. Adm. Rep., 12, The Indian Chief. 4 Do., 255, The Danous, cited at the foot of the case of the Nayade. 2 Cranch, 120, The Charming Betsy. 7 Do., 506, Livingston vs. Md. Ins. Co. 8 Do., 278, The Venus. 1 Paine's C. C. Rep., 609, Catlett vs. Pacific Ins. Co. 5 Mason, 70, Case vs. Clarke. 3 Wash. C. C. Rep., 553, Cooper vs. Galbraith.

The attachment laws must be construed together as a system, (Dwarris on Statutes, 699.) The act of 1715, ch. 40, makes no reference to citizenship; it [**4]  says "inhabitants," and applies to all parties. The act of 1795, ch. 56, is a supplement to the former, and says, that "any person, not being a citizen of this State, and not residing therein," who shall abscond, &c. The act of 1825, ch. 114, uses the terms, "inhabitant or resident," and so does the act of 1834, ch. 79. These acts show that the words citizen, inhabitant and resident, were used by the legislature as synonymous.

Edward O. Hinkley for the appellees, argued:

1st. That the attachment laws must be construed strictly. Such have been the repeated decisions of our own courts. 1 H. & McH., 504, Thompson vs. Towson. 5 H. & J., 130, Shivers vs. Wilson. 6 Do., 446, Yerby vs. Lackland. Ibid., 497, Mandeville vs. Jarrett. 6 G. & J., 335, Wever vs. Baltzell. 10 Do., 274, Baldwin vs. Neale. Ibid., 383, Stone vs. Magruder.

2nd. The terms, resident, citizen and inhabitant, are not synonymous or convertible. In this country the word citizen has reference to the rights of the elective franchise; inhabitant means a permanent resident; and resident one who resides in a place for an indefinite time. These terms must not be confounded; the decisions of our own courts upon our [**5]  own local and peculiar laws have settled this point, and it cannot now be questioned.

3rd. The acts relating to attachments give no right of attachment against a resident absconding, but only against a citizen absconding, or against a non-resident. All the previous acts relate to citizens, and the legislature knowing this when they passed the new attachment law of 1854, ch. 153, changed the phraseology and used the word "person." This is a legislative construction of the previous acts.

4th. If there be any right of attachment as against a resident absconding, it is only to be exercised against him as a non-resident for the reason, that eo instanti a resident who is not a citizen absconds, he becomes a non-resident. But whether there be or not any right of attachment in such a case, it is clear, that in this case the attachment cannot be sustained upon the oath of the plaintiffs that the defendant is a citizen, when, in fact, he is not a citizen, for what the plaintiff avers in the oath he must prove. 1 Gill, 372, Boarman vs. Israel. 3 Do., 313, Barr vs. Perry. Ibid., 485, Dickinson vs. Barnes.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and MASON, J.  

OPINIONBY:
MASON 

OPINION:

 [**6]  
 [*212]  MASON, J., delivered the opinion of this court.
In the present instance the affidavit being in due form, and according to the requirements of the acts of Assembly, makes a 

 [*213]  prima facie case in favor of the plaintiffs, and entitles them to their attachment against the defendant, as an absconding debtor. The garnishees in this action seek to rebut the prima facie case thus made, by showing, that at the time the defendant absconded he was not a citizen of this State; and it is ingeniously argued, that if the case is embraced at all within the operation of the attachment law, it must fall under that branch which provides a remedy against non-resident debtors, and not under that which relates to absconding citizens, for in the act of absconding, the debtor, not having been a citizen, became a non-resident. This view of the subject might be unanswerable, if the attachment laws contemplated that a debtor should leave the State before he could be said to have absconded. But this argument is a non sequitur. A party may abscond, and subject himself to the operation of the attachment laws against absconding debtors, and still [**7]  not depart from the limits of the State. In such a case the party could not be said to be a non-resident of the State, and therefore could not be proceeded against by attachment as such. Unless, under such circumstances, he could be treated as an absconding citizen, his case would not be covered by the attachment laws at all.
Kennedy, the defendant in this case, it appears, was an unnaturalized Irishman, residing and doing business in Baltimore at the time he absconded, and the question for us to determine is, whether those circumstances are sufficient to constitute him a citizen in contemplation of our attachment laws, inasmuch as we have shown that he could not be proceeded against as a non-resident debtor?
It certainly never could have been the intention of our legislature to have made such an invidious distinction in favor of foreign citizens residing in our State, over our own resident citizens, as to exempt the former from being proceeded against as absconding debtors, while the latter were to be held subject to all the penalties of the attachment laws against debtors absconding to evade their creditors.
We are of the opinion, that as the debtor was residing [**8]  and doing business in Baltimore, he was, in contemplation of our attachment laws, a citizen of this State, and as such, having 

 [*214]  actually runaway to avoid his creditors, was liable to be proceeded against as an absconding debtor.
We do not wish to be understood as deciding, that the debtor in this case was a citizen for every purpose and in every sense. A party may not be a citizen for political purposes, and yet be a citizen for commercial or business purposes. In the present instance we simply determine, that Kennedy, for commercial objects, was a citizen of this State in contemplation of our attachment system.
For the reasons expressed, the judgment of the court below was erroneous and must be reversed. Story's Confl. Laws, sec. 48. 1 Kent 74, 75, 76. Wilson vs. Marryat, 8 Term 31, 36.  McConnell vs. Hector, 3 B. & P. 113. 3 Wash. C. C. 553, Cooper vs. Galbraith.
Judgment reversed, and judgment for appellant. 

116 of 187 DOCUMENTS 

ANTHONY GROVERMAN vs. CHARLOTTE SPENCER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Md. 214; 1854 Md. LEXIS 99 

DECEMBER, 1854, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the equity side of the Superior Court for Baltimore City.

In this case the appeal was argued before a full court, and the decree of the court below affirmed by a divided court.  

DISPOSITION:
Decree affirmed, by a divided court, with costs in both courts.  

HEADNOTES:

In future, in all cases of a divided court, no opinions will be filed representing the views of the different judges.  

JUDGES:
MASON, J.  

OPINIONBY:
MASON 

OPINION:

 [*214]  MASON, J., delivered the following opinion of this court, in reference to its practice in such cases in future:
In this case the court are divided. Two of the judges are of opinion the decree ought to be affirmed, and the two other judges are of opinion that it ought to be reversed.
Although opinions representing the views of the different judges have been prepared, the whole court think it proper not to file them, for they determine nothing which would govern 

 [*215]  any future case, and therefore would in all probability lead to misapprehension hereafter. In future, in all cases of a divided court, a similar practice will be pursued.
Decree affirmed, by a divided court, with costs in both courts. 

117 of 187 DOCUMENTS 

JOHNSTON P. LEE, ULYSSES B. BREWSTER and HENRY B. HALL, Garnishees of ELBERT WOLF, vs. GEORGE W. TINGES.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Md. 215; 1854 Md. LEXIS 100 

DECEMBER, 1854, Decided 

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

Attachment on warrant, instituted by the appellee on the 21st of October 1850, against Elbert Wolf, as an absconding debtor. The plaintiff's claim, to which he made affidavit, was of an account consisting of various items of merchandise, amounting to $ 1787.28: credited by cash, September 16th 1850, $ 258, and October 5th 1850, $ 498.40, leaving a balance due of $ 1030.88. The short note accompanying the attachment was for goods sold and delivered, money lent and advanced, paid, laid out and expended, and money had and received.

The sheriff returned the writ, "attached as per schedule." The appellees, Lee and Brewster, upon petition were admitted to appear as garnishees upon giving special bail, they being non-residents, and plead "non assumpsit" for the defendant, and "nulla bona" for themselves.

1st Exception. The plaintiff produced a witness, Alnutt, who stated that the account annexed to the affidavit, warrant and attachment, was correct: but after refreshing his memory by looking at a promissory note of Wolf's in favor of Tinges, for $ 241.61, dated the 13th of September 1850, and payable in one month, which he proved [**2]  was signed by Wolf, he stated that at the time of issuing the attachment, the only portion of said account which was due, was the sum of $ 241.61. On cross-examination the same witness stated, that he did not himself sell or deliver the goods mentioned in said account, (though he had frequently seen Wolf in plaintiff's store buying goods,) and had no personal knowledge of their sale or delivery to Wolf at the time thereof, he being the plaintiff's book-keeper, and having made out said account in his books, from information communicated to him by the other clerks. Being again examined in chief, he stated that he had been in the habit of obtaining from Wolf his notes for previous purchases, and that he presented to him the account as filed at different times, and soon after the dates set forth in said account as of purchases, and that Wolf subsequently to such presentment gave witness a promissory note in favor of Tinges, dated the 13th of March 1850, for $ 498.40, payable in six months, (which note was produced and Wolf's signature to it proved,) for a portion of said account, and afterwards enclosed the note for $ 241.61, above mentioned, to Tinges, in a letter, in which he states [**3]  that he had been trying in vain to make collections, and requests that Tinges would accept the enclosed note for balance due on former note, (which was the note for $ 498.40.) The garnishees objected to the admissibility of these notes in evidence, under the proceedings in this cause, when they were offered, but the court (FRICK, J.,) overruled the objection, and admitted the evidence to go to the jury, and to this ruling the garnishees excepted.

2nd Exception. The garnishees then gave evidence of a sale of the goods, upon which the attachment was levied, to William F. Lee, their agent, by Merritt the confidential clerk and agent of Wolf, under circumstances substantially as follows: Wolf was indebted to the garnishees, Lee and Brewster, a New York firm, in October 1850, in the sum of $ 1197.01, for goods purchased by him from them, for which he had given his notes. Becoming doubtful of Wolf's solvency, they sent their agent, William F. Lee, to Baltimore, to inquire into Wolf's condition and take steps to secure their debt. Lee arrived in Baltimore on the 13th of October, and found that Wolf was in Washington, where he followed and saw him; Wolf then promised to go with Lee to [**4]  Baltimore by the ten o'clock train the next morning, to make a statement of his affairs, but he was not at the cars that morning, and Lee found, on reaching Baltimore, a letter from Wolf, stating that he was on his way to Philadelphia and New York. Several circumstances, such as the confusion in which he found Wolf's store, several attempts to set fire to it, and the cancellation of the policy thereon by the Insurance Company, having aroused Lee's suspicions, he resolved to secure the garnishees, and after some negotiations, Merritt, the confidential clerk of Wolf, acceded to Lee's proposition, to purchase goods of Wolf at retail prices, and pay for them with Wolf's notes, which Lee and Brewster held. The invoicing and receiving the goods under this arrangement, was commenced on October 17th, and the transfer completed late on the night of the 18th. These goods were seized by the sheriff on the morning of the 19th of October, while they were at the railroad depot, under attachments issued at the suits of several parties. The attachment in this case was issued on the 21st of October, and laid on the goods already in the sheriff's custody.

The garnishees further proved by Merritt,  [**5]  that he was Wolf's salesman and confidential clerk, in all except his financial matters, which Wolf conducted himself; that Wolf returned to Baltimore on the morning of the 19th of October, when witness saw him and told him all he had done in regard to the sale to Lee, and he did not disapprove of it; that when Wolf left the city, his instructions to witness had always been to go on with his (Wolf's) business, as if it were witness' own. The garnishees then, for the purpose of showing by particular facts the general scope of the authority under which Merritt acted habitually on behalf of said Wolf, asked him whether said Wolf was ever absent from the city? To which witness replied, that he frequently was, having stores both in Washington and in parts of Virginia, as well as in Baltimore. The garnishees then further asked whether he, the witness, was in the habit of acting by said Wolf's consent, and with his approbation to every extent, in reference to buying goods or otherwise providing for Wolf's said stores during his absence? This question was objected to, and the court sustained the objection, and refused to let the question be asked, and to this ruling the garnishees excepted.  [**6]  

3rd Exception. The garnishees further proved by Merritt, that on the morning of the 19th of October, Wolf having returned to Baltimore, called at witness' house before store hours, when witness stated to him fully the particulars of the settlement with Lee and Brewster, to which Wolf made no objection, and witness then, according to the best of his recollection, delivered to Wolf the receipt and order received from Lee, for the notes of Wolf held by Lee and Brewster. The garnishees then, for the purpose of showing a ratification by Wolf of the conduct of Merritt, and further illustrating the general scope of the authority under which Merritt habitually acted for Wolf, proved by the witness that after said period, (the store in Baltimore being shut up and closed,) the witness continued in Wolf's employment at his request, and was sent by him to Virginia, to the stores of Wolf there: and then offered to prove that the witness within the week following the transaction with Lee and Brewster, settled the claims of several other creditors of Wolf, in the same manner in which he had with said Lee and Brewster, and that Wolf approved of and confirmed the same. But the plaintiff objected [**7]  to said evidence, as of matters subsequent to the issuing of this attachment, and the court sustained the objection, and refused to permit the evidence to be given, and to this ruling the garnishees excepted.

The verdict was in favor of the plaintiff for $ 241.61, and thereupon the garnishees, "not waiving their exceptions," moved for a new trial: 1st, Because the verdict is against the evidence and the weight thereof: 2nd, Because the undisputed facts in the case amounted in law to a ratification by Wolf of the act of his agent Merritt, by which the goods in controversy passed to the garnishees as their own property, and the verdict is in this particular contrary to the law applicable to the case: and 3rd, Because the verdict is contrary to law in other particulars. This motion the court overruled. The garnishees then made a motion in arrest of judgment, which they afterwards withdrew, and judgment of condemnation was rendered upon the verdict, from which they appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Where the same questions presented by the bill of exceptions are relied on, upon a motion for a new trial, the court below have the right and in general ought to require the party to waive his exceptions, before they will entertain the motion.

But if the motion is heard and decided, and it does not appear that the party was required to make such waiver, the appellate tribunal will nevertheless entertain the appeal.

In an attachment on warrant, the claim produced before the magistrate was an account consisting of charges for various items of merchandise, and the short note accompanying the attachment, was for goods sold and delivered, and money had and received. HELD:

That two promissory notes given by the defendant to the plaintiff, in connection with proof showing that they were for part of the account constituting the claim, are admissible as evidence tending to show an acknowledgment by the defendant of a portion of the account.

In attachment cases the creditor is not bound to produce before the justice all the written evidence in his possession, which might be used before the jury to establish the debt, and entitle him to condemnation of the property attached.

Where goods are sold and regularly charged in the ordinary course of business, and a promissory note is subsequently given by the purchaser, for the amount of the claim, the seller may, after the note falls due, sue on the account, notwithstanding the note.

A promissory note is sufficient evidence to sustain an action upon the common count, for money had and received by the payee against the maker.

The testimony of a book-keeper in a store, who did not sell the goods, but was in the habit of presenting the accounts to the defendant at different times, and receiving his notes for previous purchases, that the amount of one of such notes was the portion of the account sued on, then due, is admissible as evidence.

But he is not competent to speak of the correctness of the account, or of the amount due thereon, from any knowledge on the subject, which, as book-keeper, he derived from the other clerks in the store.

If a debtor defendant seeks to discharge himself from a claim preferred against him, by relying on the credit entries in the account rendered, he thereby admits in evidence against him the debit entries in the same account.

The plaintiff in an attachment may recover a less sum than the amount sworn to by him before the justice.

The question on the examination-in-chief, "whether the witness" (who was the defendant's clerk,) was in the habit of acting with the defendant's consent, and with his approbation to every extent, in reference to buying goods and otherwise providing for his store during his absence," is a leading question.

Where a question embodies a material fact, and admits of an answer by a simple negative or affirmative, it is leading.

Leading questions may be asked, even in a direct examination, where the witness appears hostile to the party calling him, or unwilling to give evidence, or where an omission in his testimony is evidently caused by want of recollection, which a suggestion may assist.

A salesman and confidential clerk in a retail store, in the ordinary and usual course of business, has no authority to sell by wholesale, in payment of a debt due by his employer.

A clerk in a retail store sold goods by wholesale in settlement of a claim due by his employer, and subsequently after these goods were attached, and the business affairs of his employer were materially changed, he made sales to other creditors in a similar way, which his employer approved and confirmed. HELD:

That evidence of these subsequent sales, under such circumstances, was not admissible for the purpose of showing a ratification of the first sale by the employer.

Collateral facts or such as do not afford a reasonable presumption or inference, as to the principal fact or matter in dispute, should be excluded.  

COUNSEL:
F. K. Howard for the appellants, as to the motion made by the appellee to dismiss the appeal, upon the ground that the exceptions had been waived by the motion for a new trial, argued,  [**8]  that the case of Townshend vs. Townshend, 9 Gill, 519, settles the question of practice, in this particular, in this State: for in that case a similar motion for a new trial was made, and the point that the appeal should be dismissed raised in this court, and yet the Court of Appeals considered the exceptions and reversed the judgment upon them. He also cited 9 Porter, 109, West vs. Cunningham, and 15 Conn., 430, Chambers vs. Campbell. Upon the merits of the case he then argued the following points:

1st. That the evidence objected to in the first exception should have been rejected. If the account filed with the attachment proceedings was that by which the debtor was indebted, (as required by the act of 1795,) the notes were necessarily inadmissible as substantive proof, which was the character in which they were offered. They were not introduced merely as memoranda to prove amounts, but as actual evidence, in themselves, of indebtedness not otherwise proven. 2 H. & J., 192, De Sobry vs. De Laistre. 12 G. & J., 53, Dawson vs. Brown. 2 Md. Rep., 335, Lambden vs. Bowie.

2nd. The said evidence was likewise inadmissible, being contrary to the account filed with the attachment.  [**9]  The proof establishes that $ 241.61 was due on the 13th of September 1850, and continued due until the attachment issued, there being no evidence of any other indebtedness at or between those periods. The account shows the payment of $ 498.40 on October 5th, 1850, which was more than double the amount proven to be then due, and of course showed an extinguishment of indebtedness prior to suit brought.

3rd. That the evidence rejected in the second exception should have been admitted. The extent of Merritt's agency to buy and sell for Wolf was an important matter in controversy, and the garnishees had the right to introduce any proof as to the extent of that agency which would have been admissible against Wolf himself. Of this nature the proof offered clearly was, being proof of Merritt's habitual conduct as Wolf's agent, by Wolf's consent, in similar matters prior to the transaction in controversy. Story on Agency, secs. 55, 56, 89, 90.

4th. That the evidence offered in the third exception, was competent to show Wolf's approbation of Merritt's conduct in the case at bar, and thereby to show that he ratified the same. It was also competent to show the general scope of Merritt's [**10]  habitual agency for Wolf, because, although the acts were done after those in controversy here, it was not in pursuance of any new authority. Story on Agency, secs. 253 to 260.

5th. That under the plaintiff's proof, the promissory notes offered by him in evidence were those by which Wolf was indebted to him, and that the attachment proceedings are consequently defective from the neglect to produce the said notes at the time of making the affidavit for attachment.

6th. That the proof shows Wolf had returned to the city before the attachment was issued, and remained there for some time after, so that the attachment being against an absconding debtor, cannot be maintained.

7th. That under the plaintiff's proof it is established that his attachment was issued for $ 1030.88, when only $ 241.61 was due, and that the plaintiff, at the time of issuing the attachment, well knew the fact, so that said attachment was in fraud of the statute and cannot be maintained. 6 G. & J., 347, Bruce & Fisher, vs. Cook. 10 G. & J., 383, Stone vs. Magruder & Brooke. 3 Gill, 313, Barr vs. Perry. 2 Pet., 536, United States Bank vs. Owen. 1 Gill, 381, Boarman vs. Israel.

Wm. Geo. Read and [**11]  Frederick W. Brune for the appellees, contended upon the motion to dismiss, that the motion for a new trial, which was not only made, but persisted in to a hearing, and was overruled by the court, and which raised questions of law, which might have been embraced in instructions of the court, in the course of the trial, and thus have been made the subject of other exceptions, was a waiver and abandonment of the exceptions, and the appeal should therefore be dismissed. 2 Wm. Bl. Rep., 929, Fabrigas vs. Mostyn. 18 Eng. C. L. Rep., 333, Doe vs. Roberts. 1 Eng. Law & Eq. Rep., 305, Adams vs. Andrews. 5 Mason, 173, Cunningham vs. Bell. 14 Maine, 421, State vs. Call. 32 Do., 512, Cole vs. Bruce. 5 English, 483, Berry vs. Singer. 2 Green, 195, Mann vs. Glover. 5 Cowen, 415, Corlies vs. Cummings. 11 G. & J., 389, Mitchell vs. Mitchell.

Upon the first exception they argued the following points:

1st. That the admission of the proof, connected with the notes objected to by the appellants, was for their benefit, inasmuch as it reduced the amount of the plaintiff's claim to the sum shown by the smaller of these notes to be due at the date of the attachment. 12 G. & J., 492, Doyle vs. Com'rs [**12]  of Balto. County. 10 Do., 442, Farmers & Mechanics Bank vs. Planters Bank.

2nd. That the plaintiff's witness was authorized to refer to the smaller note, for the purpose of refreshing his memory as to the exact amount of the plaintiff's account due at the date of the attachment, and the record expressly states, that when said note was first produced, it was produced by the witness for the purpose of refreshing his memory, and said note being thus once properly introduced could not be objected to as inadmissible. 1 Greenlf. on Ev., secs. 436, 439.

3rd. That after the appellant's cross-examination of said witness, he was entitled upon his re-examination to produce the two notes of the defendant, just as well as his letter, (which was admitted without objection,) to show the sources of his knowledge in regard to the correctness of the plaintiff's account, and the amount due to him by the defendant at the date of the attachment.

4th. That the letter produced by said witness, being in evidence without objection, and referring to the notes subsequently produced, these became necessarily legal evidence to explain said letter, even if otherwise they might have been objected [**13]  to.

5th. That said notes were legal evidence to show that the defendant was indebted to the amount of said notes, upon the account for goods sold, and the money counts. 15 Eng. C. L. Rep., 147, Maugham vs. Hubbard. 2 Greenlf. on Ev., sec. 112. 8 East, 284, Kensington vs. Inglis. 1 Burr., 373, Harris vs. Huntback. 1 Saund. on Pl. & Ev., 278.

6th. That under this exception, which is confined to the admissibility in evidence of these notes, the appellants cannot now raise in the appellate court any objection that the attachment should have been upon the notes themselves, or that there was a variance between the claim under the attachment proceedings and the proof at the trial, even if such objections could have availed them in the court below. 8 G. & J., 248, Steamboat Co. vs. Dandridge. 1 Gill, 85, Wolfe vs. Hauver. Ibid., 222, Leopard vs. The Canal Co.

7th. That there is no error in the attachment proceedings below patent upon the record, which may be taken advantage of in this court, by motion to quash or otherwise, although not raised in the court below.

8th. The sixth point of appellants is without foundation, for the attachment below was issued on the 21st of [**14]  October, (Monday,) and the evidence shows that Wolf was absent from the city during the previous week, and only returned on Saturday morning early, that he did not go to his store on that day, and was not seen by Merritt from 7 o'clock, A. M., until 10 o'clock at night, and then by accident, and there is no proof that he remained in the city after that time, or was there on Monday, or that his presence on Saturday was known to the plaintiff.

9th. The seventh point of the defendants cannot be maintained, because the affidavit of the plaintiff was in fact correct, that the defendant was indebted to him in the sum mentioned in the affidavit, although the proof also shows that the whole amount of this debt was not payable at the date of the affidavit, and the fact that a part of the amount stated in the affidavit and account cannot be recovered under the attachment law, does not render the attachment invalid for the remainder. 12 G. & J., 53, Dawson vs. Brown.

Upon the second exception they contended, that the question proposed to be asked was objectionable, because:--1st. It was a re-examination of the witness in regard to his authority to act for the defendant, when he had [**15]  been examined in chief on this point, and there was no counter-testimony by the plaintiff in reference to it, to rebut which the proof might be adduced. 1 Greenlf. on Ev., sec. 467. 2nd. It was a leading question. 1 Greenlf. on Ev., sec. 434. 3rd. It was irrelevant testimony:--1st. Because it was evidence that the witness had authority to fill the defendant's stores by buying goods, when the question at issue was his authority to strip the defendant's store, by selling his goods and paying cash besides, for an order for the paper of the defendant, not yet due. 2nd. Because it had reference to the authority of witness to supply defendant's stores in Washington and Virginia, while the question at issue is his right to act in relation to sales of goods in the store in Baltimore. 1 Greenlf. on Ev., sec. 52. As to the authority of the clerk to make this sale, and to show that he had no such authority, see 14 Penn. State Rep., 107, Hampton vs. Matthews, and 18 Johns., 363, Beals vs. Allen.

Upon the third exception they contended, that the evidence was properly rejected:--1st. Because it was a re-examination-in-chief of the appellant's witness, and not for the purpose of rebutting testimony [**16]  offered by the plaintiff. 6 Eng. C. L. Rep., 119, The Queen's case. 34 Do., 185, Prince vs. Samo. 2nd. That the ratification of a principal sustaining an unauthorized transaction of his clerk in favor of one of the creditors of the principal, is not evidence to show that a similar unauthorized transaction with another was authorized or ratified. 3rd. More especially when the proof of the ratification of such unauthorized act offered in evidence showed that it took place after the transaction, the authority of which is questioned. 4th. Still less is the evidence of subsequently ratified transactions proper to prove a general authority or ratification in regard to previous transactions, when the subsequent transaction relied upon took place after the controversy began in which they are proposed to be offered in evidence.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON, TUCK and MASON, J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*225]  ECCLESTON, J., delivered the opinion of this court.
After verdict the appellants filed a motion for a new trial, stating they did so, without "waiving their exceptions." The court heard and considered the motion, but overruled it. The same day on which this [**17]  decision was made, the appellants filed a motion in arrest of judgment, which, however, was subsequently withdrawn, without having been acted upon by the court.
The appellee insists, that this appeal should be dismissed, because the reasons assigned why a new trial should be granted involved questions of law, which were presented in the bills 

 [*226]  of exceptions, or if not, which might have been presented in them. The principle contended for is, that if a party asks for a new trial, relying upon matters of law, and after being considered by the court the application is refused, although he may not have been required to waive or abandon his exceptions, still he cannot have his case reviewed upon appeal; because such an application for a new trial, will, of necessity, be considered by the courts as a waiver of his bills of exceptions and right of appeal.
In 6 How. 279, United States vs. Hodge, et al., the Supreme court say, "The motion for a new trial was not a waiver of a writ of error. In some of the circuits, there is a rule of court to this effect. But effect could be given to that rule only by requiring a party to waive on the record a writ of error,  [**18]  before his motion for a new trial is heard. In the greater part of the circuits no such rule exists. It does not appear to have been adopted in Louisiana."
In Mitchell vs. Mitchell, 11 G. & J. 388, the county court refused to entertain a motion for a new trial, unless the party would abandon her exceptions, which being refused, the court declined to entertain the motion.
After verdict in favor of the caveatees, in Townshend vs. Townshend, 9 Gill 506, the caveators moved the court to set aside the verdict and grant a new trial. Among the reasons assigned, the 4th alleged error in the court, for excluding from the jury proof of the declarations of Walter B. C. Worthington, one of the witnesses to the will. The question as to the admissibility of this proof, was presented by the caveators' bill of exceptions. The court overruled the motion. When the case was under argument upon the appeal of the caveators, the counsel for the appellees contended, "That the motion for a new trial, and especially upon the ground covered by the bill of exceptions, was a waiver of said bill of exceptions." In the opinion of the court nothing is said on this subject:  [**19]  but it is perfectly clear that they did not adopt the view of the appellees; for if they had the appeal must have been dismissed. Instead of which the decision below was reversed, 

 [*227]  upon the question presented in the bill of exceptions. One of the judges dissented from the decision of a majority of the court, in regard to the admissibility of the evidence, which had been rejected below, but as he makes no allusion to the exception having been waived, by the motion, we consider him as concurring with the other judges, in the propriety of treating the appeal as legally before them.
The decisions on this matter of practice have not been entirely uniform: but the cases referred to we deem sufficient to warrant the conclusion, that in Maryland, when the same questions are presented in the bill of exceptions, and in the application for a new trial, the court below have the right, and in general ought, to require the party to waive his exceptions, before they will entertain the motion. If, however, the motion is heard and decided, but it does not appear that the party was required to make such waiver, the appellate tribunal will nevertheless, entertain the appeal. See 9 Porter's  [**20]   Rep., (Ala.,) 110, West vs. Cunningham.
The motion to dismiss is overruled.
The two notes mentioned in the first exception, and offered in evidence by the plaintiff, were objected to by the garnishees, but the court refused to sustain the objection, and this refusal constitutes the first exception.
At the time of making the oath, for the purpose of obtaining the attachment, the plaintiff produced an account of sundry items of goods sold and delivered, as his claim, on which the alleged absconding debtor was indebted. The short note filed in the cause, is for goods sold and delivered; for money lent and advanced to, and paid, laid out and expended for the defendant; and for money had and received by the defendant for the use of the plaintiff. Although the witness Alnutt, in his examination-in-chief, stated the account was correct, yet, upon cross-examination, it appeared that he did not sell the goods, but as book-keeper he made out such account in his books from information derived from the other clerks. But upon further examination by the plaintiff, the witness "stated that he had been in the habit of obtaining from the 

 [*228]  defendant his notes for previous purchases,  [**21]  and that he presented to him the account, as filed at different times, and soon after the dates set forth in the said account as of purchases, and that the defendant subsequently to such presentment, gave to witness the note following, which he also proved was signed by the defendant." The note here alluded to, is the one for $ 498.40, dated the 13th March 1850, and payable in six months: which the witness says was for a portion of the account. From the testimony of this witness, it also appears the note for $ 241.61, dated the 13th of September 1850, and payable in one month, was subsequently enclosed in a letter to the plaintiff from the defendant. In the letter, the defendant offers an apology for not being able to comply with his engagements, and asks, as an act of kindness, that the plaintiff will accept the enclosed note, for the balance due on former note. And the witness says, the note so enclosed was for the balance of the larger note of $ 498.40, then remaining unpaid.
The objection urged against the admissibility of these notes is, that an account was produced before the magistrate, as the claim on which the debtor was indebted, and the notes not having been produced at [**22]  that time, they cannot now be used as evidence, in support of the plaintiff's claim; especially in the absence of other legal proof to establish the correctness of the account.
It is admitted by the counsel for the appellants, and properly so, that if A., sells goods to B., which are regularly charged to him in the ordinary course of business, and subsequently a promissory note is given by B., for the amount of the claim, after the note falls due, A., may maintain an action upon the account notwithstanding the note. And it is also conceded, that if A. has a claim for money had and received for his use, by B., who gives a note for the same, the note will be sufficient evidence to sustain an action by A., upon the common count, for money had and received. But it is said, although these principles apply to ordinary cases of actions in assumpsit, they are not applicable to attachments. 

 [*229]  And many cases have been cited, for the purpose of showing how careful the courts have been to require a strict compliance with the provisions of our attachment laws: among them is that of Dawson vs. Brown, 12 G. & J. 53. And it is supposed, this decision is quite sufficient [**23]  to show that the notes objected to were improperly admitted in evidence. But we do not concur in this view of the matter. There the attachment was held to be erroneous, so far as related to the notes, because they were not produced with the affidavit. But it will be seen, that the objectionable items of the account consisted of the notes themselves, not charges for goods sold and delivered or for other matters, constituting an account, which, even if a note had been given for the same, would have been sufficient to support an action of assumpsit. In reference to what the statute requires to be produced at the time of making the affidavit, the court held that the creditor was not bound to produce before the justice, all the written evidence which he might have in his possession, and which might be used before the jury to establish the debt, and entitle him to a condemnation of the property attached. And among the examples intended to elucidate this proposition; and to show what kind of evidence need not be produced, the court gave the following: "So if an attachment be required on an open account, for goods sold and delivered, or money lent and advanced, and the creditor had [**24]  this 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.'" If in the case put by the court, the account would be a sufficient cause of action, on which to have an attachment, and at the trial the written orders might be used as evidence to sustain the claim; why may not the account in this 

 [*230]  case be sufficient to sustain the present attachment; and why may not the notes when taken in connection with the testimony of Alnutt and the letter of the defendant, be permitted to go to the jury as evidence, tending to prove an acknowledgment on the part of the defendant, of at least a portion of the account? It cannot be doubted that in an action of assumpsit, upon this account, the notes, under the circumstances [**25]  disclosed in the record, would be proper for the consideration of the jury, as evidence of an acknowledgment by the defendant, that a portion of the account was correct. And if this were to be so in assumpsit, we see no good reason why it should not be so in the present instance. This, in our opinion, is clearly within the principle established in Dawson vs. Brown.
We do not understand the plaintiff as relying upon either note as his cause of action, or as evidence, per se, of the correctness of the account; but that they were offered in connection with the other proof as evidence of the defendant's acknowledgment, that a portion of the account was correctly due. At all events they were admissible in that view, and as the particular object for which they were offered is not stated in the bill of exceptions, we cannot reverse the decision which admitted the proof.
This decision is said to be erroneous for a further reason, which is thus stated: (being the 2nd point of the appellants:) "The said evidence was likewise inadmissible, being contrary to the account filed with the attachment. The proof establishes, that $ 241.61 was due on the 13th of September 1850, and continued [**26]  due until the attachment issued, there being no evidence of any other indebtedness at or between those periods. The account shows the payment of $ 498.40, on October 5th, 1850, which was more than double the amount proven to be then due, and of course showed an extinguishment of indebtedness prior to suit brought." We do not see how we can sustain this point, even if the question presented by it is to be considered as properly before us. It is evidently a mere question of fact. It assumes, the proof establishes 

 [*231]  $ 241.61 to have been due on the 13th of September 1850, and continued due until the attachment issued, there being no evidence of any other indebtedness at or between those periods. And because the account shows the payment of $ 498.40 on 5th of October 1850, we are required to assume that this payment was an extinguishment of all indebtedness prior to suit brought. The language is, "showed an extinguishment of indebtedness prior to suit brought." Which of course, means all indebtedness; for otherwise it would avail nothing, in support of the position here relied upon.
There are several objections to the point. One is, that it is inconsistent in its different [**27]  parts. For if it be true, "the proof establishes that $ 241.61 was due on the 13th of September 1850, and continued due until the attachment issued;" it will be difficult to perceive how it can be true that the payment of $ 498.40 on 5th of October, showed an extinguishment of all indebtedness prior to suit brought, which was on the 21st of the same month. Moreover, we are not prepared to say, that this payment left no part of the account due at the date of the attachment, when the witness, Alnutt, has sworn that the portion of the account then due was $ 241.61. And this we understand as having been sworn to by him, with a knowledge that the credit of $ 498.40 was upon the account. That he knew it, is at least a fair presumption, because he stated, "that the account annexed to the affidavit, warrant and attachment, was correct." In this reference to the testimony of Alnutt, we are not to be understood as considering him competent to speak of the correctness of the account, or of the amount due thereon, from any knowledge on the subject, which, as book-keeper, he derived from the other clerks. But we think his testimony in regard to the portion of the account due at the time [**28]  of issuing the attachment, is entitled to consideration as evidence properly in the cause, under the circumstances stated by him, in reference to his habit of presenting to the defendant the account at different times, and obtaining from him his notes for previous purchases: the note for $ 498.40 being one of them; for the balance of which the note of $ 241.61 was given.

 [*232]  Nor can we see how it is possible from the facts to draw the inference, that $ 241.61 was the only indebtedness from the defendant to the plaintiff between the 13th of September and the 21st of October, or that no other portion of the account was due "at or between those periods." It is undoubtedly true, the defendant was in very embarrassed circumstances. The manner in which his mercantile affairs were brought to a close, in October, is clear proof of this. His letter, enclosing the note of the 13th of September, shows how much he was in want of funds to meet his engagements. For the moderate sum of $ 241.61, falling due three days after, he is under the necessity of asking, as a favor, that the plaintiff will accept his note, payable one month after.
It will be recollected, the appellants contend that [**29]  the payment of $ 498.40, on the 5th of October, was an extinguishment of all indebtedness prior to the institution of the suit, because the evidence does not show any other indebtedness than the $ 241.61 between the 13th of September and 21st of October. To sustain the correctness of this position we must come to the conclusion, that notwithstanding the embarrassed condition of the debtor, notwithstanding he was compelled from want of funds to ask indulgence for a month on account of the balance due in a few days upon a note, nevertheless, before the expiration of that month, he paid not only that balance to the plaintiff, but double the amount for which he had any right to demand payment. And in addition to this, the only evidence of the payment of $ 498.40 is the credit of that sum on the account, whilst a credit of the 16th of September shows a payment of $ 258. Now if the appellants are right in insisting there was nothing due between the 13th of September and the institution of the suit, except the $ 241.61, then that sum was extinguished, indeed overpaid, by the payment of $ 258, and the necessary consequence is, that notwithstanding the serious embarrassments under which Wolf [**30]  was laboring, he paid the $ 498.40 when not a cent thereof was due.
But supposing these objections to the second point of the appellants should be deemed insufficient, there is another, which, in our opinion, is conclusive.

 [*233]  In Allender, et al., vs. Vestry of Trinity Church, 3 Gill 166, it is said: "If any principle, both at law and in equity, is conclusively settled, it is, that if a debtor defendant, seeking to discharge himself from a claim preferred against him, relies on the entries on the credit side of the account rendered or exhibited by his creditor, he thereby admits in evidence against him the entries on the debit side of the account. If then the appellees put their defence on the credits allowed them in account X, the debits of that account not being discredited or disproved by the testimony in the cause, establish the claim for which these proceedings were instituted." In the case before us, there is no testimony discrediting or disproving the correctness of the items charged in the account, or tending to show that the goods had not been sold and delivered. Nor is there any evidence of the payment of $ 498.40 on the 5th of October, except [**31]  the credit of that sum on the account, the charges in which, after deducting the credits, leave a balance of $ 1030.88. The principle just stated will not permit the appellants to reject the charges and take the credit, for the purpose of applying that as an extinguishment of the sum which the witness, Alnutt, says was due when the attachment issued.
Dawson vs. Brown establishes the principle, that the plaintiff in attachment may recover a less sum than the amount sworn to by him before the justice.
The second bill of exceptions shows, that the garnishees had given evidence of a sale of the goods in controversy to William F. Lee, as their agent, by J. H. Merritt, as clerk and agent of Wolf. It therefore became a matter of some importance to them to show, that Merritt had authority to make the sale. He, as a witness for the appellants, stated, "that when said Wolf left the city, his instructions to the witness had always been, to go on with his (Wolf's,) business as if it were witness' own." It then appears, that "The garnishees, for the purpose of showing by particular facts the general scope of the authority under which said Merritt acted habitually on behalf of said Wolf, then [**32]  asked him whether said Wolf was ever absent from the city? to which the witness replied, that he frequently was, having stores both in Washington and in parts 

 [*234]  of Virginia, as well as in Baltimore." The garnishees then further asked, "whether he, the witness, was in the habit of acting by said Wolf's consent, and with his approbation, to every extent in reference to buying goods, or otherwise providing for Wolf's said stores during his absence?" The defendant objected to this question and the court sustained the objection, to which the appellants excepted.
The court, we think, were right, because the question is a leading one, according to the definition of a leading question in 1 Greenlf. on Ev., sec. 434, where he describes it as embodying a material fact, and admitting of an answer by a simple negative or affirmative. The present inquiry did present a material fact, and might very well have been answered by the witness by simply saying, I was, or, I was not. And the course of the examination shows, very clearly, the witness could have no difficulty in knowing what answer he was desired to give. In 2 Phillipp's Ev., 401, (Ed. of 1849,) it is said: "Leading [**33]  questions, that is, such as instruct a witness how to answer on material points, are not allowed in the examination-in-chief." And in note 366, on page 769 of the 4th volume, this subject is treated of more at length, where cases are cited in which questions have been held improper, as being in conflict with this principle. It is there said to be a mistake "to suppose such only is a leading question to which yes or no would be a conclusive answer."
There are cases, even in a direct examination, where leading questions may be permitted; as, "where the witness appears to be hostile to the party producing him or in the interest of the other party, or unwilling to give evidence, or where an omission in his testimony is evidently caused by want of recollection, which a suggestion may assist." And in 1 Greenlf. on Ev., sec. 435, other instances, in addition to these, are given, but in our opinion the principles involved in them do not sanction the propriety of the question before us.
From the third exception it appears, Wolf returned to Baltimore on the 19th of October, and had an interview with Merritt at his house, when Merritt stated to him the particulars of the settlement [**34]  with Lee and Brewster, detailed in the testimony 

 [*235]  of the witness, Lee; to which Wolf made no objection. And Merritt proved, that to the best of his recollection he then delivered to Wolf the receipt and order received from the witness, Lee, for the notes of Wolf held by Lee and Brewster.
For the purpose of showing a ratification by Wolf of the conduct of Merritt, and further illustrating the general scope of the authority under which Merritt habitually acted for Wolf, the garnishees proved by him, that after the period when the store in Baltimore was shut up and closed, the witness continued in Wolf's employment, at his request, and was sent to Virginia to his stores there. And then the garnishees "offered to prove that the witness, within the week following the transaction with Lee and Brewster, settled the claims of several other creditors of said Wolf in the same manner in which he had with said Lee and Brewster, and that said Wolf approved of and confirmed the same." To which the plaintiff objected as being evidence of matters subsequent to the attachment, and the court sustained the objection.
Merritt is represented as salesman and confidential clerk of Wolf, in his [**35]  retail store in Baltimore. There can be do doubt that the principal may, if he pleases, confer on such a clerk full power to make a sale like the one in controversy. But in the ordinary and usual course of business, "a clerk in a retail store has no authority to sell by wholesale in payment of a debt due, and certainly not in payment of a debt not due." Hampton, et al., vs. Matthews & Shaw, 14 Pa. 105. In that case the court say: "It is obvious, that if a clerk has authority to apply any quantity of goods he may choose to the payment of a debt not due, he has power, in many cases, materially to injure, if not totally to destroy, his employer." See also Beals vs. Allen, 18 Johns. Rep. 366.
To establish the right of Lee and Brewster to the property, either Merritt must have possessed authority to make the sale, or else it was necessary that it should have been ratified by Wolf before the attachment was levied.
The offered testimony being for the purpose of showing a ratification of the sale, and further illustrating the general scope of the authority under which Merritt habitually acted for Wolf, 

 [*236]  was properly rejected by the court,  [**36]  because the sales to, or settlement of the claims of, other creditors occurred, not only after the attachment, but after the business affairs of Wolf had undergone a very material change from what they were when Merritt made the sale to Lee and Brewster. It would be a very unsafe rule to admit proof for the purpose of authorising a jury to infer the ratification of the act of an agent, or that he had authority to do the act, because subsequently thereto, under other and different circumstances, the agent did similar acts, which were approved of and confirmed by his principal. A man might be quite unwilling, under a given state of facts, to ratify a contract made by his agent, when, under a change of circumstances, he would be pleased to have the opportunity of confirming a similar contract.
Prior to the transaction with the agent of Lee and Brewster, no similar sale appears to have been made, but the business in the store up to that time had been going on as usual. It took two days to accomplish the sale, which was finished and the goods delivered on Thursday or Friday night. And on the following Saturday morning, (the 19th of October,) at 7 o'clock, Merritt informed Wolf of the sale.  [**37]  That transaction did not close the store, but it was opened for business as usual on Saturday morning. Afterwards, on the same day, it was closed by other parties under attachments, of which Wolf was informed that night, about 10 o'clock, by Merritt. Within the week following, the transactions between this clerk and other creditors took place, which were approved of by Wolf, and were offered in evidence but rejected.
There is a rule of evidence which excludes collateral facts, or such as do not afford a reasonable presumption or inference as to the principal fact or matter in dispute. And the reason of the rule, as given in 1 Greenlf. on Ev., 70, sec. 52, is, "That such evidence tends to draw away the minds of the jurors from the point in issue, and to excite prejudice and mislead them; and moreover, the adverse party having had no notice of such a course of evidence, is not prepared to rebut it." He gives several instances in exemplification of the rule, among which, one is, that "Where the question between landlord 

 [*237]  and tenant was whether the rent was payable quarterly or half-yearly, evidence of the mode in which other tenants of the same landlord paid their [**38]  rent was held inadmissible."
We do not, however, sustain the action of the court simply upon the ground, that the facts offered were collateral or because they were subsequent to the attachment, but because they took place, not in the ordinary course of business, but under circumstances very different from those existing at the time of the occurrence of the principal matter, and therefore they are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute.
We do not think the appellants are entitled to a reversal upon the ground taken in their sixth point.
Judgment affirmed. 

118 of 187 DOCUMENTS 

WILLIAM J. WALLIS, ELISHA N. BRUNE, and JOHN GLENN, vs. BARNEY DILLEY, BENJAMIN R. EDWARDS and JOSEPH DILLEY, use of JOSEPH DILLEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Md. 237; 1854 Md. LEXIS 101 

DECEMBER, 1854, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

Debt upon an injunction bond by the appellees, the obligees, against the appellants, the obligors therein. The bond was for the penalty of $ 1500, and was dated the 14th of February 1846. It recited, that "whereas Powles, Hyde and Wallis, Brown and Owings, and J. A. Sangston and company, have obtained from Baltimore county court, sitting in chancery, a writ of injunction to prevent the Merchants Fire Insurance Company of Baltimore from paying over to said Barney Dilley, Benjamin R. Edwards and Joseph Dilley, or either of them, the sum of $ 3000, the amount of an insurance effected by them for said Edwards and Dilley, and renewed in the name of said Benjamin R. Edwards," and the condition was simply to "prosecute said writ with effect."

The declaration was upon the bond generally without assigning breaches. The defendants pleaded:--1st, general performance; 2nd, that the writ of injunction is not yet ended and determined, nor prosecuted to a final decree, but still is in the high court of chancery, and that they have obeyed all orders and decrees hitherto passed, and are ready to obey all such as may be passed by said court [**2]  therein. To the first plea the plaintiffs replied, that the defendants have not prosecuted their writ of injunction with effect, concluding to the country, to which the similiter was entered. To the second plea they replied, by a general traverse, also concluding to the country, to which the similiter was likewise entered.

Exception. After the testimony on both sides (which is fully stated in the opinion of this court) had been offered, the plaintiffs asked an instruction, that if the jury find that the complainants mentioned in the bond did not prosecute their writ of injunction therein mentioned to a successful termination, then they may find for the plaintiffs, in such damages as they shall appear from the evidence to have actually and necessarily sustained by reason of the granting of said writ; and if they find that the plaintiffs were damaged, by reason of said injunction, in the loss of interest upon the sum of $ 3000 mentioned in the bond, such interest so lost will form a proper item in the estimate of actual and necessary damages sustained, notwithstanding they may find that the insurance company agreed or proposed, in consideration of a release to them, to invest said [**3]  $ 3000 without interest in full, deducting therefrom their costs and counsel fees, and that the plaintiffs declined to accede to the proposition, they not being bound to consent to any arrangement for an investment of less than the whole amount of the fund in controversy, unless with a reservation of their claim for the balance against the company or on the injunction bond.

The defendants then asked instructions, as follows:

1st. That there is no evidence to show that the parties named as complainants in the bond have failed to prosecute with effect the writ of injunction recited in it, and the plaintiffs consequently cannot recover.

2nd. That the plaintiffs are not entitled to recover upon the bond in suit, for any counsel fees, which they or any of them may have proven themselves to have paid for the defence of their interests in the equity proceedings offered in evidence.

3rd. That the defendants are not responsible to the plaintiffs in this suit for any costs or expenses of any sort, other than those incurred by them in said proceedings in equity, from the time of their institution down to the final action of the Court of Appeals on the injunction, and the reinstatement [**4]  of the case in the court of chancery on the 2nd of July 1847, the subsequent proceedings being merely for relief, not wishing any further prosecution of the injunction and not covered by the bond sued on.

4th. That the plaintiffs are not entitled to recover in this case, it appearing from the evidence that prior to the institution of this suit the plaintiff, Edwards, had applied for the benefit of the insolvent laws, and Joseph Dilley had been appointed his permanent trustee, so that said Edwards was improperly joined as plaintiff;--it further appearing that the name of said Edwards is not used as such plaintiff by his said trustee or for his use.

5th. That the plaintiffs are not entitled to recover in this action for any separate loss or damage sustained from the injunction proceedings by Joseph Dilley alone.

6th. That the plaintiffs are not entitled to recover, because they have offered no evidence of any joint damage or loss sustained by them from said injunction proceedings.

7th. That if the jury find that during the pendency of these equity proceedings the insurance company offered to the plaintiffs to invest the amount of the insurance policy therein referred [**5]  to, to abide the determination of the controversy, and that the plaintiffs refused or declined to accede to such offer, then such offer and refusal are evidence proper to go to the jury, to be considered by them in determining the giving of interest by way of damages under the bond in suit.

The court, (FRICK, J.,) granted the plaintiffs' prayer, and rejected all of the defendants', and to this ruling the defendants excepted. The verdict and judgment were in favor of the plaintiffs for $ 1500 damages, and the defendants appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

Upon a bill for an injunction the order directed the injunction to issue "on the filing of a bond;" the bond was filed, reciting that the obligors "have obtained" the injunction, and the writ issued all on the same day. HELD, that these must be regarded as simultaneous acts, and that the bond referred to the injunction then obtained.

It is well established, that in all matters arising ex contractu, the successful party is not entitled to recover the fees which he may have paid to his counsel.

In a suit upon an injunction bond, the recovery for costs and expenses is confined to those which accrued between the time of issuing the injunction and the affirmance of the order dissolving it.

The fact that one of the obligors in an injunction bond had taken the benefit of the insolvent laws, and his permanent trustee appointed, is no objection to his joining in his own name in a suit upon the bond.

Courts of common law will, in the exercise of a quasi equitable jurisdiction, order the proper use to be entered in the action, on motion of a cestui que trust or of a defendant.

In a suit upon a bond for the payment of one sum to three parties, all three must join as plaintiffs, though there be no joint loss, and if they do not, the omission may be availed of by demurrer to the declaration, or by proof of the non-joinder at the trial.

In a suit upon an injunction bond, given upon the granting of an injunction to restrain the payment of a certain sum of money to the obligors, interest on this sum is recoverable, as matter of right, up to the time it was paid into court upon the dissolution of the injunction. 

COUNSEL:
F. K. Howard and S. T. Wallis, for the appellants, argued.

1st. That the only writ of injunction proven in this case, is not such a writ as the appellants bound themselves by the bond given in evidence to prosecute with effect, and there is therefore no proof of the breach of said bond. The injunction was not issued until after the execution of the bond. The first prayer of the appellants was therefore improperly rejected. Morgan vs. Blackiston, 5 H. & J., 61. Morgan vs. Morgan, 4 G. & J., 401. Lloyd vs. Burgess, 4 Gill, 192.

The court will go to the full extent of the law in favor of sureties,  [**6]  15 Pet., 208, United States vs. Boyd.

2nd. That even if the appellants were responsible under that bond, for a failure to prosecute with effect the writ of injunction proven in these proceedings, the counsel fees of the appellees in the suit in equity, did not form a part of the damages for which the appellants became liable in consequence of such failure. The appellants' second prayer should therefore have been granted. Sedgwick on Measure of Damages, 97, 99 to 102. Lincoln vs. Saratoga & Schenectady R. R. Co., 23 Wend., 425. Arcambel vs. Wiseman, 3 Dall., 306. Barnard vs. Poor, 21 Pick., 382. 13 How., 371, Day vs. Woodworth.

3rd. That an injunction bond is designed to cover the injury which the injunction may cause and nothing more. The appellants therefore, if responsible at all in this case, are not responsible for any costs or expenses other than those incurred in and about the injunction proceedings mentioned, from the time when said injunction was obtained, February 13th, 1846, until it was dissolved, July 2nd, 1847, and the cause reinstated in the chancery court. The court therefore erred in rejecting the appellants' third prayer, which affirmed this principle, and [**7]  in granting the appellees' prayer which affirmed the contrary. McCabe vs. Morehead, 1 Watts & Serg., 516. Conrad vs. Pacific Ins. Co., 6 Pet., 273, 276. Karthaus vs. Owings, 6 H. & J., 138. Walter vs. Warfield, 2 Gill, 220.

4th. That Benjamin R. Edwards is improperly joined as a plaintiff in this suit, he having prior to its institution taken the benefit of the insolvent laws, and Joseph Dilley having been appointed his permanent trustee, and not using the name of said Edwards to his use, as such trustee, though the suit is for a substantive right of the insolvent created prior to his insolvency. This principle was overruled by the court, in rejecting the appellants' fourth prayer. Act of 1827, ch. 70.

5th. That the appellees, having sued jointly, are not entitled to recover, they having offered no proof of any joint loss or damage, and not being entitled to recover in a joint action for any separate loss or damage sustained by any one of them. This point was presented by appellants' fifth and sixth prayers. 1 Chitty on Pl., 10, 16. Brown on Actions at Law, 8, 116, 119, 122. Slater vs. Magraw, 12 G. & J., 265. Acts of 1835, ch. 180, sec. 7; 1835, ch. 346, sec. 3, and 1835,  [**8]  ch. 380, sec. 7. 8 Gill, 456, Lahy vs. Holland. 6 Wend., 629, Ehle vs. Purdy. 14 Mees. & Wels., 572, Bradburne vs. Botfield. 2 Leigh's Nisi Prius, 736. 2 Dana, 460.

6th. It was proven by Mr. Lloyd, that the Insurance Company, at the outset of the litigation and during its pendency, offered to invest the fund at lawful interest for the benefit of whom it might concern, and that the appellees refused such offer. The appellants, by their seventh prayer, asked the court to leave this to the jury, as an item, (if they should find it to exist,) from which, with other proof, they might determine upon the right of the appellees to recover under the injunction bond, for interest lost. The court refused this prayer, and granted the appellees' prayer, thereby excluding such fact, even if found, from the consideration of the jury. In this we say the court erred: that the question of the right to interest was one for the jury under all the circumstances, and that it should have been left to them to determine, whether Dilley himself had not prevented the fund from earning interest, and thereby precluded himself, to that extent, from complaining of its loss. Sedgwick on Measure of Damages, 94,  [**9]  95, 385, 386. 7 H. & J., 453, Newson vs. Douglass.

William F. Frick for the appellees, argued in answer to the points of the appellants.

1st. That the injunction bond was executed, and the injunction writ issued, at the same time. It was recited in the former, that the writ had been obtained. This fact the defendants were estopped from denying. Lloyd vs. Burgess, 4 Gill, 192. Hardy, vs. Coe, use of Brooke, 5 Gill, 193. And the injunction writ and proceedings proved, are precisely such as the bond describes; and there were, in fact, none other. But if to a recovery on the bond, the nature of the transaction required that the filing of the bond should precede the issuing of the writ, (and the acts were in fact of the same day, and cotemporaneous,) the recital in the bond will not be so construed as to avoid, but rather to give virtue and effect to, the bond. The legal intendment will then be:--1st. That the order for the writ was obtained; the writ to be issued on the filing of the bond. 2nd. The filing of the bond. 3rd. The issuing of the writ. Wood vs. Fulton, 2 H. & G., 71. McMechen, vs. Mayor & City Council, 2 H. & J., 41.

2nd. The instruction asked was, that the plaintiffs [**10]  should not recover any counsel fees, &c. The records in evidence show, that the litigation about this $ 3000 policy began in 1845, and did not end till 1851. There were three cases in chancery and three in this court, the judgments being always against the complainants. There was abundant proof, that the litigation on their part was vexatious and oppressive. This may not have been so intended, but the jury were entitled to determine that question. Though there is conflict of authority on the point, whether counsel fees form a proper item of damage in ordinary suits on replevin and injunction bonds and proceedings, for interference with rights of possession of real or personal property, there is none in cases where improper motives enter into the litigation, as where it is malicious or vexatious, as intended to force the other party into a compromise or settlement. If the jury had thought this such a case, it would have been error in the court to deprive them of the right to take into consideration, (if they had thought proper to do so,) any part of the reasonable and necessary expenses incurred by the appellees in the protection of their rights. Jones vs. Doles, 3 Louisiana Ann. Rep.  [**11]  , 588. Marshall vs. Betner, 17 Ala. Rep., 837. Whipple vs. Cumberland Manf. Co., 2 Story's Rep., 665. Boston Manf. Co., vs. Fiske, 2 Mason, 120. Allen vs. Blunt, 2 Woodbury & Minot, 146, and cases referred to in this case, where "counsel fees" are always allowed in suits on "covenants of seisin;" also 4 Md. Ch. Dec., 128, Estate of Rachel Colvin.

3rd. The plaintiffs' prayer stated the measure of damage to be, what they had actually and necessarily sustained by reason of the granting of the injunction, and claimed the interest on the $ 3000, if the jury should find that it was lost by reason of the injunction, &c. Defendants' 3rd prayer denied the plaintiffs' right to recover costs and expenses of any sort, other than were incurred down to the final action of the Court of Appeals on the injunction. The bond was signed by some of the complainants, and by Mr. Glenn, as their surety. When the second injunction was here finally dissolved, the plaintiffs were still deprived of the money, by the notice from Mr. Glenn, on behalf of the complainants, to the Insurance Company, not to pay the money till the case was disposed of in chancery; by reason of which notice, the company filed their [**12]  bill of interpleader, under which the plaintiffs lost all the interest on the $ 3000, and were subjected to further costs and expenses. This additional loss and expense was by reason of the granting of the injunction, and the conduct of the obligors in the injunction bond: and under this instruction no part of it could have been recovered. Besides the prayer is liable to the construction, that even for the time while the injunction was pending, no damage of any sort, other than the costs and expenses of the equity proceedings, could properly be estimated by the jury, by which ruling they would have been misled. Swift vs. Barnes, 16 Pick., 196. Suydam vs. Jenkins, 3 Sandford, 614. Howe vs. Handley, 28 Maine, 251.

4th. That Edwards being insolvent, was improperly joined as a party plaintiff, his trustee being the proper party to join; to which it is answered: Dilley, Edwards and Dilley were joint obligees, but the proof shows, that Joseph Dilley was the only party damnified. He owned the policy, and paid the costs of the proceeding. Barnes Dilley and Edwards, had no beneficial interest in the bond: 1st, If Edward's interest had, in fact, passed to his trustee, still, (the bond being [**13]  a chose in action,) the suit would properly be in the name of Edwards, and could not be otherwise, except under the act of 1829, ch. 51. Browne on Actions at Law, 105, 209. 2nd, But as Edwards had no beneficial interest in the bond, nothing passed to his trustee. 1 Chitty's Pl., 917. 3rd. And in any event, the suit was properly brought in the name of Edwards. The party to whose use the suit is entered, is not the legal plaintiff. The use is entered only for his protection. The suit would not abate by his death, &c. See act of 1827, ch. 70, sec. 2.

5th. The suit was necessarily in the name of all the obligees. It is not the case of joint covenantees, to which the rule applies, that where the legal interest and cause of action is several, they should sever, even though the covenant in its terms be joint. But here, not only is the cause of action joint, and the legal interest joint, but it could not, in such a case, be otherwise. Where the obligation is for the payment of one sum to three parties, there can be no such thing as a several legal interest. All must join, though only one be equitably entitled to the sum. 1 Chitty's Pl., 9, 10, 11, 12, and notes. Hurlstone on Bonds, 9 [**14]  Law Lib., 96. 7 Bac. Abr., Obligation D., sec. 3. Armstrong vs. Robinson, 5 G. & J., 412. Maddox vs. State, 4 H. & J., 539.

7th. The seventh prayer, if granted, would have permitted the jury to disallow the interest on the $ 3000, claimed as damage, on the ground, simply, that if at any time, pending the proceedings, the plaintiffs refused to assent to the offer of the Insurance Company to invest the fund, their remedy on the bond, for interest, was gone. The proof shows, that the company always refused to invest or allow the back interest, and always claimed to deduct their counsel fees from the fund. If the plaintiffs had assented to such an offer, clearly their claim against the company for any thing more than the sum invested, would have been released; and this the company exacted. And they were willing to assent, provided the obligors in the bond would agree, that it should not prejudice Dilley's right to recover against them the interest that should be lost. But on this point the counsel could not agree. The plaintiffs, on their part, did all that could reasonably be required of them. They were anxious for an investment, saving their rights, if any, on the bond. The arrangement [**15]  was defeated, for want of the assent of the defendants. How then, with this proof before the jury, could they fairly be required to visit the consequences of the prevented negotiation upon the plaintiffs? 

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and MASON J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*246]  LE GRAND, C. J., delivered the opinion of this court.
This suit was instituted to recover the sum of $ 1500, the amount which the appellants had bound themselves in a certain injunction bond to pay to the appellees, on failure of certain complainants to prosecute their injunction with effect.
The appellees, at the trial, gave in evidence an injunction bond and the records of two causes commenced in Baltimore county court, sitting in equity, in one of which Powles and others were complainants, and the Merchants Fire Insurance Company, and Benjamin R. Edwards and Barney Dilley, were defendants; and the other, in which Powles and others were complainants, and the Merchants Fire Insurance Company, Benjamin R. Edwards, Barney Dilley and Joseph Dilley, were defendants. Both of these cases were removed to the court of chancery and finally determined in the Court of Appeals, the one on [**16]  February 13th, 1846, the other January 1851. The circumstances under which the injunction here involved was granted and dissolved, will be found in the report of the latter case, in 2 Md. Ch. Dec. 119, and 9 Gill 222.
The appellees also offered a transcript of a bill of interpleader, filed by the Merchants Fire Insurance Company vs. Powles, Hyde and others, in chancery, October 1850; and also proved, that Joseph Dilley did not receive the $ 3000 mentioned in the equity proceedings, and the subject of the injunction, until February 1st, 1851, when he received that sum out of chancery, in the interpleader proceedings aforesaid; that said Joseph Dilley paid costs of defendants in Baltimore county court, court of chancery and Court of Appeals, in the cause instituted in February 1846, and also $ 750 counsel fees.
The appellants then proved by John J. Lloyd, that he was counsel for the Merchants Fire Insurance Company at the 

 [*247]  time of the institution of these suits; that there were several negotiations between Mr. Frick, the counsel for Joseph Dilley, and witness, for the purpose of relieving the company from its position as stakeholder.  [**17]  Mr. Frick wished the company to pay over to Dilley--witness wished the company to deduct their expenses from the fund, and pay balance to counsel for complainants and defendants, to be invested. The counsel for the respective parties could not agree; proposals were made to invest the fund when the litigation was first begun, and more than once afterwards.
The chief difficulty in the negotiation, in September 1849, was $ 375 interest, one-half of which the company offered to pay. The company always denied their liability for interest, and claimed to be allowed for expenses and counsel fees out of the fund.
The counsel for Dilley, on four separate occasions, demanded payment from the company, but it it was always refused under the circumstances stated. The refusal to pay, in July 1847, was based on the pendency of the suit, and the fact that Mr. Glenn, counsel for complainant, had notified the company not to pay.
The appellees then proved by Mr. Frick, (subject to exception,) that no demand was made on the company for payment until the affirmance of the chancellor's order dismissing the first injunction, in February 1846. Witness then called and demanded payment of the policy, and [**18]  while he was then in their office the company were served with the second injunction. Before this time there was no negotiation in reference to the payment or investment of the fund. During the four years succeeding the granting of the second injunction, there were several conversations between Mr. Lloyd and witness in regard to the matter. The company always, (except in their last proposition,) claimed to invest the fund without interest, and after deducting counsel fees and expenses. In 1850, Mr. Lloyd offered to invest the principal, and $ 187.50 interest, still deducting costs and counsel fees. No proposition for investment was made prior to the institution of the second injunction proceedings, and none before 1850, except of the 

 [*248]  principal, less costs and counsel fees. A formal demand was made on the company, in July 1847, which they refused, on the ground that Mr. Glenn had notified them not to pay. Mr. Dilley received the $ 3000, February 1st, 1851, from the court of chancery, where it had been deposited by the company, in October 1850.
On this state of facts the appellees asked and obtained a single instruction to the jury. The appellants submitted seven propositions,  [**19]  all of which were refused.
The first prayer of the appellants is to the effect, that there is no evidence to show the complainants mentioned in the bond given in evidence had failed to prosecute with effect the injunction recited in said bond.
The bond recites, that the obligors "have obtained from Baltimore county court, sitting in chancery, a writ of injunction," &c. The order of the judge directing the issue of the writ is in these words: "Mr. Bradford will issue injunction as prayed for in this bill, on the complainants, or some person or persons for them, giving bond, with security to be approved by you, in a penalty of fifteen hundred dollars; said bond to be with the usual condition."
The theory of the prayer is, that inasmuch as the order directing the issue of the injunction requires it to be issued on the filing of the bond, and the bond recites that the obligors "have" obtained the injunction, the bond does not refer to the particular injunction which was not prosecuted with effect, but must be taken as referring to some other writ. We think the court below did right in rejecting this prayer. The record shows that the bill was filed, the bond given, and [**20]  the injunction issued on the same day, the 14th February 1846, and we therefore regard these acts as simultaneous. It would be a mere burlesque of justice to intend the bond sued on had reference to any other writ of injunction than the one which the appellants failed to prosecute with effect. And although there has been considerable strictness in the interpretation placed upon injunction bonds, yet we see nothing in the decisions of our State to warrant the proposition contained in the prayer.
In the case of Morgan vs. Blackiston, 5 Har. & Johns. 61, 

 [*249]  it was but decided, that an injunction bond is only binding with reference to the judgment recited, and is security for the payment of no other judgment. In that case, the judgment recited in the bond was stated to have been rendered at September term 1801. The case was heard on a case stated, by which it appeared the parties had agreed that a judgment had been rendered at April term 1801. It was clear, on this state of facts, that the bond was not given in reference to the judgment set out in the statement of facts agreed upon by the parties. Had the plaintiffs in that case relied [**21]  upon the bond and not on the statement of facts, the defendants would have been precluded from denying the existence of the judgment recited in it.  Hardey, et al., vs. Coe, 5 Gill 189. In Morgan vs. Morgan, 4 Gill & Johns. 395, the court held, that it was no breach of a bond conditioned for the prosecution of a writ of injunction with effect in the court of chancery, that it was not so prosecuted on the equity side of St. Mary's county court. Neither of these cases are similar to the one now before us. Here, it is apparent, the bond was filed at the time of the issue of the writ, and although the bond, in its reference to the writ, speaks in the preterit tense, we interpret it in the present, regarding the filing of the bond and the issue of the writ as concurrent acts.
We are of the opinion that the second prayer of the appellants ought to have been granted. Whatever may be the justice of the rule, it seems to be well established, that in all matters arising ex contractu, the successful party is not entitled to recover the fees which he may have paid to his counsel. Day vs. Woodworth, et al., 13 Howard 363.
We do not concur [**22]  in the ruling of the court in regard to the third prayer of the appellants. It confines the recovery of the plaintiff, so far as costs and expenses are concerned, to those which accrued between the time of the issuing of the injunction and the affirmance by the Court of Appeals of the order of the chancellor dissolving it. The prayer submits no question in regard to interest on the sum tied up in the hands of the insurance company, and we think in limiting the recovery, so far as costs and expenses are involved, to the time when the 

 [*250]  injunction was dissolved, was allowing all in these respects that was covered by the bond. The obligors only bound themselves to "prosecute with effect" the writ of injunction, or be responsible for the injury which would result from a failure to do so. When the injunction was dissolved, all injury for which they made themselves liable had then accrued. The prayer does not, as was insisted, confine the recovery of the plaintiffs to the costs and expenses stated in it, but merely the recovery, in that regard, to them.
The fourth prayer of defendants was properly refused. Apart from all other considerations, the prayer [**23]  is fully answered by the decision of this court, in the case of the State, use of the Justices of the Levy Court, vs. Dorsey, et al., 3 Gill & Johnson 75. In the exercise of a quasi equitable jurisdiction, courts of common law, on motion of a cestui que trust, or of a defendant, will order the proper use to be entered in the action.  Green vs. Johnson, 3 Gill & Johnson 389.
The fifth and sixth prayers present substantially the same inquiry; the first denies the right of the plaintiffs to recover for any separate loss which may have been sustained by any one of them, and the other asserts there is no proof of a joint loss. It must be observed, that the cause of action here is joint, and that if all the plaintiffs had not united, the declaration would have been subject to demurrer. The obligation is for the payment of one sum to three parties, and they were properly joined as plaintiffs. Had they not been, the defendants might even have availed themselves of the non-joinder upon proof at the trial.  Armstrong vs. Robinson, 5 Gill & Johnson 412. We concur with the court below in their rejection of these prayers. We [**24]  are also of the same opinion as the Superior Court in regard to the seventh prayer. It is not sustained by the proof. The insurance company did not agree to deposit the amount due under the policy, but only the sum remaining after deducting the costs and expenses to which it had been subjected. The plaintiffs were not bound to accede to any such proposition.
We concur in the general correctness of the prayer offered on behalf of the plaintiffs. It is, however, defective in one 

 [*251]  particular, to wit, it does not define up to what time the interest on the $ 3000 was to be calculated. We think the time up to which interest ought to have been computed, was the day on which the amount was paid into court. This not being specified in the prayer, it was calculated to mislead the jury, and for that reason ought not to have been granted. We are of opinion, however, that in this case interest was recoverable as matter of right. Newson's Adm'r vs. Douglass, 7 Harr. & Johns. 417.
Judgment reversed and procedendo awarded. 

119 of 187 DOCUMENTS 

THOMAS M. LANAHAN and MADISON JEFFERS vs. JOHN H. B. LATROBE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Md. 268; 1854 Md. LEXIS 104 

DECEMBER, 1854, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the equity side of the Superior Court for Baltimore City.

The record in this case shows, that on the 7th of September 1851, William Lefferman executed a deed to Jacob Pasquay and others, of all his property and effects including a stock in trade of hides and leather in the vats, in trust to permit the grantor with all reasonable expedition to complete the process of tanning all said hides and leather, and prepare the same for market, and sell the same and pay the proceeds over to the trustees, who were then to apply them, 1st, to pay the expense of executing and recording this deed; 2nd, to the payment of certain scheduled creditors of the grantor in full if the proceeds be sufficient, but if not then to pay the same ratably among all said creditors; and 3rd, to pay the surplus after full satisfaction of all said claims to the grantor or his assigns.

On the 11th of February 1852, Lefferman executed a second deed of all his property to Latrobe, the appellee, in trust for the benefit of all his creditors, pro rata, without condition or reservations, but containing a stipulation, that "the trustee shall not be liable in the acceptance of this trust, except for such [**2]  sums of money as shall actually come into his hands, or for the consequences of his intentional misconduct." On the 13th of the same month and year, Latrobe filed a bill in equity, alleging that after this deed had been deposited for record, Lanahan, one of the appellants, caused executions on judgments rendered by a justice of the peace against Lefferman, on the said 11th inst., to be levied on said Lefferman's property, then duly vested in complainant by said deed; that said executions are, or were at the time, in the hands of Jeffers, an officer who had seized the property after the deed was deposited for record as aforesaid, and who now threatens to sell the same. The bill then prays for an injunction, to restrain Lanahan and Jeffers from further proceedings upon these executions and judgments, which was granted.

The answer of Lanahan admits the execution of the deed to Latrobe, but denies that any title passed thereby, because Lefferman, by the deed first above mentioned, had previously conveyed all his property to the trustees therein named, which he avers is valid as between Lefferman and said grantees, (though invalid as to creditors,) and therefore good against Latrobe,  [**3]  the grantee of said Lefferman. He admits that executions were issued and levied as stated in the bill, but avers that he has a right to proceed to sell the property.

The answer of Jeffers admits that executions were placed in his hands, which he levied on Lefferman's property, but says that he had no knowledge of the other matters charged in the bill. The defects of the record are stated in the opinion of this court.

The court below on motion to dissolve, (FRICK, J.,) decided that the first deed to Pasquay was void, and that the deed to Latrobe was valid, and decreed that the injunction should be continued, and an account stated by the auditor. From this decree the defendants appealed.  

DISPOSITION:
Cause remanded.  

HEADNOTES:

Where a party does not appeal from a decree, this court cannot reverse it for his benefit upon an appeal by other parties.

A creditor who participates in proceedings in equity, for the distribution of the proceeds of property sold under a deed of trust, so far makes himself a party to the deed, as to waive his right afterwards to deny its validity.

A judgment creditor cannot insist upon the efficacy of his liens at law in opposition to a deed as fraudulent, and at the same time claim in equity to participate in the proceeds of sale under the deed: he will be required to elect how he will proceed.  

COUNSEL:
James Malcolm for the appellants, argued.

1st. That the deed to Pasquay was valid as against Lefferman, the grantor, and his assignee Latrobe, and that they are estopped from denying its validity for the purpose of setting up the second deed. Although the first may be fraudulent and void, as to the creditors of Lefferman who may choose to attack it, yet it is valid and binding as to the grantor, and his grantee can acquire no better title than he had. 3 Mason, 378,  [**4]  Randall vs. Phillips. 6 H. & J., 61, Dorsey vs. Smithson. 7 Do., 418, Newson vs. Douglass. 7 G. & J., 132, Stewart vs. Iglehart. 4 J. J. Marshall, 295, Tobin vs. Helm. 1 Smith's Lead. Cases, 41. 1 Lead. Cases in Eq., 75. 1 Md. Rep., 471, Waters vs. Dashiell. 3 Do., 423, Spindler vs. Atkinson. 5 Do., 44, Cushwa vs. Cushwa.

2nd. Though the deed to Latrobe is valid, it is still incumbent on him to show that it was executed and recorded before the executions were issued, and placed in the hands of the officer, for executions bind personal property from the date of their delivery to the sheriff, and no disposition by the debtor of his property made thereafter, can affect the rights of the creditor to proceed. It is not alleged in the bill, that the executions were issued after the recording of the deed. 6 H. & J., 455, Selby vs. Magruder. Ibid., 266, Harding vs. Stevenson. 7 Do., 460, Giese vs. Thomas.

3rd. That the remedy of the complainant was at law, and not in equity, and he was not entitled to an injunction, to restrain the defendants from proceedings under the executions. 9 G. & J., 468, Amelung vs. Seekamp.

4th. That the deed to Latrobe is fraudulent and void, because [**5]  it limits the responsibility of the trustee to money actually received, and intentional misconduct. Burrill on Assignments, 209. 3 Sandford's S. C. Rep., 545, Litchfield vs. White.

George W. Dobbin for the appellee, argued.

1st. That it was competent for Lefferman to execute the deed to Latrobe, it being confessed that the previous deed was a fraud. The cases cited on the other side say, that a fraudulent grantor cannot allege his own fraud as against his grantee, because a party cannot set up his own fraud as a defence. But this principle has no application to this case. The grantee here representing the creditors stands in a different position. If Latrobe had been a trustee under the insolvent laws, he would unquestionably be entitled to the property 3 Md. Rep., 471, Waters vs. Dashiell. He, in effect, occupies the same position here that he would under the insolvent laws; he is the trustee for the creditors generally, and claims in behalf of those alone who are entitled to assail the first deed.

2nd. The onus of showing that the execution was issued before the deed was executed, is on the party who claims the benefit of the execution. On this point there is no allegation [**6]  or proof in the record, but the proof shows that the levy was made after the deed was executed and recorded.

3rd. The trustees in such deeds as these, are not required by law to give bond, and report their proceedings to a court of equity, and the deeds therefore became the subject of equity jurisdiction. But the appellee was entitled to his remedy in equity upon general principles, for the remedy by an action of trespass at law, is not sufficient and adequate.

4th. The same stipulation objected to in the deed to Latrobe, was contained in the deeds in the two cases, which have been most litigated in this court. 4 Gill, 133, McCall vs. Hinkley. 8 Do., 472, Kettlewell vs. Stewart. See also 6 Watts & Seargt., 313, Hennessy vs. The Western Bank, and 21 Ala. Rep., 382, 390, Rankin, et al., vs. Lodor, et al. The only authority for the position assumed on the other side, is the New York decision cited.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON, TUCK and MASON, J.  

OPINIONBY:
TUCK 

OPINION:

 [*272]  TUCK, J., delivered the opinion of this court.
It is impossible to pass a decree in this case, with any degree of certainty as to its effect upon the rights of the parties, in [**7]  consequence of the imperfect condition of the record.
The appeal appears to have been taken from an order, passed in the consolidated cases of Pasquay vs. Latrobe, and Latrobe vs. Lanahan, et al., both of them involving the validity of the deed of trust from Lefferman to Latrobe. But we do not find in the record before us, any part of the proceedings on the bill filed by Pasquay: nor is there any thing either of exhibit, averment or proof, from which we can ascertain at what time the writs of fi. fa., relied on by Lanahan, and which Latrobe seeks to enjoin, were delivered to the officer to be executed.
The decree in effect vacates the deed to Pasquay and others, by directing an audit in disregard of its provisions. As they have not appealed we cannot reverse the decree, if there be error, for their benefit; and whether Lanahan has any ground of complaint must depend, in part at least, upon his having been a creditor of Lefferman at the date of Pasquay's deed. The time of this indebtedness does not certainly appear any where, though from the auditor's account, one of the debts bears interest before September 1851, but this is not proof of his claim. Besides, if he relies [**8]  on this account, we might be required to say that he has, by participating in the proceedings for the distribution of the proceeds under the order of court, on the assumption that the deed to Latrobe is good, so far made himself a party to that deed, as to have waived his right now to deny its validity.  Moale vs. Buchanan, 11 G. & J. 314. Jones vs. Horsey, 4 Md. 306. If he has not lost this right, he may certainly be required to elect how he will proceed: for he cannot insist upon the efficacy of his liens at law, in opposition to the deed as fraudulent, and in equity, claim to participate in the funds, without the concession 

 [*273]  that they are rightfully there for distribution among the creditors of the grantor.
He may have gained a priority by the time his executions were delivered to the officer, and this will be allowed him in the distribution in equity. But we cannot say that the fact was so. It appears that they were levied after the execution of the second deed, and we might adopt, with some reason, the suggestions of the appellant's counsel, as inferences from the facts stated in the bill and answer, but then, the opposite conclusions,  [**9]  on the argument of the other side, if adopted, are as likely to be correct. In this state of uncertainty, we think the record should be remanded, under the act of 1832, ch. 302, in order that, if the case should again come before this court, we may be able to act more advisedly on the important questions presented at the hearing.
Cause remanded. 

120 of 187 DOCUMENTS 

THOMAS WILDEY vs. CHAS. COLLIER and BETSEY COLLIER, his wife.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Md. 273; 1854 Md. LEXIS 105 

DECEMBER, 1854, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Equity Side of the Superior Court for Baltimore city.

The appellees, Collier and wife, on the 19th of October 1849, executed a mortgage of certain leasehold property in the city of Baltimore, belonging to the wife, to Wildey, the appellant, to secure the payment to him of five promissory notes, drawn by John M. Slaney, in favor of and endorsed by Collier, amounting to $ 2558.96. This mortgage was executed under the act of 1833, ch. 181, and, upon petition, a decree was passed for the sale of the property on the 7th of April 1852, under which it was sold. The appellees objected to the ratification of the sale, because, among other reasons, the notes, to secure which the mortgage was executed, were given in consideration of a promise and agreement by Wildey to procure a nolle prosequi from the governor, on a certain indictment then pending in Baltimore city court against Slaney, the drawer of the notes, and his father, and on threats to obtain similar proceedings against Collier, unless he united with his wife in executing said mortgage.

The testimony taken in support of this exception shows, that an indictment was found in the city court on the 21st of June [**2]  1849, against the two Slaneys, father and son, for a fraudulently conspiracy to obtain money from Wildey, and to cheat and defraud him thereof; that Collier was a partner in business with the younger Slaney, but no indictment was found against him; that after this indictment was found a proposition for a settlement and compromise was made between the parties, which resulted in the execution of the mortgage, which was to remain in the hands of Collier's agent until a nolle prosequi was obtained by Wildey, which was obtained, and the mortgage was then delivered to Wildey; that the obtention of this nolle prosequi by Wildey was a part of this compromise and settlement, and that Mrs. Collier was informed of all the circumstances and executed the mortgage with a full knowledge of them, and that if the notes were not paid the property would have to be sold to pay them, and was much distressed about the matter.

The court below, (FRICK, J.,) sustained this exception, and annulled the sale and the decree for the sale. Accompanying his decree he delivered an opinion, in which, after stating the facts of the case, he says:

"I have searched the testimony in vain for some exposition that [**3]  would justify me in sustaining the contract. It is manifest that some atrocious fraud perpetrated upon this complainant induced the extent of sacrifice which these parties proposed to make to avoid the consequences. They had rendered themselves open to criminal prosecutions for it and two of them had actually been indicted. Public retributive justice was about to reach them when the complainant, seeking, from the just impulse of self-preservation, to protect himself, becomes a second time their victim. In arresting the prosecution of the indictment, to which he was the principal witness, by his own influence and agency, as the basis of this compromise, he has entered into a contract which is denounced by the law as against public policy, and whatever hardships it inflicts upon him individually this court is not at liberty to uphold it.

"The doctrine is indisputable, that any contract or security made in consideration of dropping a criminal prosecution, soliciting a pardon or compounding a public offence, is invalid. 1 Smith's Lead. Cases, 153, and note.  1 Chitty's Crim. Law, 4. Such contracts having a tendency to obstruct the administration of justice, or thwart the public interest [**4]  in bringing offenders to justice by way of example, are properly discountenanced in law and in equity. Every consideration of sound public policy dictates, that violations of the criminal law of the State should be duly prosecuted. To sanction the submission of the offence to the arbitrament or compromise of the injured party, and on the condition that public justice shall be eluded, would do violence to the just principles of the social compact. Whatever views, therefore, I may entertain of the personal hardship inflicted by it, I am bound to sustain the exception." The complainant appealed.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

A mortgage to secure a sum of money due to the mortgagee, but executed upon consideration that he would obtain, without improper means, a nolle prosequi from the governor on a pending indictment for a fraudulent conspiracy against the parties who obtained the money from him, is against public policy and void.

Considerations of public policy are often deemed paramount to private rights, and when they are opposed the latter must yield.

Contracts for obtaining the passage of laws by the legislature, when the character in which the parties solicit the passage of them is unknown, are invalid, and cannot be enforced.

No compromise for arresting prosecutions by obtaining a nolle prosequi or otherwise in case of conspiracies to defraud, has ever been allowed.

If the means by which the nolle prosequi was obtained from the governor could affect the case, the onus would be upon the party obtaining it to show them.  

COUNSEL:
Charles H. Pitts for the appellant.

The only question in this case is, whether a mortgage executed upon the consideration upon which the record discloses this to have been made, is void because it is against public policy? The whole class of cases where contracts for obtaining pardons and writs of nolle prosequi have been held invalid, consist of those where the contract was based solely upon that consideration, but the contract in this case had a valid money consideration independent of the promise to obtain the nolle prosequi. The offence for which the indictment [**5]  was found, and in which Collier was implicated, was for obtaining money from Wildey under false pretences, restitution of which would have been awarded to him under the act of 1809, ch. 138, sec. 6. The money was his, and he could have maintained an action for money had and received to recover it, and it was this money which constituted the consideration of the mortgage. The presumption of law is in favor of the legality of contracts: Chitty on Cont., 571, (Ed. of 1851;) 4 Mees. & Wels., 654, Lewis vs. Davison; and a doubtful matter of public policy will not avoid a contract, Chitty on Cont., 217; the test is, whether the party is obliged to rely upon the illegal contract to obtain the relief he asks. Ibid., 570.

But is this contract necessarily unlawful? The governor, by the laws and constitution, had the power to grant the nolle prosequi, and Wildey, or any other citizen, had the right to go to the governor and solicit it. There is nothing illegal in this. If he went openly to the governor and said, "I am the paid agent of Collier to solicit a nolle prosequi in his case," and had represented the fact to him, that upon the granting of it depended the recovery of the money of [**6]  which he had been defrauded, it would have been perfectly lawful, and there is no law which says that a contract to do this is void. The case of Marshall vs. The Baltimore & Ohio Railroad Co., 16 How., 334, 335, sanctions the position, that public officers and legislatures may be approached openly, and where there is no concealment of the agency, and that contracts to do this are valid. A party has the right to employ counsel to solicit a nolle prosequi, just as much as he has to employ them to go into the courts and before juries. The ground upon which contracts to solicit pardons are held void is, that they tend to corrupt public officers and public morals. Such was the case in 3 Esp., 253, where a stranger sold his influence to obtain a pardon and went to the authorities in disguise, and not openly avowing himself the party's agent. But that is not the present case, and besides, our laws look not merely to the punishment of the public wrong, but also to the reparation of the private injury to the party injured. The case of Keir vs. Leeman, in 51 Eng. C. L. Rep., 308, and 58 Do., 371, goes to the extent, that wherever a private injury, for which the party may have his civil suit,  [**7]  accompanies a public wrong, the offence may be compromised.

Nothing as to the equity of the case can be deduced from the fact that the property mortgaged belonged to the wife, because the record shows that she did not derive it by inheritance, but by conveyance from her husband, scarcely a year previous to the mortgage.

Cornelius McLean for the appellees, argued, that the decree ought to be affirmed:

1st. Because it clearly appears from the testimony that the mortgaged property was the trust property of Mrs. Collier, which she was induced to mortgage under fears and apprehensions of criminal proceedings against her husband, which she hoped to avoid by such a step, and without any such consideration as would induce a court of equity to sustain such a conveyance in the absence of the legal estate. 2 Story's Eq., secs. 1388, 1390, 1395. It was the separate property of the wife and she had no power to dispose of it. 8 Gill, 139, Smith vs. Morgan.

2nd. Because the consideration in this case having been the obtaining of a nolle prosequi to stop the course of justice, it is one which, neither in law or equity, can be upheld. So far as Mrs. Collier is concerned, the obtention [**8]  of the nolle prosequi was the consideration upon which she executed the mortgage. She could have had no motive in doing so, except to avoid the disgrace of a public prosecution of her husband, and that she looked to the nolle prosequi as the consideration, is beyond all question. Such agreements as these, even under the most favorable circumstances, are not valid. In the case of Collins vs. Blantern, 2 Wilson, 341, commented on in 1 Smith's Lead. Cases, 153, a bond, the consideration of which was that the obligee should not appear and prosecute for perjury, was held void. In Norman vs. Cole, 3 Esp., 253, a contract to obtain a pardon was held invalid. The objection to such contracts is obvious and extends to various agreements. See 1 Chitty's Crim. Law, 4. 30 Maine Rep., 105, Shaw vs. Reed. 5 East, 301, Edgcombe vs. Rodd, et al. 3 Term Rep., 17, Nerot vs. Wallace, et al. 11 Wheat., 258, Armstrong vs. Toler. In the case of Keir vs. Leeman, 58 Eng. C. L. Rep., 380, there was an assault and battery, with a riot, and it was held that the riot was so much of a public offence that it could not be compromised. The present case is much stronger than that, for the offence here was a fraud and [**9]  conspiracy to obtain money.  

JUDGES:
The cause was argued before LE GRAND, C. J., TUCK and MASON, J.  

OPINIONBY:
TUCK 

OPINION:

 [*278]  TUCK, J., delivered the opinion of this court.
We suppose that the money claimed in this case was due to the appellant, and that his object in taking the mortgage was to secure his debt, without any design to obtain a nolle prosequi by improper means. It is quite apparent, that Mrs. Collier, not being indebted to the appellant, became a party to the mortgage for the sole purpose of inducing him to use his efforts in obtaining the nolle prosequi, making her property responsible for a debt not her own. This, it is true, a feme sole may do, but the question here is, whether this deed is not avoided by the law for the reasons assigned in the record?
Courts of justice are generally open to suitors for the recovery of just claims, but considerations of public policy are often 

 [*279]  deemed paramount to private rights, and where they are opposed, the latter must yield. There is no doctrine better settled than that agreements to obtain executive clemency, by means of pardons or writs of nolle prosequi, cannot be enforced. The reasons are obvious.  [**10]  They are designed to protect the exercise of this power from abuse through the intervention of designing persons, and although in the particular instance no improper influences may have been resorted to, the public interest in such questions requires that the principle should be enforced in all cases. It may, sometimes, as between the parties, be unjust to a claimant who has rendered valuable services for another in his distress, but rules of law, founded on public policy and the safety of society, will not be set aside to sustain such individual demand. Without going into these doctrines at length, it may suffice to refer to the following authorities, where the subject is fully discussed: Collins vs. Blantern, 2 Wilson 341. Smith's Lead. Cases, 154. 1 Chitty's Crim. Law, 4. 1 Camp. 45, Wallace vs. Hardacre. Chitty on Contracts, 571, 582, (Ed. 1851.) Story on Cont., sec. 202. Parsons on Cont., 365, 380.  Keir vs. Leeman, 51 Eng. C. L. Rep. 308, and 58 Eng. C. L. Rep. 371. Marshall vs. Baltimore & Ohio Rail Road Co., 16 Howard 334.
It is true, as argued [**11]  by the appellant's counsel, that the party here only undertook to apply to the governor for what the executive had authority to grant, and that there was nothing illegal in his making efforts to obtain the nolle prosequi. But it does not follow that the case is relieved thereby from the objection taken on the part of the appellee. The executive is still liable to be misled, and induced to act upon considerations suggested by a party having an interest to produce false impressions on his mind; and to shield that department of the government and protect the community against the improvident exercise of its prerogatives, the law has declared that a recovery cannot be had on such undertakings. The same reason applies with equal force in support of claims for obtaining the passage of laws by the legislature. We do not say that services of that kind may not be compensated when publicly rendered 

 [*280]  by advocates disclosing their true relation to the subject, but certainly not when the character in which they solicit is unknown. And yet in all such instances, the legislature, most probably, would be asked to do only what there was ample power to grant.
There is much danger of [**12]  abuse in the exercise of the pardoning power and in granting writs of nolle prosequi, arising from the manner in which such applications are generally presented. They were, before the adoption of the present constitution, preferred and acted on ex-parte, the governor necessarily relying on the imperfect, not to say, false, lights that such circumstances might afford. It is easy to perceive that this danger is greatly increased where the party urging the application is unknown to the executive, the paid agent of the accused, or is acting under the strongest inducements to varnish or misrepresent the facts by reason of his own interest in the success of the measure. No class of cases presents a more striking illustration than that to which the presentment mentioned in this record belongs. If it be understood as the law of the State that such compromises are binding and may be enforced, we may anticipate an increase in number of presentments for raising money under false pretences, and for conspiracies to defraud, found at the instance of persons defrauded, hoping thereby ultimately, as here expected, to secure the payment of their claims against the offenders. Although there [**13]  may be cases in which compromises have been allowed, there are none, as far as we are informed, for arresting prosecutions by obtaining a nolle prosequi or otherwise, in cases affecting the public interest as closely as offences like that charged against Slaney. We take the rule as laid down by Lord Eldon, in Norman vs. Cole, 3 Esp. 253, where one Tunstall, being under sentence of death, the plaintiff was prevailed upon to lodge thirty pounds in the hands of the defendant, to be applied to the purpose of procuring him a pardon. The plaintiff, being held to strict proof of the means employed to obtain the pardon, stated, that Tunstall was a man of good character before his conviction; that one Morland, being a person of good connections and having access to persons of 

 [*281]  interest, the money was to be given to him for so using his interest, by representing, in favorable terms, the case and character of Tunstall. Lord Eldon would not let the cause proceed, saying, "Where a person interposes his interest and good offices to procure a pardon, it ought to be done gratuitously and not for money; the doing an act of that description should proceed from pure [**14]  motives, not from pecuniary ones. The money is not recoverable." We suppose that the appellant who undertook to obtain the nolle prosequi could not have expected to succeed by means less exceptionable than those condemned by Lord Eldon.
The same principle was recognized in Hatzfield vs. Gulden, 7 Watts 152, where the plaintiff sued to recover compensation for services rendered the defendant in procuring his pardon. The court there remarked, upon the means employed by the plaintiff, as showing that he was not actuated by pity or friendship, or a sense of justice, but for his own gain and emolument. It is true, the means resorted to by Wildey do not appear, and we are not to infer, in this particular case, that the power was unwisely exercised in consequence of the representations made by him to the governor; but it is quite plain, that motives of interest instigated his exertions in behalf of the accused, and if the manner in which his part of the engagement was performed could affect the case, which, however, we deem wholly unimportant, the onus was certainly on him to show the means by which the governor had been induced to act favorably upon the application.  [**15]  
We perceive nothing in the case to exempt it from the operation of the principles upon which the law reprobates contracts of this character, and concurring with the judge below in his view of the transaction, we must affirm the decree; but we do not consider it a case for costs.
Decree affirmed. 

121 of 187 DOCUMENTS 

JOS. CAIN and others, vs. RICHARD C. WARFORD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Md. 282; 1854 Md. LEXIS 106 

DECEMBER, 1854, Decided 

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

This appeal was taken from an order of the chancellor, passed on the 19th of April 1853, discharging Benjamin H. Ellicott, as receiver of the real and personal estate of Rachel Colvin, a deceased lunatic, and directing him to account for and deliver up the personal estate to the appellee, who had been appointed administrator pendente lite of the deceased, by the orphans court of Baltimore city. The appellants are parties who claim to be interested in the fund. The opinion of the Chancellor (JOHNSON,) on the question of the right of the appellee to receive the funds, which is affirmed in this case, is reported in 3 Md. Ch. Dec., 294 to 298. The appeal of Ellicott from the same order, is reported in 4 Md. Rep., 80. 

DISPOSITION:
Decree affirmed with costs.  

HEADNOTES:

By the law regulating appeals in this State, no party can appeal from orders merely dismissing receivers, because nothing is thereby adjudicated affecting the rights of the parties in interest.

But an appeal will lie from an order discharging a receiver, and directing personal property in his hands to be delivered over to an administrator pendente lite, because it determines the right of the administrator to receive and hold the estate.

The act of 1841, ch. 11, expressly provides an appeal, from orders directing the payment of money or the delivery of property, except where such payment or delivery is to a receiver.

The administrator pendente lite of a deceased lunatic, is entitled to the possession of the personal estate of the deceased, and to receive it from the hands of a receiver in chancery, appointed during the lifetime of the lunatic. 

COUNSEL:
Grafton L. Dulany and Henry Winter Davis for the appellants, argued:

1st. As to the motion made by the appellees to dismiss the appeal. The present appeal is taken by parties who are next of kin to the deceased, and at whose instance the receiver was appointed, parties therefore who are interested in the fund. The order not only discharges the receiver, both as to the real and personal estate, but [**2]  directs the payment of the personal estate over to the administrator pendente lite. From such an order we say these parties have the right to appeal. The act of 1830, ch. 185, does not say what orders could be appealed from prior to its passage: the first section down to the proviso, clearly contemplates that an appeal might be taken from any order, and suspends the immediate appeal in certain cases; the proviso then says, that the execution of certain orders from which the right of an immediate appeal is taken away by this act, shall not be suspended unless an appeal bond be filed. The act therefore does not say what kind of an order could be appealed from prior to its passage, and has no application to this case, unless it can be shown that this order was not the subject of appeal at common law. Besides this, all that part of the act of 1830, ch. 185, which takes away an immediate right of appeal of any order for the delivery of real or personal property or the payment of money, unless such delivery or payment be directed to be made to a receiver, is repealed by the act of 1841, ch. 11. Under the chancery practice in England, the appointment of a receiver is the subject of a direct [**3]  and immediate appeal. In the case of Speights vs. Peters, 9 Gill, 472, it was held that an appeal would lie from an order refusing to discharge a receiver.

But it is said, the chancellor had no right to pass the order appointing the receiver, because it was new business which he was forbidden to transact, by the 23rd section of the 4th article of the constitution. This position we deny. The estate was properly in the hands of the court of chancery in the lifetime of the lunatic; when she died there was a termination of that suit, but it was revived by making her representatives parties. The steps by which such new parties were made, is not new business within the meaning of the constitution, but a continuation of the matter then before the court, and properly in it.

2nd. If we have the right to appeal, we then insist that the order was wrong for various reasons. The order not only dismissed Ellicott as receiver, but dismissed the receivership altogether, and put no protection between us and injury so far as the real estate is concerned. Now we say the chancellor had no right, power or authority, to do this. The appellants were complainants in the court of chancery, and had [**4]  the right to remain there, and require the chancellor to dispose of the whole case, and to retain the property under his control so long as the court and litigation existed. The court of chancery had full jurisdiction over the property, until some one should be appointed at law to receive it, who should have full and ample title at law both to the real and personal estate. 9 Law Lib., 61. 2 Do., 199. 2 Ves. & Bea., 94, Atkinson vs. Henshaw. 6 Ves., 172, King vs. King.

Wm. Schley and Reverdy Johnson for the appellee, upon the motion to dismiss, argued:

1st. That there is no right of appeal at all from this order. The chancellor decided that no appeal would lie, and this court in the former case, in 4 Md. Rep., 80, decided that the order settles no right between the litigant parties, and this principle is conclusive of the question. The act of 1830, ch. 185, was intended to restore the ancient rule of law, that no appeal should be taken except from a final order or decree, but upon such appeal that all intermediate orders might be reviewed. It gives an appeal from an order appointing a receiver, because that was a high and a harsh proceeding, but does not apply to the case [**5]  of a refusal to appoint, or rescinding the appointment, because this leaves matters to stand just as they were. The act of 1841, ch. 11, repeals only a part of the act of 1830, but gives no right of appeal at all: it does not enlarge the cases from which appeals may be prosecuted, nor does it even embrace all the classes of orders contained in the 1st section of the act of 1830. The intermediate act of 1835, ch. 346, gives an immediate right of appeal from an order appointing a receiver, but none from an order refusing to appoint, or rescinding an order appointing a receiver. The acts of Assembly therefore do not reach the case, and the question then recurs, is the right to be found in the law of the court of chancery? This question is too plain for argument, for it is not an order settling any rights of the parties. 6 H. & J., 302, Thompson vs. McKim. The case of Speights vs. Peters, 9 Gill, 472, was an appeal from an order appointing a receiver, as well as from one refusing to discharge him, and the question whether it was a proper case for an appeal, was not raised nor argued.

2nd. But the order of the chancellor appointing the receiver in this case is coram non judice and [**6]  void, because it was new business prohibited by the proviso to the 23rd section of the 4th article of the constitution. The bill was filed in chancery exclusively upon the lunatic cause, and by the death of the lunatic in February 1853, the jurisdiction of the chancellor over the whole case was terminated. The clause of the constitution just cited, prohibits any new proceedings in the case, whether by bill of review, or by a bill in the nature of a bill of review, or by petition. Nor was there any necessity for the exercise of this power by the chancellor, because there was an equity court in Baltimore city competent to exercise the jurisdiction.

3rd. But if this could be passed and an appeal will lie from it, we then say it was correct and should not be reversed. So much of it as directs the delivery over of the personal estate to the administrator pendente lite, was proper, because he was the party entitled by law to the custody of it. On this point the argument of the chancellor, and the authorities cited by him, are conclusive. The order was also proper so far as the real estate is concerned. For this a receiver has already been appointed by the equity court in Baltimore city,  [**7]  and if this order should be reversed it would not give back the property to Ellicott. But the chancellor had clearly the right to control his own officer, and what right have these appellants to complain? How does it affect them? It was a matter in the chancellor's discretion to appoint whom he pleased; the receiver is but the hand of the court to be appointed at pleasure, and removed whenever the court pleases, and another appointed in his place. Besides in passing this order the chancellor expressly reserved the power to change, modify, or annul it, and to discharge the receiver, and to pass such orders and decrees in the premises as might be deemed necessary and proper.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and TUCK, J.  

OPINIONBY:
TUCK 

OPINION:

 [*286]  TUCK, J., delivered the opinion of this court.
This record was before the court on the appeal of Benjamin H. Ellicott, from the same order from which the present appeal was taken, in 4 Md. 80. It was then held that a receiver could not appeal from an order discharging him from his office. The question now is, on the motion to dismiss, whether an appeal will lie from the same order, at the instance [**8]  of parties claiming to be interested in the fund?
Upon a careful examination of the law regulating appeals in this State, we are of opinion that such parties cannot maintain an appeal from orders merely dismissing receivers, for the reason that nothing is thereby adjudicated affecting the rights of the parties in interest. It operates only as a release of the court's hold upon the property by the hand of its receiver, as being no longer necessary for the purpose which induced the appointment. If afterwards the preservation or management of the property should require it, the court might and doubtless would again exercise the power of appointing another receiver. This we take to be the law as resulting necessarily from the character and duties of such an office.  7 Gill, 320. 9 Gill, 472. 4 Md. Rep., 80.
But the order appealed from did more than discharge the receiver. It directed the personal property to be delivered over to Warford as administrator pendente lite. It does not, any more than the discharge of a receiver, settle questions of property as between the claimants, but it does necessarily determine the right of the administrator [**9]  to receive and hold the estate, and is an adjudication on a point litigated in the court below, and properly before us for review. The act of 1841, ch. 11, expressly provides an appeal from orders directing 

 [*287]  the payment of money or the delivery of property, except where such payment or delivery is to a receiver. Here the delivery was required to be made by the receiver to the administrator pendente lite, and, as we have said, involved an adjudication of his right to receive the property.
The only question necessary to be decided on this appeal, is, whether Warford, as administrator pendente lite, was entitled to the possession of the estate? On this point we have no doubt. That part of the case is so fully discussed by the chancellor, that we may, without going into the question ourselves, adopt what he has so conclusively urged, as the grounds of our decree.
Decree affirmed with costs. 

122 of 187 DOCUMENTS 

JOHN GLENN, Garn. of EDWARD M. KERR, vs. THE BOSTON & SANDWICH GLASS COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Md. 287; 1854 Md. LEXIS 107 

DECEMBER, 1854, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court for Baltimore city.

This was an attachment on judgment, issued at the instance of the appellees, a foreign corporation, on the 26th of June 1848, to affect the property and credits of Edward M. Kerr, and on the same day laid in the hands of John Glenn, the permanent trustee in insolvency of said Kerr, as garnishee, who appeared, and, at September term 1848, pleaded "nil debet" for Kerr, and "nulla bona" for himself."

Exception. At the trial, in October 1852, the plaintiffs proved the recovery of the judgment against Kerr on which their attachment issued, at May term 1847 of Baltimore county court, and that the debt for which it was rendered was contracted in Massachusetts by Kerr, then a citizen of Maryland, with the plaintiffs, a corporation created by the laws of the former State, by the citizens of which their stock was owned; that the garnishee was appointed permanent trustee in insolvency of said Kerr in 1847, and gave bond as such on the 28th of September of that year, and as such trustee recovered, in the case of Glenn vs. Gill, in the Court of Appeals, assets of Kerr sufficient to pay their claim, which are now in his hands undistributed.  [**2]  

The garnishee then proved, that the fund so in his hands, is the same mentioned in the case of Potter vs. Kerr, 1 Md. Ch. Dec., 275, and was derived from the sales of property by George M. Gill, the receiver, appointed by the chancellor in that case on the 1st of February 1847, and was by said receiver paid into the court of chancery to the credit of said cause, and was recovered by the garnishee, after the decision of the cause in the Court of Appeals, above mentioned, in June 1852. The garnishee also proved, that the plaintiffs were one of the creditors who filed their claims in the case of Potter vs. Kerr, under the order therein passed on the 27th of April 1847, notifying creditors to do so, and their claim was reported by the auditor as entitled to a proportion of the fund in the cause for distribution.

It was agreed that the proceedings in the case of Potter vs. Kerr, 1 Md. Ch. Dec., 275, and the same case on appeal in 6 Gill, 404, and the case of Glenn vs. Gill, 2 Md. Rep., 1, might be read in this court by either party. While to these cases reference is made for a more particular history of the fund in controversy, it may be stated here that they show that in January [**3]  1847, prior to the recovery of their judgment, the plaintiffs, with other creditors of Kerr and Potter, united with Potter in a petition to the chancellor to appoint a receiver in the case of Potter vs. Kerr.

The plaintiffs then asked an instruction to the jury, that if they find the facts above stated, viz., the recovery of the judgment against Kerr, the contraction of the debt on which it was rendered in Massachusetts, that the plaintiffs are a foreign corporation, the issuing and levy of the attachment, the appointment of Glenn as permanent trustee of Kerr, and that he received assets of Kerr sufficient to cover their claim which still remain in his hands undistributed, then the plaintiffs are entitled to recover.

This prayer the court, (FRICK, J.,) granted, and to this ruling the garnishee excepted, and from the judgment of condemnation rendered upon the verdict in favor of the plaintiffs, appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

A discharge under the insolvent laws of this State does not impair the right of non-resident judgment creditors of the insolvent to obtain, by attachment or execution on their judgments, a preference over domestic creditors.

Actual possession of money or property by the garnishee, is not necessary to make an attachment efficacious or operative, provided he has the legal right to the possession or control of it.

Funds of the insolvent in the hands of a receiver in chancery, but improperly there because the court of chancery had no jurisdiction over them, pass to his trustee, who, for all practical purposes, may be treated as the legal possessor of them from the time of his appointment.

The general practice under the attachment system of this State has been, to condemn all credits or property of the debtor in the hands of the garnishee at the time of the trial.

A foreign creditor who lays his attachment in the hands of an insolvent's trustee, before such trustee actually receives the insolvent's property, does not thereby assent to the insolvent proceedings so as to become bound by them.

Because a foreign creditor acts with a knowledge of the legal effect of our insolvent system, it cannot be inferred from that knowledge, or from his levying his attachment in pursuance of it, that he assented to, or agreed to be bound by, the insolvent laws themselves.  

COUNSEL:
S. T. Wallis and Frederick W. Brune for the appellant, stated, that the facts of the case show, that on the 12th of January 1847, before the recovery of their judgment, the appellees, with other creditors, voluntarily came into the chancery case and [**4]  recommended Gill as the receiver, and after thus making themselves parties to that case, and thereby subjecting themselves to the rule, that in the distribution of an insolvent's effects equality is equity, they go into the county court and get their judgment at law at May term 1847. On the 1st of February 1847, before this judgment was recovered, Gill was appointed receiver, and on the 27th of April in the same year, notice was given to creditors to file their claims in the chancery case, and under this notice the appellees filed in chancery their claim upon which they afterwards recovered judgment. After the court of chancery had thus assumed jurisdiction of the case and these creditors had thus acquiesced in its jurisdiction, they could have been restrained by injunction from proceeding at law, and their judgment would not be regarded as a lien upon the property, but as an unwarrantable interference with the jurisdiction of the chancery court. 7 Gill, 319, Ellicott vs. The United States Ins. Co. 1 Md. Ch. Dec., 469, Boyd vs. Harris. 4 Johns. Ch. Rep., 643, Thompson vs. Brown. 3 Daniell's Ch. Pr., 1835. 2 Bland, 606, Addison vs. Bowie. They were not only creditors coming into the [**5]  chancery case, but were actors there, contesting the claims of other creditors; that case was a substantive litigation between creditors, and each one was as essentially an actor as if he had filed a bill. They then argued:

1st. That the fund condemned under the appellees' attachment was, at the time the attachment issued, in the court of chancery, and would have been legally distributable under the orders of that court among the appellees and other creditors of Kerr, or of his firm, if Kerr had not petitioned for the benefit of the insolvent laws. That as the Court of Appeals, at its June term 1848, (6 Gill, 425,) remanded the cause to the court of chancery for an account to be stated between Potter and Kerr, "without deciding any question as to the rights of creditors," after this, Kerr, being in a condition of admitted insolvency in fact, if he had not petitioned, could not have claimed the fund in the hands of the receiver or in the court of chancery, without first paying any sum which might be found due to Potter after an account, and the other claims filed there and passed upon by the auditor of that court.

2nd. That the application of Kerr did not give his trustee [**6]  any superior right over the fund in chancery to that which Kerr had, and the trustee took such fund for distribution, subject to Potter's right to an account adjudicated by the Court of Appeals, and likewise to the rights of other creditors acquired to the fund in chancery certainly up to the time of Kerr's application, if not to the time when it was actually paid to the trustee. 7 Gill, 172, Carter vs. Dennison. Act of 1836, ch. 97.

3rd. That the funds did not actually come into the hands of the garnishee until four years after the attachment was laid and plea pleaded, and cannot therefore be condemned under this attachment. Seargeant on Attachments, 101, 103. The act of 1715, ch. 40, sec. 7, authorizes an attachment on judgment against "goods, chattels and credits;" the act of 1824, ch. 74, sec. 2, allows the defendant to come in on the return day of the attachment, or four days thereafter, and confess judgment for the amount then in his hands, and the act of 1839, ch. 39, secs. 2 and 3, gives the defendant the right to come in at the return day of the writ and give bond, to pay the amount attached and dissolve the attachment. Now upon what principle is it that credits can be [**7]  affected down to the time of trial, whilst, under the same writ, goods and chattels can be reached only till the return day? At the time this attachment was laid the garnishee had only the right to claim the fund in chancery, where the appellees had already filed their claim, and they cannot thus rely upon the right of the garnishee to claim the fund without setting up his right as permanent trustee, and if they thus acknowledge the trustee, they cannot at the same time deny the validity of his appointment and claim payment by a superior right to his, and adversely and to the exclusion of the other creditors of the insolvent. 4 Md. Rep., 313, 315, Jones vs. Horsey. 2 Do., 482, Evans vs. Sprigg.

4th. That this court, in Glenn vs. Gill, 2 Md. Rep., 1, only decided that the fund there in controversy was the separate fund of Kerr, and should be distributed by the permanent trustee, instead of the court of chancery, but they, at the same time, denied the right of a creditor to attach a fund in the hands of a trustee, or receiver, appointed by the court of chancery, and would not therefore sanction the right of a creditor who had filed his claim in chancery for a dividend with other [**8]  creditors, to set up subsequently the right of another officer to distribute the fund as superior to the court of chancery, and when this right is established to deny the authority of this officer, and claim the fund adversely from him under a higher right than his.

5th. That the foreign creditor cannot set up a trusteeship, under our insolvent laws, for one purpose, without recognizing it for all. If he asserts any right or claims any advantage which the insolvent laws give him, he must bear, equally with the domestic creditor, the burdens which they impose. The attachment here is laid in the hands of the permanent trustee, in his official name and character. The fund was acquired by the trustee, in his same character, only. But for the rights which the insolvent laws gave him, the fund must have remained in chancery, and it is not competent for the appellees to claim the benefit of the trustee's action in virtue of these rights, and at the same moment repudiate the obligations to which those rights are subservient. The theory of their prayer regards the insolvent laws as inoperative against the foreign creditor, and makes them at the same time a contrivance to serve his interests.  [**9]  Such a theory is against reason and common right, and is not fairly within the purview of this court's decisions.

6th. This attachment was improperly issued, because more than a year and a day had elapsed after the rendition of the judgment before it issued. The act of 1715, ch. 40, calls the writ of attachment another "execution," and so do all the other acts which speak of it. The right to issue it therefore goes back to that year when all executions were barred with a year and a day. This was changed to three years, as to writs of fi. fa. and ca. sa., by the act of 1823, ch. 194, but this act does not mention attachments. This point is raised by the prayer, because by it the applicability of the attachment to the fund is distinctly presented.

St. George W. Teackle and George M. Gill for the appellees, argued:

1st. That the very point presented in this case, viz., that State insolvent laws do not affect the rights of foreign creditors, and that such creditors may attach the property of the insolvent in the hands of his trustee undistributed, and thereby gain a preference over domestic creditors, has been twice decided by the Court of Appeals, once in Larrabee vs. Talbott,  [**10]  5 Gill, 426, and again in Evans vs. Sprigg, 2 Md. Rep., 457. All the facts of this case bring it within this principle. The funds were in the hands of Glenn, to be administered in insolvency, and put there by the decision of this court. When he received them, he took them subject to liens upon them--subject to the attachment of the foreign creditor. But it is said we are barred from recovering because we went into chancery and filed our claims there. But this court has said, the court of chancery had no jurisdiction to administer the fund, and if so, we were never legally claiming any thing there. There was no acquiescence by us in the insolvent proceedings; to them there has been on our part a complete and continued opposition from their commencement to the present time. We never claimed under Glenn; we claim by virtue of the constitution of the United States, superior to him, to this court, and to all State laws; we do not set up his trusteeship for any purpose, but simply say that he has got our money--money to which our attachment applies; and we use his official name as trustee merely as a descriptio personae. The court, in the former case, decided, that Potter was entitled to [**11]  his account, but this gave him no lien on the fund; when he got the decree, it was still a decree simply giving him no priority over the foreign creditors.

2nd. But it is said, these funds are not liable to our attachment, because they did not come to the hands of the garnishees until after plea pleaded. Our reply is:--1st, that no such point was made in the court below and cannot be raised here, under the act of 1825, ch. 117; 2nd, that in point of law they were received before plea pleaded. The moment Glenn was appointed trustee, by operation of law, all the property of the insolvent passed to his hands and vested in him. This fund was his property, and it was never rightfully in the court of chancery. 3rd. But again, the practice for sixty years has been to condemn all property and credits in the hands of the garnishee at the time of trial. The act of 1795, ch. 56, secs. 5 and 6, gives the plaintiff power to exhibit interrogatories to the garnishee as to credits which may have come to his hands at the time of the service of the attachment, or at any other time, and this seems to be conclusive of the point. (See Hinkley on Attachments, 51, 109.) It has been decided again and [**12]  again in Pennsylvania, that a debt may be attached before it is due.

3rd. Another objection urged by the other side is, that an attachment cannot be issued on a judgment after the lapse of a year and a day. To this also we reply:--1st, that no such point was raised in the court below; and 2nd, that in every attachment there is a scire facias clause, under which the garnishee may come in and plead all proper defences. In this respect it differs essentially from a fi. fa., which commands the sheriff to seize and sell the property. In an attachment, you cannot get execution until judgment of condemnation is first obtained. The act of 1823, ch. 194, gives an execution of fi. fa. or ca. sa. at any time within three years, and the act of 1834, ch. 189, says, that instead of any other execution on a judgment, the creditor may take out an attachment, and no time is specified within which this may be done. Our impression is, that not only may it be issued at any time within three years, but also within the twelve years.  

JUDGES:
The cause was argued before LE GRAND, C. J., TUCK and MASON, J.  

OPINIONBY:
MASON 

OPINION:

 [*294]  MASON, J., delivered the opinion of this court.
The Court of Appeals, by [**13]  two previous decisions, (6 Gill 404, and 2 Md. 1,) have decided, that there was no partnership existing between Kerr and Potter, that the property claimed as partnership property belonged to Kerr individually, and that Potter had no right to the relief for which he prayed in the court of chancery, namely, for the appointment of a receiver, an injunction, &c.; and the case in 2 Md. Rep. further decided, that the fund in the hands of the receiver previously appointed should be transferred to the trustee of Kerr, who, pending the chancery proceeding, had applied for the benefit of the insolvent laws.
The plaintiffs in the present action, who are a foreign corporation, 

 [*295]  were judgment creditors of Kerr, and upon their judgment issued an attachment, and had the same laid in the hands of Kerr's trustee, Mr. Glenn, before the funds had been actually received by him from the receiver, and the question to be determined on this appeal is, whether the attachment under such circumstances can be sustained?
The cases of Larrabee vs. Talbott, 5 Gill 426; Evans & Co., vs. Sprigg, 2 Md. 457, and Duck vs. Poe, 5 Md. 1, [**14]  have settled, that the conveyance of property under our insolvent laws constitutes no impediment to the pursuit of such property for the payment of debts by foreign creditors; in other words, that the discharge of the defendant under the insolvent laws of this State did not impair the right of nonresident judgment creditors to obtain, by attachment or execution on their judgments, a preference over domestic creditors. The defendant seeks, however, to except this case from the operation of this general principle, upon several grounds, none of which do we regard as tenable.
The only two plausible grounds of objection to this proceeding are, first, that at the time the attachment was laid in the hands of the trustee, he had not received in his actual possession any of the funds of the insolvent; and secondly, in thus admitting the right of the trustee to claim the fund by virtue of the insolvent laws, these creditors have so far recognised those laws as to be bound by them.
As we have said, it has been decided that the court of chancery had no jurisdiction over this case as a partnership transaction, because, in fact, no partnership existed between Kerr and Potter, and that the [**15]  property being Kerr's, it passed to his trustee by virtue of his application for the benefit of the insolvent laws. This being the case, in contemplation of law, the moment Kerr petitioned the right to his property vested in his trustee, and he became the legal custodian of it from that moment. In his hands, as the party legally entitled to the possession and the control of the property, the attachment was properly laid. Actual possession of money or property on the part of the garnishee is not necessary to make an attachment efficacious or operative, provided he has the legal right to the 

 [*296]  possession and control, as in the cases of money deposited in bank and the like. Although the effects of Kerr were, in fact, in the hands of a receiver appointed in chancery, still they were improperly there, and were held in violation of the rights of the trustee in insolvency, (2 Md. 1,) and for all practical purposes, the trustee may be treated as the legal possessor of all the property held by Kerr at the time of his application.
Besides, it has been the general practice under our attachment system, under the authority of the 5th and 6th sections of the act of [**16]  1795, ch. 56, to condemn all credits or property in the hands of the garnishee of the debtor at the time of the trial. In the present case, at the time of the rendition of the judgment of condemnation, it is not denied that the funds belonging to the estate of Kerr had been reduced into the actual possession of the trustee, the present garnishee, Mr. Glenn.
This leads us to the second objection, to which we have already referred, namely, whether the plaintiffs, in recognising the right of the trustee to the possession of Kerr's property, by laying their attachment in his hands before he had actually received the money, have so far assented to the insolvent proceedings as thereby to become bound by it. Knowledge is one thing and assent another, and it by no means follows, that because a party acts with reference to a knowledge of a particular act, that he thereby assents or acquiesces in that act. Therefore, while it was perfectly legitimate for the plaintiffs to proceed upon the knowledge of the legal effect and operation of our insolvent system upon Kerr's property, we cannot legitimately infer from that knowledge, or from the acts done in pursuance of it, that they assented [**17]  to or agreed to be bound by the laws themselves.
It seems to us that all the points involved in the present record have been fully settled by previous adjudications in Maryland, and in confirmation of the ruling of the court below. We must, therefore, affirm the judgment.
Judgment affirmed. 

123 of 187 DOCUMENTS 

WILLIAM P. MILLS vs. THOMAS MATTHEWS, JOSEPH MATTHEWS, JUSTUS BRUEHL and JOHN H. MILBURN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Md. 315; 1854 Md. LEXIS 109 

DECEMBER, 1854, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Equity Side of the Superior Court of Baltimore city.

In this case certain property was sold under a decree of the court below, and a controversy arose in the distribution of the proceeds whether the claim of the appellant, for certain advances made by him, or that of the appellees, under the mechanics lien laws, for materials furnished, was entitled to a preference. The contract under which the appellant made his advances, and all the facts of the case, are fully stated in the opinion of this court. From the order of the court below (FRICK, J.,) ratifying the report of the auditor giving preference to the claim of the appellees, and overruling his exceptions thereto, the appellant appealed.  

DISPOSITION:
Orders reversed and cause remanded.  

HEADNOTES:

Where parties make a verbal agreement which is afterwards reduced to writing, the latter merges the former so as to prohibit the introduction of parol proof to show any variance or contradiction between them; but there is no necessity for applying this rule to cases where the verbal and written contracts agree in every respect.

A verbal contract to lease a lot of ground upon which the lessee was to erect houses and the lessor was to make advances to aid in their erection, which advances were to be repaid by the lessee, was subsequently reduced to writing without any alteration. HELD:

1st. That the doctrine of merger did not prohibit either the lessor who made his advances, or material men who furnished materials to the lessee, before the agreement was reduced to writing, from resorting to the parol agreement to show what rights were acquired and what acts were done under it.

2nd. By the act of 1845, ch. 287, the liens of the material men only attach upon the interest of the lessee, and they can only claim to the extent of his rights, founded upon this agreement, which gave them existence.

3rd. The repayment of the advances being one of the conditions upon which the lease was to be given, this agreement was not a "mortgage incumbrance or lien" required by the act of 1845 to be recorded, so as to be preferred over liens for work and materials.

4th. These material men do not stand in the position of a bona fide purchaser without notice; the lessee and lessor both having, at the time the buildings were commenced, nothing but an unrecorded equitable interest, the law imposed upon the material men the necessity of enquiring into the title of the lessee.

5th. The lessee having no title except under this agreement, which provided also for the repayment of the advances made by the lessor, the material men must be regarded as having constructive notice, at least, of the outstanding claim of the lessor for this advances, and this claim is entitled to a preference over theirs acquired under the mechanics lien laws.  

COUNSEL:
George M. Gill for the appellant, argued:

1st. The act of 1845, ch. 287, sec. 7, in express terms, limits the mechanics lien to the interest of the tenant at the time of the commencement of the building. The only question then seems to be, what was the interest of Milburn in these houses when he commenced them? It is immaterial how this interest is shown, whether by a verbal or a written contract. The only difference that can exist [**2]  is, that it may be more difficult to show the interest where it is evidenced by a verbal contract. In this case that difficulty does not exist, as the written and oral contracts are, in all respects, identical. Milburn's interest, when he commenced, is clearly shown; the material men can affect that interest, but nothing else. The object of the act of 1845 would seem to be clear, and defined with precision. It is as if each material man was told, that if he furnished materials to a tenant or lessee, he could claim a lien only upon his interest. See Scales vs. Griffin, 2 Douglass, (Mich. Rep.,) 54. Brown vs. Morison, 5 Pike, 217. 14 Penn. State Rep., 120, Haworth, et al., vs. Wallace, et al.

2nd. If the contract between Mills and Milburn had never been reduced to writing, and there had been no part performance, it would have been void as a parol contract relating to lands; but it had been partly performed, and a court of equity would have enforced performance. Here the contract, when the houses were begun, although verbal, was sufficient to show the interest of Milburn, and does clearly show it. Mills, in signing the written contract of 18th August, made no change in that interest,  [**3]  and therefore worked no prejudice to the material men; and, in fact, did no more, (there having been previously thereto a part performance,) than what a court of equity would have compelled him to do. If there had been nothing but an oral contract, the terms of which were clearly shown, then Mills' claim must have been allowed. The execution of a written contract subsequently, there being no change made by it, cannot produce any effect.

3rd. It is said, however, that the verbal contract in this case, although known to and agreed to by Milburn, was not known to the material men, and that as respects them the contract is null and void, because it was not reduced to writing, acknowledged and recorded before the houses were begun. This presents the question of the construction of the act of 1845, ch. 287, sec. 7, upon which, in truth, this case must turn. We have seen that under this law the interest of the tenant or lessee alone is affected by the mechanics lien. The interest of the landlord is protected. Whatever agreements or stipulations on the part of the tenant, which the landlord may make a part of his contract with his tenant, are to remain unimpaired and in full force. It [**4]  is not material whether the material men knew of this or not. The landlord is not bound to give notice, even the implied notice of recording. This section, while it requires that mortgages, incumbrances and liens which attached before the commencement of the houses, and which, by the existing laws of the State, are required to be recorded before the commencement of the houses, in express terms, exempts leases, and does not require them to be recorded before the commencement of the houses. The building contract in this case must be regarded either as a sub-lease or as a contract to give, upon certain terms, five sub-leases. If either, it is not required by the terms of this law to be recorded before the commencement of the houses in question. If a sub-lease, it is, by express terms, exempt, as the word lease necessarily includes a sub-lease. If it be a contract to give sub-leases, although under the act of 1831, ch. 205, sec. 3, it may be recorded, yet it is not thereby, nor by any previous law, required to be recorded.

4th. It is said, however, that this contract, though not in form, is virtually a mortgage. A party cannot mortgage that which he does not own, and in which he has [**5]  no interest whatever. If this be a mortgage, who is the mortgagor and who is the mortgagee? Milburn cannot be the mortgagor, because independently of this contract he has no interest; nor can Mills be the mortgagee, because he has not parted with his interest in the property. This paper may resemble a mortgage, but to call it a mortgage is a mistake. It is a contract to lease, also a contract to make advances to aid the builder in erecting houses. The legal title of the property remained in Mills. Milburn had a right of possession, but as tenant or lessee for years; or if not, as a party holding under a contract, by which he may become a tenant or lessee for years. If Mills had given a sublease to Milburn and had taken a mortgage to secure advances, then the mortgage must have been recorded, because by the sublease the legal title passed to the lessee, and he could mortgage this interest; here, however, the legal title remained in Mills.

5th. The act of 1838, ch. 205, sec. 9, postpones the liens of mechanics in favor of other liens or incumbrances attaching before the commencement of building, and that whether these liens and incumbrances be or be not recorded before the said [**6]  commencement. It was a matter in doubt who was to be considered the owner, whether the person who holds the inheritance or the tenant. The act of 1845, ch. 287, sec. 7, settles, that the lessee or tenant is to be considered as the owner, and that the lien of mechanics shall extend to his interest. The landlord's interest is not thereby affected. This law, when it refers to mortgages, incumbrance and liens, (other than leases, thereby excluding leases,) which attached prior to the commencement of the building, and which, by the laws, are required to be recorded, declares, that all such shall be postponed unless recorded prior to the commencement of the building. In this case Milburn was a tenant or lessee, and his interest alone can be affected by the lien. In the contract, by which he became tenant and which fixes his interest in the buildings, he obligates himself to build and to return the money to be advanced, and such money is a lien upon the building. The contract in this case, although verbal, yet was entered into before the buildings commenced. The lien or incumbrance is then necessarily created before commencement of the buildings. The question then, and the only question,  [**7]  is, was it necessary to reduce this contract to writing and record it before the houses were begun? It was not necessary--no law of this State rendered the recording necessary. This contract is in the nature of a bond of conveyance, and there was no necessity to record it.

6th. Act 1715, ch. 47, sec. 8, declares, that no estate above seven years shall pass, except by deed enrolled within six months. Act 1766, ch. 14, sec. 2, declares, that no estate, or inheritance or free-hold, or any declaration or limitation of use, or any estate above seven years, shall pass, except by deed duly acknowledged and recorded. The above are the laws which require the recording of deeds. Act 1831, ch. 205, sec. 3, authorises, but does not require, the recording of writings obligatory or contracts for conveyance of lands or tenements; and also contracts for leasing and demising for any term of years. The contract in this case was a contract of lease; upon the performance of certain stipulations leases were to be given. An agreement such as this might have been recorded, but certainly it was not necessary to record it. Burke vs. Negro Joe, 6 G. & J., 141.

C. L. L. Leary and Wm. J. Ward for the [**8]  appellees.

The liens of the appellees under the mechanics lien laws attached at the time of and from the commencement of the buildings, and this commencement was at the breaking of the ground for excavating cellars, on the 15th of August 1849. 5 Rawle, 291, Pennock vs. Hoover. Sergeant's Mechanics Lien Law, 25. 3 Md. Rep., 234, Wells & Miller, vs. The Canton Company. Act of 1845, ch. 176, sec. 1.

Now we say, that in view of the act of 1845, ch. 287, sec. 7, the contract between Mills and Milburn either created a lien subsequent to the commencement of the buildings, or if it was a prior one, still it was in fact a mortgage, and not having been recorded until after the buildings were commenced, it is within the proviso to this section. By this law all liens which attach subsequently to the commencement of the buildings are unconditionally postponed to that of the mechanics. The claim of the appellant accrued and attached on the 18th of August, when his contract under seal with Milburn was placed on record. This written contract is what constitutes the lien and upon this the parties must stand; for it merged the prior parol agreement, which cannot avail to create in favor of [**9]  the appellant a preference over the claim of the appellees in the absence of any notice to them of such verbal agreement, and no such notice was pretended or proved. The written contract cannot relate back to the parol agreement, (5 Md. Rep., 66, Albert & Wife, vs. Winn & Ross. 6 Do., 172, Worthington vs. Bullitt, et al.,) and besides, this parol agreement is void under the statute of frauds. 5 Gill, 138, Alexander vs. Ghiselin. 7 Do., 354, Clabaugh vs. Byerly.

But this contract is virtually a mortgage, not a contract for a lease only; not a mere obligation to convey, but was intended as a security for the repayment of the advances and for the payment of interest thereon, and although in form differing from the usual phraseology of a deed of mortgage, it embraces all the essential and peculiar features of such a conveyance, and as such should have been recorded conformably to the requisitions of the registry acts. 4 Kent's Com., 145. Mortgages of equitable interests are required to be recorded. 6 Md. Rep., 52, Alderson vs. Ames & Day. 3 Md. Ch. Dec., 381, United States Ins. Co. vs. Shriver. 1 G. & J., 366, Hays vs. Richardson. See also the acts of 1825, ch. 203, sec. 4; 1831,  [**10]  ch. 304, and 1831, ch. 205, sec. 3, which says that all contracts for leasing, &c., may be recorded. See also 7 Gill, 354. 7 Watts, 9, Bickel vs. James. 4 Penn. State Rep., 126, Lyon vs. McGuffey. 2 Browne, 329, Mitchell vs. Evans. No formal words are necessary to constitute a mortgage; the intention of the parties is to determine the character of the instrument. 5 G. & J., 86, Hicks vs. Hicks. We say, therefore, that this was a mortgage, and the failure of the appellant to have it executed and recorded before the commencement of the buildings in question, is fatal to his pretensions as to priority of payment.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and MASON, J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*321]  ECCLESTON, J., delivered the opinion of this court.
On the 18th of August 1849, Mills and Milburn entered into a written contract under seal, which was recorded the same day, and therein the former agreed to sub-lease to the latter, for ninety-eight years, renewable forever, a lot of ground in the city of Baltimore. Milburn agreeing to erect on the lot, at his own cost and expense, five brick dwelling-houses, and Mills contracting to advance, as a loan to Milburn, to aid [**11]  him in the erection of the houses, the sum of $ 300 on each house. Milburn covenanted that the houses should be finished, and that he would repay the money advanced and all interest thereon, on or before the 1st of January 1853. And in case of default in the payment of the money advanced or interest thereon, or of ground-rent, taxes, or insurance premiums, the contract secured to Mills the right to reenter on the premises, or any part thereof, in the name of the whole, and thereupon the contract was to be in trust, that Mills might enter into bond, as required by the laws of Maryland relating to the sale of property by trustees under deeds of trust, so that the premises, with the improvements, might be sold and the proceeds applied in reimbursing the money advanced, and paying all costs, &c., and the balance, if any, paid over to Milburn. The contract also provided, that upon the completion of the houses and the return of the advances, Milburn was to receive five sub-leases at the yearly rents agreed upon.
It is conceded that on the 15th of August 1849, these parties made a parol contract, similar, in every respect, to the written one above mentioned. They applied to a conveyancer [**12]  to reduce the contract to writing, but the delay until the 18th was occasioned by his sickness.
On the 15th Milburn commenced the houses. At first Mills objected to this, but when Milburn said he could not help beginning, and was ready to sign the contract as soon as it was written, Mills made no further objection. On the same day materials for the houses were contracted for by Milburn, and part of them were then delivered.
Mills made the advances which he contracted to make, and 

 [*322]  they were not returned to him. The claims for materials furnished were also left unpaid. The property was sold under the decree in this case, and the proceeds not being sufficient to pay the advances made by Mills and the claims on account of materials furnished, a question of preference arose between the parties. The court decided in favor of the material men, and from that decision the present appeal is taken.
No question is made in regard to the amount of any or either of the claims, or in reference to the regularity of the proceedings, on the part of the material men, in filing and recording their claims under the lien laws. But it seems to be admitted on both sides, that the decision of [**13]  the controversy depends very much upon the construction of the 7th section of the act of 1845, ch. 287, as applicable to the facts disclosed in the record. This section enacts: "That when a building shall be erected by a lessee or tenant for life or years of a lot of ground, or by an architect, builder or other person employed by such lessee or tenant, that the lien for work and materials aforesaid, shall apply only to the extent of the interest of the said lessee or tenant for life or years." And after providing for the case of a lot belonging to a married woman, the section then provides: "That the said lien for work and materials shall be preferred to all mortgages, judgments, liens and incumbrances, which attached upon the said building or ground covered thereby, subsequently to the commencement thereof, provided always, that mortgages, incumbrances and liens, other than leases which have attached thereto prior to the commencement of the said building, and which, by the existing laws of this State, are required to be recorded, shall not be preferred, but be postponed, unless the same are recorded prior to the commencement of the said building."
It is said on the part of the [**14]  appellees that the claim for advances is in truth a mortgage, and as such, required by the laws of the State to be recorded; that the written contract having been executed and recorded subsequently to the commencement of the buildings, that claim cannot be preferred to the liens of the appellees. They also insist that the appellant 

 [*323]  is not entitled to a preference under the parol agreement, whether they are right or not, in supposing his claim is a mortgage and necessary to be recorded, because the written contract merged the one by parol.
This last suggestion necessarily goes to the extent of holding the merger to effect such an entire extinguishment of the parol agreement, as to deny the appellant the right to rely upon it as evidence of his claim in any respect. Now if this be true, the same rule must exclude the appellees from looking to that contract as the foundation of their claims. Their liens can attach only to the interest of Milburn. If by the merger the parol agreement is excluded from consideration, then it is clear from the proof in the cause Milburn had no interest in the premises prior to the execution of the written contract. But we do not think the doctrine [**15]  of merger prohibits either the appellant or appellees from resorting to the parol agreement to show what rights were acquired, and what acts were done under it.
It is undoubtedly true that if parties make a verbal agreement and afterwards it is reduced to writing, the latter merges the former so as to prohibit the introduction of proof to show any variance or contradiction between them. This rule was wisely adopted upon the principle, that instruments of writing furnish better evidence of the terms agreed upon than can be expected from the frail memory of man. But there is no necessity for the application of the rule, where, as in this instance, the verbal and written contracts agree in every respect. Moreover this parol contract was partly performed, which, of course, took it out of the operation of the statute of frauds, and under it equitable rights were vested, which gave a court of equity power to enforce a specific performance, if it had never been reduced to writing. In the case of Albert & Wife, vs. Winn & Ross, et al., 5 Md. 66, referred to by the appellees, the promise or agreement was merely a verbal one, without any part performance, and consequently [**16]  unlike this. Here the verbal contract conferred equitable rights which were binding upon the parties in virtue of the 

 [*324]  part performance. By its terms one of the conditions precedent was, that upon the repayment of the advances Milburn should receive leases for ninety-eight years. His right therefore to the leases depended upon the performance of this stipulation. And without having made the payment, if he had complied with every other portion of the contract, he could not have obtained a decree for a specific performance. His interest in the premises, by virtue of the very contract which created that interest, was subject and subordinate to this claim of Mills. As by the act of 1845 the liens of the material men can only attach upon the interest of Milburn, they can only claim to the extent of his rights founded upon the agreement which gave them existence. If they had proceeded to sell the premises under their liens, and had become purchasers under the sale, they would have acquired just the same title which Milburn had obtained under the contract, and nothing more. The obligation to repay the advances being one of the conditions upon the performance of which the leases [**17]  were to be given, we do not consider this a "mortgage, incumbrance or lien," required by the act of 1845 to be recorded, for the purpose of giving a preference over liens for work and materials.
In this case we cannot assent to the proposition, that the material men stand in a position similar to a bona fide purchaser for value, without notice. For Milburn had only an equitable title. In fact he had no title upon record when the buildings were commenced. On the contrary, even Mills, under whom he claimed, had no title of record, but nothing more than an unrecorded equitable interest, as it appears from the contract of the 18th of August 1849, the ground therein described was part of the ground demised to Mills by the president and directors of the Franklin Bank of Baltimore, for a term of ninety-nine years, renewable forever, by an indenture or lease, dated the 17th of August 1849. This being the condition of Milburn's title or interest in the premises, the law imposed upon the appellees now claiming liens, the necessity of making inquiry as to his title; and under the 

 [*325]  circumstances they are to be considered as having constructive notice, at least, of the outstanding [**18]  claim of Mills.  Price & Bevans, vs. McDonald, et al. 1 Md. 403, and the authorities there cited.
Believing the court erred in giving preference to the claims for materials furnished, the order overruling the exceptions of the appellant to the auditor's report, and also the order ratifying that report, will be reversed, with costs to the appellant in both courts, and the cause will be remanded for further proceedings.
Orders reversed and cause remanded. 

124 of 187 DOCUMENTS 

WILLIAM A. MOALE vs. THE MAYOR AND CITY COUNCIL OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 314; 1854 Md. LEXIS 2 

JUNE, 1854, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Criminal Court of Baltimore city.

By an ordinance of the 22nd of May 1851, the mayor and city council of Baltimore directed the opening of East Biddle street, in said city, from Cathedral to Charles streets. The commissioners for opening streets proceeded to discharge the duties imposed upon them by this ordinance, and duly made return of their proceedings to the register of the city, and from their assessment of damages and benefits to him, William A. Moale, who was the owner of property on the line of the street proposed to be opened, appealed to the criminal court of Baltimore city, under the act of 1817, ch. 148, sec. 16, and revised ordinances of Baltimore city, No. 17, sec. 9. The following plat sufficiently explains the location of the streets and the adjoining lots.

[SEE DRAWING IN ORIGINAL]

East Biddle street is one of the streets located on Poppleton's plat. The lots Nos. 1, 2, 3, 4, 5, 9 and 10, with others, were sold by a trustee under a decree of the court of chancery. In the advertisement of sale they were described as follows:

Lot No. 2 was described to be on the south-east corner of Biddle and Cathedral streets, fronting one hundred [**2]  and fourteen feet on Cathedral and one hundred and ninety feet on Biddle street.

Lot No. 3 was described as the bed of East Biddle street, between Cathedral and Decker streets, about sixty-six by one hundred and eighty feet.

Lot No. 4 as a small triangular lot, fronting about one hundred and fifty-one feet on the north side of Biddle street, at the corner of Cathedral street.

Lot No. 5 as the south-east corner of Biddle and Decker streets, fronting thirty feet on Biddle street.

Lot No. 9 as sixty-one feet on the west side of Charles street, one hundred and twenty feet deep, over which East Biddle street will pass when opened.

Lot No. 10 as the north-west corner of Charles and Biddle streets, fronting thirty feet on Biddle street.

Lots Nos. 1, 5 and 4, were sold by the trustee at public sale on the 14th of October 1848, the two former to Moale and the latter to William Frick. All the others were subsequently sold to Moale at private sale. These sales were reported and duly confirmed by the chancellor, and the trustee executed but one deed to Moale for his entire purchase. This deed includes the bed of Biddle street so far as it had been sold, viz., lots [**3]  Nos. 3 and 9, but calls for the lines of Biddle street wherever necessary to the description. Moale had purchased the lot on the south-west corner of Charles and Biddle streets in March 1846.

Exception. At the trial in the criminal court, Moale proved the value per front foot of the lots on Cathedral and Charles streets on each side of Biddle street. But the same witnesses who proved this value stated that they did not regard the bed of Biddle street, as owned by Mr. Moale, as worth anything, it being the bed of a street laid down on Poppleton's plat, and therefore liable to be taken at any time by the city as a street, and hence worthless for any other purpose. There was also evidence that in the negotiation for the sale of this property between the trustee and Moale, the lots on the bed of the street were estimated at a nominal value. Upon this evidence Moale asked three instructions to the jury, in substance as follows:

1st. That the deed from the trustee invested Moale with a title in fee to that portion of the bed of Biddle street embraced in it, and that it is not competent for the appellees to appropriate the same to the uses of a public street without making him a [**4]  just compensation therefor, and that in estimating such compensation the jury are not at liberty to consider the fact of the indication on Poppleton's plat of said street; nor are the circumstances offered in evidence sufficient in anywise to impair his right to an allowance in damages of the full value of said property, subject however to the right of the jury to assess upon his contiguous or other property, such proportion of benefits resulting from the opening of said street as may be equitably chargeable to him.

2nd. That by the interpretation of the act of 1817, ch. 148, sec. 16, he is entitled to recover such damages as may be the value of his property proposed to be condemned, without regard to the terms of the first proviso in said section, subject as in the first prayer.

3rd. That the true measure of his damages is the value at which his property would be estimated by the jury if Biddle street, as proposed to be opened, was not located upon Poppleton's plat, and was not designed to be so opened, subject as in first prayer.

The court, (STUMP, J.,) rejected all these prayers and instructed the jury, that in making their estimate of the damages sustained by Moale [**5]  by the opening of said street, they were bound to value the lots sought to be condemned, (being the bed of said street,) as unimprovable lots under the provisions of the act of 1817, ch. 148. To this ruling Moale excepted, and the jury having, by their inquisition, confirmed the report of the commissioners, he appealed to this court under the act of 1852, ch. 77.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

It is a portion of the inherent sovereignty of the State to appropriate private property to public use, when public necessity or utility requires it, upon securing just compensation to the owner for any injury he may sustain, this is an exercise of the right of eminent domain, as contradistinguished from that of the taxing power.

There is a distinction between the taxing power and the right of eminent domain, the former exacts money or services from individuals as and for their respective shares of contribution to any public burthen, the latter takes private property, not as the owner's share of contribution to a public burthen, but as so much beyond his share.

In the latter case special compensation is to be made because the government is a debtor for the property so taken, but not in the former, because the payment of taxes is a duty and creates no obligation to repay otherwise than in the proper application of the tax.

A law providing for the opening of a street or road, and imposing all the costs on those who are the more immediately benefited instead of the community at large, is constitutional.

Where a party sells property lying within the limits of a city, and in the conveyance bounds such property by streets designated as such in the conveyance or on a map made by the city or by the owner of the property, such sale implies a covenant that the purchaser shall have the use of such streets.

The first proviso to the 16th section of the act of 1817, ch. 148, "that no person shall be entitled to damages for any improvement, unless the same shall have been made or erected before the laying out or locating of such street," is unconstitutional and void, because it denies to the owner the use of his land without compensation, and is in fact an act of confiscation

The owner of a lot lying on the bed of a street which is taken for public use, is entitled to a compensation for it precisely as if no such street was opened over it.

In an advertisement of sale the vendor described the lot as binding upon a certain street. HELD, that the purchaser acquired the right to the use of this street in front of the lot, as a street, and a subsequent purchaser, from the same vendor of the lot upon the bed of the street, can claim only nominal damages for its condemnation upon the opening of the street, because he only acquired the naked fee, subject to an casement or right of way, not only in the prior purchaser but in the public.

Where there has been no dedication the true rule of assessing damages is to value the lot precisely as though no street was to be opened, and to get at this the value of neighboring and contiguous lots may be looked to, but they do not furnish an unerring standard by which to measure the value of the lot condemned. 

COUNSEL:
John Nelson for the appellant.

1st. The first question in this case is, whether, under the act of 1817, ch. 148, sec. 16, the ground upon the beds of streets in the city of Baltimore is to be regarded as unimprovable? Has the legislature any power to interdict improvements upon the beds of streets without giving compensation to the owners? We say the first proviso to the sixteenth section of the act referred to, "that no person shall be entitled to damages for any improvement unless the same shall have been made or erected before the laying out or locating of such street, lane or alley, or part thereof, respectively," is not a constitutional exercise of legislative power, because it takes private property for public uses without compensation. The taking from a party the [**6]  use of his property is, in fact, taking from him his property itself. It is true that the act of 1832, ch. 207, gives the discretion to the city authorities to limit the time within which particular streets shall be opened, and to provide that if, by such time, they are not opened the owners may improve them, yet no such discretion has been exercised; and the act of 1838, ch. 226, does not compel the city to adhere to the streets laid down on the plat in its future proceedings in opening streets. The result is, that owners may be kept out of the use of their property forever. If the legislature can say no use of property shall ever be made, without giving any compensation for such restriction, it can take private property for public use without compensation, for the principle is the same. The proposition is a startling one and cannot be sustained. See the Old Bill of Rights, secs. 3, 21. 2 Kent's Com., 339. 1 Baldwin's C. C. Rep., 220, Bonaparte vs. Camden and Amboy Rail Road Co. 5 Gill 383, Alexander, et al., vs. The Mayor and City Council of Baltimore.

2nd. As to dedication: the principle is, that whenever a party by a conveyance calls for a street, he is under an implied [**7]  covenant to his grantee that the latter shall enjoy that street. But in this case there is no such dedication--there is not one of the features of a dedication in the whole of it. See 2 Gill 444, Mayor and City Council of Baltimore, vs. White. 1 Md. 540, White vs. Flannigain. But suppose there is a dedication in reference to lot No. 4, that can only operate a dedication of Biddle street, between Cathedral and Decker streets, and can have no effect upon lots Nos. 9 and 10, or that portion of the street opposite to them.

Wm. F. Frick for the appellees.

1st. What is the measure of damage for the appropriation of Moale's property for public use? If it was unimprovable under all the circumstances of the case, the rulings of the court below were correct and the judgment must be affirmed. Now we insist, that by the acts of 1817, ch. 148, sec. 16, 1832, ch. 207, and 1838, ch. 226, the bed of East Biddle street was, to a certain extent, an unimprovable lot, and so far as the rights of the appellant in that lot were affected by these acts, they were valid and constitutional. It is conceded that private property may be taken for public use if just compensation be made. The mode [**8]  in which this compensation is made is not material. These acts are to be construed together, and their effect is to enhance the value of the property adjoining the streets authorised to be opened by them, and in this way compensation is made for the lots over which the streets pass; the very act which takes away the owner's property gives him compensation. See 17 Wend., 655, In the Matter of Furman Street. 2 Watts & Seargt., 323, District of the City of Pittsburgh. 14 Ohio, 147, Symonds vs. City of Cincinnati.

2nd. But whatever may be the validity of the acts in question in respect to their prohibitions upon the improvements of the street, upon the evidence in the case, Moale had no title in the bed of the street except the nominal fee, subject to the right of way, as an easement in the public under the circumstances in this case, for he bought after a dedication by his grantor of the bed of the street and with notice of such dedication. He is therefore bound by it, and in this view the lot must be considered to be an unimprovable lot. 3 Kent's Com., 433, 434. 2 Wend., 474, Case of Lewis Street. 8 Wend., 98, Livingston vs. Mayor of New York. 11 Wend., 487, Wyman vs. Mayor of New [**9]  York. 4 Paige, 512, Trustees of Watertown vs. Cowen. 1 Hill, 191, Case of Thirty-Ninth Street. 10 Pick., 315, Emerson vs. Wiley. 17 Mass., 415, Parker vs. Smith. 1 Md. 540, White vs. Flannigain.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and TUCK, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*320]  LE GRAND, C. J., delivered the opinion of this court.
We deem it but necessary to briefly state the principles which we think should govern the decision of this and all similar cases.
In the case of Alexander and other, vs.  The Mayor and City Council of Baltimore, 5 Gill 383, the principle was distinctly enunciated, that it is a portion of the inherent sovereignty of the State, to appropriate to a public use the property of individuals when public necessity or utility requires it, upon securing to the party a just compensation for any injury he may sustain.
This is not an exercise of the taxing power, but an exercise of the right of eminent domain as contradistinguished from it.
These two powers although somewhat alike are not the same. The distinction between them is clearly pointed out in a very able opinion of Justice Ruggles, in the case of The People, vs.  [**10]   Mayor &c. of Brooklyn, 4 Comstock 423, 425. He says: "Taxation exacts money or services from individuals, as and for their respective shares of contribution to any public burthen. Private property taken for public use by right of eminent domain, is taken not as the owner's share of contribution to a public burthen, but as so much beyond his share. Special compensation is therefore to be made in the latter case, because the government is a debtor for the property so taken; but not in the former, because the payment of taxes is a duty and creates no obligation to repay, otherwise than in the proper application of the tax."
The case of Alexander vs. The Mayor and City Council of Baltimore, also establishes the constitutionality of a law providing for the opening of a street or road, which imposes all the costs on those who are the more immediately benefited instead of the community at large.

 [*321]  These principles, together with those recognized in the case of White vs. Flannigain, 1 Md. 525, furnish us with all that is necessary for the decision of this. In that case it was laid down, that where a party sells property [**11]  lying within the limits of a city, and in the conveyance, bounds such property by streets designated as such in the conveyance, or on a map made by the city, or by the owner of the property, such sale implies, necessarily, a covenant that the purchaser shall have the use of such streets.
We proceed to apply these principles to the case before us.
The appellant claims damages for the bed of Biddle street, according to its value, having reference to contiguous lots. On the other hand, it is said, he is entitled to but nominal damages, on the ground that the first proviso of the 16th sec. of the act of 1817, ch. 148, provides, "that no person shall be entitled to damages for any improvement, unless the same shall have been made or erected before the laying out or locating of such street, lane or alley, or part thereof respectively." And it was in conformity to this view, that the court below instructed the jury that the appellant was only to be allowed for his lots in the bed of the street as unimprovable lots. This ruling of the court brings before us directly the constitutionality of the proviso to which we have adverted. While it is clear that the sovereign power has the [**12]  right to impose a tax in such amount as to it may seem meet, and also to appropriate private property to public uses, yet it cannot do the latter without making just compensation for it. The sacredness of the rights of property, is everywhere recognized by the spirit of the common law, Magna Charta and our Bill of Rights. Under our present Constitution, there could be no question, for it distinctly provides in its 3rd article, section 46, that compensation shall be made before the property is taken. Although the language of the Bill of Rights of 1776, is not so distinct, its spirit is equally as comprehensive so far as the right to indemnification is involved. We hold, therefore, that it was not competent to the legislature to confiscate the property of the citizen, and we regard the provision 

 [*322]  of the act of 1817, which denies to the proprietor the use of his land, as nothing short of an act of confiscation. It has been said in reply to this view, that the owner of the bed of a street liable to be opened, would be more benefited by the enhanced value of his adjoining property, than he would be damaged by the appropriation of his property in the bed of the street. This view [**13]  assumes as a fact that which in many cases is not so. A person may not own any adjoining lots, and if his property lying in the street can be taken without compensation, then it is confiscation and nothing else. It has now been thirty-seven years since the passage of the act of 1817, and many of the streets designated on the plot of the city, have not as yet been opened. How many years may elapse before they are all opened, it is impossible to say; for aught we can see fifty or a hundred years may roll by before it is done. Besides, since the act of 1838, ch. 226, it is not incumbent on the city authorities to adhere to the line of the streets as laid down on the city plot. The power to widen, open or close up any street in the city, rests entirely in the discretion of the corporation. Under these two acts, those of 1817 and 1838, a person for an indefinite space of time may be deprived of the use of his property, because it lies on the bed of a street designated on the plot of the city, and eventually find that whilst he has paid taxes, and been denied the advantages to which he was entitled from the proper use of his land, that the street laid down on the plot has been abandoned.  [**14]  Such a state of things is repugnant to every notion of justice and cannot obtain our consent. We hold that a person owning a lot lying on the bed of the street which is taken for the public use, is entitled to be compensated for it precisely as if no street was opened over it. Of course this view is wholly independent of all question of dedication. In such a case there could be no claim interposed for damages, for the party having given the ground to the community can set up no just claim to be compensated for it.
The evidence in the cause shows, that the lots designated on the plot filed in it as Nos. 1, 5 and 4, were sold at public 

 [*323]  auction on the 14th day of October 1848, the first two to the appellant and the other to Judge Frick. In the advertisement, Biddle street is distinctly referred to in the description of all three of these lots; and lot No. 4, the one purchased by Judge Frick, is described as "a small triangular lot commencing at the north-east corner of Cathedral and East Biddle streets, running on the latter about one hundred and fifty-one feet northerly twenty-five and-a-half feet, and thence to the beginning." This sale was reported to the chancellor [**15]  and by him confirmed, in conformity to the descriptions of the advertisement, which were embraced in the report of the trustee. Lot No. 2, was not purchased by the appellant until after the sale to Judge Frick of lot No. 4, and therefore, subject to any rights which Judge Frick acquired by his previous purchase, among which, according to the principles we have indicated, was the right to the use of Biddle street, as a street, between Cathedral and Decker streets. So far therefore as lot No. 3, which is the bed of Biddle street, is concerned, we think the appellant only acquired by his purchase the naked fee in it, subject to an easement or right of way, not only in Judge Frick, but in the public, and this being so he is entitled to but nominal damages for its condemnation.
In regard to lot No. 9, we think the case different. Prior to his purchase of lot No. 10, the appellant was the owner of the lot on the south-west corner of Charles and Biddle streets, and when, therefore, he purchased lots Nos. 9 and 10, he acquired a complete title to the three lots, and is just as much entitled to be compensated for lot No. 9, as would have been the original proprietor of it in the absence [**16]  of all dedication. In regard to it there is no supervening or conflicting rights as there is in regard to lot No. 3. The appellant owns the entire line of the three lots bounding on Charles street, whilst in relation to lot No. 3, before it became the property of the appellant, Judge Frick had acquired a title to lot No. 4, from the same grantor as appellant obtained his to lot No. 2, which gave him a right to lot No. 3, as a public street. No 

 [*324]  subsequent act of the common grantor of both, could affect the rights which had been previously conferred on Judge Frick.
The prayers offered on behalf of the appellee, and the instruction granted by the court are erroneous, inasmuch as they are equally applicable to lots Nos. 3 and 9.
The true rule, where there has been no dedication, of assessing damages, is to value the lot precisely as though no street was to be opened. With a view to get at this, the neighboring and contiguous lots may be looked to, but they do not furnish an unerring standard to measure the value of the lot condemned. The one condemned may be more or less valuable than the adjoining lots. It or they may be in ravines or covered with, or free from rocks, making [**17]  them more or less valuable according to the characteristics of the peculiar locality. Nor in estimating the value of the lot to be condemned, ought the circumstance of a street to be opened to be considered, for it is the street which enhances the adjacent property; the estimate should be made as if no street was to be opened.
With these views we remand the case to the court below.
Judgment reversed and procedendo awarded. 

125 of 187 DOCUMENTS 

RACHEL MAURER vs. DAVID W. NAILL and JNO. W. WALKER, EXC'rs of PAUL MAURER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 324; 1854 Md. LEXIS 3 

JUNE, 1854, Decided 

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

By an ante-nuptial settlement between the appellant and the testator of the appellees, the former agreed that neither she nor her representatives, either before or after the death of the latter, would "in any way" claim "his property, real or personal," in consideration of a similar relinquishment of claim by him and his representatives to her property. After the death of the latter, his will, which was signed and sealed by him, but not attested by witnesses, though the attestation clause was duly inserted, was, upon proof of his signature thereto and that the body of the same was in his handwriting, admitted to probate, and letters testamentary upon his personal estate granted to the appellees, the executors therein named. The appellant thereupon filed her petition, objecting to the validity of the probate of the will, and praying that the same, as well as the grant of the letters testamentary, might be revoked, and letters of administration granted to herself, as widow of the deceased. From the order of the court dismissing her petition, she appealed.  

DISPOSITION:
Order affirmed with costs.  

HEADNOTES:

A widow, who, by an ante-nuptial agreement, had relinquished her rights to her husband's estate, in virtue of the marriage, has no right to administer upon his estate nor to object to the validity of the probate of his will.  

COUNSEL:
Wm. Schley for the appellant, insisted:--1st.  [**2]  That the paper ought not to have been admitted to probate in the state of circumstances under which it was offered. There should have been some evidence offered to the court, that the party intended the paper to be his will in the state in which it then stood. 1 Jarman on Wills, 93, 98, and cases there cited. 4 H. & J. 166, Tilghman vs. Steuart. 2nd. If the will be void the widow is entitled to letters of administration. The record shows that the only children of the deceased are married women, the appellant, therefore, is the party to whom, by the act of 1798, ch. 101, sub-ch. 5, secs. 10 and 19, administration must be granted. The words of the act are imperative and unqualified:--"shall be granted to the widow." If she brings herself within the description of the act, she is entitled, whether she may have relinquished her right to any share in her husband's estate or not.

John Nelson for the appellees. The only question in the case is, whether the appellant had the right to administer, for it is clear that no stranger can come in and interpose a caveat to the will. Having relinquished all interest in her husband's estate, she has no such right. Tollers on Exc'rs, 85. 1 H.  [**3]  & McH., 346, Govane vs. Govane. 6 G. & J. 349, Ward vs. Thompson. 8 Gill 285, Ex-parte Young. 6 Munf., 132, Bray vs. Dudgeon. 4 Leigh, 152, Thornton vs. Winston. 14 Sme. & Mar., 68, Fowler vs. Kell.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and TUCK, J.  

OPINIONBY:
TUCK 

OPINION:

 [*326]  TUCK, J., delivered the opinion of this court.
This case must be disposed of upon the construction of the ante-nuptial agreement between the appellant and her husband. If she has relinquished her rights to his estate in virtue of the marriage, she has no claim to the administration of his estate, nor to object to the validity of the probate of his will. Something was said at the bar as to the inadequacy of the consideration of that agreement, reference being had to the extent and value of the husband's property before the marriage. But with such questions we have nothing to do on the present record, so long as the agreement remains in existence.
We do not perceive how this case can be distinguished from Ward vs. Thompson, 6 G. & J. 349. The point there was as to the right of administration on the wife's estate. Letters were claimed by the husband and by one of [**4]  her children, and the Court of Appeals held, that the husband, by his marriage contract, had not only suspended his marital rights during coverture, but had relinquished them forever. In this case it appears that the parties mutually agreed, that at the death, or before or after the death, of the other, his or her property should not be claimed in any way by the survivor. This was as entire an abandonment of all right of administration as was contained in the deed in Ward vs. Thompson. We have no doubt that the court would have also decided, if the question had been before them, that Thompson had no interest whatever in any part of the wife's estate. That is certainly the effect of the agreement in this case; and having abandoned all claim to the property, the appellant can have no right to question the propriety of the probate of the will. We express no 

 [*327]  opinion on the rights of this appellant merely as widow independently of the marriage agreement.
Order affirmed with costs. 

126 of 187 DOCUMENTS 

THE STATE OF MARYLAND vs. OSCAR MACE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 337; 1854 Md. LEXIS 6 

JUNE, 1854, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Court of Common Pleas for Baltimore city.

The appellee was arrested upon a warrant issued by a justice of the peace for a violation of the act of 1854, ch. 138. Judgment was rendered against him for $ 5 and costs, for the non-payment of which he was committed to jail. He then made application to the Court of Common Pleas for a writ of habeas corpus cum causa, which was granted, and, upon hearing, the petitioner was discharged. Upon the passage of the order discharging the party, from which this appeal was taken by the State, the court below, (MARSHALL, J.,) delivered the following opinion:

"This case involves several questions of constitutional law upon which, as upon all subjects of human thought, men entertain different opinions. As I have arrived at different conclusions upon them from many members of the legal profession and the bench, for whom I entertain great respect, I particularly desire the Court of Appeals to decide them finally. Knowing that the parties against whom my decision will operate can appeal, and fearing that the party to the petition could not, without great inconvenience, if at all, do so, I have given to the opinions expressed by other [**2]  judicial tribunals of the city a less influence over my judgment upon these questions than I should, perhaps, otherwise have done. The facts of the case are very simple: The petitioner has been adjudged guilty of insuring lottery policies, and has been subjected, in an action of debt, to the payment to the State, for the use, jointly, of the State and the informer, of several fines. I must assume, therefore, for the purposes of this case, that he is an offender against the law and is liable to a pecuniary punishment. The justice, upon rendering the judgments, as a mode of collecting the money due upon them, has committed the party to jail. The validity of the judgments is not questioned here. The legality of the imprisonment as a means of enforcing payment is alone in question. The act of 1777, ch. 6, seems to me to authorize the summary commitment to jail resorted to here, unless the provision of the present Constitution of the State, forbidding "imprisonment for debt," shall be taken to have abolished that remedy. The Convention, in framing the Constitution, indulged in much legislative detail; where they have been brief and used general terms, they must be understood to have done [**3]  so with a purpose. I take the word "debt," in the article of the Constitution referred to, to mean pecuniary obligation. That in the legislation of this State, the word "debt," when unexplained, has this import, and comprehends fines even for misdemeanors, is evident from the proviso of the 5th sec. of the insolvent law of 1805, ch. 110, where fines for any breach of law are excepted out of an enumeration of liabilities, among which the word debt is the only one which could possibly embrace "fines." It is always in the power of the legislature to make imprisonment a part of the punishment of offences which they may create anew by enactment, as it is of the criminal courts in adjudicating upon misdemeanors at common law or of statutory creation. The legislature could have punished the offence of vending lottery insurances by imprisonment if they had deemed it proper. They have not done so. I do not feel at liberty, under these circumstances, from any abstract apprehension of my own, as to the "convenient" or "politic," to limit the meaning of the language of the Constitution so as to accomplish an end which the legislature have purposely avoided. So enlarged has become the policy of [**4]  the State on the subject of incarceration of the person, that where offences are made punishable by fine and imprisonment, the fine is made subject to discharge, under the insolvent laws, upon the suffering of a very limited imprisonment. I am of opinion that the imprisonment of this party is illegal.

"Serious doubts exist as to the right of this court to use the writ of habeas corpus at all, notwithstanding the express authority of the legislature, conferred by the act of 1853. I entertain these doubts myself, but suppose that where the writ is used as auxiliary to the exercise of the express powers of the court, as contained in the 10th section of the 4th article of the Constitution, it may be legally resorted to. As for example, this court may bring persons before it, I think, to testify, to respond, to prosecute, &c., &c., as incidental to its express jurisdiction. One branch of its express jurisdiction is a general appellate power over the proceedings of justices of the peace. I incline to the opinion, that independently of the act of 1853, above referred to, this writ of habeas corpus might be exercised by this court, by implication, in any case where it might be deemed [**5]  an exercise of this appellate jurisdiction. Surely that act, however unconstitutional it may be otherwise esteemed, must be judged constitutional so far forth as it may be applicable to this appellate power. The Supreme Court of the United States is a court of a jurisdiction expressly defined by statute, as is this court. The Supreme Court is invested by law with power to use this writ. They construe that power to mean, that where its exercise involves an original act of the court, they can only use the writ in cases where they have original jurisdiction. Where the writ is invoked that the court may review the action of a tribunal over which it may exert an appellate power, they use it; where it may be appropriately done in this appellate character. (See the cases of Bollman and Swartwout, in 4 Cranch, 75, and of Watkins, in 3 and also in 7 Peters' Reports.) I suppose this Court of Common Pleas may, under the 10th sec. of the Constitution, in the judiciary article, review the action of justices of the peace, on appeal in every form under which the appellate power of a court may properly be exercised. It may examine the correctness of a justice's judgment upon an ordinary appeal. It [**6]  may, I think, entertain an appeal from the action of a justice upon a motion to quash an execution or other process. And it appears to me that this writ of habeas corpus is an appropriate mode of exercising the appellate power of this court, where a justice has summarily ordered a defendant to jail, without the intermediate process of a capias ad satisfaciendum, upon which distinct and appropriate action might be had without resort to this writ. Thinking that I have jurisdiction in the case, and that the imprisonment is illegal, I shall order the discharge of the petitioner." 

DISPOSITION:
Judgment reversed.  

HEADNOTES:

The act of 1853, ch. 238, in so far as it confers upon the Court of Common Pleas for the city of Baltimore the power to issue the writ of habeas corpus cum causa, is unconstitutional, the powers specially enumerated in the 10th sec. of the 4th art. of the Constitution being all that are conferred upon that court, and it is not competent for the legislature to add to or subtract from them.

The appellate power given to the Court of Common Pleas to revise the judgments of justices of the peace does not authorise that court to do so on habeas corpus, for where a judgment is liable to be reviewed by an appeal from it, the writ of habeas corpus cannot be applied.

Proceedings against parties, under the act of 1854, ch. 138, for the violation of the same, are civil actions; and that part of the act which prohibits an appeal from the judgments of the justices, in such cases, to the Court of Common Pleas is unconstitutional, being in violation of the 19th sec. of the 4th art. of the Constitution, which gives such appeal "in all civil cases."

The Court of Common Pleas having no power to review the judgment of a justice of the peace on habeas corpus, but having done so, this court has the right to review, on appeal, its action in such case.

The term debt, in that clause of the Constitution which provides, that "No person shall be imprisoned for debt," is to be understood as an obligation arising otherwise than from the sentence of a court for the breach of the public peace or commission of a crime.

When legal terms are used in a statute they are to receive their technical meaning, unless the contrary intention plainly appears; but this rule does not apply to the interpretation of the organic law, which is to be construed according to the acceptation of those who adopted it.

All courts have the right to issue the writ of habeas corpus ad testificandum, it being a power indispensable to the trial of causes.  

COUNSEL:
J. M. Campbell and John Nelson for the appellant.

The third section of the original act of 1846, ch. 109, prohibited the insuring of lottery tickets, or numbers of lottery tickets, and inflicted a fine therefor of $ 50, recoverable before a justice of the peace by an action of debt. The act of 1854, ch. 138, amended and re-enacted as amended, this section, so as to make the fine $ 5 instead of $ 50 for each offence. Under this latter act warrants were issued against the appellee for a violation thereof, by a justice of the peace, and judgments recovered against him, and upon process [**7]  issued upon these judgments he was committed to jail. He then applied to the Court of Common Pleas to be discharged on habeas corpus. The court issued the writ, brought him before it and discharged him.

Upon these facts the first question which arises is, has this court the power to act upon this case by way of appeal from the action of the court below, in discharging the party under the writ of habeas corpus.

It is said no appeal will lie from a decision on a writ of habeas corpus. The authorities on this point are in conflict. 1 Penr & Watts, 82. 8 Alabama Rep., 424, Ex-parte Chaney. 9 Sme. & Mar., 386, Steele vs. Shirley. 9 Missouri, 691, Howe vs. The State. 1 La. Annual Rep., 414, Exparte Mitchell. 6 Johns. 337, Yates vs. The People. 14 Pet., 561, Holmes vs. Jennison. The discharge of the party here was but in fact quashing an execution, and in such cases an appeal will always lie. 6 G. & J. 76, Waters vs. Duvall. In the case of Bell vs. The State, 4 Gill 301, the party was refused a discharge, and the court place their decision upon the ground that it was not a final judgment; but here the party was discharged, and the execution is effectually quashed: the judgment [**8]  so far as the State is concerned is final.

But if the Court of Common Pleas had no authority to issue the writ, it is clear that this court may upon appeal review its decision unwarrantably pronounced on the subject. 9 Gill 92, Webster vs. Cockey, and State vs. Mister, Ante 11. The question then recurs, had that court the power to issue the writ? We say it had not, for the Constitution gives it no such power. It is not a court of general jurisdiction, but of special and enumerated powers. The 10th section of the 4th article of the Constitution confines and limits its jurisdiction:--1st. To civil suits where the debt or damage claimed shall be over $ 100, and shall not exceed $ 500. 2nd. To all cases of appeal from the judgments of justices of the peace; and 3rd. To insolvent applications. In the 11th section of the same article creating the Superior court there is a general grant of jurisdiction "in all other civil cases which have not been heretofore assigned to the Court of Common Pleas," which, of course negatives the exercise of any other jurisdiction by the latter court than that specially given. We say then, the legislature had no power to give a new subject of jurisdiction [**9]  to that court, and hence the act of 1853, ch. 238, so far as it attempts to confer upon the Court of Common Pleas the power to issue the writ of habeas corpus is unconstitutional and void.

But this power has been claimed for that court by virtue of the appellate jurisdiction given to it over the judgments of the justices of the peace. The case of Bollman and Swartwout, 4 Cranch, 75, only decides that the Superior court has authority to issue the writ where it would have jurisdiction over the subject matter by way of appeal if the case had been brought before it on appeal. In the present case the party had no right of appeal to the Court of Common Pleas. The 10th section of the 4th article of the constitution declares that the Court of Common Pleas "shall have jurisdiction in all cases of appeal from the judgment of a justice of the peace;" but the 4th section of the 10th article says, that the trial by jury shall be preserved in civil proceedings where the amount in controversy "exceeds the sum of five dollars." The former provision is qualified by the second, and the appeal is restricted to civil cases in which appeals were allowed by existing laws, and to such only where the [**10]  amount involved exceeds the sum of five dollars. This case is neither a civil case, nor does the amount involved exceed five dollars. But suppose the right of appeal to the Court of Common Pleas existed, still that court had no power to issue the writ of habeas corpus. The judgment of the magistrate was at most merely erroneous, and liable to be examined by an appeal from it, and in such cases the Court of Appeals have decided "the writ of habeas corpus cannot be applied." 4 Gill 305, Bell vs. State. But we insist further that the granting of this writ is not the exercise of appellate jurisdiction at all, but is an exercise of original jurisdiction.

Assuming that the Court of Common Pleas had jurisdiction to issue the writ, the next question is, did it commit error in discharging the party? This presents the question whether the Constitution has abolished imprisonment for fines and penalties? The Constitution says "There shall be no imprisonment for debt;" and the inquiry then is, does this term include penalties and forfeitures? The insolvent laws which discharge from imprisonment from debt expressly except penalties and forfeitures, and they show what was meant by the term [**11]  debt, when the new Constitution was adopted. The intention undoubtedly was to release the debtor from imprisonment at suit of his fellow, his creditor, but not to affect the State's jurisdiction over its citizens in the administration of justice for the purpose of punishment. The liberty of this freedom from imprisonment for debt was not designed to be a liberty to do wrong. If such a construction of the Constitution can be maintained, the State is stripped of all power to administer justice through the instrumentality of moneyed penalties.

Milton Whitney for the appellee, in support of his motion to dismiss the appeal, argued:

1st. That no appeal lies to this court from any judgment of the Court of Common Pleas. By the 2nd section of the 4th article of the Constitution, the present Court of Appeals is vested with appellate jurisdiction co-extensive with the limits of the State, but to be exercised only in such cases as were then allowed by law to be exercised by the then existing Court of Appeals, "and such other appellate jurisdiction as may hereafter be provided by law." The act of 1785, ch. 87, provided for appeals from the county courts to the General Court, and by the [**12]  act of 1804, ch. 55, this appellate jurisdiction was transferred to the Court of Appeals. This appellate jurisdiction is limited to the judgment of the county courts. Such is the jurisdiction vested in this court by the Constitution, and no appellate jurisdiction having been conferred by law, it remains to be seen whether it can entertain such jurisdiction from the judgments of the Court of Common Pleas by virtue of the jurisdiction exercised by the old court from judgments of any county court. This court is a special court created by the new Constitution, and limited in its jurisdiction. No right of appeal from its judgments has been conferred by the Constitution or act of Assembly. It is nowhere spoken of as the successor of any county court, or exercising any jurisdiction of the county court as such. The objects over which it is to exercise its jurisdiction are specially enumerated. If appellate jurisdiction is to be derived from the fact alone, that it exercises jurisdiction over certain matters heretofore within the jurisdiction of the county court, the same fact would give this court appellate jurisdiction from the decision of a magistrate, for he now exercises jurisdiction over [**13]  subject matters heretofore within the jurisdiction of the county courts.

2nd. But if such appellate jurisdiction can be exercised, then the judgment in this particular case is not such an one as authorises this court to entertain an appeal, because it is not a determination or judgment of the court in a civil suit or action within the act of 1785, ch. 87. Lord Coke says "the question is no longer an open one in England," that a writ of error will not lie upon a decision on a writ of habeas corpus. See 8 Rep. 127, b, Case of the City of London. 8 Mod. 27 Case of the Dean and Chapter of Trinity Chapel. 1 Lord Raymond, 454, Groenvelt vs. Burwell. 3 Brown's Cases in Par., 506, Pender vs. Herle. In this county the question has been discussed and decided in several cases, which are collected in 1 Amer. Law Rep., 513, where the result of them is stated to be that the American authorities are decidedly against the right to appeal. But if any doubt remains it must be removed by the case of Bell vs. The State, 4 Gill 301, where a full court held there was no appeal from an order of the county court upon a writ of habeas corpus, because it was not a judgment of the court in a civil suit [**14]  or action within the contemplation of the act of 1785, ch. 87. If this appeal is entertained what judgment is to be reversed? and what is to be done by the court below when the record is remitted? The party is not in the custody of that court, and how can this court cause a person to be retaken who should, in their opinion have been unduly set at large? The judges of our courts are authorised to issue writs of habeas corpus in vacation. How then would appeals lie, or on what could they be founded? In such case there is no court, no record, and, it is submitted, could be no judgment as contemplated by the act of Assembly.

But assuming that the appeal will lie, the appellee then insists:

1st. That the Court of Common Pleas had the power to issue the writ of habeas corpus, because 1st:--The act of 1853, ch. 238, gives it jurisdiction. 2nd. By virtue of the appellate jurisdiction given to it by the 10th section of article 4th of the Constitution from judgments of justices of the peace, the issuing of the writ of habeas corpus being the exercises of appellate and not original jurisdiction. 7 Pet., 568, Ex-parte Watkins. 1 Cranch, 137, Marbury vs. Madison. 3 Dallas, 17, Ex-parte [**15]  Hamilton. 4 Cranch, 75, Ex-parte Bollman and Swartwout. 7 Wheat. 38, Ex-parte Kearney. 3 Cranch, 448, Ex parte Burford. 8 Alabama Rep., 427, Ex-parte Chaney. 8 Paige, 47, The People vs. Mercein.

But the appellant cannot urge or rely upon the want of jurisdiction in the Court of Common Pleas to issue the writ, as this point does not appear by the record to have been raised in that court as required by the act of 1825, ch. 117.

2nd. The party was properly discharged. The remedy prescribed by the act of 1854, ch. 138, is in its form, nature and character, a civil proceeding, and being so, its effects and consequences are the same as those flowing from the institution and prosecution to judgment of any other civil cause according to the laws of Maryland. The remedy is a pecuniary one, made so by statute, and to be collected as other small debts. By the judgment of the justice it became a debt, due, one-half to the State, the other to the informer. "It is a debt inter partes, as much so as an action for money had and received." 7 Gill 321, Day vs. the State. If the party could have been committed at all, it should have been under a capias ad satisfaciendum. The injury done [**16]  to the State is one of a pecuniary character. The legislature had the right to inflict imprisonment, but did not see proper so to do. The liability to pay a penalty for an offence created by statute (not malum in se,) originates in contract. The party contracts if he violates the law to pay the penalty. 3 Bl. Com., 159. This is a debt made so by statute, decided to be so by the Court of Appeals in 7 Gill 321. The New Constitution abolishes imprisonment for debt; no exception is made, its language is "no person shall be imprisoned for debt." If the legislature saw fit to provide a penalty by way of a debt for any violation of the law and not provide for any imprisonment, how can it be said the State is left powerless. The legislature has not seen proper in this case to exercise that power which they have in many other penal laws, by adding imprisonment.

3rd. The act of 1854, ch. 138, is unconstitutional and the judgment of the justice was void and not voidable. If it is a criminal proceeding it is void, as it deprives the party of his right of trial by jury. This question was decided by the Circuit Court of the United States for the district of Rhode Island before Judges Curtis [**17]  and Pitman, to be found in the Monthly Law Reporter, N. S., Vol. 5, No. 11, page 625 to 627. The Constitution gives no right of appeal except in civil cases instituted before a magistrate, and the act gives no such right, but denies it. If it is a civil proceeding it must be attended with all the incidents of civil proceedings, and the imprisonment was illegal.

4th. The court have the right to decide upon the constitutionality of a law upon habeas corpus. 11 Am. Jurist, 257, 258, and the case of Henrick, Monthly Law Rep., N. S., Vol. 6, No. 11.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and TUCK, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*346]  LE GRAND, C. J., delivered the opinion of this court.
This case comes before us on an appeal from an order of the Court of Common Pleas of Baltimore city, discharging the appellee from the custody of the warden of the jail of Baltimore city, to which he had been committed by Edward J. Peters, a justice of the peace, by "reason of the non-payment of a fine of $ 5, and 56 1/4 cents, costs, inflicted on him for a violation of the act, entitled, 'An act to prevent frauds on the revenue in the cases hereinafter mentioned, and to punish the [**18]  perpetrators thereof.'"
The act of 1854, chapter 138,--the one under which the appellee was confined in jail,--after providing against "all insuring of lottery tickets, or parts of lottery tickets," &c., goes on to declare, that any person offending against the provisions of the act "shall be liable to pay, and shall pay, a fine of $ 5 for each offence, to be recovered before any justice of the peace, by action of debt, in the name of the State, instituted 

 [*347]  against the offending party, on the information, under oath, of any citizen of this State or of the commissioner of lotteries; and that all fines received shall be paid over to the said commissioner of lotteries, who shall, after paying the informer one-half of the amount of each and every fine so received, account to the treasurer of the State for the remainder in his hands, and no certiorari shall issue from any court to said justice either before or after judgment, and no appeal shall be taken from the judgment of said justice in any of the cases hereinbefore mentioned."
The first question arising on this appeal is the right of the Court of Common Pleas to issue the writ of habeas corpus cum causa. The act [**19]  of 1853, chapter 238, in language confers this power on the Common Pleas and all the other courts of the State. But it is said this act, in so far as it relates to the Court of Common Pleas, is unconstitutional, and in this opinion we concur. That court is one of limited and specified jurisdiction, and it is not competent to the legislature to add to or subtract from it. The 10th and 11th sections of the 4th article of the Constitution define the extent of the powers of the court. The first declares, "there shall be established for the city of Baltimore one court of law, to be styled the Court of Common Pleas, which shall have civil jurisdiction in all suits where the debt or damage claimed shall be over one hundred dollars, and shall not exceed five hundred dollars; and shall also have jurisdiction in all cases of appeal from the judgment of justices of the peace in said city, and shall have jurisdiction in all applications for the benefit of the insolvent laws of this State, and the supervision and control of the trustees thereof." The other section is as follows: "There shall also be established for the city of Baltimore another court of law, to be styled the Superior Court of Baltimore [**20]  city, which shall have jurisdiction over all suits where the debt or damage claimed shall exceed the sum of five hundred dollars; and in case any plaintiff or plaintiffs shall recover less than the sum or value of five hundred dollars, he or they shall be allowed or adjudged to pay costs, in the discretion of the court. The said court shall also have jurisdiction as a court 

 [*348]  of equity within the limits of the said city, and in all other civil cases which have not been heretofore assigned to the Court of Common Pleas."
It is clear from these sections of the Constitution, that the Court of Common Pleas has no right, as an exercise of original jurisdiction, to issue the writ of habeas corpus, and the learned judge who decided this case claimed the right by virtue of his appellate power to revise the judgments of justices of the peace. Conceding that the Court of Common Pleas is authorized by the Constitution, on appeal, to review all judgments of justices of the peace in the city of Baltimore, it does not, therefore, follow, as held by that court, that this can be done in any case on habeas corpus. A great deal of learning on the right of appeal and the [**21]  right of the Supreme Court of the United States to issue the writ of habeas corpus has been expended in the case of Ex-parte Watkins, 3 Peters 193, and 7 Peters 568, and in the case of Holmes vs. Jennison, 14 Peters 541. We deem it altogether unnecessary to consider the principles recognized by those cases, inasmuch as the question involved in this was definitively settled in the case of Bell vs. The State, use of Miller, 4 Gill 301. In that case it was declared to be "established, and upon the most conclusive reasons, that where the judgment upon which the execution has been issued is merely erroneous and liable to be examined by an appeal from it, the writ of habeas corpus cannot be applied."
We think that the powers which are specially enumerated in the 10th section of the 4th article of the Constitution are all that are conferred on that court; and this opinion is fully confirmed by the language of the 11th section of the same article, which, after indicating some of the authority and jurisdiction conferred on the Superior Court, proceeds to declare, in addition thereto, "and in all other  [**22]   civil cases which have not been heretofore assigned to the Court of Common Pleas." The power to issue the writ of habeas corpus is not by the Constitution assigned to the Common Pleas, and therefore, under the 11th section of the 4th article is conferred on the Superior Court. And if the Court of Common Pleas has the right, on appeal, to review all judgments of justices of the peace in the 

 [*349]  city of Baltimore, this cannot be done on habeas corpus. Where an appeal will lie habeas corpus will not. This is the undeniable decision in 4 Gill 301, 305. This being so, the question is, is that clause in the act of 1854, chapter 138, which prohibits an appeal from the decision of the justice, constitutional? We are clearly of opinion it is not.
It was ably contended, that the provision in the 10th section of the 4th article, which declares the Common Pleas shall "have jurisdiction in all cases of appeal from the judgment of justices of the peace in the said city," should, standing alone, be construed so as to apply only to such cases as existing laws, or laws to be passed after its adoption, should allow of, and that the only limitation [**23]  on this power of the legislature to specify the cases in which appeals should be permitted is to be found in the 4th section of the 10th article, which provides, that "the trial by jury of all issues of fact in civil proceedings, in the several courts of law in this State, where the amount in controversy exceeds the sum of $ 5, shall be inviolably preserved."
It is doubtless to the interpretation put on this last quoted clause of the Constitution that the act of 1854, chapter 138, owes its existence; for its principal object seems to be to alter the act of 1846, chapter 109, which imposed a fine of $ 50, so as to deprive the party of the right of appeal. If the Constitution contained only the sections which we have given, we would be inclined to the opinion that the act of 1854 was but a constitutional exercise of legislative power in so far as it denies an appeal, but they are not the only parts of the Constitution bearing on the subject. The 19th section of the 4th article gives an appeal in all cases: the language is, "an appeal shall lie in all civil cases from the judgment of a justice of the peace to the Circuit Court, or to the Court of Common Pleas of Baltimore city.  [**24]  " The Constitution comprehending the judgment of the justice in all civil cases, it is not competent to the legislature to abridge it, as has been attempted by the act of 1854, chapter 138. That the case before the justice was a civil case, is established by the decision of the court, in the case of Day vs. The State of Maryland, 7 Gill 321. Speaking of the proceedings under the act of 1846, chapter 

 [*350]  109, the court say, they are "not criminal cases or prosecutions, but civil actions, actions of debt inter partes, and although the object of their institution is the recovery of fines and penalties, yet, in contemplation of law, they are as much regarded as civil actions, as if instead of actions in debt they had been actions for money had and received." In support of this doctrine the court rely upon the case of Atcheson vs. Everitt, Cowp. Rep., 382, which fully sustains it.
Having shown that the Constitution confers a right of appeal from all judgments of a justice of the peace, and, also, where the right of appeal exists the judgment cannot be reviewed in any manner on habeas corpus, it follows from these facts that the Court of [**25]  Common Pleas had no jurisdiction over this case in the manner in which it was sought to be exercised. And this being so, the case of Webster vs. Cockey, 9 Gill 92, and the case of Mister vs. The State, Ante, 11, establish the right of this court to review on appeal the action of the court below.
From these views it follows, necessarily, that the judgment of the Court of Common Pleas must be reversed. We might stop here; but inasmuch as the question which really gave rise to this controversy, is one which has a wide and great influence upon the administration of the police laws of the State, and has been determined differently by the Superior Court and the Court of Common Pleas, we deem it but proper to indicate the opinion we entertain on the subject.
The 44th section of the 3rd article of the Constitution declares: "No person shall be imprisoned for debt;" and the Court of Common Pleas have decided in this case, that a fine imposed by a justice of the peace for a violation of the act of 1854, chapter 138, is a debt within the constitutional meaning of the term. In this view we do not concur. We think the Constitution ought to have a common sense [**26]  interpretation, by which we mean the sense in which it was understood by those who adopted it, and, if it receive such a construction, in our judgment the term debt is to be understood as an obligation, arising otherwise than from the sentence of a court for the 

 [*351]  breach of the public peace or commission of a crime. Although it is a well recognized canon of construction, that where legal terms are used in a statute they are to receive their technical meaning, unless the contrary plainly appears to have been the intention of the legislature, the principle, however, does not apply to the interpretation of the organic law, which is to be construed, according to the acceptation of those who adopted it, as the supreme rule of conduct both for officials and individuals, and, in conformity with this view, it has been habitual for the supreme judiciary of the United States to derive light and instruction from the commentaries of the framers of the Federal Constitution. The writings of Hamilton and Madison in the Federalist have always been held as of the highest authority on all points of doubtful construction. We cannot be insensible to the fact that in all the struggles [**27]  for the abolition of the law for imprisonment for debt, the advocates of the measure contended it was unjust and cruel to place the unfortunate debtor on the same footing with the disturber of the public peace, or the perpetrator of crimes punishable by fines. The evident intention of the Constitution was to relieve those who could not pay their debts, and not to shield from punishment persons who had violated the public law. The first was an object which addressed itself to the benevolent and kind feelings of its friends, whilst the latter could never have found countenance from any considerable portion of the people of the State. It never could have been the intention of the Convention which framed the Constitution to destroy the whole police system of the State, or to impose upon the legislature the necessity to expressly provide, by new legislation, imprisonment in all cases in which fines and penalties had been denounced against the violators of the public law. They used the term debt in its popular sense, and the people evidently so understood it. They regarded it, as it was intended, a protection to the unfortunate, and not an immunity to the criminal. If a different [**28]  view were to obtain, a necessity would arise to substitute for nearly all the ordinances of the city of Baltimore, and the special acts in relation to the different 

 [*352]  counties, which impose fines and penalties, an entirely new system. We cannot be brought to the conclusion that such was the design either of the Convention, or of the people who adopted their work.
In denying to the Court of Common Pleas the right to issue a writ of habeas corpus, we of course are to be understood as referring to that writ cum causa, and not to the writ of habeas corpus ad testificandum. All courts have the right to issue this writ, it being a power indispensable to the trial of causes.
Judgment reversed. 

127 of 187 DOCUMENTS 

THE STATE vs. JAMES BOGUE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 352; 1854 Md. LEXIS 7 

JUNE, 1854, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Court of Common Pleas of Baltimore city.

The appellee in this case, as in the preceding, was proceeded against for a violation of the act of 1854, ch. 138. From the judgment of the justice imposing a penalty of $ 5 and costs, he appealed to the Court of Common Pleas. That court entertained the appeal and reversed the judgment of the justice. From this judgment of reversal the State appealed.  

DISPOSITION:
Appeal dismissed with costs.  

HEADNOTES:

Where the right of appeal from the judgment of a justice of the peace to the Court of Common Pleas exists, the judgment of that court is final and conclusive, and no appeal lies from it to this court.  

COUNSEL:
J. M. Campbell and John Nelson for the appellant, insisted, that the court below had no jurisdiction over the judgment which it reversed, an appeal to it being expressly prohibited by the act of 1854, ch. 138, under which the proceedings were instituted, in which case this court will reverse the judgment. 7 Gill 92, Webster vs. Cockey.

Charles H. Pitts for the appellee, argued that the party had the right to appeal to the Court of Common Pleas. If it be a criminal proceeding the law is in direct violation of the 19th article of the Bill of Rights, which secures to the party in all criminal cases the right of trial by jury. If it be a civil proceeding, the 19th section of the 4th article of the Constitution expressly gives the right [**2]  of appeal "in all civil cases from the judgment of a justice of the peace to the Court of Common Pleas," and any prohibition of this appeal by the act of 1854, ch. 138, is unconstitutional and void. The right of appeal to the Court of Common Pleas existing the judgment of that court is final and not subject to review in this court, and the appeal must therefore be dismissed.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON, MASON and TUCK, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*353]  LE GRAND, C. J., delivered the opinion of this court.
This is an appeal from the judgment of the Court of Common Pleas, reversing a judgment rendered by a justice of the peace against the appellee in this court for a violation of the act of 1854, chapter 138. We have stated in the case of the State vs. Mace, that we think the Constitution gave the right of appeal to the Court of Common Pleas, and, as that court was but in the exercise of its proper jurisdiction when reviewing the decision of the justice, its judgment is final and conclusive, from which no appeal lies to this court, and we therefore accordingly dismiss the appeal.
Appeal dismissed with costs. 

128 of 187 DOCUMENTS 

MOORE N. FALLS and CHARLES W. KREBS, vs. BENJAMIN ROBINSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 365; 1854 Md. LEXIS 9 

JUNE, 1854, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Equity Side of the Superior Court for Baltimore city.

This appeal is taken from an order of the court below dissolving an injunction, to restrain the execution of a judgment at law granted upon a bill filed by the appellants.

The bill alleges, that the account between them, which was the basis of the judgment recovered by the defendant, (the present appellee,) against the complainants, contains this mistake, viz., that in it the defendant is credited with the sum of $ 3693.75, for three-quarters of an annual mail pay of $ 4925, whereas he should have been credited only with his proportion as a partner, or with one-half of said sum; that the account shows that the defendant and complainants were partners in the business therein referred to, and that defendant was entitled to only one-half of the said annual mail pay, which amounted to $ 4925. That this mistake was not discovered during the progress of the trial of the suit at law, nor until after the verdict was rendered therein, and after the time for a motion for a new trial had elapsed.

The account bears date the 24th of May 1841, and is signed by the complainants. All the items composing it are particularly [**2]  set forth, and among them is the item in controversy, being a credit to the defendant, as follows: "By mail, pay for three-quarters $ 4925,--$ 3693.75."

The answer avers that the account was correct in every particular, and was stated between the parties after a careful examination of their mutual dealings, and every item of it was carefully examined, fully understood, and admitted by complainants to be just and correct. As to the item alleged to be erroneous, respondent expressly denies that there is any mistake or error in regard thereto, and avers and insists that the same is correct. That this account was in possession of the counsel of complainants for several months before the trial of the suit at law, and this item was the subject of discussion before the jury at the trial, and before the court upon a motion for a new trial.

The court, (FRICK, J.,) upon bill and answer, dissolved the injunction, and the complainants appealed.  

DISPOSITION:
Decree affirmed with costs.  

HEADNOTES:

The allegation that there was a mistake in an account, upon which a judgment at law was recovered, which was not discovered until after the trial and verdict, and the time for a motion for a new trial had elapsed, is not sufficient to authorize an injunction restraining execution of the judgment, the error, if any, being apparent on the face of the account, and the relation of the parties perfectly well known to each other.  

COUNSEL:
William Schley for the appellants.

The bill makes a proper case for an injunction. The answer denies generally that there is any mistake in the item complained of, but this is not sufficient. It must state [**3]  the facts upon which the denial is founded and on which the claim in the bill rests. It does not deny the allegation that there was a partnership, but simply says there was no mistake in the account. It pleads conclusions, and does not state the facts upon which those conclusions are based. A defendant must answer facts and leave the legal consequences of those facts to the court. 9 Gill 505, Adams vs. Whiteford. The answer is to be taken as true, on motion to dissolve, so far as it is responsive, but the averments of the bill, which are not denied, are also to be taken as true. 5 Gill 148, Alexander vs. Ghiselin. 10 G. & J. 317, Hardy vs. Summers. 7 Gill 190, Briesch vs. McCauley. 1 Bland, 352, Gibson vs. Tilton. 3 Do., 125, Salmon vs. Clagett. The allegations, therefore, that they were partners as to the mail pay, and the amount of this pay not being denied, are to be taken as true, and the injunction should not have been dissolved.

Charles H. Pitts for the appellee.

The bill states that the mistake was patent upon the face of the account. It nowhere avers that the complainants had not knowledge of the account and of the item in it complained of, but the [**4]  simple averment is, that the knowledge of this mistake was not found out until after the trial at law. Where a mistake is alleged as the foundation for an injunction, the answer denying that there is such a mistake is all that can be required of the defendant, and covers the ground upon which the equity of the bill rests. 8 G. & J. 170, Dilly, et al., vs. Barnard. There must be clear proof of the mistake. 9 Gill 420, Beard's Exc'x vs. Hubble. 7 Gill 190, Briesch vs. McCauley. 2 H. & J. 179, Contee vs. Cooke. The defendant in this item credits himself with the whole mail pay for three-fourths of a year, not with three-fourths of an aggregate sum. The case of Gott and Wilson, vs. Carr, 6 G. & J. 312, settles the general rule that equity will not relieve against a judgment at law, unless the justice of the verdict can be impeached by facts, or on grounds of which the party could not have availed himself at law, or was prevented from doing it by fraud or accident, or the act of the opposite party, unmixed with any negligence or fault on his part.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and TUCK, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*367]  LE GRAND, C. J., delivered [**5]  the opinion of this court.
We think the injunction was properly dissolved by the court below. Apart from all questions as to the sufficiency of the answer of the defendant, we are of opinion there was no case made by the bill.

 [*368]  The case made in the bill is simply this: the appellee instituted his suit at law to recover a sum of money ascertained to be due by an account settled between him and the appellants. The equity set up in behalf of the appellants is, that the account was erroneous, and that the mistake in the calculation "was not discovered during the progress of the said trial, nor until after the verdict was rendered therein, and after the time for a motion for a new trial had elapsed." The account bears date the 24th May 1841, and the suit at law was brought in the year 1846.
If there be error in the account it was apparent on its face, for the elements of which it is composed are distinctly set out on its face, and the relation of the parties perfectly well known to each other. To allow such a circumstance to set aside a judgment at law, would be to render null and void solemn adjudications on the most trivial pretexts, and that too when the party seeking to [**6]  have it done had within his reach, and in fact, in his possession, all the facts essential to put the matter fairly before the jury. Such a doctrine cannot receive the sanction of any court.
Decree affirmed with costs. 

129 of 187 DOCUMENTS 

WILLIAM C. WRIGHT vs. JAMES G. HAMNER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 370; 1854 Md. LEXIS 11 

JUNE, 1854, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

Issues were sent from the orphans court to the Superior court of Baltimore city during its September term, 1852, to try the validity of the will of Edward Wright, deceased. The cause was tried at May term, 1853, and the jury having failed to agree it was continued until May term, 1854, and the 12th day of June in that term fixed for its trial. On the 7th of June of that year, the appellee, under the act of 1854, ch. 325, filed his affidavit and suggestion for a removal, and the court thereupon ordered the cause to be removed to the circuit court of Baltimore county. From this order this appeal is taken.  

DISPOSITION:
Order affirmed with costs, and cause remanded.  

HEADNOTES:

The act of 1854, ch. 325, entitled, "An act relating to the trial of facts in the several circuit courts of this State," and providing for the removal of causes to any adjoining county, whether within the judicial circuit or not, and allowing suggestions for the removal to be made at any time after the term at which issue was joined, is constitutional, and embraces the courts of the city of Baltimore.

The clause of the 28th sec. of the 4th art. of the constitution, upon the subject of the removal of causes, was designed to secure beyond the control of the legislature the general right to parties to remove their causes, but not to prohibit the legislature from enlarging that right at any time.

Under the present constitution and laws, Baltimore county and Baltimore city are two separate and independent municipal corporations for all governmental purposes, and the former is an adjoining county to the latter.  

COUNSEL:
S. T. Wallis and Reverdy Johnson for the appellant.

The removal can only be sustained under the act of 1854, ch. 325, which modifies the 28th section of the 4th article of the constitution so as to permit the affidavit and suggestion of removal to be made after the term at which issue has been joined. The questions, therefore, are:--1st, is this act constitutional? 2nd, if constitutional, does it apply to the courts of the city of Baltimore? and 3rd, does it authorise a removal [**2]  to Baltimore county as an "adjoining county" to the city of Baltimore?

1st. The act is clearly unconstitutional unless the power to pass it be derived from the language in the section already referred to, that "such further remedy in the premises may be provided by law as the legislature shall from time to time direct and enact." The act clearly repeals the constitutional provision in the same section requiring the suggestion for removal to be made at the term at which issue is joined. Now if, under the power to provide "further remedy," the legislature can repeal one part of the constitution it can the whole. Taking the whole section together, the construction seems to be, that the legislature has the power to provide "further remedy" within the limits of the right which the constitution secures, but not beyond them; that its function is to apply the constitutional provisions by apt legislation, not to repeal them or create new ones. The cases of The State vs. Dashiell, 6 H. & J. 268, and Cromwell vs. The State, 12 G. & J. 257, interpreting similar words in the old constitution, have determined, that the words, "promote further remedy in the premises," were not meant [**3]  to authorise legislation "repugnant to the act of 1804," but only conveyed an authority to prescribe "the manner and terms" to be observed by parties availing themselves of the constitutional right. The case of Negro Jerry vs. Townshend, 2 Md. 274, by adopting the doctrines of the case of The State vs. Dashiell, justifies a reliance upon the latter case in this argument, and can hardly be held to interpret the meaning of the present constitution, in this particular, so absolutely as to preclude an argument upon it.

2nd. But the title of the act of 1854 expressly confines it to the "circuit courts," which is exclusively the designation of the county courts, by the 8th sec. of art. 4 of the constitution. The effect of the title, as an element of statutory construction, is rendered more stringent than heretofore by the constitutional provision, art. 3, sec. 17, that "every law shall embrace but one subject, and that shall be described in the title." This provision is not merely directory, but was intended to carry out an important branch of public policy, that of making all legislation honest and fair--with a palpable object and none concealed. But at all events, the effect of [**4]  the title is to show the legislative intention, and coupled with the terms of the first section, it seems to exclude the city of Baltimore from the operation of the statute altogether.

3rd. The case of The State vs. Dashiell determines expressly that Baltimore county is not an adjoining county to Baltimore city. The removal there was from the city court, a tribunal, peculiar to the city, of limited jurisdiction, having a judicial circuit of its own for criminal business, and in every point of view as separate from the rest of the county for judicial purposes, as is the Superior court now. Except that its juries were summoned by the county sheriff, it was in all particulars distinct, judicially, from the county, and even the venue of the juries was different, though the sheriff was the same. It is not perceived, therefore, why or how the same principle ruled as to the city court does not apply to the Superior court. Cases of criminal offences, often involving life, are constantly sent to Anne Arundel, Howard and Harford counties, which have been heard and tried as rightfully removed, which it is impossible they can be, if the construction on the other side, be correct. If Baltimore [**5]  county is adjoining the city, it is the only one which adjoins it, and removals to any other must be illegal and trials in any other mistrials. Geographically, the city is in contact with no county but Baltimore county. The constitution obviously meant to disregard this geographical contact, and adopt the view of the case of The State vs. Dashiell, treating counties adjoining Baltimore county as adjoining the city, for speaking of removals from Baltimore city it says, "the removal may be to an adjoining county." Had Baltimore county been contemplated, "the adjoining county," or "Baltimore county," in terms, would have been the phrase, as there would have been but one. The indication that there are several, puts Baltimore county out of the question.

William Schley and John Nelson for the appellee.

If the act of 1854, ch. 325, extends to the courts of Baltimore city; and if Baltimore county is an adjoining county to Baltimore city, and the act is constitutional, the removal was properly made.

1st. The act does extend to the courts of Baltimore city. By sec. 8, art. 4, of the constitution, the State is divided into eight judicial circuits, and Baltimore is the fifth judicial [**6]  circuit, and its courts are the courts of the fifth judicial circuit. The title of the act, in terms, applies to the courts of the fifth judicial circuit, for although not called circuit courts, the courts of Baltimore city are in fact the circuit courts of the fifth judicial circuit. The title means all the same as if it had been written, "in the courts of the several circuits of the State," instead of, the "several circuit courts of the State." Again, the direction in the constitution, that the subject of the law shall be described in the title, is merely directory to the legislature, like the similar provision in the 9th section of the 4th art., "that the judges shall be taken from among those who, having the other qualifications herein prescribed, are most distinguished for integrity, wisdom, and legal sound knowledge."

2nd. The act is constitutional. By the concluding words of the 28th section of the 4th article, if the question was res integra, power is given to the legislature, as far as the remedy is concerned, over the whole matter of removal of causes. They could not abridge the right of removal. They may enlarge the remedy already given. They may provide a further remedy [**7]  to secure a fair and impartial trial. But the very point has been decided. The language of this section is the same word for word as that in the act of 1804, ch. 55, and on this act the decisions are clear and unambiguous. Besides the cases referred to on the other side, see particularly the case of Townshend vs. Townshend, 9 Gill 506, which involves the very point in this case. Also the case of Price vs. The State, 8 Gill 295. The case of Negro Jerry vs. Townshend, 2 Md. 247, is an express decision by the present Court of Appeals, and the point is directly decided and sustained by clear and unanswerable reasons.

3rd. Baltimore county is clearly an adjoining county to the city of Baltimore. The proposition on the other side is, that the only county which adjoins the fifth judicial circuit is not an adjoining county to that circuit. Now, though for some purposes the city had separate rights anterior to the new constitution, yet, in fact, and in truth, it was a component part of Baltimore county. It was in the county under the old constitution, but under the new one it is as separate and distinct from the county, as from any other county in the State. Baltimore county [**8]  adjoins the city, it does not include it.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON MASON and TUCK, J.  

OPINIONBY:
MASON 

OPINION:

 [*374]  MASON, J., delivered the opinion of this court.
The present appeal involves the question of the legality of the removal of this cause from the Superior court of Baltimore city, to the circuit court of Baltimore county.
The removal was ordered under the act of 1854, chap. 325.
In the consideration of this appeal, three questions arise: First, is the act of 1854 constitutional? Secondly, if constitutional, does it embrace within its operation the courts of the city of Baltimore? And, Thirdly, if the first two propositions be correct, is Baltimore county an adjoining county to Baltimore city?
We think the first point has been settled by the case of Negro Jerry vs. Townshend 2 Md. 274. The clause of the new constitution upon this subject, is substantially, if not literally the same with the old, which we have construed in 

 [*375]  that case. We are of the opinion that the clause in the constitution upon the subject of the removal of causes was designed to secure to parties, beyond the control of the legislature,  [**9]  the general right to remove their causes under certain specified circumstances, but it was not the design of the constitution to prohibit the legislature from enlarging the right at any time. We regard the act of 1854, chap. 325, as but the legitimate exercise of that power.  Townshend vs. Townshend, 9 Gill 506.
In the second place we must inquire whether this act embraces the courts of the city of Baltimore. We think it does. It has been urged, that by the new constitution the subject of a law must be indicated by its title, and as this act provides for the trial of facts in the several circuit courts of the State, the Superior court of Baltimore cannot be embraced within its operation. The Superior court is certainly one of the courts of one of the judicial circuits of the State: Baltimore city being by the 8th section of the 4th article of the constitution made the fifth judicial circuit: Therefore, the Superior court being a court of one of the judicial circuits of the State, may be regarded in the ordinary interpretation of language, as one of the circuit courts, within the meaning of the title of the law. The Superior court would be clearly embraced [**10]  by the general language employed in the body of the law, and there being no direct repugnancy with the terms of the title, we must regard this court as within the operation of the act. This view seems to accord with good sense and reason.
Is Baltimore county, an adjoining county to Baltimore city? is the remaining question to be settled.
The whole theory of the present constitution and laws of this State, appear to be based upon the idea, that Baltimore county and city are two separate and independent municipal corporations for all government purposes. By the 28th sec. of the 4th article, the constitution expressly confers the power to remove a cause from the city to an adjoining county. And by the 8th sec. of the same article, the separate and independent existence of the county is as clearly recognized. In fact, throughout the whole instrument, these two municipalities 

 [*376]  are treated as separate, independent and distinct integral parts of the whole State. Though one is a city and the other a county, yet their relative position to the State seems to be the same, and the geographical lines that separate them from each other are clearly defined. At one time [**11]  the city was, for many purposes of its government, a part of the county. Such was its condition when the decision in the case of The State vs. Dashiell, 6 H. & J. 268, was made. This state of things has now been totally changed, and the reasons assigned by the court in the case of Dashiell vs. The State, why a removal from the city to the county, would not gratify the constitution, can have no application whatever to a removal at the present time, because the government of the two are now in all respects different and independent.
In order that the order of the Superior court removing this cause may be consummated, we affirm the same and remand the cause.
Order affirmed with costs, and cause remanded. 

130 of 187 DOCUMENTS 

JOSEPH C. YATES vs. SAMUEL C. DONALDSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 389; 1854 Md. LEXIS 13 

JUNE, 1854, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

Assumpsit by the appellant against the appellee and one Garland, to recover the balance due for the "Western Continent," a newspaper sold by plaintiff to defendants. Plea non assumpsit.

Exception. The proof shows that Garland, intending to be owner of two-thirds, and Donaldson of the other third of said paper, and Yates knowing the proportions in which they intended respectively to own it, the following agreement, in writing, dated the 23rd of June 1848, and signed by Garland and Donaldson, was entered into between the parties:

"We agree to purchase from Mr. J. C. Yates the 'Western Continent' as it stands, with subscription list, &c., for the sum of seventeen hundred dollars, payable one-half in a satisfactory note at six months from 1st July; four hundred and twenty-six dollars in nine months from this date; and the balance in twelve months from same date: all bearing interest from 1st July."

Afterwards, in December 1848, Garland and Donaldson made an arrangement to give separate notes each, for his share of the purchase, to which Yates agreed, "Provided the notes were endorsed to his satisfaction." With this agreement [**2]  Donaldson complied, and the notes given by him for his third were duly paid at maturity; but Garland says he never complied with his part.

Yates several times called upon Garland for satisfactory notes for his two-thirds of the purchase money, and in December 1848, the latter gave Yates a note of one Bailey for $ 441.21, which was paid at maturity. In January 1849, one Homans purchased from Garland one-half of his interest in the paper for $ 1000, and gave him several notes therefor; two of which, one for $ 300.52, and the other for $ 296.26, were, in Homan's presence delivered to Yates, on account of what was still due for Garland's two thirds. Homans says that Yates expressed himself satisfied, and accepted the notes; but Garland says Yates took them, with his endorsement, as an accommodation to him, advising him that he did not think they would be paid, and to get himself secured. These notes were never paid, and constitute the balance for which the suit was brought. All the negotiations for the sale to Homans were carried on between Homans and Garland, exclusively, as to amounts and time; and between those two and Yates, exclusively, as to the acceptability of Homan's proffered [**3]  notes: Donaldson not being consulted in reference thereto. Garland says there was no understanding between Yates and himself, at the time the separate notes were taken, or at any other time, by which the former stipulated to divide the responsibility of the parties, and forego his remedy against either, for the amount of the notes given by the other, in case they should not be paid; but Homan says he was led to believe that Yates considered Garland alone liable for his two-thirds of the purchase. Upon this proof the plaintiff asked instructions, in substance as follows:

1st. That he was entitled to recover from Donaldson the amount of purchase money due under the original agreement, and then unpaid, unless the jury should believe that the notes were received under an express agreement to receive them as absolute payment to the amount thereof, and run the risk of their being paid.

2nd. Or unless they should believe that the giving and taking of the notes, was intended by and between the parties as an abandonment by Yates of his original claim against the defendants jointly.

3rd. That whether the notes were accepted by Yates as satisfactory was a question for the jury.  [**4]  

4th. That whether the parties, by the transaction in reference to the notes, intended, as between themselves, an extinguishment of the joint liability and an acceptance in its stead of a separate liability, according to the tenor of the notes, was a question for the jury.

5th. Even if the notes were accepted as satisfactory by the plaintiff, the acceptance of them did not extinguish the joint liability of the defendants, unless they were accepted under an agreement to receive them as absolute payment and run the risk of their being paid, or unless the giving and taking was intended, by and between the parties, as an abandonment by Yates of his original claim against the defendants jointly and a severance of their joint liability.

6th. If the giving and taking of the notes was merely an arrangement between the parties, made for the accommodation and at the request of the defendants, in order to facilitate the adjustment of their respective interests in the property, without its being intended, by either plaintiff or defendants, that the joint liability of the latter to the plaintiff under the original agreement should be altered thereby, or his ultimate remedy against [**5]  them jointly be thereby affected, then such giving and taking of the said notes did not, nor did the payment of such of them as had been paid, preclude the plaintiff from recovering from the defendants in this action such part of the purchase money as was still due and unpaid.

7th. That the knowledge by the plaintiff of the unequal interests of the defendants in the property, and the giving and taking of the notes, were not, of themselves, either separately or together, conclusive in law as to the abandonment or loss by the plaintiff of his right against the defendants jointly, but that it was for the jury to judge whether it was intended by and between the parties to alter their rights under the original contract, or sever the liability of the defendants.

The defendant then asked the following instructions:

1st. If Garland and Donaldson owned, with the knowledge of the plaintiff, different interests in the property, and made an arrangement among themselves to give the plaintiff separate notes, each for his share of the purchase money, and the plaintiff, in pursuance of said arrangement, accepted from Donaldson three notes for one-third of the purchase money, such being [**6]  his share according to said arrangement, and the said notes were paid at maturity, Donaldson was discharged from all liability on account of the purchase money due for the other two-thirds.

2nd. If the plaintiff, after agreeing to the said arrangement, called on Garland for endorsed notes for his proportion of the purchase money, and subsequently accepted from him Bailey's note, which was paid, and, in January 1849, Homans agreed to purchase the half of Garland's interest for $ 1000, and the plaintiff agreed with Garland to take Homans' notes for the amount still due for Garland's two-thirds, provided they were satisfactory to him, (the plaintiff,) and did actually accept them, then Donaldsonh as been discharged from all liability on account of the purchase money due for said two-thirds interest.

3rd. If there was an arrangement, either express or implied, between the plaintiff and Donaldson, subsequent to the execution of the original agreement, that Donaldson should give satisfactory notes for one-third of the purchase money, on the payment of which he was to be discharged from all liability for any other part of said purchase money, and the said notes were given and accepted [**7]  for the said amount and paid at maturity, the plaintiff was not entitled to recover against Donaldson.

The court, (FRICK, J.,) rejected all the prayers of the plaintiff and granted all those of the defendant. To this ruling the plaintiff excepted. Judgment was confessed by Garland, and the verdict and judgment being in favor of Donaldson, the plaintiff appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

Where two are by agreement jointly bound for a debt contracted for the purchase of property, which as between themselves they were to own in different proportions, if either pays the whole or more than his share, he can recover the excess from the other, and his right of action accrues on the expiration of the time at which the creditor could have sued upon the agreement.

The acceptance of a security or an undertaking of an equal degree does not extinguish the former debt, unless it be received in satisfaction, or be intended as an abandonment of the remedy on the first contract, and these are questions for the jury.

The acceptance of promissory notes suspends the remedy on the first contract until the notes mature.

Giving time to a principal will discharge the surety, but where two are jointly bound as principals, it cannot be shown, at law, when both are sued, that one is surety for the other, and giving time to the one does not discharge the other.

Where two are jointly bound as principals, if one be released both will be, except in a case where the remedy against the other is expressly reserved.

It is no defence to an action against one of two makers of a promissory note, that he made it as surety for another, and for his accommodation, which fact was known at the time to the payee, the plaintiff; and that after it became due, the plaintiff gave time to the other maker without defendant's consent.

The payee of a joint and several promissory note made by two can be placed in a situation for treating one as surety for the other, only by his express assent to do so when the note was delivered to him.

The maker of an accommodation note is liable to the holder, though the latter knew at the time the note was made that it was for the accommodation of the endorser, and giving time to the endorser will not discharge the maker.

There is no difference between accommodation notes and those negotiable for value; the court will look to the relation that the parties bear to each other on the instrument, and determine their legal liability accordingly.

Where a party does not appear upon the instrument as surety, he cannot, at law, avail himself of the equities between himself and the other parties to the instrument, unless he be accepted by the creditor as surety, or has been discharged from the first contract by agreement of the creditor.

If a creditor assents to an arrangement between his two joint debtors to give two separate notes for their respective shares of the joint debt, provided the notes were satisfactory to him, and one of the debtors complies with this arrangement, and the creditor accepts notes from the other as performance of his part, it amounts to a discharge of the debtors from the first contract.  

COUNSEL:
F. K. Howard and S. T. Wallis for the appellant, argued the following points:

1st. Though the appellant knew that Garland and Donaldson intended to own the paper in different proportions as between themselves, yet they nevertheless purchased it from him, and by their agreement bound themselves jointly, and without regard to such proportions, for the whole purchase money, and the subsequent giving and taking of notes was not, under the circumstances, a payment pro tanto of such joint liability, unless there was an express agreement to receive them as payment. The court therefore erred in refusing the appellant's first, and granting the appellee's first and second prayers. 2 G. & J. 509, Glenn vs. Smith. 8 Gill 177, Md. and N. Y. Coal and Iron Co., vs. Wingert.  [**8]  1 Md. 514, Hunter vs. Van Bomhorst.

2nd. The transaction in reference to the notes did not operate as a severance or extinguishment of the joint liability assumed by the original agreement, unless it was agreed or intended by the parties that it should so operate, and whether there was such an agreement or intention was a question of fact for the jury, as was also the question whether the notes were satisfactory to the plaintiff. The court therefore erred in refusing the appellant's second, third, fourth, fifth and seventh prayers. Collyer on Part., secs. 487, 559, 560, 563, 569. Story on Part., sec. 158. Abbott on Shipping, 116. 5 Whart., 538, Estate of Davis and Desauque. 4 Watts & Seargt., 100, Mason vs. Wickersham. 4 Metcalf, 25, Wildes vs. Fessenden. 6 G. & J. 71, Crawford vs. Berry.

3rd. The court erred in refusing the appellant's sixth prayer, thereby treating an arrangement made at the request and merely for the accommodation of the defendants as an extinguishment of their joint liability, although they and the plaintiff both intended that it should not produce that effect.

4th. Even if the plaintiff agreed to take from Donaldson notes for less than the [**9]  whole amount of his liability in satisfaction thereof, it was an agreement without consideration, and not binding on the plaintiff. The court therefore erred in granting the appellee's third prayer. 4 G. & J. 305, Geiser vs. Kershner. 30 Maine Rep., 413, Chase vs. Vaughn.

Thomas Donaldson for the appellee.

The question is not whether the receipt of the notes was an absolute satisfaction of the pre-existing debt without an express agreement to that effect, but whether, where two joint debtors agree each to pay his separate portion of the debt, and this arrangement is assented to by the creditor, provided notes with satisfactory endorsements are given by each debtor respectively, and the creditor accepts notes from one for his portion of the debt, which are duly paid, such debtor is discharged from all liability for the portion due by the other? As to the general principle, as to what kind of agreement will sever a joint liability, see Story on Part., sec. 158. There need not be an express agreement; it may be implied, and the subsequent conduct of the party who knows of the agreement is sufficient; so is a prolonged credit. See 5 Barn. & Adol., 927, Thompson vs. Percival.  [**10]  4 Esp., 89, Evans vs. Drummond. 5 Esp., 122, Reed vs. White. Collyer on Part., secs. 559, 560. 2 Mees. & Wels., 484, Hart vs. Alexander. If a party deals separately with one of two jointly bound, he puts them upon the footing of principal and surety. 4 Wash. C. C. Rep., 98, Harris vs. Lindsay. 10 Bligh. N. S., 550, Oakeley vs. Pasheller. Where parties agree to give notes and do not comply, they cannot be sued on the original debt until the time of the notes has run out, but may be sued immediately for a breach of this special contract. 21 Wend., 90, Hanna vs. Mills. Ibid., 175, Yale vs. Coddington. The only possible meaning of the arrangement for giving separate endorsed notes, each for his portion of the purchase money, was to separate the liability of the parties; if their liability remained unchanged the arrangement was a nullity, without any purpose or effect so far as it regards the joint debtors. By agreeing to take separate notes, Yates elected to consider Garland and Donaldson in the relation in which they stood as between themselves, that is as sureties for each other, and consequently, by receiving from Garland the notes of Bailey and Homans, he released Donaldson from all [**11]  liability on account of Garland's portion of the debt.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and TUCK, J.  

OPINIONBY:
TUCK 

OPINION:

 [*396]  TUCK, J., delivered the opinion of this court.
By the agreement of 23rd June 1848, the appellee and Garland became indebted to the appellant. As between them Garland owned two-thirds of the property, and Donaldson one-third; and this was known to the appellant at the time. If either had paid the whole or more than his proportion he would have been entitled to recover from the other for such excess, Owens vs. Collinson, 3 G. & J. 25; and his right of action would have accrued on the expiration of the time at which Yates himself, could have sued upon the agreement.
It appears that before the expiration of that time, and before compliance with the agreement, by the delivery to Yates of notes for the amounts, and at the times stipulated, the purchasers made an arrangement between themselves to give separate notes for their respective interests, to which Yates assented, provided they were endorsed to his satisfaction. With this agreement the appellee complied, but it does not clearly appear whether Garland did or [**12]  not. He says that he did not; but Homans states that two of his notes, (for the amount due by Garland,) were endorsed and delivered to Yates; that he expressed himself satisfied and accepted them. Garland also states that the negotiation for the sale to Homans was carried on between them alone; and between Yates, Garland and Homans, as to the acceptability of Homans' notes, which Yates had agreed to take from Garland if they were satisfactory to him. The principle is well settled, that the acceptance of a security or undertaking of equal degree does not extinguish the former debt, unless it be received in satisfaction, or be intended as an abandonment of the remedy on the first contract. It is equally clear that these are questions for the jury. Such an arrangement, however, suspends the remedy on the first contract until the notes mature.  Glenn vs. Smith, 2 G. & J. 493. Hunter vs. Van Bomhorst, 1 Md. 504. It follows, from this state of the law, that the prayers offered by the appellant should have been granted, except the sixth, unless there be something in the case overlooked in framing the prayers, to the benefit of which the appellee [**13]  was 

 [*397]  entitled in submitting the law of the case to the jury. And as to the sixth the instruction would also have been proper, if it had not submitted to the jury, the finding of a fact of which there was no evidence whatever, to wit, that the acceptance by Yates of Homans' notes was at the request, and for the accommodation of both the parties, Garland and Donaldson.
It is contended, however, on the part of the appellee, that the knowledge by Yates at the time of the purchase, that the purchasers held separate interests, and his afterwards dealing with them separately, for the security of their respective proportions of the debt, and accepting Homans' notes, in the manner stated in the evidence, without the knowledge of the defendant, by which time was given to Garland, have discharged the appellee from all liability on the original contract. If Donaldson had been merely surety for Garland this view of the case would be certainly correct; for time given to a principal will discharge the surety, because it places him in a new situation in reference to the principal debtor. But here both parties are principals according to the agreement, and how can it appear that a party [**14]  to a joint contract is a surety for part of the debt, except by going out of the instrument? Can this be done at law where both are sued? If one be released both will be, except in a case where the remedy against the other is expressly reserved, as in Clagett vs. Salmon, 5 Gill & Johns. 314, and the cases there cited. Where the act of the creditor operates a release of the surety, there can be no difficulty in enforcing this principle. The remedy is gone entirely. But in a case where both are principals, how are the equities between them to be adjusted in a suit at law by the creditor against both? If time given to one released the other, the discharge would avail only to the extent of that portion of the debt which was due by the party to whom time has been given. The party not indulged would, at any rate, be liable for his own proportion of the debt. Supposing that this might be easily worked out to its proper result in a case like this, where one party is liable for one-third, and the other 

 [*398]  for two-thirds, and the verdict is to be rendered against one only, because the other has confessed a judgment, the difficulty of doing complete justice among [**15]  all the parties, is apparent in a case where there are several parties to the contract, who are defendants in the cause, liable in different proportions as among themselves, though all responsible to the creditor in the first instance. It would be impossible to render a judgment upon any adjustment of these equities. The judgment at law must be for the same amount against all the defendants. It is not a sufficient answer to say that the appellee paid his share, and that therefore this difficulty could not arise. We are dealing with a principle, upon which, the party, if discharged at all, was exonerated at the moment the indulgence was given by the arrangement with Garland as to Homans' notes. At which time the appellee's part had not been paid, because the notes passed for his share did not per se extinguish his liability.
We have not been referred to any case at law, in which such a defence has availed, while there are some to the contrary. In Bedford vs. Deakin, 2 Barn. & Ald. 210, one of the members of a dissolved firm undertook to pay the joint debts, and this was made known to a creditor who received his notes for the amount of the joint indebtedness,  [**16]  which notes were subsequently renewed, and not paid, the original partners were held liable on the joint note. It is true that the creditor reserved his remedy on the first note and retained possession of it, and sued on it; but all this was unknown to the other partner. The creditor had given time, without his assent to the settling partner, and he had failed after being so indulged. The judges, Abbott, Bayley and Holroyd, agreed that the first debt was not extinguished. They notice the very argument employed in this case, the injury to the appellee by preventing his recourse on the agreement if he had paid the debt, by saying that as joint debtor, it was his duty to have seen the debt was paid; and the last judge says: "The dishonor of the bill gave a right of action against all the partners, and the circumstance of a creditor 

 [*399]  giving time to one of three joint debtors will not discharge the others, nor even suspend his right of action against them." In Manley vs. Boycot, 18 Eng. Law & Eq. 357, the defendant, who was one of the makers of a promissory note, to an action against him by the payee, pleaded that he made the note as surety for another and [**17]  for his accommodation, which was known at the time to the payee, and that after the note had become due the plaintiff gave time to the other maker, without the consent of the defendant. It was held, that this was no defence to the action. Lord Campbell said, "that the plea was bad in not alleging that the note was delivered by the defendant as surety for the other party. The bona fide holder of a bill or note cannot be prejudiced in the rights which he prima facie has, according to the terms of the instrument, by knowledge subsequently acquired, or even by knowledge which he has at the time he takes it, if there is no evidence of a special agreement at the time when he takes it to affect the rights and liabilities of the parties. If the payee of a joint and several promissory note made in the common form by two, may be placed in a situation for treating one as surety for the other, it can only be by his express assent to do so when the note was delivered to him." The case of Smith vs. James, same vol. 353, note, is likewise in point. Perfect vs. Musgrave, 6 Price 111.  Sprigg vs. Bank of Mount Pleasant, 10 Peters 257. See also Rees vs.  [**18]   Berrington, 2 Ves., Jr. 542, and in 2 White & Tudor's Eq. Cases, 707, (72 Law Lib. 352,) and Forsyth on Composition with Creditors, ch. 8, in 1 Lib. Law & Eq. 34, in both of which the subject is fully treated.
The same principle has been often applied in the instance of accommodation notes, where the endorser is the real debtor, as between him and the maker. Although releasing the endorser does not discharge the maker, for the reason that the latter can have no claim against the former, if he should pay the debt, it being his own, yet equities between them will not vary the legal principle, and affect the operation of the instrument, where the party seeking to shield himself, as 

 [*400]  surety, appears to be a principal. He will not be allowed to deny the character in which he appears on the paper. In Carstairs vs. Rolleston, 5 Taunt. 551, which was an action by the assignees of Kensington & Co. upon a promissory note, of which they were endorsers, and the defendants the makers; the latter pleaded that they made the note as sureties for one Rolleston and not on their own account, and that K. & Co. had since released R. from all their [**19]  claims against him. Rolleston was an endorser; but the court held the release to him was no ground of defence, the defendant being the maker. This, however, was a case in which the state of the business, as between the maker and endorser, was unknown to the holder of the note, and the court reserved its opinion in such a case. But in Fentum vs. Pocock, 5 Taunt. 192, the same point was ruled without reference to knowledge on the part of the holder. Mansfield, C. J., alluding to the judgment of Lord Ellenborough, in Laxton vs. Peat, 2 Camp. 185, says: "We think we are bound to differ from him, and to hold that it is impossible for us to consider the acceptor of an accommodation bill in the light of a surety for the payment by the drawer, and that we cannot, therefore, say that he is discharged by the indulgence shown to the drawer. If the holder had known, in the clearest manner, at the time of his taking the bill that it was merely an accommodation bill, it would make no manner of difference, for he who accepts a bill, whether for value or to serve a friend, makes himself in all events liable as acceptor, and nothing can discharge him but payment [**20]  or release." And Lord Tenterden, in Yallop vs. Ebers, 1 Barn. & Adol. 698, said: "Laxton vs. Peat, where it was held that an accommodation acceptor might be considered as a surety, has been long overruled." This question came before the Court of Appeals in Clopper vs. Union Bank, 7 H. & J. 92, and the maker of the note was held liable to the bank which discounted it, with knowledge that it was for the accommodation of the endorser, even after the bank had given time to the endorser. In every bill of exchange the acceptor, and in every promissory note the maker, is, in law, the principal, and is first liable, and every endorser 

 [*401]  in the order in which his name appears on the bill or note. There is no difference between accommodation notes and those negotiated for value. The court will look to the relation that parties bear to each other on the instrument itself, and determine their liabilities accordingly.
The cases cited on the part of the appellee show, that there must be an agreement to discharge or something that amounts to an abandonment of the remedy on the first contract, and that this must be left to the jury, except in those cases [**21]  where the nature of the evidence is such that the court must pass upon its construction and effect. In Harris vs. Lindsay, 4 Wash. C. C. 271, the court said, if it be agreed on dissolution, that one member shall pay the debts, they are yet bound as principals, so that no indulgence granted by a creditor to the paying partner, which falls short of an agreement, express or implied, to take him as the debtor and to discharge the other, can place them in the situation of principal and surety so as to discharge the retiring partner. To support a defence of this kind, such an agreement must be satisfactorily made out. (See also page 98.) The retiring partner in that case was discharged, because, in the opinion of the court, "the new contract amounted to an agreement to discharge Lindsay, and the intention of the parties formed no part of the question which the jury had to decide. There were no circumstances in the case other than such as grew out of written documents, the construction and legal effect of which were proper for the consideration and decision of the court." But it was also held, that if the agreement be a mere inference from circumstances tending to show [**22]  that such was the intention of the parties, the jury were the proper judges of such intention. In this case the evidence, as is insisted, was taken in writing, as by a commission, but that is not such as Judge Washington meant when he spoke of documentary proof.
The present case, however, is not as favorable to the appellee, as far as concerns the propriety of the proposed defence, as those to which we have referred. Here the defendant does not pretend that he was surety for the whole debt; his original liability for one-third is admitted. And hence, the greater 

 [*402]  difficulty of allowing such defences, at law, than where the party claims that he was mere surety for the whole, and that he has been altogether released by the acts of the creditor. If the law be correctly stated in the cases cited, it will apply more strongly and with greater reason to the one under consideration, where the party insisting on the benefit of this equity was at any rate liable for a part of the debts.
Upon a careful consideration of the record and of numerous decisions, we are of opinion that the appellee was not discharged at law; the principle deducible from the cases being, as we think, that [**23]  where the party does not appear on the instrument to have made himself liable as surety, he cannot, at law, avail himself of the equities between himself and the other parties to the instrument, unless he was accepted by the creditor as a surety, or has been discharged by the acts of the creditor, according to the principles recognized in Glenn vs. Smith, 2 G. & J. 493.
The first of the appellee's prayers assumes that he was discharged by Yates having taken the notes of Donaldson for one-third of the original purchase money, without reference to the question of agreement to take them in satisfaction of his liability on the contract, or of intention to release him. As the case is presented on that prayer, these notes when paid amounted only to a part payment of the original debt. The second, we think, should also have been refused. If the plaintiff agreed with Garland to take Homan's notes in satisfaction of the amount then due by Garland, provided they were satisfactory to him, and did actually accept them, in performance of that agreement, the appellee was discharged; and had the jury been left to find that the plaintiff assented to the arrangement on that [**24]  condition, that Donaldson complied on his part, and that Yates accepted Homan's notes, as performance on Garland's part, the prayer would have been proper. The arrangement, if complied with, would according to Judge Washington, have amounted to an agreement to discharge the parties from the first contract. But this prayer omits a fact material to be found, viz: the acceptance by Yates of Homan's notes, in performance of Garland's part of this new arrangement.

 [*403]  The third prayer of the appellee was also erroneous. It assumed the defendant's right to a verdict on the delivery by him to Yates of notes for his third of the purchase money, under an agreement supposed in the prayer, which the jury were left at liberty to have implied from the proof adduced, when, as we think, it was not competent for them to have found any such agreement by implication, even conceding that there was no necessity for an express agreement, in order to discharge the party.
In the case of Oakeley vs. Pasheller, 10 Bligh. 548, (relied upon by the counsel for the appellee) before the House of Lords, on appeal from the lord chancellor, it was held that by arrangements between [**25]  the surviving partners and the representatives of a deceased partner, the former had assumed a joint debt, and the latter had become sureties only, and that the extension of time granted this new firm, without the knowledge and assent of the representatives of the deceased partner, had discharged the latter; the creditor knowing that these arrangements had been made. We do not question this doctrine as between creditor and surety debtor, where that relation exists. That is the principle in Harris vs. Lindsay. In equity the court decides both the law and the fact; but, in cases like this, whether the relation of the parties is changed or not, depends on intention, and at law, that must be submitted to the jury. If we were sitting in equity, that case might be entitled to great weight, being an opinion of Lord Lyndhurst, affirming the master of the rolls, and the lord chancellor. We think, however, it does not contravene what we suppose to be the principles governing courts of law. Upon the remedies in equity in such cases, we express no opinion.
Judgment reversed and procedendo awarded. 

131 of 187 DOCUMENTS 

AMOS A. WILLIAMS vs. NATHANIEL WILLIAMS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 467; 1854 Md. LEXIS 19 

JUNE, 1854, Decided 

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

This appeal is taken from an order of the court below dismissing the petition of the appellant. The facts of the case, as disclosed by the record, are sufficiently stated in the opinion of this court.  

DISPOSITION:
Order reversed and cause remanded.  

HEADNOTES:

Where there are two administrations upon an estate, that which is foreign to the state of the domicil is usually ancillary, and as a general rule the assets within such jurisdiction will be transferred to the place of domicil.

But this rule is not absolute or inflexible; the transfer will or will not be made as the court may deem proper in the exercise of a sound judicial discretion according to the circumstances of the case.

The general rule should prevail, unless to obey it would work injustice or injury to parties having such an interest in the estate as will entitle them to object to its observance.

Where one of two executors applies for a transfer of such portion of the assets as will be sufficient to pay the legatees residing in the State of the domicil, and the necessary costs attendant upon the administration in that State, and there is nothing to show that any of the legatees assent or object, the general rule will prevail.

What may be the necessary expenses attendant upon the administration of the State of the domicil is a proper subject of adjudication by the courts of that State, and will be left to their decision.  

COUNSEL:
Thomas S. Alexander for the appellant, made the following points:

1st. That upon general principles the administration in Massachusetts is principal, and the administration in this State ancillary thereto. An account is to be passed of the assets realized here, but the residuum of the estate must be distributed by a final account to be passed before the Massachusetts' court.

2nd. That no circumstance is shown to induce the court to depart from the general rule of remitting the assets to the place of the principal administration. But if it is deemed fit to make distribution so far as to provide for the security of the representatives living here, there ought to be retained out of the assets a sum sufficient to defray the expenses already incurred by the appellant, and those which must be incurred by the executors in closing their accounts in Massachusetts. In support of his views the [**2]  appellant deems it sufficient to refer to 4 Md. 1, Cassilly vs. Meyer.

George H. Williams for the appellee.

It is submitted in this case, that the record of Martha Weld's estate, which should have been fully sent up to the appellate tribunal, will show that her entire estate, except a small fraction not worth estimating for the purposes of this argument, was in Maryland. That she devised her estate to twenty-four nephews and nieces, twenty of whom were citizens of Maryland, and the remaining four were represented before the orphans court of Baltimore city, and who were adverse to the course indicated by the appellant as to the settlement of the estate. The assets being in Maryland then, and the devisees citizens of that State, the courts of this State, to avoid a circuity and to protect our citizens, ought and will have a final distribution here of all the funds received and collected here under the authority of letters granted in this State, (Story's Conflict of Laws, sec. 513;) and that they will not detain assets here for remission elsewhere to pay expenses expressly disallowed by our testamentary system. Act 1798, ch. 101, sub-ch. 10, sec. 2.

The exhibits with [**3]  appellee's answer show, that the final settlement, in Baltimore, would be perfectly satisfactory to the court in Massachusetts, and that a copy of the final account here, under seal, showing distribution to the legatees would have discharged appellant's official bond there, and therefore no future expenses could be incurred by him.

The conduct of appellant then is unreasonable and vexatious. No evidence is given in support of any of the allegations of the petition, and the case being set down for hearing on petition and answer, the answer and its exhibits must be taken as true, and as if fully proved.

Assuming the necessity for a settlement in Boston to be as appellant states, yet no nation is under any obligation to enforce foreign laws prejudicial to the rights of its own citizens. Story's Conflict of Laws, sec. 512. An ancillary administration is not invariably and under all circumstances subordinate, but only generally subordinate. Vide same Book, sec. 518, (a.) 

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON, MASON and TUCK, J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*469]  ECCLESTON, J., delivered the opinion of this court.
The parties in this case are the surviving executors [**4]  of Martha Weld, who died leaving personal estate in Maryland and in Massachusetts, her domicil at that time being in the latter State, and letters testamentary having since been granted in both States. The residuum of the estate is given to twenty-four legatees, twenty of whom reside in Maryland and the other four in Massachusetts. The appellee, as one of the executors, being about to pass a final account in the orphans court of the city of Baltimore, the appellant filed a petition, suggesting that in relation to the Massachusetts' administration he had incurred expenses amounting to about $ 50, for which he can obtain allowance in the Massachusetts' court, but which, according to the law and practice here, are not proper to be allowed in the account about to be passed. That it will be necessary to pass a final account before the Massachusetts' court, which will be attended with costs and charges proper to be defrayed out of the assets about to be accounted for. And he prays that, out of these assets, the executors may be directed to retain the sum of $ 250, to pay the costs of administration incurred, and to be incurred, in Massachusetts, and of passing a final account there; and [**5]  also to retain, out of the residue, a sum sufficient to satisfy the claims of the four residuary legatees residing in Massachusetts, and to be accounted for before the probate court of that State.
The appellee having filed an answer objecting to this application, the orphans court passed an order dismissing the petition. From this order the appeal is taken.

 [*470]  When there are two administrations upon one estate, that which is foreign to the state of the domicil is usually called ancillary or auxiliary, and as a general rule the assets within such jurisdiction will be transferred to the place of the domicil: but this rule is not absolute or inflexible; on the contrary, the transfer will or will not be made as the court may deem proper, in the exercise of a sound judicial discretion, according to the circumstances of the case. The general rule however should prevail, unless to obey it would work injustice or injury to parties having such an interest in the estate as will entitle them to object to its observance.
The present application is not to transfer the whole residuum of the assets, but such portion as will be sufficient to pay the shares belonging to the Massachusetts'  [**6]  legatees, and what are alleged to be necessary costs and expenses in relation to the Massachusetts' administration.
There is nothing in the record--to which alone we can look--showing whether the legatees, or any of them, either object or assent to the prayer of the petition. Nor does it appear whether both or either of the executors are legatees. The executor who makes the objection can no more be said to represent the legatees than the other, who filed the petition. In such a case we do not perceive any special circumstances which should prevent the application of the general rule, for remitting or transferring assets from the auxiliary administration to that of the domicil. And consequently we think the prayer of the petition should have been granted.
The copy of an administration account, passed in Massachusetts, which is filed as an exhibit with the answer of the appellee, shows that he, in conjunction with the executor, now deceased, on a former occasion, even in opposition to the objection of the appellant at that time, accounted for Maryland assets before the Massachusetts' court.
We do not wish to be considered as expressing an opinion in regard to the correctness of [**7]  the petitioner's claim for expenses, deeming that a proper subject for adjudication by the court in Massachusetts. And as due respect for a court 

 [*471]  of our sister State requires us to believe the rights of all parties will be properly guarded by that tribunal, there can be no just reason for refusing to remit to their jurisdiction such a portion of the assets as will be sufficient to meet any contingency which may result from the decision of that court.
The record is defective in several particulars, and partly on this account we decline expressing an opinion in regard to the claim for expenses, leaving it to be settled in Massachusetts, where it would seem to be proper to have it adjudicated, as the expenses relate to that administration.
Order reversed and cause remanded. 

132 of 187 DOCUMENTS 

THOMAS S. ALEXANDER vs. SARAH M. WORTHINGTON and WILLIAM WORTHINGTON, an infant, by his next friend.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 471; 1854 Md. LEXIS 20 

JUNE, 1854, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Baltimore city.

This appeal was taken from an order of the court below granting an injunction upon a bill filed by the appellees against the appellant and others, represented to be the heirs at law of Michael B. Carroll, deceased. The allegations of the bill and all the facts of the case are fully stated in the opinion of this court.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

Under the act of 1835, ch. 380, any one defendant may, after filing his answer, appeal from an order granting an injunction without waiting for the answers of his co-defendants; and on such appeal this court is confined to the case made by the bill, and does not examine the answer.

The act of 1849, ch. 229, leaves the case of a will made by a testator who had died prior to its passage to be governed by the ancient law.

It subjects to the operation of the new rule a will made by a testator dying after its passage and before the 1st of June 1850, only when he has expressed the intent that the will shall pass all the estate which he might have at the time of his death.

It applies the new rule to every case of a will made perfect by the dying of the testator after the 1st of June 1850, unless a contrary intent shall appear; and the class of wills made after its passage by testators dying before the 1st of June 1850 are embraced within the equity of its second section.

The case of Magruder and Tuck, vs. Carroll, et al., 4 Md. 335, only decides that the first section of the act of 1849, ch. 229, governs the case of a will of a testator dying after the 1st of June 1850, although it may have been made prior to that day, and that case is affirmed and approved.

The language of a statute is its most natural expositor, and where the language is susceptible of a sensible interpretation, it is not to be controlled by any extraneous considerations.

The construction is to be on the entire statute, and where one part is susceptible of two constructions and the language of another part is clear and definite, and is consistent with one of such constructions and opposed to the other, that construction which will render all clauses of the statute harmonious must be adopted.

Where the letter of a statute is inconsistent with itself, an intent may be gathered by considering the mischief and the remedy proposed to be introduced, but what the mischief and remedy are must be collected from the statute itself.

The courts cannot imagine an intent and bind the letter of the act to it, nor indulge in the license of striking out and inserting and remodeling with the view of making the letter express an intent which the statute in its original form does not evidence.

Every construction is vicious which requires great changes in the letter of the statute, and of several constructions that is to be preferred which introduces the most general and uniform remedy.

All that is necessary in this State to render the decision of the Court of Appeals authoritative on any point decided, is to show that there was an application of the judicial mind to the precise question adjudged.

But general views expressed by the court as illustrative of, but not necessarily leading to, the opinion on the point intended to be decided, are not to be treated as conclusive when similar topics come up directly for judgment.

Lands descended are first applicable in payment of debts in relief of personal estate specifically bequeathed.

The specific legatee of a chattel of peculiar value, as a household slave, has an equity to restrain the executor, who is also the heir at law, from applying that chattel to the payment of debts for the purpose of protecting his inheritance, the creditors being passive and content to take payment out of either fund.  

COUNSEL:
Thos. S. Alexander for the appellant.

The act of 1835, ch. 380, enables any one defendant, on filing his answer, to appeal from an order granting an injunction. 7 Gill 109, Barnes vs. Dodge. The appellant has filed his answer, which is unexceptionable. His appeal is therefore rightly taken.

If we refer to the answer it will appear, that a due regard for his own safety has compelled the appellant to exercise his right of appeal. The heirs at law of Carroll have filed their bill against him in the circuit court of the United States, to compel him to convey the land in question to them. And since the filing of the answer, an injunction has been issued at their instance, to restrain him from making a conveyance to the appellees, who claim under the devise to Mrs. Carroll. Now the appellant [**2]  is a mere trustee of the legal title for the true representatives of Carroll's interest in the land. And the utmost that ought to be asked of him, is, that he shall preserve the legal title for the rightful owners, when they shall have been ascertained. Yet he is made the material defendant to two suits instituted by the rival claimants in different courts: and those suits are so prosecuted that he cannot execute any decree which may be passed by either court, without exposing himself to the censure of the other. He has not been instrumental in producing this state of things. Nor is there any principle on which he could be expected to waive his privilege of having an early hearing.

The act of 1835 requires the court at the first term to which the case is transmitted, to determine the appeal. He has a perfect right, therefore, to demand a hearing at this moment.

There is nothing in the act, or the practice of this court requiring him to give notice of his appeal to any other party to the suit. As a measure of precaution however, he has given notice to the counsel for the heirs at law of his purpose to urge a hearing of this appeal at the earliest moment; and he accompanied [**3]  his notice with an offer to authorise them to appear and argue the appeal on his behalf. Indeed, those heirs at law ought to have filed their answers and united with the appellant in this appeal, and as they are the parties materially interested in the event they might fairly ask leave to participate in the discussion. It was to avoid any technical difficulty that the tender was made to them.

The merits of the injunction depend exclusively on the true construction of the act of 1849, ch. 229: and the question is presented as fully and fairly by the present record, as it can be in any future stage of the cause. Did the will of Michael B. Carroll, deceased, operate to pass the land in controversy to his widow and devisee, Mrs. Carroll? The appellees here, who are complainants below, maintain the affirmative, and rely upon the decision of this court, in Magruder vs. Carroll, 4 Md. 335. If they can show that the land was validly devised to Mrs. Carroll, they have succeeded to her title, and it must be admitted, are entitled to their injunction to prevent the appellant from conveying the title to other parties. On the other hand the heirs at law of Carroll deny the title of Mrs.  [**4]  Carroll, as devisee of her husband, and they rely on the decision of the Supreme Court, recently made in Carroll vs. Carroll's Lessee. On this hypothesis the injunction was improperly granted. The appellant is not bound to decide between such authorities. But finding the case ripe for an appeal, and instructed that the Supreme Court acknowledges the authority of this court as the ultimate expositor of all statutes concerning the title to lands within this State, he asks that his duty may be expressed in terms which cannot be mistaken; and with an authority which will require and justify his implicit obedience. He submits the appeal upon the decision of the Supreme Court, and, relying on its correctness, asks for a reversal of the order from which he has appealed.

Wm. Schley for the appellee.

The sole question in this case is, whether the will of the late Michael B. Carroll, dated the 10th of September 1837, is to be construed and have effect, pursuant to the act of 1849, ch. 229, as if executed immediately before his death, which occurred on the 30th of August 1851?

It is admitted that the opinion and decision of the Supreme Court of the United States, in the case of [**5]  Carroll vs. Carroll's Lessee, recently decided, that the act does not apply to this will, but with all becoming respect for that exalted tribunal it is insisted that their construction of the act of 1849 is not correct, and is contrary to many decisions of high authority; and that if the question was res integra in this court, the opinion of the Supreme Court ought not to be adopted.

But the point is res adjudicata in this court. It has been decided in the case of Magruder, et al., vs. Carroll, et al., 4 Md. 335. The question was elaborately argued and deliberately decided in that case. That decision is final, and in case of conflict this court should adhere to its own decision. 23 Miss. Rep., 496, Shelton vs. Hamilton. Besides this, the Supreme Court erroneously supposed that the construction of the act of 1849 was not necessarily involved in the case of Magruder and Tuck, vs. Carroll, et al: otherwise that court, in accordance with its settled practice, would have followed the decision of this court in the construction of a Maryland statute of a local character.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and MASON, J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*475]  ECCLESTON,  [**6]  J., delivered the following opinion:
In the case of Magruder and Tuck, vs. Carroll, et al., 4 Md. 335, the question, whether, under the act of 1849, ch. 229, the will of Michael B. Carroll passed his real estate acquired subsequently to the date of his will, was elaborately argued by counsel for the respective parties as a question legitimately presented by the record. The court likewise so considered it. And having been informed that the circuit court of the United States for the Maryland district had so construed the statute as to decide that its provisions did not affect this will, the Court of Appeals examined the subject with great care and deliberation. After much reflection, since the decision then made, I still think this court then gave a proper construction to the statute. Fully impressed with this belief, I concur with my brethren in the propriety of adhering to our construction, and therefore unite with them in affirming the order passed in this cause by the circuit court for Baltimore city. But I do not deem it necessary to express any opinion as to what should have been the decision of this court, in the former case, if we had given a different construction [**7]  to the statute.

 [*476]  LE GRAND, C. J., delivered the opinion of this court.
This appeal is taken from an order of the circuit court for Baltimore city, granted on a bill filed by the appellees against the appellant, and certain other persons represented to be the heirs at law of Michael B. Carroll, deceased, whereby an injunction was directed to be issued against the appellant, to restrain him from making a conveyance of a tract of land, described in the bill, to the said heirs at law.
The bill states in substance, that Michael B. Carroll, lately deceased, in his lifetime, purchased a tract or parcel of land in Prince Georges county, of the appellant, Alexander, as trustee, &c., for the sum of $ 20,000, or thereabouts; and that the said purchase money had been paid in part by Carroll in his lifetime, and the residue by his administrators, since his death. That on the 10th of September 1837, Carroll made his last will, whereby he devised the residue of his real and personal estate to his wife, Jane M. Carroll. That he died on or about the 30th of August 1851, leaving Mrs. Carroll surviving him; who thereupon entered into possession of said land, claiming the same as devised [**8]  to her by the will of her deceased husband. That she died in September 1853, leaving a last will by which she devised said land to the complainants, that is, to Sarah M. Worthington for life, with remainder over to said William Worthington in fee. And that they have entered upon said land. They pray that the appellant may be required to convey the same unto them according to their several and respective interests therein, as devisees of Mrs. Carroll. They state further, that the heirs at law of Michael B. Carroll deny the right of the complainants to said land, and claim that the conveyance thereof ought to be made to them; and therefore pray an injunction may be granted to restrain the said Alexander from conveying said land to the said heirs at law, or to any other person or persons, to the prejudice of the complainants.
On this bill an injunction was granted. The appellant filed his answer, in which he admitted most of the facts in the bill; but states that in a cause properly before this court, and involving the question involved in this cause, it was adjudged 

 [*477]  that the last will of Michael B. Carroll, had validly devised all the real estate of the testator to his widow;  [**9]  but on the other hand the Supreme Court of the United States, have recently decided that the said last will had no operation or effect on the land purchased by the testator after the date of his will. He says, also, that the heirs at law, or some of them, have filed their bill in the circuit court of the United States, against him and the present complainants, praying that he, the said Alexander, may be required to convey to them the land in controversy in this suit. He submits the question of right to the court; but denies the equity of the present complainants to an injunction, which would restrain him from making a conveyance, in obedience to a decree of the circuit court of the United States, in case such decree should pass, unless the State court can protect him from the consequences.
Although but one of the defendants has appealed from the order granting the injunction, the appeal is properly before us. The 3rd section of the act of 1835, chapter 380, provides, "That where any injunction shall issue from the court of chancery, or any county court as a court of equity, the defendant or defendants in the case, or any of them, may appeal, the answer or answers of such appellants [**10]  being first filed, from the order of the chancellor granting the injunction, or refusing to dissolve it, to the Court of Appeals of the Shore where such injunction shall have issued, and the said court at the first term to which the case shall be transmitted, shall determine the said appeal, and shall pass such an order in the premises as to it may seem right." The Court of Appeals in the case of Barnes and Lynch, vs. Dodge, 7 Gill 109, held that under this section of the act of 1835, a defendant who has answered the bill for an injunction, may appeal from the granting or refusal to dissolve it upon motion, without waiting for the answers of his co-defendants; and in the case of Wagner and Marshall, vs. Cohen, 6 Gill 97, it was declared, that upon an appeal under the act of 1835, chapter 380, from the granting of an injunction only, this court is 

 [*478]  confined to the case made by the bill or petition and does not examine the answer. We refer to these authorities for the purpose of showing, that the question presented by the bill of the appellees is directly presented for our adjudication.
The case involves the construction of the act [**11]  of 1849, chapter 229, relating to devises, which, it was supposed had been settled by the decision pronounced in Magruder and Tuck, vs. Carroll, 4 Md. 335. The Supreme Court of the United States, in the case of Carroll vs. Carroll, have decided that the decision by the Court of Appeals of Maryland, is not to be treated as a judicial exposition of the act, and has given to the act a construction the reverse of that which was expressed by this court. It now remains for this court to determine, whether the ultimate jurisdiction to settle the construction of the statutes of Maryland, relating to the conveyance of land situate within this State, resides in this court, or in the Supreme Court of the United States; and also, whether the decision in 4 Md. will be adhered to.
The decision of the Supreme Court affirms two propositions:
1st. That the act of 1849, chapter 229, sec. 1, extends only to wills made after the first day of June 1850.
2nd. That the Supreme Court are at liberty to disregard the decision of the Court of Appeals of Maryland, by which a different construction is given to that act.
Whatever diversity of opinion may be entertained as to the [**12]  true construction of the first section, all must concede that the letter thereof is susceptible of the construction placed thereon by the Court of Appeals. Punctuated as it stands on the statute book, it reads thus: "Every last will and testament, executed in due form of law, after the first day of June next, shall be construed with reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed on the day of the death of the testator or testatrix, unless a contrary intention shall appear by the will."
In the next place from a general view of the act, we must infer that the legislative intent was:
1st. To leave the case of a will made by a testator, who 

 [*479]  had died prior to the passage of this act, to be governed by the ancient law:
2nd. To subject to the operation of the new rule, a will made by a testator dying after the passage of the act, and before the 1st day of June 1850, only when the testator has expressed the intent, that the will shall pass all the estate which he might have at the time of his death.
3rd. To prescribe a new rule which should apply to every case of a will made perfect by the dying of the testator [**13]  after 1st of June 1850, unless a contrary intent should appear.
Now the intent thus collected from the general considerations of the mischief to be remedied, and the remedy proposed to be applied, can be fully gratified by giving to the first section the construction which has been placed on it by the Court of Appeals, and by embracing within the equity of the second section the limited class of wills made after the passage of the act, by a testator dying before the 1st of June 1850. On the other hand, the construction given to the act by the Supreme Court, excludes that limited class, as well from the letter, as the equity of the section; and all wills made before the 1st of June 1850, except the particular class of cases provided for by the letter of the second section, are left utterly without remedy. The intent of the legislature is, therefore, in a great degree, defeated, and the remedy which was designed to be general, is limited to special cases, which are selected on principles which disregard equally the intent and letter of the statute.
Thus, if the testator devised all his estate which he may leave at the time of his death, and the will was made before the passage of the [**14]  act, and the testator died before the 1st of June 1850, his intent will be gratified. But, if the will had been made the day after the passage of the act, and the testator had died the day before, or the day after the 1st of June 1850, or if the will being made before the passage of the act, the testator had died after the 1st of June 1850, in any and every such case his intent, thus plainly expressed, would be disregarded. And what is the course of reasoning by which the Supreme Court have been led to prefer a construction of the act which thwarts the intent of the legislature, and introduces literal and 

 [*480]  anomalous distinctions, to a construction which is equally consistent with the act, and, which would gratify the intent, and render the law uniform and consistent?
It said, that upon the construction adopted by the Court of Appeals, the act "would change the legal operation, not only of existing wills, but of those which had already taken effect by the death of the testators."
Now the Court of Appeals have decided only that the first section of the act governs the case of a will of a testator dying after the 1st day of June 1850, although it may have been made prior [**15]  to that day. Is it a necessary conclusion, that it must equally embrace the case of a will made by a testator who died a century ago? Is there not, on the contrary, a sensible and clearly defined difference between the two cases? The distinction is stated in the cases reported in 12 Metcalf 169 & 262, with a perspicuity and cogency of reasoning, which will not suffer by comparison with the decision in 9 Iredell 288. A will is ambulatory during the testator's life. It is made perfect and operative by his death. After that event, the title of the devisee becomes vested, and a subsequent statute which would retroact on that vested right, may be deemed inconsistent with natural equity. But no such objection lies against a statute which affects to change the construction or operation of a will made at the time by a testator then in being, and who has the capacity of changing his will; and especially where the object of the statute is to gratify the intention by subordinating a rule of law "hitherto inflexible," to the intent, and where the operation of the statute is postponed, to a day future, within which the testator may accommodate his will to the existing state of the law.  [**16]  
But, in the judgment of the Supreme Court, "the interpretation put by the Supreme Court of Massachusetts on the statute of that State, was attended with none of the difficulties which beset the construction of the statute of Maryland, contended for by the counsel for the devisees." The decisions made by the court of Massachusetts are considered to be "a departure from an important principle," the vindication of which was attended with "some effort." The import of this 

 [*481]  last expression, in its personal application, and its entire propriety as parcel of the judgment of the most dignified judicial tribunal in this land, must be left to be settled between the court by which the imputation is uttered and the court against which the imputation is cast. We accept it as an intimation, that if the construction of the statute of Massachusetts should ever come in judgment before the Supreme Court, the decisions in question will be overruled. It would have been more satisfactory to the profession, if the Supreme Court had made an "effort" to explain the grounds of their dissatisfaction with the decisions of the court of Massachusetts. Would the Supreme Court ignore the distinction [**17]  between the title vested in the devisee by the death of the testator, and the inchoate and impalpable possibility of title of one named as an object of bounty in a will, the maker of which is still in being? Do they mean to deny the right of the legislature to provide by law, passed after the making of the will, that a testator may dispose of after acquired lands by a will plainly and manifestly declaring an intention to do so? Or, that a court of justice should feel any doubt in giving effect to a law having such object in view, and expressing its purpose in language which "could only operate in furtherance of the intention of the testator, and could never defeat that intent? "The verbal differences between the Massachusetts statute and that of Maryland, are very apparent. The court of Appeals has only adopted the principles of construction enunciated by the court of Massachusetts, as applicable equally to both cases, and a great "effort" would be necessary to discriminate clearly and satisfactorily between them.
In Massachusetts, as in Maryland, the English rule prevailed, viz., that a will would not pass title to after acquired lands, and the object of the two statutes was to change [**18]  this rule. In Massachusetts the object was to be effected by providing "that the lands acquired by a testator, after the making of his will, shall pass thereby, if such shall clearly and manifestly appear by the will to have been his intention." In Maryland the provision is, "that a last will shall be construed with reference to the real estate comprised in it, to speak as if it had been executed on the day of the death of the testator, unless a contrary 

 [*482]  intention shall appear by the will." Each law confers on the testator a new power or capacity, and clothes the will with a new operative quality. Thus far the statutes are coincident in their object and effect. In the application of either law to a particular case, a question of construction arises. To bring a case within the purview of the Massachusetts law, it must appear affirmatively that the testator intended to dispose of his after acquired land. Under the Maryland law, it is to be presumed he so intended, unless the contrary intention shall be expressed. One law casts the onus on the devisee; the other on the heirs at law. If the concluding words of the Maryland act, "unless a contrary intent shall appear," were [**19]  replaced by the words from the Massachusetts statute, "if such clearly and manifestly appear to have been his intention," no "effort" whatever could have drawn a sensible distinction between the two cases. But the analogy between the statutes, which induced the Court of Appeals to suppose that the principles of construction which had been applied in Massachusetts to the one, were just as applicable in Maryland to the other, seems to have been overlooked. In Massachusetts the statute conferred on a will, antecedently executed, an operative and effective quality, which the will did not possess at the time of its execution. And this construction is vindicated by the "broad and general" language of the act, and the absence of anything "in the words or subject matter of the act, to lead the court to a more restricted construction." Now, it may be submitted that the language of the Maryland act is just as "broad and general," unless indeed it be assumed, that the time mentioned in the act, is to be taken as parcel of the instrument described. Upon this hypothesis, which assumes, however, the very matter to be demonstrated, all discussion would have been unnecessary. The question debated [**20]  would be resolved by its very statement.
The next objection urged to the construction given to the act by the Court of Appeals is, "that it would make the same will, if offered on the 2nd day of June, operative to pass after acquired land to a devisee, though, if offered in evidence on the next preceding day, it would be inoperative for that purpose." And it is said that "so to interpret an act concerning 

 [*483]  wills as to cause those instruments to operate without regard to the intent of the testator, having one effect to day and another to-morrow, would not only be arbitrary and a violation of the principles of natural justice, but in conflict with what must be presumed to have been the leading purpose of the legislature in passing the law, the better to give effect to the intent of the testator." Now it is to be observed, that the Court of Appeals does not make the construction to be given to the will to depend in any manner on the time of offering it in evidence. Its construction, operation and effect, are to be determined by the law existing at the time of the death of the testator. The construction which would be given to it on the day of the death of the testator, if [**21]  it could then come under judgment, is ever after to be given it. In the next place it is to be noted that the objection, whatever may be its value, is just as applicable to the Massachusetts law as to the Maryland law. In Massachusetts the statute was to go into effect on the 1st day of April next succeeding its adoption. A will made before the adoption of the statute could not at the moment of the execution have operated on the title to after acquired land. Nor would it have operated on such title in case the testator had died at any time before the adoption of the act, or after that event, and before the day on which it was to go into operation. If, however, the testator survived that day, it is adjudged that the will would pass the after acquired land. The objection was therefore disregarded by the Supreme Court of Massachusetts; and, again, the legislature of Maryland must have considered and wittingly passed by the objection. According to the second section, as construed by the Supreme Court, a will made before the passing of the act by a testator dying after the passing of the act, and before the 1st day of June 1850, would pass after acquired land. But, if he died before the [**22]  passage of the act, or after the 1st day of June, then such after acquired land would not be affected thereby. Upon the whole, then, the letter of the first section is susceptible of the construction given it by the Court of Appeals; and that construction is 

 [*484]  sustained by the decisions in Massachusetts, and best advances the intention of the legislature. The second section removes all doubt as to the proper construction of the preceding section. It must be apparent from the letter of the second section:--
1st. That the legislature was aware that the language of the first section would embrace wills made before the passage of the act.
2nd. That the legislature intended that all antecedently executed wills should remain subject to the provisions of the first section, excepting a particular class, which were conditionally excepted.
3rd. That the special class enumerated in the second section, (if the testator's intent was sufficiently manifested,) were to remain subject to the operation of the first section; and
4th. Were to remain so subject, because they were "last wills and testaments, executed in due form of law," within the letter of the first member of the first [**23]  section.
The Supreme Court admits that the "negative language" of the section "leaves the law open to the suggestion that the provisions of the act would have applied to such wills if the negative words had not been used." But then that "negative language" will not stand together with the construction which the court would place on the letter of the first section. What has been written is therefore to be stricken out, and what was not imagined by the legislature is to be substituted. In the place of a section negative and restrictive, we are to write one affirmative and remedial. And what is the pretext for this plain exercise of judicial legislation? It is that upon the letter of the section as it now stands, "the cases excepted can on no just principle be distinguished from those left unexcepted." But will the section when recast, as it is proposed, embrace all the cases which are within the principle of the case expressly provided for? The section when reformed would provide for the case of a will made before the passage of the act by a testator dying before the 1st of June 1850; but such will would be out of the act if the testator lived to the 2nd 

 [*485]  day of June. "Can [**24]  any reason be imagined" for this difference? "If there is any distinction between the two cases, it would seem the first case had a stronger claim to exemption from the effect of the new rule."
The language of a statute is its most natural expositor, and where the language is susceptible of a sensible interpretation, it is not to be controlled by any extraneous considerations. The construction is to be on the entire statute, and where one part is susceptible indifferently of two constructions, and the language of another part is clear and definite, and is consistent with one of the two constructions of which the former part of the statute is susceptible, and is opposed to the other construction, then we are to adopt that construction which will render all clauses of the statute harmonious, rather than that other construction, which will make one part contradictory to another. Where the letter of the statute is inconsistent with itself, we may eviscerate an intent by considering the mischief existing and the remedy proposed to be introduced. But what is the mischief to be remedied, and what the remedy, are to be collected from the statute itself. We are not at liberty to imagine an [**25]  intent, and bind the letter of the act to that intent; much less can we indulge in the license of striking out and inserting, and remodeling, with the view of making the letter express an intent which the statute in its native form does not evidence. Every construction, therefore, is vicious which requires great changes in the letter of the statute; and of several constructions that is to be preferred, which introduces the most general and uniform remedy. Judged by these principles, we can have no doubt of the superiority of the construction given by the Court of Appeals to the act, over that construction which is proposed to be given to it by the Supreme Court.
The second proposition affirmed by the Supreme Court is, that the decision of the Court of Appeals giving a construction to the Maryland act may be disregarded.
In Nesmith vs. Sheldon, 7 Howard 817, it had been declared to be "the established doctrine of this court, that it will adopt 

 [*486]  and follow the decisions of the State courts in the construction of their own constitution and statutes, when that construction has been settled by the decision of its highest judicial tribunal."
This declaration was made [**26]  in a cause involving a question doubtful and important; and a single adjudication of the court of Michigan was accepted as a settlement of the construction of the statute. In Rowan vs. Runnels, 5 Howard 134, the court reversed its own opinion expressed in Groves vs. Slaughter, 15 Peters 451, in deference to an intervening judgment which had been rendered by the Court of Appeals of Mississippi; and this surrender of its own opinion by the Supreme Court is made the more remarkable from the circumstance, that during the term just closed the court has reasserted the principles of the decision in Groves vs. Slaughter, to be well founded in law. Another illustration of the deference with which in past times the decisions of the State courts have been received in the Supreme Court, is given by the case of Green vs. Neal's Lessee, 6 Peters 291, where the court reversed its own judgment directly upon the point in construction of a statute of Tennessee, and vindicate this reversal as a sacrifice necessary for the maintenance of its principle. But the case which more fully resembles the present is that of the United States vs. Morrison, 4 Peters 124. [**27]  The late chief justice of the Supreme Court had pronounced judgment in the circuit court for the district of Virginia, on the construction of a statute of Virginia in conformity with the opinions he had frequently expressed in other causes which had come before him in judgment--in fact in conformity with the settled law of the circuit court. Pending the appeal taken from this judgment a case had arisen in the State courts of Virginia, and had been concluded by a judgment of the Court of Appeals of Virginia, giving to the statute a construction directly opposite to that which had been placed on it by the chief justice. This last judgment was deemed conclusive of the subject, and the chief justice, with the grace and propriety which distinguished him through life, and without one word 

 [*487]  in defence of his own opinion, pronounced the reversal of his own judgment.
The rule thus enunciated by the Supreme Court was founded partly on the consideration of the inconvenience which would flow from the effort on the part of the courts of the United States to enforce a construction of the statute law of a State different from the construction given to the statute law by the State tribunals,  [**28]  and partly on the provisions of the judiciary act of 1789. The destiny of the courts of the Union it was supposed would be fully accomplished, by securing to the citizen of another State, and to the alien, the same administration of the statute law of a State which is accorded to the citizen of the same State.
According to the former cases, the adoption or rejection of a particular decision of a State court does not depend in any manner on the doctrine of estoppel.
It is not necessary that there should be identity of parties or subject matter, and hence it would seem that if the decision is made with a deliberation and solemnity which evidences a purpose on the part of the court to declare the law, such declaration ought to be accepted by the Supreme Court as an adjudication settling the question so decided. It ought to be presumed that the question was properly presented by the record, or if not necessarily involved in the issue, that it was in the exercise of a proper judicial discretion that the court deemed fit to pass upon it. But the Supreme Court, in the case of Carroll vs. Carroll, appear to have unsettled their often enunciated rule. They now declare that they are bound [**29]  to decide "a question of local law," as they find "it ought to be decided." Hence the correctness of the decision of a local court is a proper subject for inquiry. In making the examination preparatory to this finding, the court follow two rules. The first is the maxim of the common law, stare decisis. The second is that rule of deference to the decisions of the local court which we have been so often informed was "the established doctrine" of the Supreme Court. It is now declared that this last rule "has grown up and been held with constant 

 [*488]  reference to the other rule, and it is only so far and in such cases as this latter rule can operate that the other has any effect." Stare decisis is, therefore, in effect, the only rule which the Supreme Court will hereafter acknowledge, and even this only rule is to be applicable under conditions which will serve to render the law more uncertain than if we were informed that the authority of the State courts was to be utterly disregarded. "If the construction put by the court of a State upon one of its own statutes was not a matter in judgment, if it might have been decided either way without affecting any right brought [**30]  into question, then, according to the principles of the common law, an opinion on such a question is not a decision." "And therefore this court, and other courts organized under the common law, has never held itself bound by any part of an opinion in any case which was not needful to the ascertainment of the right or title in question between the parties." The Supreme Court, therefore, claim the right to inquire, whether the question adjudged was necessarily involved in the issue? and whether, if so involved, the case might not have been determined on some other point? If a case presents a question broadly on its merits and another on the pleadings or form of procedure, and the court decides on the merits, the decision is not to be regarded, if a decision on the point of form would have concluded to a like judgment. The rule prescribed by the Supreme Court is, therefore, more strict than prevails in cases of estoppel. For on the principle of estoppel it is conceded, that a judgment is conclusive on any point fairly in issue, and on which the judgment might have been rendered. As the Supreme Court have not at all times respected their opinions pronounced on the very point in judgment,  [**31]  (vide 3 Howard 292, Ex-parte Christy; 7 Howard 612, Peck vs. Jenness, referred to in the opinion in the case of Carroll vs. Carroll,) we are not surprised to learn that dicta falling obiter from the judges, or even founded in the judgment of the court, do not conclude. In Maryland it is usual to limit the judgment to the question of right involved in the issue. But where a question of general interest is supposed to be involved and is fully discussed and submitted by 

 [*489]  counsel, the court frequently decides the question with a view to settle the law, and it has never been supposed that a decision made under such circumstances could be deprived of its authority by showing that it was not called for by the record. The cases of Richardson vs. Jones, 3 Gill & Johns. 163; Carter vs. Dennison, 7 Gill 157, amongst others will establish this practice. All that is necessary in Maryland to render the decision of the Court of Appeals authoritative on any point decided, is to show that there was an application of the judicial mind to the precise question adjudged; and this we apprehend is the rule elsewhere. In [**32]  the case of Cohens vs. The State of Virginia, referred to, the position taken by the late chief justice is, "that general expressions in every opinion are to be taken in connection with the case in which these expressions are used." The same remark is equally true of general expressions found in any other writing; their precise import is to be determined by the context. "If they go beyond the case they may be respected, but ought not to control the judgment in a subsequent suit where the very point is presented. The reason of this maxim is obvious. The question actually before the court is investigated with care and is considered in its full extent." All that is required, therefore, to establish the authority of any decision is, that the "very point" decided was "actually before" the mind of the court, and was "investigated with care and considered in its fullest extent." Nothing is intimated, much less declared, in regard to the supposed necessity for shewing that the very point so adjudged was inseperably involved in the issue. Dicta attributed to the court by a short-hand reporter, especially of ancient date; opinions expressed by a judge speaking for himself and [**33]  not as the organ of the court; general views expressed by the court as illustrative of, but not necessarily leading to, the opinion on the point intended to be decided, are not to be treated as conclusive, when similar topics come up directly for judgment. But we are not aware of the authority which will sustain the position assumed by the Supreme Court, that the unanimous opinion of a State court of the highest appellate jurisdiction, directly on a point which is supposed by the court to be presented by the 

 [*490]  record, and which is elaborately discussed by counsel, and is investigated with care and solemnly delivered by the court, can be disregarded as obiter dictum, merely because it is since discovered that some other point existed on which the judgment rendered might have been rested. If any such authority exists it has not been referred to.
The canon of judicature which we are informed is hereafter to prevail in the supreme court would seem to have been taken from Ram on Legal Judgments, by whom it was borrowed from Vaughan, 382. In the course of a long and elaborate argument by the chief justice, it is given as the fifth in a series of seven objections taken [**34]  by him to the authority of a case reported in Moore; the second in the series being, that the case itself bore internal evidence that the opinion, as reported, was no judicial opinion, nor given in any court. We are not informed of the response made by the other judges to those rules propounded by the chief justice. But it does appear, that in consequence of an equal division of the court, the judgment was rendered for the defendant, in conformity with the case in Moore, the authority of which the chief justice had labored to destroy. Perhaps then we may be allowed to suggest, upon the authority of the chief justice himself, that his entire opinion is no more than a prolatum, concluding in no degree to the judgment rendered in the case in which it was expressed. The seventh canon of the chief justice is, that "if a court give judgment judicially, another court is not bound to give like judgment, unless it think that judgment first given was according to law;" and in vindication of the right of individual and independent judgment, he does not hesitate to impeach the accuracy of Lord Coke and to deny the learning of Littleton. But it deserves remark, that the learned [**35]  chief justice, although ready to contemn the authority of precedents standing in conflict with his own opinions, conceded as his sixth rule, that "an opinion, though erroneous, concluding to the judgment is a judicial opinion, because delivered under the sanction of the judge's oath upon deliberation, which assumes it was, when delivered, the opinion of the deliverer."
But it happens, most unfortunately, that the decision of the 

 [*491]  Court of Appeals on the question in controversy was not only called for by the record, but that if the court's opinion on that point had been in favor of the heirs at law, the judgment of the court must have been directly opposite to the judgment which was rendered. In their statement of the case, the Supreme Court overlook the important fact, that the devisees of Mrs. Carroll, representing her interest as the devisee of M. B. Carroll, were made defendants to the bill. It is also overlooked, that the bill prays for an account of the personal and real assets of Michael B. Carroll, and for a declaration that his real estate is liable to the payment of his debts before, and in exoneration of, his negroes, who had been given by his will to his widow [**36]  as a specific legacy, and had been manumitted by her will to be free after brief terms of service, and it is claimed that the suit is for their protection. It is further averred, that the creditors of Michael B. Carroll are not pressing for a sale of the negroes; that no creditor is in a condition to enforce a sale thereof, and that a decree may be obtained settling all questions of right, and, if proper, for a sale of the real estate before any creditor could obtain execution or other process to enforce a sale of the negroes; and lastly, it is averred that the administrators de bonis non of Carroll were about to make a sale of the negroes in furtherance of the interests of the heirs at law; or in other words, to preclude all question in future as between the heirs and the negroes.
All these circumstances form material parts of the case. In the printed statement of the appellants, prepared for the argument in the Court of Appeals, it is insisted, that the equity set up is equally available against the real estate, whether the same be considered as land descended in the hands of the heirs at law of Carroll, or as property devised by his will to his widow. No question was raised [**37]  by the appellants in regard to the construction or operation of the will. In the statements filed on behalf of the heirs at law and of the devisees of Mrs. Carroll, the question is fully presented. It was elaborately argued by the counsel for those parties, and submitted by them as a question presented by the record and calling for determination. It will also appear by those statements, that whilst 

 [*492]  the heirs at law and devisees were united in resisting the claim of the appellants, their opposition was rested on grounds different from, if not indeed inconsistent with and contradictory to, each other. On the part of the heirs at law it was insisted, that the personal estate was the primary fund for the payment of debts, and it was denied that the specific legatee had any equity as against the heirs at law. On the part of the devisees, the chief argument was rested on the original union of the characters of specific legatee and of devisee in the person of Mrs. Carroll; and it was conceded that if the real estate had descended to the heirs at law or had been devised to some other person than Mrs. Carroll, she or her representatives would have been entitled to call for the application [**38]  of the real assets to the payment of debts for the exoneration of the negroes which had been specifically bequeathed to her. The course of the arguments, therefore, as well as the points raised by the statements, rendered it necessary that the court should first ascertain who were the proper representatives of the real estate? This question being resolved in favor of Mrs. Carroll, as devisee, the next subject for inquiry was, whether the representatives of her interest, as specific legatee of the negroes, had any available equity against the representatives of her interest, as devisee of the real estate? They decline the discussion of the general question as between a specific legatee, and an heir at law or devisee, "because the question was not before them in the case." They say that the executors of Mrs. Carroll must occupy the same position as she would have done if the bill had been filed by her instead of them, and that the case is not one "of contribution and marshaling of assets between different devisees and legatees, because Mrs. Carroll was specific devisee and legatee, and residuary devisee and legatee; she, in fact, with but trifling exception, took under the will the [**39]  whole estate."
If the court had determined that the real estate had descended to the heirs at law, the two grounds on which they declined a discussion of the general question would have been removed and these two questions would have been directly presented.

 [*493]  1st. Whether a specific legacy or land descended is first applicable in payment of debts?
2nd. Whether the specific legatee of a chattel of peculiar value, as a household slave, has an equity to restrain the executor, who is also the heir at law, from applying that chattel to the payments of debts for the purpose of protecting his inheritance, the creditors being passive and content to take payment out of either fund?
The first is too well settled in England and this country to justify argument thereon. In Maryland, in Chase vs. Lockerman, 11 Gill & Johns. 185, it was adjudged that the specific legatee and the specific devisee was bound to contribute ratably to the payment of debts; and it was assumed as a point clear in all the authorities, that land descended was first applicable in payment of debts in relief of personal estate specifically bequeathed. It will not be necessary to remark on [**40]  the distinction supposed between the specialty and the simple contract creditor. It is averred that Carroll died in debt for the land purchased by him after the date of his will, and, independent of this averment, if the equity could have turned on the supposed distinction, the cause would have been remanded, with liberty to the party to amend.
2nd. It is held by Lord Eldon in Clarke vs. Ormonde, Jacob, 108, that it was the duty of executors, as far as possible, to preserve articles specifically bequeathed, according to their testator's wish; and unless compelled, they ought not to apply them to the payment of debts. As a corollary, it results, that at the suit of the specific legatee, equity will restrain the executor from voluntarily applying the chattel bequeathed in payment of debts, in a case where the executors are also heirs, and have assets descended, which are first applicable in payment of debts, otherwise the injury to the specific legatee would be incapable of compensation. Hence the importance of the averments in the bill, that the creditors were not pressing and were not in a condition to press, for a sale of the negroes.
Equity is in general reluctant to interfere [**41]  with creditors in the enforcement of their legal rights. But under certain circumstances it will interpose, as if on a creditor's bill a decree 

 [*494]  has been passed for an account of the personal assets, and for a sale of the personal estate, equity may not only restrain the creditor from proceeding at law, but compel him to take satisfaction out of the proceeds of the realty. And in the case of Cornish vs. Willson, 6 Gill 299, it was held, that a salve manumitted by will, might sue in equity for an account, and for a sale of the real estate, descended or devised, subject to payment of debts, and in the meantime, might restrain the executor in the capricious exercise of his power, or even the execution of the creditor, who would propose to sell the slave for payment of the debts of the testator. We apprehend that, in principle, this decision would extend to every case of a specific legacy, the subject of which is of peculiar value to the legatee, and the sale whereof would be productive of irreparable loss. It would seem impossible to deny its application to a case like the one to which we are adverting, where the legacy consists of slaves specifically bequeathed [**42]  to the widow, with an earnest desire expressed, that they should not be sold for payment of the testator's debts, cherished by the widow during her lifetime, and manumitted by her last will. To permit the heirs at law who have availed themselves of their proximity in blood to obtain administration on the personal estate of the testator, to sell the negroes into ceaseless bondage in foreign climes, for the purpose of providing for payment of debts which are justly chargeable on the lands descended to the heirs at law, and to do this under the pretence that equity ought not to restrain the remedy of creditors, and where the creditors themselves are passive, would seem to be an act of injustice of which a court composed of slave-holders, residing in a slave-holding State, could not possibly be guilty. Nor are we willing to believe that the Supreme Court could maintain such a proposition in the fact of their own decision, in Fenwick vs. Chapman, 9 Peters 461, where it was held in advance of Maryland adjudications, that a slave manumitted might assert his right to freedom, on a petition filed against the executor, by proving that the real estate charged by will with [**43]  payment of debts, was sufficient for that purpose. All these cases were earnestly pressed by the counsel for the appellants, and it is not to be presumed 

 [*495]  that the court intended, by its silence, to ignore their existence or deny their authority.
We have thus fully examined the decision in 4th Maryland Reports, 335, for the purpose of showing that the point decided by it was directly presented by the record and by the counsel in argument, and that the judgment pronounced was rendered after the fullest consideration, and, also, to vindicate the correctness of that decision, which, in our opinion, has not been in the slightest degree shaken by anything that has fallen from the Supreme Court.
In conclusion we will observe, that it is manifest to us that the construction which we have heretofore given to the act of 1849 is correct. It was taken from the statute of 7 William IV., and 1 Victoria, chapter 26. The 24th section of that act is as follows: "And be it further enacted, that every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death [**44]  of the testator, unless a contrary intention shall appear by the will."
The act was passed on the 3rd of July 1837. That the Parliament which passed it did not understand it as the Supreme Court has interpreted it, is clear from the 35th section, which provides, "that this act shall not extend to any will made before the first day of January, one thousand, eight hundred and thirty-eight." Its framers, it appears from this section, understood it to mean what it said, and therefore the necessity to expressly declare to what class of wills it should apply.
Reaffirming the decision in Magruder and Tuck, vs. Carroll, we necessarily affirm the order of the circuit court in this cause.
Order affirmed.
NOTE BY THE REPORTER.--The importance of the decision in the above case has suggested to the Reporter the propriety of inserting in his reports the decision of the Supreme Court of the United States, in the case of Carroll vs. Carroll's Lessee. That decision, together with the one above reported, and the one in 4 Md. 335, will exhibit to the profession all that has been decided by the Supreme Court, and the Court of Appeals, in regard to act of 1849,  [**45]  ch. 229. The opinion of the Supreme Court, in the case of Carroll vs. Carroll's Lessee, as delivered by Justice Curtis, is as follows:

 [*496]  "This action of ejectment was brought in the Circuit Court of the United States for the District of Maryland to recover three undivided fourth parts of three tracts of land lying in Prince George's county, in that State. Both parties claimed under Michael B. Carroll, the plaintiffs as heirs at law, the defendant as devisee. It appeared at the trial in the court below, which was had at the November term 1852, that on the 10th day of September 1837, Michael B. Carroll duly executed his last will, the material parts of which are as follows:
"'To my dear wife Jane I give and bequeath all my slaves, and do request that none of them may be sold or disposed of for the payment of my debts, but that provision shall be made for discharging the same one of the other personal property and effects which I shall leave at the time of my death.'
"'All the rest and residue of my property, both real, personal and mixed, I give, devise and bequeath to my said wife Jane, who I do hereby constitute and appoint sole executrix of this my last will and testament,  [**46]  enjoining it upon her, nevertheless, to consult and advise with the said John B. Brooke, as occasion may require, respecting the settlement of estate, and make him a reasonable compensation for the same out of the funds hereinbefore bequeathed to her; and I do hereby revoke and annul all former wills by me heretofore made, declaring this and none other to be my last will and testament.'
"It further appeared that after the execution of this will, Michael B. Carroll acquired other lands, and the plaintiffs, as heirs at law claimed to recover three undivided fourth parts thereof as undevised land. The defendant insisted that these, together with all the other lands of the testator, passed to her under the residuary clause of the will. She admitted that by the common law of Maryland, lands of which the testator was not seized at the time of making his will could not be devised thereby, but insisted that an act passed by the legislature of Maryland, on the 22d day of February 1850, so operated as to cause this will to devise the lands to her. That act is as follows:
"'Section 1. Be it enacted by the General Assembly of Maryland, That every last will and testament, executed in due [**47]  form of law, after the first day of June next, shall be construed with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed on the day of the death of the testator or testatrix, unless a contrary intention shall appear by the will.
"'Sec. 2. And be it enacted, That the provisions of this act shall not apply to any will executed before the passage of this act, by any person who may die before the first day of June next, unless in such will the intention of the testator or testatrix shall appear that the real and personal estate which he or she may own at his or her death, should thereby pass.
"'Sec. 3. And be it enacted, That this law shall take effect on the first day of June next.'

 [*497]  "It is argued by the counsel for the devisee, that the first section of this act was intended to prescribe a new rule of construction of wills, and to fix the time when the courts should begin to apply that rule; that new rule being, that wills of the realty should be deemed to speak at the time of the death of the testator; and the time when the courts should begin so to construe them, being the second day of June 1850;  [**48]  and that the law should be so read as to mean that after the first day of June 1850, wills should be deemed to speak, as if executed on the day of the testators death, unless a contrary intention should appear.
"To this construction there are insuperable objections. It would change the legal operation, not only of existing wills, but of those which had already taken effect by the death of testators. It would make the same will, if offered in evidence on the second day of June, operative to pass after acquired lands to a devisee, though if offered in evidence on the next preceding day it would be inoperative for that purpose. The object of the whole law concerning wills, is to enable the owners of property reasonably to control its disposition at their decease. To cause their real intentions and wishes to be so expressed, and their expression to be so preserved and manifested that they can be ascertained and carried into effect, are the chief purposes of legislation on this subject. So to interpret an act concerning wills as to cause those instruments to operate without regard to the intent of the testator, having one effect to-day and another to-morrow, would not only be arbitrary [**49]  and a violation of the principles of natural justice, but in conflict with what must be presumed to have been the leading purpose of the legislature in passing the law, the better to give effect to the intent of the testator. To induce the court to believe the legislature intended to make this law retroactive upon a will then in existence, and cause it to pass after acquired lands without any evidence that the testator desired or believed that it would do so, and to fix a particular day, before which the will should not so operate, and on and after which it should so operate, such intention of the legislature must be expressed with irresistable clearness.  Battle vs. Speight, 9 Ired. 288. It is very far from being so expressed in the first section of this act. On the contrary its natural and obvious meaning is, that wills executed after the first day of June 1850, are the only subjects of its provisions.
"The words "after the first day of June next" refer to and qualify the words "executed in due form of law" which they follow, just as in the same section the words "on the day of the death of the testator" refer to and qualify the word "executed." In the former [**50]  case they indicate the time when the will shall be deemed to have been executed; in the latter the period of time when it was actually executed.

 [*498]  "In our opinion the first section of this law is free from ambiguity, and applies only to wills executed after the first day of June 1850; and as this will was executed before that day it is not within this section.
"Nor is it within the second section of the act, because that applies only to cases in which the testator, having executed his will before the passage of the act, might die before the first day of June then next, and this testator survived till after that day.
"It has been supposed however, that although the first section of this act is free from ambiguity standing by itself, and ought to be so construed as to apply only to wills executed after the first day of June 1850, yet that the second section shows that wills executed before that day, were intended to be included in the first section. The argument is that the second section excepts out of the operation of the first section, certain wills executed before the first day of June 1850, and thus proves that the first section embraces wills executed before that day.  [**51]  This argument requires a careful examination. To appreciate it, we must see clearly what are the nature and objects, as well as the form of the two enactments. The first prescribes a new rule of construction of wills. They are to be deemed to speak as of the time of the death of the testator; but power is reserved to him to set aside this rule by manifesting in his will an intention not to have it applied. The real substance and effect of the second section is to enable certain testators to pass their after acquired lands by expressing an intention to pass them.
"By force of the first section, the law prescribes a rule of construction which a testator may set aside. By force of the second section a testator may manifest an intention to have his will speak as of the time of his decease, and so adopt that rule of construction. It thus appears that the office of the second section is not to take certain cases out of the operation of the first section, but to prescribe another and substantially different rule of law for those cases. It is true, negative language is used, which leaves the law open to the suggestion that the provision of the act would have applied to such wills if the negative [**52]  words had not been used.
"But it must be remembered that this is only an inference, the strength of which must depend upon the subject matter of the provisions and the language employed in making them.
"If every part of the law can have its natural meaning and appropriate effect by construing this second section as an additional enactment, and if to construe it as an exception would affix to the first section a meaning which would be inconsistent with the great and leading purpose of the legislature, and at the same time be arbitrary and unjust; and if when viewed as an exception the cases excepted can, on no just principle, be distinguished from those left unexcepted, then manifestly it 

 [*499]  should not be construed as an exception, but as a substantive enactment, prescribing for the particular cases a new rule of law, not provided for in the first section. We have already pointed out the consequence of holding the first section applicable to all wills. In addition to this it is worth while to enquire, if the second section was designed to except certain cases out of the first section, what those cases were, and how they are so distinguished from the cases left unexcepted [**53]  as to be proper subjects of exception? The proposition is, that the first section includes all wills whenever executed, and the second excepts only wills executed before the passage of the act by persons dying after the passage of the act, and before the first day of June 1850. Can any reason be imagined why a will executed before the passage of the act should be within the first section, if the testator died the day before the passage of the act, and out of it, he died the day after its passage? If there is any distinction between the two cases it would seem the first case had the stronger claim to exemption from the effect of the new rule.
"Nor do we perceive any difficulty in so construing the two sections as to allow to each its appropriate effect, while neither of them violates any principle of natural right; the effect of the first section being to prescribe a new rule of interpretation for wills executed after the first of June, and the effect of the second being to enable testators who had executed their wills before the passage of the act and who might die before the first day of June, to pass after acquired lands if they manifested an intention so to do. Cases of testators [**54]  who should execute wills after the passage of the act and before the first day of June, or who should die after that day, having previous to that day executed their wills, are left unprovided for, either because it was thought that they would have sufficient time to conform their wills to this change of the law, or because their cases escaped the attention of the legislature as happened in Barnitz's Lessee vs. Casey, 7 Cranch 456, and Brewer's Lessee vs. Blougher, 14 Pet. 199.
"We have been referred to two decisions in the Supreme Court of Massachusetts in which a retroactive effect was allowed to a statute of that State upon existing wills. They are Cushing vs. Aylwin, 12 Met. 169. Pray vs. Waterston, 12 Met. 262. But an examination of those cases will show that the interpretation put by that court on that statute, was attended with none of the difficulties which beset the construction of the statute of Maryland contended for by the counsel for the devisee. The law of Massachusetts did not enact a new rule of construction. It simply enabled testators to devise after acquired lands by plainly and manifestly declaring an intention [**55]  to do so. The law could only operate in furtherance of the intention of the testator, and could never defeat that intent by applying to wills an arbitrary rule of construction.

 [*500]  "This distinction was pointed out by this court in Smith, et al., vs. Edrington, 8 Cranch 66, in reference to a similar statute in Virginia, respecting which Mr. Justice Washington said: "The law created no new or different rule of construction, but merely gave a power to the testator to devise lands which he might possess or be entitled to at the time of his death, if it should be his pleasure to do so." Moreover the language of the act of Massachusetts was broad and general enough to include in its terms all wills which should take effect after the law went into operation. There was therefore nothing in the words, or the subject matter of the act, to lead the court to a more restricted construction. Still that court thought the retroactive effect, of even such a law, required some notice, and they vindicate the departure from an important principle in that case with some effort; and the reluctance with which it should be departed from is well expressed by the Supreme Court [**56]  of North Carolina, in Battle vs. Speight, 9 Iredell 288, in construing a similar statute of that State.
"We have also been referred to a manuscript opinion of the Court of Appeals of the State of Maryland upon the effect of this will. It appears that in November last the executors of Mrs. Carroll, the devisee, who is deceased, filed their bill in the circuit court of Prince George's county, praying that the administrators de bonis non of Michael B. Carroll might be enjoined from making sale of his negro slaves. The heirs at law and the administrators de bonis non of Michael B. Carroll were made parties. The circuit court refused the injunction, the complainants appealed: the Court of Appeals affirmed the decree of the circuit court and dismissed the bill. The grounds upon which the court rested its decree will best appear from the following extracts from the opinion:
"'The bill is filed by the executors of Mrs. Carroll against the administrators de bonis non of Mr. Carroll and his heirs at law. The gravamen of it is, that he specifically bequeathed his negroes to his wife, and desired they should not be sold, and that his debts should be paid out of his other [**57]  estate; that she manumitted them, and that there is other personal and real estate enough to pay the debts due by his estate. Injunction is asked to prevent the sale of the negroes under an order of the orphans court of Prince Georges county, which, it is alleged, is about to be done. It is also claimed in the bill, that at the time of the will of Mrs. Carroll she must be considered as holding the negroes as legatee, and not as executrix, the time specified by law for winding up the estate of her husband having elapsed.
"'This last ground cannot avail. There is no allegation in the bill that a final account had been settled by her, and the bill shows that a large amount of debts remained unpaid, and that the creditors of the estate of her husband had commenced proceedings to secure their payment, which proceedings are still pending. In this claim of the bill we suppose but little 

 [*501]  confidence was, or is, reposed by those who framed it; at all events, there is nothing in it. There is nothing in the facts of the case to justify the presumption that there had been a final settlement of the estate of Michael B. Carroll and all his debts paid off; the truth is, the bill directly [**58]  contradicts the facts out of which such a presumption could arise.
"'It is contended, on the part of the complainants, that the real estate and personal property, other than the negroes of Michael B. Carroll, ought to be applied to the payment of his debts before the negroes are resorted to. This may or not be so; and in regard to it we pass no opinion, because the question is not before us in this case. This is not a bill filed on behalf of the negroes, but by the executors of Mrs. Carroll, and they must occupy the same position in regard to the creditors of Michael B. Carroll, who are represented by the administrators de bonis non, as she would have done had the bill been filed by her instead of by them. And if she were the party complainant, how would the case stand? Why thus: Michael B. Carroll died in debt, leaving a will by which his real and personal estate is specifically devised and bequeathed to his wife. His creditors would have the right to proceed against his entire estate for payment; first, however, against the personal as the primary fund. Their rights could not be affected by anything he might request in his will; their claims would attach to his entire [**59]  estate. He did not manumit his slaves; and, moreover, this is not the case of contribution and marshaling of assets between different devisees and legatees, because here Mrs. Carroll was specific devisee and legatee, and residuary devisee and legatee; she, in fact, with but trifling exception, took under the will the whole estate. Had she, immediately on obtaining letters of administration, manumitted the negroes, it could not be pretended such manumission could have affected the rights of the creditors of her testator; and it must be obvious, if she could not do it by her act as executrix, that she could not accomplish it by her will.
"'For these reasons we affirm the order of the circuit court refusing the injunction.'"
"It is apparent that the question whether some of the lands of the testator were undevised could not enter into or affect the decision of this case. The negroes not being parties, no question could arise whether they were entitled to have the debts paid out of the land of the testator, and the court declares the question is not before them. As between Mrs. Carroll, the executrix of her husband's will, or her representatives and the creditors of her husband,  [**60]  the right of the latter was complete to resort to the personal property, including the negroes, and it was therefore wholly immaterial who owned the land. The only prayer in the bill was, that the creditors, through the administrators, might be restrained from making their debts out of the negroes. The only question in the case was whether 

 [*502]  they could be so restrained. And when it was decided that their legal right was to have all the personalty, including the negroes, applied to their debts, it was immaterial what other rights they or others might have.
"We do not consider, therefore, that a comparison of the titles of the heirs at law and the devisee of Michael B. Carroll to his lands was brought into judgment by this injunction bill.
"If the Court of Appeals had found it necessary to construe a statute of that State in order to decide upon the rights of parties subject to its judicial control, such a decision, deliberately made, might have been taken by this court as a basis on which to rest our judgment. But it must be remembered that we are bound to decide a question of local law, upon which the rights of parties depend, as well as every other question, as we find [**61]  it ought to be decided. In making the examination preparatory to this finding, this court has followed two rules, one of which belongs to the common law, and the other is a part of our peculiar judicial system. The first is the maxim of the common law, stare decisis. The second grows out of the 34th section of the judiciary act, (1 Stat, at Large, 92,) which makes the laws of the several States the rules of decision in trials at the common law; and inasmuch as the States have committed to their respective judiciaries the power to construe and fix the meaning of the statutes passed by their legislatures, this court has taken such constructions as part of the law of the State, and has administered the law as thus construed. But this rule has grown up and been held with constant reference to the other rule, stare decisis; and it is only so far and in such cases as this latter rule can operate that the other has any effect.
"If the construction put by the court of a State upon one of its statutes was not a matter in judgment, if it might have been decided either way without affecting any right brought into question, then, according to the principles of the common law, an opinion [**62]  on such a question is not a decision. To make it so, there must have been an application of the judicial mind to the precise question necessary to be determined to fix the rights of the parties and decide to whom the property in contestation belongs.
"And therefore this court, and other courts organized under the common law, has never held itself bound by any part of an opinion, in any case, which was not needful to the ascertainment of the right or title in question between the parties. In Cohens vs. The State of Virginia, 6 Wheat. 264, this court was much pressed with some portion of its opinion in the case of Marbury vs. Madison. And Mr. Chief Justice Marshall said: "It is a maxim not to be disregarded, that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case they may be respected, but ought not to control the judgment 

 [*503]  in a subsequent suit, when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care and considered in its full extent. Other principles which may serve [**63]  to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated." The cases of Ex-parte Christy, 3 How. 292, and Peck, et al., vs. Jenness, et al., 7 How. 612, are an illustration of the rule, that any opinion given here or elsewhere, cannot be relied on as a binding authority, unless the case called for its expression. Its weight of reason must depend on what it contains.
"With these views we cannot regard the opinion of the Court of Appeals as an authority on which we have a right to rest our judgment. We have already stated the reasons which have brought us to a different construction of the statute; reasons which do not seem to us to be shaken by the opinion of the Court of Appeals.
"Our conclusion is that the will of Michael B. Carroll was not within the statute, and the lands in question were consequently undevised.
"One other exception was taken at the trial, respecting which it is only necessary to say that we think the identity of name of the two tracts of land in the same county, taken in connection with the long possession of those under whom [**64]  the plaintiffs claimed, and the absence of all evidence of any adverse claim or outstanding title was sufficient to warrant the jury in finding that the land was embraced in the patents from the State.
"We are also of opinion that the judgment is correct in form, being for the term which the declaration alleges was created by the plaintiffs as owners of three undivided fourth parts of the land.
"The judgment of the circuit court is affirmed, with costs." 

133 of 187 DOCUMENTS 

MARIA WINCHESTER and ROBERT LEMMON, vs. THE BALTIMORE AND SUSQUEHANNA R. R. COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Md. 231; 1853 Md. LEXIS 25 

DECEMBER, 1853, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Equity Side of the Superior Court of Baltimore city.

The allegations of the bill in this case, which was filed by the appellants against the appellee, on the 16th of December 1852, are sufficiently stated in the opinion of this court.

The injunction was granted as prayed. The answer, which was made under oath and filed on the 8th of January 1853, denies all notice, either actual or constructive, of the conveyance to Mrs. Winchester, and sets up the defence that the company was a bona fide purchaser without notice. It admits that George Winchester was president of the company at the date of the mortgage executed by him to Howard, Hodges and Leakin, three of its directors, but avers that in so doing he acted solely in his individual capacity, and not for the company.

Several exhibits were then filed in the cause by the parties: 1st. The deed dated the 31st of July 1830, from the sheriff of York county, Pennsylvania, conveying the whole of the Yorkhaven property to George Winchester, acknowledged by the sheriff in open court on the 4th of August 1830, but not recorded until the 18th of August 1834. 2nd. A deed from Winchester and wife, dated 12th of January [**2]  1831, and recorded the 18th of August 1834, conveying three-fourths of the property to Leakin, Glenn and Freeman, who, according to the recitals of the deed, were each at the time of the purchase interested in and entitled to one-fourth thereof. 3rd. The deed from Winchester and wife, conveying to Lemmon, as trustee of Mrs. Winchester, the remaining fourth of said property, dated the 1st of July 1831, but not recorded until the 13th of February 1841. It recites that Mrs. Winchester was entitled to one-fourth of the property, the purchase having been made in trust for her, and the purchase money paid out of her separate estate. 4th. The mortgage by George Winchester to Hodges, Howard and Leakin, three directors of the rail road company, of one undivided fourth of said property. This mortgage recites, that "whereas the said George Winchester is indebted to the parties of the second part in the sum of $ 4711, for which he has given his twelve checks, payable," &c., "and for the purpose of securing the payment thereof hath agreed to execute these presents," and bears date the 9th of April 1833, and was recorded the 5th of July of the same year. 5th. A deed from Winchester and wife, conveying [**3]  to John Glenn, in consideration of $ 2000, one undivided fourth of said property, dated the 20th, and recorded the 24th, of February 1834. 6th. A deed from Glenn, reconveying this same fourth to Lemmon, as trustee for Mrs. Winchester, in consideration of $ 4000, dated the 15th of November, and recorded the 1st of December, 1838. 7th. A record of the proceedings in the court of common pleas of York county, Pennsylvania, by the rail road company to foreclose their mortgage. 8th. A certified copy of the act of the State of Pennsylvania of 1775, relating to the acknowledging and recording of deeds.

A motion to dissolve the injunction was then made, and thereupon the court, (FRICK, J.,) dissolved the same by an order passed the 23rd of March 1853, from which the complainants appealed. In this court it was agreed that the exhibits filed should be treated as evidence, as if duly proved under a commission.  

DISPOSITION:
Order reversed and cause remanded for further proceedings under act of 1832, ch. 302.  

HEADNOTES:

A bill for an injunction, filed on the 16th of December 1852, did not require the defendant to answer on oath; after answer under oath the injunction was, upon motion, dissolved by an order passed the 23rd of March 1853. Upon appeal from this order, HELD, that by the act of 1852, ch. 133, the answer cannot be used as evidence against the complainant.

Actual knowledge is equivalent to registration; but such knowledge must be shown by proof, or, at least, such circumstances as are sufficient to put the party upon inquiry must be proved.

The president of a corporation executed to certain of its directors a mortgage of land, to which his wife had an equitable claim by virtue of an unrecorded deed to her. HELD:

That having acted in the transaction not for the corporation, but solely for himself, his knowledge of his wife's equities is not the knowledge of the company, and cannot affect its rights, unless shown to have been communicated to it.

An officer of a corporation cannot bind the latter in a case where he professes to represent only himself, and to deal with the company as if he had no official relation to it.

W. purchased certain real estate, three-fourths for other parties, and one-fourth with the separate estate of his wife and for her, and took the deed for the whole in his own name. HELD:

That the fact of buying for, and conveying the three-fourths to, such other persons, one of whom was a director of a corporation, did not inform such director that the other fourth was for the grantor's wife, and notice thereof to the corporation could not be established thereby.

A mortgage recited that the grantor "is indebted" to the grantee in a certain sum, for which "he has given" his checks, &c. HELD, that this language does not justify the inference that it was given for an antecedent debt. 

COUNSEL:
Charles H. Key for the appellants.

The act of 1852, ch. 133, prevents the answer from being used as evidence, and the appellants therefore insist:

1st. That as the deed from Winchester [**4]  to Lemmon of 1831, recites the fact that the property thereby conveyed was originally purchased with Mrs. Winchester's separate estate, this declaration of Winchester, made when in possession with title, shows his wife's equity, and binds the rail road company, his subsequent grantees, who are thereby precluded from denying such equity, and cannot claim against it, except by showing that they were subsequent purchasers for a valuable consideration without notice. 3 H. &. J., 426, Dorsey vs. Dorsey. 7 Gill, 375, Richards and Wife, vs. Swan. 4 Paige, 220. 2 Md. Rep., 365, Faringer vs. Ramsay.

2nd. Winchester being at the time of the execution of the mortgage to the company its president, and in that capacity a member of the board of directors, his knowledge of the pre-existing deed to his wife was the constructive knowledge of the company, and notice to him was notice to the company. 2 Hill, 451, Bank of United States vs. Davis. 4 Paige, 136, Fulton Bank vs. Sharon Canal Co. Any thing which puts a party upon inquiry is sufficient notice in equity. 1 Md. Rep., 415, Price vs. McDonald. 3 Md. Rep., 340, Baxter and Wife, vs. Sewell. 5 Gill, 483.

3rd. The mortgage to the company [**5]  was given as security for a pre-existing debt, as appears upon its face, and does not constitute the mortgagees purchasers for value, so as to support the mortgage against the equitable claim of Mrs. Winchester. 22 Pick., 243. 1 Dev. Eq., 106. 4 Paige, 220. 4 Scammon, 19. 1 Sm. and Mar., 49. 10 Paige, 180.

4th. The original deed of the sheriff, though executed in 1830, was not recorded till 1834, and the deed of 1831 being therefore a deed of a mere equity, was not itself required to be recorded, and consequently the mortgage of 1833 did not affect its validity. The subsequent recording of the sheriff's deed does not affect this view of the case, but the mortgage being of an equitable title, the mortgagee was bound to take notice of equitable incumbrances, and can only claim subject to them. 7 Cranch, 34. 7 Pet., 271. 4 Dessaussure, 274. 11 Searg. and Rawle, 389. 7 Barr., 165, 340. 5 Gill, 481.

5th. The neglect of the appellees to enforce their mortgage for nearly twenty years, is almost conclusive evidence of its having been abandoned by them.

J. Mason Campbell for the appellees.

The sheriff's deed, which is the common source of title of both parties, was acknowledged [**6]  in open court, and it is this acknowledgment, and not the recording, which in Pennsylvania passes the legal title. 2 Wharton, 469. 10 Watts, 25.

The bill attacks the mortgage to the company solely on the ground of notice of the prior deed of 1831, and the answer denies notice, either actual or constructive. The act of 1852, ch. 133, does not apply to the case of a motion to dissolve an injunction, for if it did, there never could be such a motion, and it could hardly be supposed the legislature intended to work such a revolution as this in chancery proceedings. But the act of 1853, ch. 344, makes the answer in this case of equal force as evidence as the bill, and that such laws, retrospective in their operation, are constitutional, see 7 Pet., 239.

The deed of 1831 is out of the case, and cannot be relied on as evidence of title. The bill sets it up not only as a deed of that date, but as continuing to the present time, but in 1834, Mrs. Winchester conveyed this identical property to Glenn. This is a repudiation of the deed of 1831; the two are in conflict. The subsequent deed from Glenn in 1838, reconveying the property to her, is the only title she now has, and this confers [**7]  no rights as against the company, being subsequent to its mortgage.

The mortgage upon its face shows, that Winchester was then indebted to the company, and in consideration of the mortgage, time was given, as appears by the checks recited in it, and this is sufficient to make the company purchasers for a valuable consideration. 2 White and Tudor's Leading Cases, Basset vs. Nosworthy, (71 Law Lib., 104, 105, 106.)

But suppose there was an equity, how have the company notice of it? Where a director is acting for himself in his individual character, his knowledge thus obtained is not the knowledge of the corporation. Story on Agency, secs. 140, (a,) 140, (b.) 2 Hill, 451. 9 Barr., 27. 3 Md. Ch. Decisions, 381.

The registry acts of this State apply to conveyances of equitable titles. 3 Md. Ch. Decisions, 383, 384. And the act of Pennsylvania of 1775, set out in the record, expressly requires deeds, which in any way affect equitable as well as legal titles, to be recorded, and that conveyances of equitable titles in that State are required to be recorded, see 10 Watts, 13. 11 Searg. and Rawle, 389, 392.

S. T. Wallis for the appellants, in reply.

The act of 1852,  [**8]  ch. 133, expressly enacts, that in no case shall the answer be evidence unless read at the hearing, not the final hearing. The act of 1853, ch. 344, though it cannot operate upon this case, having been passed after it was decided and pending the appeal, is yet a legislative construction that the previous act of 1852 does apply to the present case.

The acknowledgment of the sheriff's deed in open court does not pass the legal title. The case in 2 Wharton, 469, only decides that a sheriff's deed shall not have the effect of an ordinary deed until acknowledged in open court, but it is also required to be recorded like any other deed to give it validity. 10 Watts, 26.

The property was purchased with Mrs. Winchester's money, and there can be no doubt Winchester's declaration of that fact in the deed of 1831, is binding upon the company, his subsequent grantee, as the cases cited on this point show. The deed to Glenn in 1834, conveyed all the equitable title of Mrs. Winchester, and though she was thereby estopped from claiming as against Glenn, yet he could have set up these equities as against the company, and so could his grantee, Mrs. Winchester. There is nothing then to stand [**9]  against the equity of Mrs. Winchester, unless the company are bona fide purchasers without notice.

If notice is given to a party who acts as the agent of a corporation, the latter is affected by it. The case in 2 Hill, is the very case at bar. The mortgage was not to the company itself, but to three of its directors, and Winchester, as president, must have joined in their appointment. He was therefore the agent of the company as well as of his wife.

But again, if the circumstances of the case are sufficient to put the party upon inquiry, this is notice. Here Leakin, one of the directors taking the mortgage in behalf of the company, was one of its directors, and his knowledge was clearly the knowledge of the company. Now he was concerned in the original purchase, was tenant in common of one-fourth of this property, and therefore bound to know the title of his co-tenants in common. But, besides this, the deed of the three-fourths to him, and others, recites, that the property was purchased with the money of others, and not that of Winchester, There is no case to be found where one tenant in common is not regarded as having knowledge of the title of his co-tenants.

Again,  [**10]  was the company a bona fide purchaser for value? The mortgage was clearly given for an antecedent indebtedness. The fact that the mortgagor gave his checks does not alter the case--they were given for an existing debt--the taking of them was for the benefit of the company. If this makes the company bona fide purchasers, every mortgage would have that effect.

A party who takes an equitable title, takes it with notice of all equitable incumbrances upon it; with notice that something is to be done to make it perfect, and this puts him upon inquiry as to all the imperfections pertaining to the deed. 7 Cranch, 34. 7 Pet., 231. 5 Gill, 481. 7 Barr., 340.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and TUCK, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*237]  LE GRAND, C. J., delivered the opinion of this court.
This is an appeal from an order of the Superior court of 

 [*238]  Baltimore city dissolving an injunction, which had been previously granted by that court on the filing of the bill of the appellants.
The equity of the bill may be stated thus:--it avers and charges, that George Winchester, the former husband of one of the parties, becoming possessed of a portion of the separate [**11]  estate of his wife, invested it in real estate lying in York county, Pennsylvania, taking a deed for the same in his own name; that this occurred in the year 1830; that the said Winchester and wife, by their joint deed, in the year 1831, conveyed one-fourth part of the property, so alleged to have been purchased with the moneys of the wife, to Lemmon, as trustee, for her sole and separate use; that after the execution of this deed it remained in possession of Winchester, who neglected to have it recorded, which was not done until the year 1841; that in the year 1833, Winchester mortgaged the same property to certain directors of the rail road company, he being at the time its president, to secure the payment of an alleged indebtedness of himself, "the said company in fact having actual knowledge and notice of the interest and claims" of the appellants, and "with such actual notice, did, nevertheless, accept the said mortgage." The bill then proceeds to state, that the company is about to foreclose the mortgage, and prays an injunction to prevent it from doing so.
The bill does not require the answer of the defendant to be under oath. It was filed on the 16th of December [**12]  1852, and by the act of 1852, ch. 133, the answer of the defendant cannot be considered as evidence against the complainants. It provides, "that no answer of any defendant to any bill or petition, to be hereafter filed in the courts of equity in this State, shall be evidence against the complainant or complainants, unless, by the bill or petition, such answer shall be required to be made under the oath of the respondent or respondents; or unless, at the hearing of the cause, the complainant or complainants shall read the answer as evidence, in which case it shall have the same effect as to the party reading the same, as if it had been required to be made under oath."

 [*239]  Putting the answer out of view, the case, as presented by the bill, is simply this:--the complainants had a claim on, and an equity in, the property in question, and the company, with actual notice of such claim and equity, took a conveyance of it. There can be no doubt that actual knowledge is equivalent to registration, and that if, the company had such notice, it took the property subject to the equities of the complainants. There is nothing, it is true, in the evidence to show actual knowledge; [**13]  but, on the other hand, there is nothing to disprove it, and, in the present condition of the case, the averments of the bill must be assumed to be correct, except, (under the agreement filed in the cause,) in so far as they are rebutted, and we have already said, that under the act of 1852 the answer of the defendant cannot be invoked for that purpose on this appeal.
These observations dispose of the case as made by the bill and proof; but inasmuch as the act of 1832, ch. 302, makes it incumbent upon us to decide and determine all the questions arising out of the record, we proceed to do so.
It was urged in argument, that inasmuch as George Winchester was the president of the company at the time he executed the mortgage, any knowledge which he had in regard to the rights and equities of his wife must be taken as the knowledge of the company.
It is undoubtedly true, as a proposition of law, that the principal is affected with the knowledge and bound by the acts of the agent; but this principle can have no application to a case in which the one party does not act as agent, but avowedly for himself, and adversarily to the interests of the other. In the case now under consideration [**14]  Winchester did not profess, and in fact did not represent, the company; it was represented in the transaction by the three directors with whom he dealt. To hold a company responsible for all the acts of any of its officers, when they act confessedly in behalf of their own interests and in an adversary character, would be to sanction the grossest frauds. The distinction which we state is plainly taken in the case relied on in argument. 

 [*240]  The court there intended, and did nothing more than assert the general proposition, that an agent, within the scope of his authority, may bind his principal, but not to countenance the idea that an officer of a corporation may bind the latter in all eases whatever, especially not in a case where he professes to represent none other than himself, and to deal with the company as though he had no official relation to it.  4 Paige 127, 129. See Story on Agency, sec. 140, (a and b.)
From these observations it will appear we are of opinion, that the knowledge of George Winchester, unless it be shown to have been communicated to the company, is not sufficient to affect its rights. Actual knowledge must be shown by proof,  [**15]  or at least such circumstances must be proved as would have been sufficient to put the company on the inquiry.
An extract of an act of the legislature of Pennsylvania of 1775, relating to the acknowledgment and recording of deeds, is set out in the record; and the property in controversy being within that State, the company rely upon that statute.
At the final hearing one of the questions for decision will be, necessarily, what is the influence of this statute on a case like the present? The appellants claim under the same person as does the appellee; but insist, that their deed being older, although not recorded so soon as the deed of the latter, must have precedence on the ground of George Winchester having but an equity, because, as argued by them, the deed from the sheriff of York county was not recorded until after the execution of the instruments under which both appellants and appellee claim.
According to the provisions of the statute, all deeds made and executed in the then province concerning any lands, tenements or hereditaments, or whereby the same might be any way affected in law or equity, are directed to be recorded in the office for recording of deeds, in [**16]  the county where the lands lie, within six months after their execution; and such deeds as may not be so recorded, are to be judged fraudulent and void against any subsequent purchaser or mortgagee for valuable consideration, unless such deed or conveyance shall 

 [*241]  be recorded as aforesaid, before the recording of the deed or conveyance under which such subsequent purchaser or mortgagee shall claim.
The deed under which the appellants claim bears date the 1st July 1831, and was not recorded until 1841. The mortgage is dated 9th April 1833, and was recorded 5th of July of the same year.
The statute of 1775 is the only one which has been given in evidence, but, it was argued at the bar, and the printed reports of judicial opinions pronounced in Pennsylvania were cited to show, that there are other acts in force in that State which relate to sheriffs' deeds. When such acts are legally proved, they possibly may establish that the sheriff's deed conveyed a legal title, without being recorded in what is known in that State as the record office. Of course we give no opinion on the effect of such acts, they not being now before us. If, however, it should appear from these [**17]  statutes a legal title passed to George Winchester under the sheriff's deed, then the deed to the company, being first recorded, would prevail over that of the appellants, unless the allegation of the bill as to actual knowledge on the part of the company, or such circumstances can be made out as ought to have put it on the inquiry in regard to outstanding equities at the time the mortgage was executed.
It has been said that S. C. Leakin, who was a director of the company, because of his being concerned with G. Winchester in the original purchase, had notice Winchester was purchasing for his wife, and that this knowledge was notice to the company. We do not perceive how, necessarily, his interest in the purchase would give him notice of, or put him upon inquiry in regard to the rights of Mrs. Winchester, when the deed in fee for the whole property was taken in G. Winchester's name. The fact of buying for and conveying to Leakin, Glenn and Freeman, three-fourths of the property, did not of itself inform Leakin that the other fourth was for Mrs. Winchester. Three-fourths being bought for others, 

 [*242]  did not give the least information that the other fourth was not purchased [**18]  for himself.
The mortgage has been assailed in argument, as showing on its face that it was given for an antecedent debt, but the language of the instrument does not justify any such inference. It is precisely the same language which would be used if the money had been lent the day on which the mortgage was executed.
From these views it will appear, we are of opinion, that the appellants have stated a good case on the face of their bill, and that if it can be made out at the final hearing, they will be entitled to a decree in conformity with their prayer; but that the knowledge imputed to the company cannot be established from the fact that G. Winchester was, at the time of the execution of the mortgage, its president; nor from any knowledge on the part of S. C. Leakin, growing out of the circumstances now disclosed in the case. And, moreover, if the appellants be unable to make out knowledge on the part of the company, or the existence of such circumstances as ought to have put a reasonable person on the inquiry as to outstanding equities, the right of the company cannot be interfered with.
Order reversed and cause remanded for further proceedings under act of 1832,  [**19]  ch. 302.  

134 of 187 DOCUMENTS 

JOHN Y. DAY and THOS. GORSUCH, vs. WILLIAM Y. DAY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Md. 262; 1853 Md. LEXIS 28 

DECEMBER, 1853, Decided 

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

This was an action of trespass vi et armis, instituted on the 28th of March 1848, by the appellee against the appellants, and two others, who were returned non sunt, to recover damages for an assault and false imprisonment.

The appellants appeared and pleaded:--1st. Non cul. 2nd. Non cul infra annum. 3rd. A plea of justification, averring that the defendant, Gorsuch, was a justice of the peace for Baltimore county, and had view of a nuisance committed by the plaintiff, in the obstruction of the navigation and fishery of Gunpowder river, and for this caused him to be arrested and committed, and that the plaintiff was afterwards presented by the grand jury of said county for the commission of said offence, and an indictment found against him, to which he had pleaded. Issue was joined on all these pleas. All errors in pleading were waived, and it was agreed that any evidence might be given on either side which would be admissible under any form of action or pleading, and that the defendant, Gorsuch, was a justice of the peace for Baltimore county at the time the arrest complained of was made.

1st Exception. The parties having offered the [**2]  testimony set out in the opinion of this court, the defendant, Gorsuch, prayed an instruction, that if the jury find that he was a justice of the peace at the time, and acted, or claimed to act, in the execution of his office, then, inasmuch as the plaintiff had offered no evidence of notice of the cause of action having been given to him before the suing out of the writ, as provided by the statute of 24th Geo. 2, ch. 44, they must find for defendant. This prayer the court, (FRICK, C. J., and PURVIANCE, A. J.,) refused, and defendants excepted.

2nd Exception. The plaintiff then offered the two prayers stated in the opinion of this court, which were granted. The defendants then offered thirteen prayers, in substance as follows:

1st. Denies the plaintiff's right to recover, if Gorsuch saw him with his boat anchored in the river, and believed that this tended to obstruct navigation, and, acting in his official capacity, and on this belief, ordered the arrest and commitment.

2nd. That it was competent for Gorsuch, in his official capacity, to order the arrest by parol, if he saw the plaintiff obstructing the navigation of the river, and the defendant Day's right of fishing [**3]  therein.

3rd. Justifies the arrest as aforesaid for the nuisance, and commitment upon refusal to enter into recognizance to appear and answer for the offence, if Gorsuch saw the offence committed in his view.

4th. Justifies the arrest under the circumstances stated in the preceding prayer.

5th. Justifies the arrest by Gorsuch as aforesaid, if the other defendants were attempting in a peaceable manner to abate the nuisance and the plaintiff violently resisted, and threatened a breach of the peace if they persisted, and Gorsuch saw the plaintiff erect the nuisance, resist its abatement, and heard him make the threats.

6th. Justifies the arrest as aforesaid, if Gorsuch was present and believed it was necessary in order to avoid a breach of the peace.

7th. Justifies the arrest as aforesaid, if it was necessary to the peaceable abatement of the nuisance.

8th. Justifies the acts of the defendant, Day, if the nuisance interfered with his right of fishery, and he did not use unnecessary force in abating the same.

9th. This prayer was abandoned.

10th. That the plaintiff cannot recover against Day, if the nuisance obstructed his right of fishery and he [**4]  did nothing more than abate it.

11th. That there was no evidence that Day did anything on the occasion not necessary to the abatement of the nuisance, and which he had not a legal right to do.

12th. That if Day went for the purpose of abating the nuisance which obstructed his fishery, and while so doing the plaintiff commenced the affray, the latter cannot recover.

13th. Justifies the acts of Gorsuch, if the plaintiff, when arrested, as before stated, demanded no examination on the subject of the offence, produced no testimony, but declared his desire to go to jail, and refused to enter into recognizance for his appearance, to answer for the offence, and rejected Gorsuch's offer to become his surety therefor, the offence having been committed in the county of which Gorsuch was a justice.

The court rejected all of the defendants' prayers, to which refusal and to the granting of those of the plaintiff the defendants excepted. The verdict was for the plaintiff for $ 200 damages, and judgment accordingly, from which the defendants appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

A party has the right to segregate any portion of the facts of a case from the whole body, and ask the instruction of the court upon them; it is for the other party, if he desires it, to ask the opinion of the court on the whole testimony.

A mittimus issued by a justice, directed the constable to take into his custody "the body of W. D., and him safely keep, to answer a charge of obstructing the navigation of Gunpowder river, until he shall be discharged by law." HELD:

That this authorised the commitment for no other offence than the obstruction of the navigation of said river, and there was no error in the court's granting an instruction to that effect.

If it be conceded that a justice of the peace may himself make, or order by parol, an arrest for a misdemeanor committed super visum, yet it ought to appear that at the time of the arrest he acted, and professed to act, in his official capacity, and he ought to notify the party arrested of such fact.

The right to abate a public nuisance belongs to every citizen, yet it cannot be lawfully exerted if its exercise involves a breach of the peace; when such is the case, the party erecting the nuisance must be proceeded against legally, by a warrant regularly issued upon charge made on oath.

Adversary and exclusive use would be indispensable to a several right of fishery in navigable water of this State, if it be conceded such a right could be acquired by prescription.

The first section of the statute of 24 George 2, ch. 44, requiring notice to be given to justices of the peace before suit brought against them, is not in force in this State.  

COUNSEL:
Charles F. Mayer for the appellant.

1st Exception. The statute of 24th Geo. 2, ch. 44, is in force [**5]  in this State, and notice before suit, as required by it, not having been given to the defendant, Gorsuch, of the cause of action against him as a justice of the peace, he ought to have had a verdict in his favor. 5 Bac. Abr., 427. Kelty's Rep. of Statutes, 253.

2nd Exception. The first prayer of the plaintiff leaves out the finding of malice. If in the acts of a judicial officer malice is wanting, there can be no action against him--if he acts honestly, without malice, he is exempt from liability, though he may have misjudged. 10 Mass., 365.

The obstruction of a navigable river is a nuisance--an indictable offence, (8 G. & J., 510. 4 Bl. Com., 167,) and the only question is, whether a justice of the peace had the right to take judicial notice of it and arrest the party? In all cases of offences committed in the presence of a justice, he has the right to make the arrest. 1 Chitty's Crim. Law, 17, 74. 1 Wilson, 158. 2 Hawk. Pleas of the Crown, 133. There may be an informal commitment and still the imprisonment be valid, especially where done without malice. 1 Chitty's Crim. Law, 109, 119. The committing officer has the power to detain the prisoner until the mittimus is made [**6]  out. 7 East, 537. 2 Hale's Pleas of the Crown, 122.

The learned counsel also contended, that the appellant, Day, had a several right of fishery in the river, and therefore had a right to abate the nuisance thereto.

Robert J. Brent for the appellee.

1st Exception. Kelty, in his report of the statutes, says, that the first section of the statute of 24th Geo. 4, ch. 44, is not in force in this State, and these reports the Court of Appeals have said may be relied on. 5 H. & J., 403. But if he acts from improper motives in a case where he has no jurisdiction, no notice is necessary. 1 Baldwin, 602. But again, there is no statement in this exception that proof of Gorsuch being a justice was read to the jury, or notice to the plaintiff of his acting on the occasion as justice, which must be done. 1 Russ. on Crimes, 623. So far as he acted without affidavit or process he was not executing his office, but was a simple trespasser, and cannot by the subsequent issuing of process set up his special privilege as justice. 2 Term Rep., 225, Morgan vs. Hughes. 1 Baldwin, 602.

2nd Exception. The first prayer of the plaintiff presents the construction of the warrant, and was rightly [**7]  granted. A party has the right to segregate any portion of the evidence and ask an instruction upon it. 1 Gill, 143. Nothing could be more illegal and void than this commitment:--1st, it is based on no oath or complaint, and on no precedent warrant. 2nd, it requires the constable to keep the prisoner, and this is erroneous. Latrobe's Justice, sec. 1602. 3rd, it is in the nature of a final commitment in a case not bailable. Latrobe's Justice, sec. 1603.

The second prayer assumes that there is no evidence to justify the arrest of the plaintiff, because of his obstructing the fishing privileges of John Y. Day, or any one else, in Gunpowder river. Suppose he was obstructing the common right of fishery in a navigable river, this is but a nuisance, and to justify his arrest by a breach of the peace, and detention for two hours until the arrival of a constable, it must be shown that the erection of a nuisance in a navigable stream justifies all that was done by the defendants. A public nuisance may be abated, but not by a breach of the peace or riot. 3 Bl. Com., 5. 9 Rep., 55. Upon the ground of abating a supposed nuisance, there was no power to arrest the plaintiff and detain him, see [**8]  same authorities, and also 2 Strange, 686. A nuisance is but a misdemeanor, and the party cannot be arrested for it without a warrant founded on a charge. 1 Baldwin, 602. 1 Chitty's Gen. Pr., 618. 2 Barn. and Cress., 699. 7 Bing., 316, Price vs. Severn. 3 Barn. and Adolph., 798, Fox vs. Gaunt. 5 Car. and Payne, 206, Rex vs. Birnie. 11 Johns., 486, Philips vs. Trull. Before the plaintiff could be forcibly removed, there should have been a request to depart. 1 Steph. N. P., 217. If this was a nuisance it was a public one, and the parties could not redress it by any private remedy. 8 G. & J., 510, 511.

There is no evidence that John Y. Day had any exclusive right of fishery in this river, and there has been no decision in this State that he could acquire such a right in a navigable river.

The prayers of the defendants, besides being liable to special objections, were all in conflict with the plaintiff's prayers, which the court had granted, and therefore were properly rejected.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and MASON, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*267]  LE GRAND, C. J., delivered the opinion of this court.
This action was instituted by the appellee,  [**9]  to recover damages for an assault and for false imprisonment. From the evidence it appeared, that William and John Day were the owners of adjoining fishing shores on the Gunpowder river, near its confluence with Bird river, and that the shore of William "had been immemorially used as a fishery," and that although John, "at one period," was in the habit of fishing higher up the stream, and in front of his own shore, the latter fishery ceasing to be advantageous, he shifted the range of his seine within the last three years preceding the institution of this suit, so as to carry it out in front of the shore of William; but, notwithstanding this common range for their seines, both fisheries could be conveniently carried on, it being easy to carry out the seine from one shore while that laid out from the other was drawing in; and that, so, this alternate use of the best fishing waters could be had by each party without interruption or delay. It also appeared, that while the seine of John was being laid out, William was anchored in his boat in the line which the seine of John would take, thus compelling an alteration of its intended direction. Evidence was also given that while the boat [**10]  of William was so anchored, John, Gorsuch and others, in another boat, pushed out to 

 [*268]  him, when a scuffle ensued, resulting in the capture of William and the bringing of him ashore. There was testimony to show that William commenced the struggle, and also that violence was first used by John. When William reached the shore he was committed by the defendant, Gorsuch, who had been present during the difficulty between William and John Day. That commitment was in these words:
"State of Maryland and Baltimore county. To William K. Swain, constable: Take into your custody the body of William Y. Day, and him safely keep, to answer a charge of obstructing the navigation of the waters of Gunpowder river, until he shall be discharged by law. Witness my hand and seal this 19th day of May 1847. Thomas Gorsuch, (Seal.)"
Two hours elapsed from the time of the capture of William Day until the delivery of this commitment to the constable. There is evidence in the record to show that Gorsuch urged him to give bail, offering to become it himself, and that the latter refused, as he did also a similar offer made by a friend in Baltimore city, preferring to go to jail, saying that the damages [**11]  would be increased thereby. He remained in jail six hours, when he was discharged on his entering into a recognizance to answer at court.
There was a great deal of other testimony given, both by the appellants and the appellee; but the above statement is sufficiently full to present the questions which we are called upon to determine.
On behalf of the plaintiff, at the trial below, two instructions were asked of the court, which were given; and on behalf of the defendants thirteen, all of which were refused. The ninth prayer of the defendant has been abandoned.
Without recurring to the precise verbal structure of the prayers on behalf of the defendants, it may be said, that they are in direct conflict with the legal propositions contained in those submitted on the part of the plaintiff, and, as a consequence, if the latter were properly granted the others were rightfully refused.

 [*269]  The first prayer of the plaintiff merely asks the court to instruct the jury, that the commitment given in evidence authorised the commitment of William Day for no other offence than the obstruction of the navigation of the Gunpowder river. This is clearly the meaning of the mittimus, the charge [**12]  being specifically set out in it, and the Court of Appeals, in the case of Whiteford vs. Burckmyer and Adams. 1 Gill 127, have recognized the right of a party to segregate any portion of the facts of a case from the whole body and ask the instruction of the court on them. It is for the other party, if he desires it, to ask the opinion of the court on the whole testimony. We do not see how any other construction could have been given to the commitment, and therefore discover no error in this particular.
The second prayer of the plaintiff asserts the broad proposition, that there was no evidence of a legal authority to arrest him. This prayer covers the whole case, and is in direct opposition to each and every of the prayers asked on behalf of the defendants.
It is clear from all the testimony, that the plaintiff was arrested without warrant.
The undisputed evidence is, that the plaintiff had anchored his boat in the stream, and that the defendants went out to the place and there, after a scuffle, arrested and brought him to the shore. There is none whatever that he was, at the time of the arrest, notified Gorsuch was acting in the capacity of a justice [**13]  of the peace; but even were it conceded a justice of the peace may himself make an arrest for a misdemeanor committed super visum, yet it ought to appear, for the future protection of the party arrested, that at the time of the arrest he acted, and professed to act, in his official capacity. Any other rule might enable a person in the commission to excuse his tortious acts under the plea of a mistake of judgment in the discharge of the judicial duties of his office. In the case now under consideration there is not the slightest evidence Gorsuch, at the time of the arrest, professed to act as a justice of the peace, nor is there any that he did so, nor that the 

 [*270]  plaintiff had any knowledge of his being a justice, until the arrival of the constable, which did not happen until two hours after the arrest had taken place.
It is unquestionable, that if the act of the plaintiff in anchoring his boat in the stream was illegal, it was so simply because it was an interruption to the public right of navigation or of fishery, and, as such, punishable by indictment. The right to abate a public nuisance belongs to every citizen, yet it cannot be lawfully exerted if [**14]  its exercise involve a breach of the peace. When such is the case, the party erecting the nuisance must be proceeded against legally; that is, a charge must be made on oath and a warrant regularly issued. In the case before us the attempt to remove the boat did, in fact, involve a breach of the peace. It brought about a scuffle in which violence was used on both sides. When such a state of things appeared to be the inevitable result of the attempt to remove the boat of the plaintiff, the defendants ought to have desisted and to have made complaint before the proper authority; or, if it were conceded, as we have before remarked, that a justice of the peace has the right on view to order an arrest by parol, and if Gorsuch assumed on this occasion to have acted in his official capacity, he should have notified the plaintiff of such fact.
We regard the capture of the plaintiff and his boat as but the act of parties assuming to abate what they considered a public nuisance, which they were not authorised to do if it could not be effected without a violation of the peace.
There is no evidence in the record as to the several right of fishery on the part of the plaintiff; and although it [**15]  was discussed at the bar, we do not feel called upon to decide whether--in the absence of legislation to that effect--it is competent to a person by prescription to acquire a several right of piscary in any of the navigable waters of this State. There is nothing in the proof from which it could be properly inferred that the plaintiff, or those under whom he claimed, had exercised an exclusive right of fishery for a time sufficiently long to justify the presumption. The evidence only 

 [*271]  goes to the extent of showing the right had been exercised immemorially, but not that it was adversary and exclusive, and, in any event, such adversary and exclusive use would be indispensable to a several right of fishery in a navigable water of this State.  Delaware and Maryland R. R. Co., vs. Stump, 8 G. & J. 479.
The defence set up for the defendant, Gorsuch, under the first section of the act of Parliament of 24 George 2, ch. 44, cannot avail him, it not being in force in this State. Chancellor Kelty, in his report of British statutes, applicable to our condition, states the first section of this act not to be in force in this State; and this [**16]  court, in the case of Dashiell, et al., vs. Attorney General, 5 H. & J. 403, have said that the report "was compiled, printed and distributed under the sanction of the State for the use of its officers, and is a safe guide in exploring an otherwise dubious path."
For these reasons we affirm the judgment of the county court.
Judgment affirmed. 

135 of 187 DOCUMENTS 

GEORGE JONES and S. W. WATERBURY, vs. OUTERBRIDGE HORSEY, Gar. of BENJAMIN F. WIGGINS, and ELISHA MCCONNEKIN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Md. 306; 1853 Md. LEXIS 35 

DECEMBER, 1853, Decided 

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

This was an attachment upon warrant, issued on the 2nd of May 1850, by the appellants, non-resident creditors of Wiggins and McConnekin, trading under the firm of B. F. Wiggins & Co., and laid in the hands of the appellee, Horsey, permanent trustee in insolvency of Wiggins. The plaintiffs' claim was based upon a judgment recovered by them against Wiggins & Co., in the Circuit Court of the United States for the District of Maryland, on the 7th of April 1847, for $ 532.82, with interest and costs. The garnishee appeared and plead non assumpsit for the defendants, and nulla bona of defendants in his hands.

Exception. The plaintiffs proved their claim, and that they were citizens of the State of New York, and that the garnishee had in his hands certain sums of money which he had received as permanent trustee of Wiggins.

The garnishee then proved that Wiggins applied for the benefit of the insolvent laws on the 20th of April 1846, and was subsequently discharged thereunder, and that on the 21st of April 1846, the following paper was filed with the insolvent commissioners in the matter of said application, admitted to be signed by O. Horsey [**2]  and R. J. Brent, who were at that time the attorneys of the plaintiffs in the prosecution of their claim against Wiggins & Co.:

"To the commissioners of insolvent debtors of Baltimore: The undersigned creditors of B. F. Wiggins, an insolvent debtor, beg leave to recommend Outerbridge Horsey as permanent trustee of said Wiggins.

BRENT & HORSEY, for

"Jones and Waterbury, $ 550.

"Test,--Philip J. Tracy, Jr."

That said Horsey was on the same day duly appointed such trustee, and qualified as such.

The plaintiffs then asked the following instructions of the court:--1st, that they are not barred from recovering in this action because their attorneys recommended the appointment of a trustee. 2nd, that they are not bound or barred by the application of Wiggins for the insolvent laws, and that all proceedings thereunder are invalid against them, and that they are entitled to any funds derived from the estate of Wiggins undistributed in the hands of the trustee, both of which the court, (FRICK, C. J., and LE GRAND, A. J.,) refused, and the plaintiffs excepted and appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

The voluntary uniting by a foreign creditor in the recommendation of a trustee for the insolvent, is such an acquiescence in the insolvent laws of this State as to place such creditor upon the same level with domestic creditors, and to compel him to take a dividend of the assets as they do.

Voluntarily calling in aid the insolvent laws of this State, by a foreign creditor, to avoid a deed of the insolvent, valid but for such laws, will have the same effect.

It is within the limits of the authority of an attorney for a foreign creditor to unite for his client in the recommendation of a trustee for an insolvent, and in the absence of proof to the contrary, such act is presumed to be with the approbation of the client, who is as much bound thereby as if it was his own act.

An attorney having charge of a claim may transfer it from the action and decision of such judges as the client has in the first place selected, and submit it to the decision of other persons, and in the absence of proof to the contrary, the legal presumption is that he acted by authority of the client.

The law as it now stands in regard to the rights of foreign creditors is exceedingly hard and oppressive upon the claims of domestic creditors, and this court has no inclination to increase such hardship. 

COUNSEL:
Levin Gale for the appellants.

The only controversy arises upon [**3]  the first prayer, for if this be granted the second follows of course, for the appellants being non-resident creditors, their debt is not discharged, unless the act of their attorneys in signing their recommendation has brought them within the laws of Maryland. We insist, then:

1st. That the recommendation of the appointment of a permanent trustee by the plaintiffs, they being citizens of another State, will not subject them to the effect of the insolvent laws of Maryland so as to bar their debt.

2nd. That an attorney of a foreign creditor, without special authority for the purpose, and simply in virtue of his employment as attorney, cannot do an act the effect of which is to release or discharge the client's debt.

The case of Clay vs. Smith, 3 Pet., 411, relied on in the court below, is quite different in principle from this. Smith, the foreign creditor, filed his claim and received a dividend from the trustee under the insolvent laws; and the Supreme Court held, that he was bound by the discharge granted in pursuance of those laws. Here the only thing done was to recommend the appointment of a trustee. This amounts to nothing more than a recognition of the existence [**4]  of the application, but does not submit the debt to the control of those laws. No claim was filed by the appellants, and indeed the commissioners have no power to adjudicate upon claims, so that the recommendation was not in fact offered before a tribunal which had any authority over the contract. But this point has been before several courts in this country, and in all of them it has been held, that nothing short of taking a dividend under the insolvent laws can so bring a foreign creditor under the operation of such laws as to affect his debt. Van Hook vs. Whitlock, 26 Wend., 43. McCarty vs. Gibson, 5 Grattan, 307. Norton vs. Cook, 9 Conn., 314. And in England the same distinction between merely appearing to and taking part in the proceedings, and the receipt of a dividend under the insolvent system, has been recognised and acted on. Phillips vs. Allan, 8 Barn. and Cres., 477.

As to the second point it seems to be established law, that an attorney can do no act, the effect of which is to release, discharge, or bar his client's debt. Thus, in Beeche's case, 8 Coke, 115, it was decided, that an attorney could not enter a retraxit, because it perpetually barred the plaintiff's [**5]  right of action, although it was admitted he might suffer a non suit which merely affected the remedy. And in Gaillard vs. Smart, 6 Cow., 385, the same distinction is taken between the remedy and the cause of action, and the doctrine admitted that an attorney has no right to discharge the latter. It has been repeatedly held, that an attorney has no right to release a defendant from execution without satisfaction, because it discharges the debt. Jackson vs. Bartlett, 8 Johns., 362. Kellogg vs. Gilbert, 10 Johns., 220. Simonton vs. Barrell, 21 Wend., 363. Card vs. Walbridge, 18 Ohio, 411. Nor has an attorney power to release or compromise his client's debts or claim, and such release or compromise is void, unless sanctioned by the client. Harrow vs. Farrow, 7 B. Munroe, 126. West vs. Ball, 12 Alabama, 341. Gullet vs. Lewis, 3 Stewart, 231. Langdon vs. Potter, 13 Mass., 319. Lewis vs. Gamage, 1 Pick., 347. Givens vs. Biscoe, 3 J. J. Marshall, 532. In the case of Givens vs. Biscoe, the court say that an attorney cannot release or discharge a debt, "or do any act that would have that effect." And in Doub vs. Barnes, 4 Gill, 1, the Court of Appeals gave a similar decision, where they say:  [**6]  "As attorney, Mr. Price had no authority to accept for his client the deed of trust;" that is, they decide that an attorney cannot accept a deed of trust for the benefit of his client, the effect of which is to compromise or release the client's rights. The rule to be gathered from the authorities seems to be, that an attorney has authority over the remedies, so long as they do not operate upon the cause of action itself, but when the act to be done, if effectual, will compromise, release or discharge the cause of action, then it is beyond the power of an attorney, acting merely in virtue of his general authority as such. In this case, then, if it be decided that the recommendation, if properly made, would discharge the debt claimed by the appellants, the attorney, according to the authorities cited, had no power to do the act. On the other hand, if the attorney, by virtue of his employment in that capacity, had a right to sign the recommendation, it seems to follow with equal certainty, that such an act could not operate to compromise, defeat, or discharge, his client's cause of action.

D. C. H. Emory for the appellee.

1st. We think the case of Clay vs. Smith, 3 Pet., 411,  [**7]  conclusive upon the first point, notwithstanding the argument of the counsel for the appellant. That case was decided upon the ground that the creditor, by voluntarily making himself a party to the insolvent proceedings, thereby abandoned his extra-territorial immunity from the operation of the State bankrupt law, and the receipt of the dividend was mentioned not as the ground or consideration, but as proof of acquiescence. The cases cited on this point by the counsel for the appellant not only do not sustain his proposition, but rather sustain the language of the court in Clay vs. Smith. In no one of those cases did the foreign creditor acquiesce in the proceedings, but in all he appeared and opposed the applicant's discharge, and did no act of submission to or acquiescence in the law. In 3 Caine, 154, Van Raugh vs. Van Arsdaln, Kent, C. J., says, "if the plaintiff had given his assent to the proceedings under the insolvent law," &c., and from it we infer that any acquiescence or assent to the proceedings was, in the opinion of Ch. Kent, sufficient. In Woodhull vs. Wagner, 1 Bald., 301, the court say the State law is constitutional, "if the creditor makes himself a party to the proceedings [**8]  which lead to the discharge in the State courts."

2nd. If the appellants were not bound by the act of their attorneys, it would be difficult, if not impossible, for attorneys to know how far their powers extend. This is not a case of retraxit, release or compromise, and yet in relation to the right of an attorney to compromise Chief Justice Marshall has said: "A court would be disinclined to disturb one which was not so unreasonable in itself as to be exclaimed against by all, and to create an impression that the judgment of the attorney has been imposed on or not fairly exercised in the case." Holker vs. Parker, 7 Cranch, 452. This case also decides, that an attorney has the power to refer a cause without special authority from his client. See also on this point Massey vs. Thomas, 6 Binney, 333. Wilson vs. Young, 9 Barr., 101. 16 Mass., 396. 5 Howard, 83. The duties and powers of an attorney at law in the prosecution of his client's rights are so familiar to this court, that I forbear to argue the point further.  

JUDGES:
The cause was argued before ECCLESTON, MASON and TUCK, J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*311]  ECCLESTON, J., delivered the opinion of this court.
The counsel for the [**9]  appellants contends, that the recommendation of O. Horsey, as the permanent trustee of Wiggins, even if the recommendation had been made by the plaintiffs in person, was not such a recognition of, or assent to, the proceedings in insolvency as could deprive them of 

 [*312]  their right to attach the fund in controversy, they being foreign creditors. He assumes, "that nothing short of taking a dividend under the insolvent laws, can so bring a foreign creditor under the operation of such laws as to affect his debt." In this we think he is certainly mistaken. He refers to Van Hook vs. Whitlock, 26 Wend. 43. McCarty vs. Gibson, 5 Grattan's Rep., 307.  Norton vs. Cook, 9 Conn. 314, and Phillips vs. Allan, 8 Barn. and Cres., 477, as sustaining his view of the subject. But in neither of these cases was there an act on the part of the creditor which could be construed into an assent to the proceeding; on the contrary, in each case the creditor opposed the discharge of the applicant and did nothing else, so far as the reports inform us.
In Clay vs. Smith, 3 Peters' R., 411, the creditor received a [**10]  dividend of the insolvent's assets, and that was held to be such an assent to the insolvent laws of the State, as amounted to an abandonment of the extra-territorial immunity of the foreign creditor. And this is a leading case, which has since been referred to in various decisions. But we have never understood it was supposed to establish the doctrine, that nothing less than the actual receipt of a portion of the assets could have a similar effect upon the creditor's claim.
The effect of an insolvent's discharge being under consideration in Van Raugh vs. Van Arsdaln, 3 Caine's Rep., 155, Chancellor Kent, in giving the decision of the court, declined expressing any opinion as to the operation of such a discharge, provided the case had been presented in either of several enumerated aspects, among which are, "if the plaintiff had given his assent to the proceedings under the insolvent law, or accepted any dividend of the defendant's estate." It is very true the learned chancellor does not here decide what would be the effect either of assenting to the proceedings or of taking a dividend; but it is equally true, he seems to consider these alternatives as standing [**11]  upon equal grounds; and, at all events, we cannot believe he entertained the opinion, 

 [*313]  that receiving a portion of the estate was the only acquiescence in the proceedings which could take from a foreign claimant his rights, as such, in opposition to the discharge. There is no necessity, however, to rely upon the inference to be drawn from this language of Chancellor Kent, for a decision of the present distinguished chief justice of the United States, in White, Warner & Co., vs. Winn and Ross, establishes clearly, that the rights of a foreign creditor, in opposition to the discharge of an insolvent and in preference to the claims of domestic creditors, may be lost by other means than taking a dividend of the assets. This decision may be found in 8 Gill 499, and is also mentioned in 2 Md. 468. In the case alluded to, an attempt was made in behalf of the plaintiffs, (who were foreign creditors,) in an attachment, laid in the hands of the trustees of an insolvent, to set aside a deed as fraudulent under the statute of 13 Eliz. In the progress of the cause the court were satisfied, that under the English statute, and independently of [**12]  our insolvent laws, the deed was valid. And the court put the plaintiffs in the predicament of being obliged to decide, whether they would submit to a non suit in consequence of the validity of the deed, if they intended to deny the validity of the proceedings in insolvency; or whether they would insist upon avoiding the deed under our insolvent laws. By adopting the latter alternative, they could claim under the permanent trustee such interest only as the insolvent laws would award them. So that they were forced to elect between a non suit or taking a dividend of the fund in the hands of the trustees. This, it will be seen, was not a proceeding in a State court, having jurisdiction over cases of insolvency, but in the circuit court of the United States. And there the foreign creditors were held bound to submit to the effect and influence of our insolvent system, if they claimed the benefit of that system for the purpose of invalidating a deed, which otherwise would have defeated their entire claim, so far, at least, as the property included in that deed was concerned. Voluntarily calling in aid the insolvent laws to avoid the deed otherwise 

 [*314]  valid, is then such [**13]  an acquiescence in those laws as places a foreign creditor upon the same level with domestic creditors, and compels him to take a dividend of the assets as they do. We see no just reason why voluntarily coming forward and uniting in the recommendation of a trustee, especially when that trustee is the attorney of the claimant, should not produce a similar effect.
Admitting this conclusion to be correct, the appellants' counsel insists, that the recommendation of the trustee in the present case being the act of the attorneys and not of the parties, they cannot be affected by it. The authorities cited in support of this position do not, in our opinion, establish the principle contended for. They are in relation to the inquiry, whether an attorney can enter a retraxit, or can release or compromise his client's claim. But this is neither a retraxit, a release, or a compromise.
In Holker vs. Parker, 7 Cranch 436, it was contended that an attorney could not, without the consent of his client, transfer a cause to other judges than those appointed by law, and place it before a tribunal distinct from the one before which the party himself had chosen to place it.  [**14]  But the Supreme Court, in the opinion delivered by the chief justice, denied the correctness of the position, and held "it to be the practice throughout the Union for suits to be referred, by consent of counsel, without special authority." And in the Alexandria Canal vs. Swann, 5 How. S. C. R. 89, a question arose, whether the reference was authorized by the corporation in the manner or by the persons having the right to do so. The court would not inquire what members of the corporation had the power to direct the proceedings in the suit and assent to the reference. And they say, "the corporation, however governed in this particular, was the party defendant in court and was represented by its counsel, and his acts are presumed to be authorised by the party in conducting the suit. This has long been the settled law of Maryland, which is the law of Washington county."
From those two cases it is perfectly plain, that an attorney 

 [*315]  having charge of a claim may transfer it from the action and decision of such judges as the client has selected in the first instance, and submit it to the decision of other persons. And in the absence of proof to the contrary the legal presumption [**15]  is, that in so doing the attorney acted by the authority of the client.
It is admitted here, that when Messrs. Brent and Horsey signed the recommendation, they were attorneys of the plaintiffs for the prosecution of their claim. And we find no proof in the record of any restriction or limitation upon their authority.
The case of White, Warner & Co., vs. Winn and Ross, shows there may be instances in which it would be exceedingly beneficial to a foreign creditor that his attorney, on the spot, attending to the management of his claims, should be clothed with power to acquiesce in the proceedings in insolvency. It has not been and we do not presume it will be seriously contended, that if from assenting to the insolvent laws by an attorney, the interest of the client would be promoted, the assent would not then be valid and binding. If binding in such a case, there would be great injustice in holding, that the result of the matter is the only test of the validity of the act, in regard to its influence on the client. If, in the beginning, the effect on the claim should be uncertain, but in the end prejudicial, the client would have the full benefit of the experiment, without its [**16]  having any injurious influence upon his extra-territorial rights. The law, as it now stands in regard to those rights, is exceedingly hard and oppressive upon the claims of domestic creditors, and we feel no inclination to increase the hardship.
The commissioners in insolvency, under the laws relating to the city of Baltimore, were legally authorised to perform acts having a material bearing and effect in the settlement and final adjustment of claims against the estate of insolvents. Perhaps few, if any, of their acts were more important, as regards creditors, than the selection of trustees. Beyond the limits of Baltimore city, the county courts, in regular session, 

 [*316]  had the power to appoint trustees where the insolvents made application to the court. In the recess, a judge of the county court or orphans court could make the appointment.
By the selection of an active and thoroughly competent person, the assets might be much increased beyond what they would be under the management of a man of the opposite character, and it might very well happen that a foreign creditor, by taking a dividend from the efficient trustee, would actually receive a larger share of his claim than [**17]  he could get by means of an attachment laid in the hands of a trustee, regardless of his duty or incompetent to perform it. And this is a good reason why an attorney should have the authority, at his discretion, when not prohibited by his client, to unite in the recommendation of a trustee. If such an act is within the limits of his authority, (which we think is the case,) then, when done, it is presumed to be with the approbation of his client, unless proof to the contrary is given. Therefore, the recommendation before us must be considered as having the same effect upon the appellants as if it had been their own act. See the cases of Henck vs. Todhunter, 7 H. & J. 275, and Kent vs. Ricards, 3 Md. Ch. Dec. 392.
Approving the decision of the court below on both prayers, the judgment will be affirmed.
Judgment affirmed. 

136 of 187 DOCUMENTS 

THOMPSON PEGG and others, vs. RICHARD C. WARFORD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Md. 385; 1853 Md. LEXIS 41 

DECEMBER, 1853, Decided 

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

This appeal was taken from an order of the court below, dismissing a petition of the appellants. The facts of the case are set out in the opinion of this court, and render any additional statement unnecessary, except to state that the issues granted upon the application of the appellants, Pegg and others, referred to in this opinion, were six in number, and in substance as follows:

1st. Whether the will of the 6th of April 1848, was executed by said Rachel Colvin, when she was of sound and disposing mind, and capable of executing a valid deed or contract?

2nd. Whether it was executed by her under the influence of suggestions or importunities, when her mind from its diseased or enfeebled state was unable to resist the same?

3rd. Whether the will of the 30th of October 1845, was duly executed and published?

4th. Whether this was revoked by the will of the 6th of April 1848?

5th. Whether it was revoked in any other manner than by the will of 1848?

6th. Whether said Rachel was prevented by the fraudulent concealment of the will of 1845, by any person or persons, from revoking the same by burning, cancelling [**2]  or otherwise?

In the trial of these issues, the order directed the petitioners Pegg and others, to be plaintiffs, and Richard C. Warford to be defendant.

The issues granted upon the application of Landis and others, were also six in number and in substance as follows:

1st. Was Rachel Colvin at the time of executing the will of 1848, of sound and disposing mind, and capable of executing a valid deed or contract?

2nd. Was she at or before that time urged to execute the same by importunities, which she was too weak to resist, and under circumstances which did not leave her free as to the disposition of her estate?

3rd. Was she at or before that time urged to execute the same by undue influence, which she was too weak to resist? &c.

4th. Was this will and the execution thereof, her free and voluntary act, to which she was induced with a knowledge of its contents, and without the exercise of a dominion or influence by some person or persons which prevented the exercise of a sound discretion?

5th. Was it and its execution procured by undue influence, fraudulent devices, importunities, misrepresentations, and deceits practiced upon and to her?

6th.  [**3]  Was she at any time subsequent to its execution, desirous of altering or cancelling the same, and was she prevented therefrom by management, fraud, undue influence or importunities?

The order directed the petitioners, Landis and others, to be plaintiffs at the trial of these issues, and Richard C. Warford to be defendant.  

DISPOSITION:
Order affirmed in part and reversed in part, and cause remanded, costs to await the final result.  

HEADNOTES:

In cases of caveats to wills, the orphans courts have the power to compel a joinder of all the caveators, when the issues they desire are the same in substance.

But in the case of several wills made by the same party, and where the interests of the different caveators are to some extent conflicting, there ought not to be a joinder, the ends proposed not being the same.

Under the act of 1798, ch. 101, at any stage of the proceedings before final adjudication, either party may require an issue, and the orphans court is not at liberty to refuse it.

Even after the finding of a jury on issues, a party in interest can require another issue or issues in regard to facts not covered by those pronounced upon, if the final judgment on the paper purporting to be a will has not been rendered.

But no issue can be granted which substantially embraces the same question that has been pronounced upon by the jury, for their finding in regard to it, is conclusive and binding on the whole world.

Nor can the same issue be granted on the several applications of different parties unless they be joined as plaintiffs or defendants, so as to produce by the trial but one and the same verdict.

When an issue is once granted, the functions of the orphans court, so far as that question is concerned, are suspended until the finding of the jury be certified, and when that is done, the court has no discretion, but is imperatively required to enter up judgment in conformity thereto.

When on the application of one party, an issue is transmitted to a court of law for trial, the granting on the application of another party, of substantially the same issue to be tried before another jury, is a mere nullity -- a void act.

On an appeal from an order of the orphans court awarding the same issue a second time, this court would be bound to denounce it as utterly void and as of none effect.

The orphans court has no power to revoke or remodel issues after they have been transmitted, but until then they have the power to compel the joinder of parties who desire the same issue.

By consent of the parties to the proceedings, issues which have been granted and transmitted may be abandoned in the court of law where they are pending for trial, and others framed by the orphans court.

Though the jury may find affirmatively or negatively on the question submitted, yet such finding may not determine the validity of the will, for there may be facts outside of the verdict, and not inconsistent with it which will decide the question.

The orphans court are bound to consider all testimony adduced before them on the same subject which is not inconsistent with the finding of the jury, but so far as the facts covered by the verdict are involved, they are settled unalterably by it, and all other facts contrariwise are to be disregarded.

Whenever a bill or petition be filed, whether or not the other parties are cited to appear, if, in point of fact, they do appear and answer, the proceedings are plenary. 

COUNSEL:
Henry Winter Davis for the appellants.

It is more important that these cases should be decided than how they are decided. The proceedings are solely under the act of 1798, ch. 101, and it is singular that this act no where particularly prescribes the proceedings upon a caveat. Sub-ch. 2, secs. 6, 7, 8, 9, 10, 11; Sub-ch. 18, secs. 16 and 17; and Sub-ch. 8, sec. 20, contain all that relates to plenary and summary proceedings, and to the granting and trial of issues. We insist, first, that there was error in the court below, in not granting the prayer of the petition for the ordering of plenary proceedings, as issues can only be awarded on such proceedings. If there be plenary proceedings, a party can call for issues whenever there is any fact in dispute [**4]  to be tried. Now none of the applications in this case are plenary proceedings,-- they make no persons defendants, but are mere caveats,--mere informal, ex-parte, and summary proceedings. Filing their answers does not make the parties defendants. 9 G. & J., 324. A will may may be probated upon summary as well as plenary proceedings. 5 H. & J., 175, Barroll and Cannell, vs. Reading. What are plenary proceedings, may be tested by what are formal proceedings in chancery or the ecclesiastical courts, and in such courts these proceedings would not be plenary. The fact that the petition is in writing does not make the proceedings plenary. There must be a substantial allegation of your case, and making a party defendant by calling on him to answer. A caveat is not a plenary proceeding, until some one comes in and offers to probate the will, until then it is a mere warning to the world.

But, secondly, suppose the proceedings to be plenary, there still have been errors committed by the orphans court, which it has the power to correct before final judgment. The fact that one party comes in and files a caveat and asks for issues does not exclude the others; the only limit to such proceedings [**5]  is the rendition of the final judgment. 5 H. & J., 175. There must then have been some time at which the court had the power to blend the several proceedings. This should have been done and but one set of issues awarded, in which all the caveators should be made to unite. It is error not to make the proper parties to the caveat. 8 Gill, 31, Marriott vs. Handy. 9 Gill, 456, Glass vs. Ramsey. The court must have the power, on motion of a party, to revoke and modify any issues awarded at any time before trial, and in this case they ought, in order to prevent confusion and conflict between the verdicts on the same will, to revoke the issues, make all the caveators parties to the same issues, and order one trial. Notwithstanding the transmission of issues, the cause still remains in the orphans court. 6 How., 62, Van Ness vs. Van Ness. The court of law to which the issues are sent, has no jurisdiction of the case, it cannot render judgment, but simply certifies the verdict of the jury to the orphans court, upon which it is conclusive only as to the points embraced in the issue. 2 H. & G., 42. The court of chancery never loses jurisdiction of a case when it sends issues to be tried; so with [**6]  a circuit court when a certificate of division is sent up to the supreme court.

Geo. W. Brown and Wm. Schley for the appellees.

1st. The appellants caveated the will, and issues were sent upon their own motion, and they cannot upon the state of facts made in their petition, ask for a revocation of them. The orphans court has no power to recall issues after they have been transmitted to a court of law for trial, the jurisdiction of a court of law attached immediately on the receipt of the issues, and the orphans court could not divest it of its jurisdiction. The jurisdiction of the orphans court was temporarily suspended until the return of the issues. The court of law in the case of issues sent, stands in the place of the orphans court, which cannot act until the certificate of the verdict is returned to them. Before the issues were sent, the orphans court had power to modify or change them as it choose, but the moment they were sent another tribunal had jurisdiction,--it was a case there pending,--its jurisdiction was exclusive for the time.

2nd. Even if the orphans court could have recalled the issues, and resumed jurisdiction de novo, with the consent of all parties [**7]  to the issues, still where want of consent appeared that court could not rightfully interfere, nor would the court of law have refused to try the issues, if any of the parties had claimed the exercise of its jurisdiction, even if the orphans court had by its order requested the issues to be returned.

3rd. At all events the orphans court did right to refuse the application of the appellants, as no sufficient reason was set forth and established, why the issues transmitted on their application should be recalled, even if the power of the court were conceded.

4th. But if the court in its discretion could have validly recalled the issues, if it had deemed it expedient, still no appeal will lie from its decision refusing to recall them. 5 Gill, 506. 1 Bland, 5.

5th. The proceedings were plenary. The issue of a summons is not the test whether proceedings are plenary or summary, for this may be done upon application of any one ore tenus; nor is it necessary that there should be a contest between parties to make proceedings plenary. The test is whether the application, bill, or petition is in writing, if it is the proceedings are plenary. See, act of 1818, ch. 204, sec. 3.  

JUDGES:
The [**8]  cause was argued before LE GRAND, C. J., ECCLESTON and TUCK J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*390]  LE GRAND, C. J. delivered the opinion of this court.
This is an appeal from an order of the orphans court for Baltimore city.
It appears from the record, that on the 8th of February 1853, a paper, dated the 6th of April 1848, purporting to be the will of Rachel Colvin, deceased, was produced and filed in the orphans court for Baltimore city; that on the 26th of the same month, Thompson Pegg and others filed their petition or caveat, which, on the 21st April, was answered by the appellee. That on the 1st March 1853, another paper, dated the 13th October 1845, purporting to be the last will of Rachel Colvin, was produced and filed in the same court; and that, on the 3rd March 1853, Jesse Landis and others filed their caveat to the will of 1848; and, on the 19th March 1853, Thompson Pegg and others filed their caveat to the paper dated 13th October 1845. On the 21st April 1853, the appellee filed his answer to the petition or caveat of Pegg and others to the paper dated the 13th October 1845, and, on the same day, filed his answer to the petition or caveat of Landis and others to the [**9]  same paper. On the 17th May 1853, on the application of Pegg and others, the orphans court directed issues, embracing the papers purporting to be wills of date 1845 and 1848, to be sent to the superior court for Baltimore city for trial; and on the written application of Landis and others, issues were ordered touching the will of 1848. On the 23rd of October 1853, Regnear Van Sickle 

 [*391]  and others filed their caveat against the paper of the 6th April 1848, which was answered by appellee on the 12th November following.
On the 5th November 1853, appellants filed their petition, which, after reciting the proceedings of the orphans court, prays that the issues which had been granted "may be revoked, and that plenary proceedings may be ordered, and that new issues may be framed and transmitted for trial to the circuit court for Baltimore county, and that said parties, (those who had filed caveats,) may be ordered to join in the same, or that the said issues granted upon the application of petitioners may be revoked, and new ones framed and transmitted to the circuit court of Baltimore county for trial."
On the 12th November 1853, appellee, and Landis and others, filed [**10]  their separate answers to the petition of appellants, the appellee resisting the granting of the prayer of the petition, and Landis and others acquiescing in it, except in so far as they are required to join with the petitioners and to abandon the issues ordered on their own application. On the 14th November 1853, Van Sickle and others filed their answer and consent to the prayer of the petitioners. On the 26th November 1853, the court dismissed the petition of the appellants, and it is from this order of dismissal the appeal is taken.
These facts exhibit a singularity of case without parallel in the published history of the judicature of the State. In all the cases, with which we are acquainted, in which issues have been ordered by the orphans courts of our State, the caveators have, so far as the records show, harmonized in their efforts to set aside the papers propounded as wills, and therefore, in each case, there has been but one set of issues. The uniformity of this practice would seem to impress it with the character of being the best, and there can scarcely be a doubt on the mind of any one that when it is practicable it ought to be observed. We, therefore, hold it proper [**11]  for the orphans court to order a joinder of all the caveators when the issues they desire are the same in substance; but, we can very 

 [*392]  readily understand, that in a case where there is more than one paper propounded as a testamentary disposition of property, the interests of the different caveators may be, to a certain extent, conflicting, and this case furnishes an illustration of the principle. It may be to the interest of some of them to sustain the will of 1845, whilst they assail that of 1848. It would be manifestly productive of confusion to compel such of them to join with those who not only assail the will of 1848, but also that of 1845. There ought not to be a joinder of parties whose proposed ends are not the same, but where they are so there is, in our judgment, a power in the court to compel it.
It is a somewhat remarkable circumstance, that notwithstanding the great care bestowed upon the draught of the act of 1798, chapter 101, and, in general, its minuteness, and particularity of detail and direction, there should have been so little ascertained by it in regard to the granting and trial of issues. The only parts of the act having reference to this matter [**12]  are the 16th and 17th sections of sub-chapter 15, and the 20th section of sub-chapter 8.
By the 16th section of sub-chapter 15, it is provided, that "whenever either of the parties having a contest in the orphans court shall require it, the said court may direct a plenary proceeding, by bill or petition, to which there shall be an answer on oath," &c.; and, by the 17th section of the same sub-chapter, it is enacted, "on such plenary proceedings all depositions shall be taken in writing and recorded, and in case either party shall require, the court shall direct an issue or issues to be made up, and sent to any court of law which may be most convenient, under all circumstances, for trying the same, and the said issue or issues shall be tried in the said court of law as soon as may be, without any continuance longer than is necessary to procure the attendance of a witness or witnesses; and the power of the court of law, and proceedings thereto relative, shall be as hereinbefore directed respecting the trial of issues, and the orphans court shall give judgment, or decree upon the bill and answer, or upon bill, 

 [*393]  answer, depositions, or finding of the jury," &c. The reference [**13]  in this section, by the words "as hereinbefore directed," is to the 20th section of sub-chapter 8, which provides for the case of an executor or administrator being indebted to the estate of the deceased, and authorises the court, on the petition of any person interested in the administration, to direct an issue or issues to be tried, and declares "the same shall be tried in any court of law proper for the trial and most convenient under all circumstances, and the court of law shall have power to direct the jury and grant a new trial, as if the issue or issues were in a suit therein instituted," &c.
There is nothing in either of these sections, nor in any other part of the act of 1798, nor indeed in any of the supplements thereto, which defines the duty of the orphans court where issues are applied for by different parties, at different times; and there is also a perfect silence as to the power of the court over the matter of granting issues when that authority has been once exercised. In regard to these matters therefore, our conclusions and reasoning must be drawn from the nature of the proceeding, the purpose proposed by the testamentary system, and the analogies of the law.  [**14]  
In the case of Cain, et al., vs. Warford, 3 Md. 454, this court said, "the obvious purpose of the 16th section, (sub-chapter 15,) is to enable the court to advertise itself of the real facts in the case," and this also is clearly the object of the 17th section, which provides for an issue or issues. The practice of directing issues is undoubtedly borrowed from chancery and the ecclesiastical courts, and was observed in this State prior to the passage of the act of 1798. By the 9th section of the act of February 1777, chapter 8, the orphans courts were empowered to grant a plenary proceeding, and to order an issue and summon a jury for the trial of the same. Whilst, however, that act authorised the court to give judgment on the finding of the jury, it is not so clear they were bound to do so in conformity with it as they are required by the act of 1798.
Under the act of 1798, "at any stage of the proceedings, 

 [*394]  before final adjudication, either party may require it, (an issue,) and the court is not at liberty to refuse it." Barroll and Cannell, vs. Reading, 5 Har. and Johns., 176. From this it follows, that even after the finding [**15]  of a jury on issues, a party in interest can require another issue or issues in regard to facts not covered by those pronounced upon, if the final judgment on the paper purporting to be a will has not been rendered. Thus if an issue be sent to a court of law which involves only the question of the execution, attestation and publication of the paper, and it be found in favor of the paper, it is still competent to the same party, or any other in interest, to require another issue or issues involving an inquiry as to the mental and disposing capacity of the testator, or the exercise of undue importunity and control over him, the practice of fraud upon him or any other fact not inconsistent with the execution, attestation and publication of the paper. No issue can be granted which substantially embraces the same question that has been pronounced upon by the jury, for their finding in regard to it is conclusive and binding on the whole world. Nor, for the same reason, can the same issue be granted on the several applications of different parties, unless they be joined as plaintiffs or defendants, so as to produce by the trial but one and the same verdict. Were different parties permitted [**16]  to propound the same question to different juries, there might, and most probably would be, different verdicts, and, as an inevitable consequence, under the act of 1798, different judgments in the orphans court on the same matter. It would be absurd to impute such a folly to the act. Its purpose is to ensure certainty, and this cannot be accomplished if the same question be submitted to different juries. We hold, therefore, from the very nature of the thing, when a question is once submitted, so far as it is concerned, the functions of the orphans court are suspended until the finding of the jury be certified, and when that is done, it has no discretion in regard to it, but is imperatively required to enter up judgment in conformity thereto. And, as a consequence of this, where, on the application of one party, an issue is 

 [*395]  transmitted to a court of law for trial, the granting, on the application of another party, of substantially the same issue to be tried before another jury, is a mere nullity--a void act. On an appeal from an order of the orphans court awarding the same issue a second time, this court would be bound to denounce it as utterly void and of none effect.  [**17]  
We perceive nothing in these views obnoxious to censure from any quarter. When the question has been once fairly answered by a jury it ought to be considered as definitively settled. If the jury disregard the testimony or the court err in its instructions of the law, the party aggrieved has his remedy by a motion for a new trial, or an appeal to this court.
We do not regard the orphans court as having any power to revoke or remodel issues after they have been transmitted; until then, however, as we have said, they have the right, by virtue of a power necessarily inherent in them, to compel the joinder of parties who desire the same issues; and, as we have shown by the case of Barroll vs. Reading, 5 H. & J. 175, a party has the right to require an issue up to the time of final adjudication, the appellants are entitled to an issue involving an inquiry as to the mental capacity of Miss Colvin when she executed the paper dated 13th October 1845, and the orphans court have power, in their order awarding it, to direct that it shall be tried at the same time and before the same jury which shall act upon the issues already transmitted. This secures to them all they have a right [**18]  to ask--the verdict of a jury on all the questions they may think proper to propound touching the paper of 1845 or of 1848.
It does not necessarily follow, because the finding of a jury on issues be as is desired by those at whose instance they may have been awarded, that the paper shall be admitted to or denied probate as the case may be. The finding of the jury may be affirmatively or negatively on the questions submitted, and yet such finding either way may not determine the question of the validity of the paper as a will; there may be other facts outside of the verdict and not inconsistent with it which will decide the question. For instance, a jury might 

 [*396]  find on an issue so framed that a certain paper purporting to be a last will, was executed, duly attested and published as such, and yet its final judgment might be against the paper as a valid will, because it might appear from testimony taken before the orphans court, or by the finding of another jury, that at the time of the execution and publication, the testator had not the requisite disposing capacity. And this being so, the orphans court have not only the right, but are bound to render their final judgment [**19]  on the finding of different juries, where they have pronounced on different issues touching the same paper. They are also to consider all testimony adduced before them on the same subject which is not inconsistent with the finding of the juries. So far as the facts covered by the verdicts are involved, they are settled unalterably by it, and all other facts contrariwise are to be disregarded.
Whilst we are of opinion the orphans court have no power to revoke or remodel the issues transmitted to the superior court at the instance of the appellants, yet we nevertheless think, that by consent of the parties to the proceeding they may be abandoned in the court of law where they are pending for trial, and others framed by the orphans court without prejudice to the rights of either party.
As the prayer for plenary proceedings is also embraced in the petition of the appellants, we will remark, that we regard the proceeding which has been had on the caveat and petition of the appellants as a plenary proceeding, and that wherever a bill or petition be filed, whether or not the other parties are cited to appear, if in point of fact they do appear and answer, the proceeding is plenary. [**20]  
From these reasons it appears, we are of opinion, that the appellants were entitled to issues relating to the mental capacity of Miss Colvin when she executed the paper of October 1845. In so far we disapprove of the order of the orphans court, and affirm it so far as it relates to the other matters embraced in the petition of the appellants.
Order affirmed in part and reversed in part, and cause remanded, costs to await the final result. 

137 of 187 DOCUMENTS 

RICHARD C. WARFORD vs. REGNEAR VAN SICKLE and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Md. 397; 1853 Md. LEXIS 42 

DECEMBER, 1853, Decided 

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

The appeal in this case was taken from an order of the orphans court, awarding issues upon the application of the appellees. The facts of this case are the same as those of the preceding case, except that in the record in this case the issues, six in number, awarded upon the caveat of the appellees, which was filed on the 29th of October 1853, are set out, and are in substance as follows:

1st. Was Rachel Colvin, at the time of executing the will of the 6th of April 1848, of sound and disposing mind and capable of executing a valid deed or contract?

2nd. Was she at or before that time urged to execute the same by importunities, which she was too weak to resist, and under circumstances which did not leave her free in relation to the disposition of her estate?

3rd. Was she at or before that time urged to execute the same by undue influence which she was too weak to resist? &c.

4th. Was the said paper and the execution thereof, the free voluntary act of the said Rachel, to which she was induced with a knowledge of the contents thereof, and without the exercise of the dominion and influence of some person or persons,  [**2]  which prevented the exercise of a sound discretion?

5th. Was said paper and the execution thereof, procured by undue influence, fraudulent devices, misrepresentations, and deceits practiced upon and to her by some person or persons?

6th. Was she at any time subsequent to the execution of said paper, desirous of altering or cancelling the same, and was she prevented therefrom by the management, fraud, undue influence or importunities of some person or persons? 

DISPOSITION:
Order affirmed in part and reversed in part.  

HEADNOTES:

The awarding of issues by the orphans court upon a caveat to a will, substantially the same as those previously granted upon the application of other parties, is a void act and of no effect.  

COUNSEL:
George W. Brown for the appellant.

1st. The orphans court having sent issues on both wills, all the questions raised by these issues were submitted to another tribunal, and a verdict thereon when rendered by the jury and returned to the orphans court, will be conclusive and binding upon all the world. Dorsey's Testamentary Law, 14, 50, 51, 97. 5 Gill, 204. 3 Md. Rep., 462. The orphans court discharged itself of the case as soon as it passed and sent the first issues. If the issues asked by the appellees were properly granted, they may be sent to different tribunals, tried at different times, and different verdicts rendered. What would be the result in such a case?  [**3]  Which verdict is the orphans court to give their judgment upon? The truth is, proceedings upon a will are in the nature of proceedings in rem, and every person is bound to take notice of them.

2nd. If the appellees wished to become parties to the issues previously sent out, they should have applied in a proper time and manner, and having delayed until more than five months have elapsed, since the first were granted and sent, they cannot take advantage of their own negligence, and require the court to grant new issues. Or they should have appealed from the order granting the first issues. Dorsey's Testamentary Law, 15. 10 G. & J., 366. 1 H. & G., 9.

3rd. The issues prayed for by appellees are defective, because they raise questions only on the will of 1848, and exclude from the consideration of the jury the will of 1845. Stride vs. Cooper, 1 Eccl. Rep., 91. Sandford vs. Vaughan, Ib., 28, 30.

4th. The appellees offered no proof of interest in the estate of Rachel Colvin, nor of relationship to her, and are not devisees or legatees in either will, and were, therefore, not entitled, especially at the late period when they appeared in the orphans court, to apply for issues.  [**4]  

Richard T. Merrick for the appellees.

The law gives any person the right to caveat a will, and on a contest to demand issues, and we have come in and ask to be allowed to assert this right. We have done so in proper time, within twelve months after the will was filed, and within six months after the filing of the caveat, and before the rendition of the verdict upon the issues, and before the final judgment of the orphans court upon the will. The only period beyond which parties will not be allowed so to come in and ask for issues, is the rendition of the verdict, and until that time they have such right. Let the race be to those who first get the verdict, and not to those who first get a standing in the orphans court. The act of 1798 says, that whenever there is a contest, issues shall upon the application of any party be sent.

The orphans court does not stand to the court of law, where the issues are sent, in the same relation that one county court stands to another in the case of removal of causes. It stands behind the court of law, and it alone has the power to render judgment upon the verdict. The orphans court formerly had the power of summoning juries themselves,  [**5]  to try the facts in case of disputes, and the county court juries were merely substituted in the place of those. See 5 H. & J., 176. The object of the awarding of issues, as has been well expressed by this court in 3 Md. Rep., 462, is to enable the orphans court "to advertise itself of the real facts in the case." We insist, therefore, that there was no error in the granting of the issues asked for by us.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and TUCK, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*399]  LE GRAND, C. J., delivered the opinion of this court.
The facts in this case, with the exception of an additional one, are the same as those of Pegg, et al., vs. Warford, decided at this term, (ante 385,) and the principles recognized in the latter, must govern the decision of this.
It appears from the record, that after the granting of two sets of issues--one at the instance of Pegg and others, and the other at that of Landis and others--on the application of the appellees, 

 [*400]  the orphans court award a third set, relating to the paper purporting to be the will of Miss Colvin, of date 6th of April, 1848. So far as these are substantially the same, as any of those [**6]  previously granted, the awarding of them was a void act and of no effect. The reasons for this opinion, we have assigned in the case to which we have referred. We regard the first three issues granted at the instance of the appellees, as substantially the same in their inquiry, as some of those granted at the instance of Pegg and others, and therefore reverse the order of the orphans court, in so far as they are concerned. The other issues were properly granted, and as to them the order of the orphans court is affirmed.
Order affirmed in part and reversed in part. 

138 of 187 DOCUMENTS 

JOHN HAYS vs. WILLIAM H. DORSEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 99; 1853 Md. LEXIS 74 

DECEMBER, 1853, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Equity Side of the Superior Court for Baltimore city.

This appeal was taken from a decree of the court below for the sale of certain mortgaged premises, passed upon a mortgage executed under the acts of 1833, ch. 181, and 1836, ch. 249. The facts of the case are fully stated in the opinion of this court.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

A mortgage was executed under the act of 1833, ch. 181, to the mortgagee, in trust, for the benefit of the payees of certain promissory notes secured by it, he, upon default, to make sale and apply the proceeds to the payment of the debt and interest. HELD:

That the mortgagee was the proper party to make the statement and affidavit required by the third section of that act, and that the payees in the notes, the cestui que trusts in the mortgage, need not be made parties to the proceedings under the act.

The proceedings under this act so far as the obtention of the decree is concerned are ex-parte; the rights of third parties are to be inquired into on the ratification of the sale and not before.

The affidavit and statement of the amount due on the mortgage required by the third section of this act need not be made before the decree but only before the sale. 

COUNSEL:
Thomas G. Pratt for the appellant, argued, that the decree was erroneous, because--

1st. The affidavit required by the act of 1833, ch. 181, should have been made prior to the decree, and by Miller and Arthur, the holders of the notes, to secure which the mortgage was given. The manifest design of the third section of the act of 1833 was to require that the party legally entitled to the money--the real creditor--should make the statement and affidavit. In no other way would the mortgagee be protected. This case is a forcible illustration of this proposition. Arthur and Miller are the holders of the notes, to secure the payment of which the mortgage was executed. They alone were authorised to receive payment in whole or in part of these notes, and consequently they alone could make the statement and affidavit required by the act.

2nd.  [**2]  Arthur and Miller, the holders of the notes referred to in the mortgage, and the cestui que trusts therein named, were necessary parties to the proceeding to foreclose the mortgage. Apart from the act of 1833, it is clear by every rule of chancery proceedings that they were necessary parties. Story's Eq. Pl., secs. 201, 207, 210. 3 Ves., 560, note (a.) 4 Madd. Rep., 101, Wood vs. Williams. The only question then is, whether this act dispenses with this necessity? I have looked in vain to the act to discover the provision which could be construed to have such a result. If we look at the question practically, the same necessity would seem to exist in proceedings under this act to have all the parties in interest before the court, which would exist in any other chancery proceeding. Arthur and Miller not being parties, are not bound by the decree which has been passed; they are not prevented by the decree from pursuing their remedy upon the notes, and the sale and payment of the money to the trustee named in the decree would not operate a liquidation of the mortgagor's indebtedness.

E. R. Sprague for the appellee. The mortgage was duly executed under the acts of 1833 and 1836. The [**3]  parties to the contract are Hays, the mortgagor, and Dorsey, the mortgagee. The former stipulates, that upon certain contingencies the latter shall have the right to foreclose under the provisions of the acts referred to. The contingency provided for in the mortgage happened, and the mortgagee, under the terms of the contract, instituted his proceedings in the proper court to obtain his remedy. It is too late now for the mortgagor to change the terms of this contract, and to require the mortgagee to pursue his remedy in any other way than that called for by the letter of the instrument itself. It is therefore submitted, that all the necessary parties are before the court.

As to the objection that Miller and Arthur should have made the statement and affidavit required by the third section of the act, it cannot be sustained, either by the language of the section, which is, that it shall be made by the "mortgagee or his assigns," nor by any construction of the act, for the whole object of this requirement is to go to the conscience of the mortgagee to disclose the exact amount claimed by him, and this requirement is fully gratified in this cause.  

JUDGES:
The cause was argued before LE [**4]  GRAND, C. J., ECCLESTON, MASON and TUCK, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*101]  LE GRAND, C. J., delivered the opinion of this court.
This is an appeal from a decree of the Superior court for Baltimore city, sitting as a court of equity.
It appears from the record that the appellant, to secure the payment of certain promissory notes, payable to Messrs. Arthur and Miller, of the State of Missouri, executed to the appellee, on the 16th day of March 1849, a mortgage in trust for the benefit of the payees of the promissory notes. The mortgage was executed under the acts of Assembly of 1836, ch. 249, and 1833, ch. 181.
On the 28th March 1851, all the notes being due, the appellee filed his petition praying a decree for the sale of the mortgaged premises, which was accordingly given.
To this decree two objections are urged:--1st. That Arthur and Miller should have been made parties to the proceeding; and 2nd. That the affidavit required by the act of 1833 should have been filed before the signing of the decree by the judge.
Both of these objections are to be solved by the act. It is an act applicable exclusively to the city of Baltimore. It provides for an ex-parte proceeding; and,  [**5]  so far as the obtention of the decree is concerned, no summons is necessary, nor is any notice required to be given to any one. The rights of third parties are to be inquired into on the question of the ratification of the sale and not before. The mortgagor, by executing his conveyance under the act, gives his "assent" to the passage of the decree; and so far as the authority of the court to pass it is involved, it is only necessary to file a petition and the mortgage. In the particular case before us, although the mortgage was executed in trust and for the benefit of Arthur and Miller, still the act contemplated the mortgagee, or 

 [*102]  his assignee, as the persons to file the petition and invoke the decree. The cestui que trusts are not anywhere required to be made parties. The third section of the act provides, that the affidavit to the amount of indebtedness shall be made "by the mortgagees, their executors or administrators, or their assigns if the mortgage claim shall have been assigned." Now were it conceded that in general the cestui que trusts are the proper persons to make the affidavit, yet in this case the mortgage provides, that the appellee, after default [**6]  of the mortgagor, shall make the sale and "apply the proceeds of sale to the payment of the principal debt then owing and unpaid, and all interest accrued." Under this clause we think the affidavit was made by the proper party.
This cannot occasion any inconvenience or injustice to the mortgagor. If the mortgagor has actually paid the notes, he can show it when the sale is reported for ratification. If, on the other hand, he has not paid them, justice requires that the property mortgaged should be made available to that purpose; and when the funds come to be distributed, he has a right to demand the surrender of the notes before the mortgagee or the cestui que trusts are entitled to any of the proceeds. Thus his interests are fully protected.
In regard to the second objection it is but necessary to say, it is distinctly answered by the third section of the act. It only requires the affidavit shall be filed "before" the sale. In this case, as yet, there has been no sale and the affidavit has been filed. We see no reason for setting aside the decree and accordingly affirm it.
Decree affirmed. 

139 of 187 DOCUMENTS 

WILLIAM E. MAYHEW vs. WILLIAM BOYD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 102; 1853 Md. LEXIS 75 

DECEMBER, 1853, Decided 

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

Assumpsit by the appellant, as holder, against the appellee, as endorser, of a promissory note for $ 900, drawn by one W. B. Pyfer, in favor of one Robert Close, dated October 25th, 1848, and payable in one year after date. Plea non-assumpsit.

Exception. The making, endorsement and protest of the note, and due notice thereof to the defendant were admitted. The defendant then offered in evidence a mortgage executed by Pyfer, the maker of the note, to Mayhew, the plaintiff, of certain household furniture in a hotel in Baltimore city. This mortgage bears the same date as the note, and recites Pyfer's indebtedness to Mayhew for $ 2089.23, for which he had given three notes of the same date with the mortgage, one payable to Boyd and the other two to Close, and endorsed by Boyd and Close, one for $ 900, at one year, (being the one in suit,) another for $ 594.61, at six months, and the other for $ 594.62, at four months. The condition was, that if Pyfer should pay to Mayhew the said sum of $ 2089.23 "according to the tenor and effect of said notes," the mortgage should be void; otherwise, Mayhew might sell the mortgaged property and apply the proceeds [**2]  to the payment thereof and the balance to the mortgagor.

When the note for $ 594.62, at four months, became due it was protested and due notice given to the endorsers; and shortly afterwards another note for $ 614.39, dated 8th of March 1849, was made by Pyfer, payable at forty days, to Close, and endorsed by him and Boyd, by way of renewal of the protested note, including the principal, interest and costs of protest of the original note, and the interest for the time the new note had to run, which was delivered by Close to Mayhew, who thereupon delivered to him the said original note. It was further in proof, that on the 8th of April 1849, after the original but before the new note or either of the others mentioned in the mortgage became due, by the consent of the mortgagor and the authority of the mortgagee, the mortgaged property was sold and the proceeds paid over to Mayhew, who applied them to the notes as they fell due. The fund was more than sufficient to pay the two first falling due, which were not demanded of Pyfer nor protested, nor any notice given to the endorsers of their payment or non-payment. The sale was fairly made; and it was proved that Pyfer's house was well [**3]  furnished in the summer of 1849, and that he went to California in June 1849, taking with him property or merchandise to the amount of $ 400 or $ 500, and died there in 1850. It was further proved, that Close and Boyd endorsed said notes at the request of Pyfer; and when they called on Mayhew and proposed to become endorsers on said notes mentioned in the mortgage, it was understood and agreed that Pyfer would execute said mortgage. Upon the whole evidence the plaintiff offered three prayers, in substance as follows:

1st. This prayer, after leaving to the jury to find the sale of the mortgaged property by the mutual consent of Pyfer and Mayhew, and payment over of the proceeds to the latter by the former on account of the indebtedness mentioned in the mortgage before the notes for $ 614.39 and $ 594.61 became due, asserts Mayhew's right to apply the same to pay said notes without any demand on Pyfer or giving any notice to the endorsers of their payment or non-payment; provided the first was a renewal of one of the original notes which was not otherwise paid, and that he was not bound to credit the note in suit with any more of said proceeds than may remain after paying those [**4]  two.

2nd. This prayer leaves to the jury to find the making, endorsement and protest of the note in suit, that Mayhew fairly applied the proceeds of sale to pay the notes secured by the mortgage, that the sale was fair and with the consent of the mortgagor, and such application left only a balance of the last note due, (the one sued on,) and then asserts that Mayhew was under no legal obligation to protest the two former notes in order to hold Boyd liable on the one in suit.

3rd. This asserts that if the jury find that no actual loss or damage was sustained by Boyd from the sale of the mortgaged property and application of the proceeds as above stated, then the facts of the sale being made before the time limited for it in the mortgage and without the consent of Boyd are not sufficient of themselves entirely to bar the plaintiff's right to recover in this action.

The defendant then asked an instruction, that if the jury find the making and endorsement by Close and Boyd of the notes as mentioned in the mortgage; that Pyfer executed said mortgage to secure their payment; that the note for $ 594.62 was paid and settled by another for $ 614.39, drawn by Pyfer and endorsed [**5]  by Close and Boyd; that Mayhew, before said notes or either of them became due, sold the mortgaged property without the consent of Close and Boyd or either of them; that the notes for $ 614.39 and $ 594.61 were not protested for non-payment, and Close and Boyd did not receive, and Mayhew made no effort to give them, any notice of their non-payment; that Pyfer, at the time the two last mentioned notes became due, was in such circumstances that Close and Boyd could or might have recovered their amount from him; that the proceeds of said sale amounted to more than the note sued on with interest and were received by Mayhew, then he is not entitled to recover.

The court, (FRICK, C. J. and LE GRAND, A. J.,) rejected the plaintiff's prayers and granted that of the defendant. To this ruling the plaintiff excepted, and the verdict and judgment being against him appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

An endorsement of three notes was made, in consideration of the execution, at the same time by the maker to the holder of a mortgage, by the terms of which the mortgagee was to sell the property only on default of the maker to pay the notes at their maturity. When the first note was due it was dishonored, but by the assent of all parties a new one was substituted in its place. The mortgagee, after the original, but before the new note or any of the others matured, sold the property with the assent of the mortgagor, but not of the endorser, applied the proceeds to pay the two first notes without protesting them, and sued the endorser upon the third. HELD:

That the right to sell, which accrued upon the dishonor of the first note, was taken from the mortgagee by the substitution of the new one in its place, and the sale before the maturity of the latter was a violation of the contract between the parties and discharged the endorser.

Any dealings with the principal debtor by the creditor which amount to a departure from the contract by which a surety is to be bound, and which, by possibility, might materially vary or enlarge the latter's liability without his assent, discharges the surety. 

COUNSEL:
Edward Otis Hinkley for the appellant argued at length the following points:

1. A right to sell the mortgaged property accrued to Mayhew, the mortgagee, upon the non-payment by Pyfer, the mortgagor, of the note for $ 594.62 at its maturity, on the 28th of February 1849. 6 G. & J. 72,  [**6]  74, Jamieson vs. Bruce. 1 Md. Ch. Decisions, 92, Brown vs. Stewart. 3 Bland, 125, 178, 179, Salmon vs. Clagett, and the same case in the Court of Appeals, 5 G. & J. 315.

2. The renewal of that note, on the 8th of March following, by a note for $ 614.39, at forty days, made and endorsed by the same parties without any new consideration or express covenant, did not extinguish nor impair, nor even suspend the said right of sale. The only effect it could have, if any, was to postpone the right of a personal action at law upon the original or new note until the maturity of the latter. The mortgage was a distinct security, and the right of sale a right in rem. Theobald on Principal and Surety, 191, (1 Law Lib., 113, 115.) 1 Bland, 236, 282, Lingan vs. Henderson. 1 Zabriskie's Rep., 634, Pintard vs. Davis. 8 Blackf., 190, Carr vs. Howard. 6 How., 279, United States vs. Hodge, et al. 2 Bland, 663 to 669, Andrews vs. Scotton. 13 Illinois Rep., 68, Bonham vs. Galloway, et al. 3 Strobhart's Eq. Rep., 63, 64, Lang vs. Brevard. 12 B. Monroe, 45, Rice vs. Downing. 6 Iredell, 218, Shelton vs. Hampton. 12 Do., 242, Ponder vs. Carter.

3. If the receipt of the new note by Mayhew did impliedly [**7]  suspend the exercise of the right of sale, it could be a favor to Pyfer only, and this he waived by ordering and sanctioning the sale made, and by ordering the proceeds to be paid to Mayhew, the mortgagee. 2 H. & G., 98, David vs. Grahame.

4. The proceeds being paid over to Mayhew, must, by the terms of the mortgage, at some time and in some way, be applied towards payment of the mortgage debt; and the essential question in the case is, how, being insufficient to satisfy the whole debt, they ought to be applied to the notes given for the security of that debt?

5. They were applicable as far as they would go to the payment of the mortgage debt and notes on the day they were paid to Mayhew, though none of the notes except that which had been renewed had come to maturity. 3 Bland, 179, 180, Salmon vs. Clagett.

6. It is in general the privilege first of the debtor to make the application of his own payments, where there are different debts or items of account to which he may apply them. If he does not exercise the privilege, then the debtor has the right to make the application, and to do this he has some latitude of time allowed him. If neither make it then the law makes [**8]  it. 2 H. & G., 159, 173, Mitchell vs. Dall, and the same case in 4 G. & J. 361, 372. 6 H. & J. 235, 245, Martin vs. Mechanics Bank. Chitty on Bills, 402, 403. Theobald on Principal and Surety, 222, (1 Law Lib., 131, 132.) 3 Bing., 71, Williams, et al., vs. Rawlinson.

7. There are circumstances in evidence in this case from which a jury might infer that Pyfer and Mayhew applied, respectively, or intended to apply, the said proceeds to the entire discharge of the first two notes, and the balance only to the one sued on. And there is no evidence that either of them intended to apply them to the entire discharge of this note.

8. If there be no evidence either made or intended to make any application of said proceeds, the justice of the case and the law will apply them to the notes in the order in which they became due, although the endorsers on the first two were not by any means made liable for the payment of them. 3 H. & McH., 390, Wallace vs. Johnson. 4 H. & J. 351, 358, Allstan vs. Contee. Chitty on Bills, 403. 5 Bing. N. C., 461, Mills vs. Fowkes. Theobald on Principal and Surety, 222, (1 Law Lib., 131, 133.) 9 Watts and Seargt., 43, Neff's Appeal. 1 Alabama [**9]  Rep., 23, Cullum vs. Emanuel, et al. 5 How., 202. There was no such contract in this case to extend the time as there was in the case of Hunter vs. Van Bomhorst, 1 Md. 504.

9. The prayer of the defendant is defective in form and ought not to have been granted, because it is not in conformity with material evidence in the cause. It leaves out the fact that Pyfer sold the property, not Mayhew. Again, it leaves a question of law to the jury as to whether the renewal was a payment of the old note.

Charles H. Pitts for the appellee. The sale of the mortgaged property by an arrangement between Pyfer and Mayhew was a fraud upon the sureties. The creditor has no right by collusion with his debtor to change the nature of collaterals held by him for the benefit of sureties, but is bound to protect sureties upon property held as collateral. The case of Commonwealth vs. Vanderslice, 8 Seargt. and Rawle, 452, is in point. As to the indulgence granted to Pyfer by applying the proceeds of sale to the two notes as they became due without protesting them, the sureties themselves, and they alone, have the right to judge of and sanction such indulgence. 8 Bing., 156, Combe, et al., vs.  [**10]  Wolf.

The mortgage shows upon its face that its execution and that of the notes was one entire transaction. The sale of the mortgaged property without notice to the endorsers discharged them. Conceding the truth of the first point made on the other side, the question arises, whether a mortgagee who has acquired a right to sell by reason of forfeiture may not waive that right? This was done by the taking of the new note. Suppose a bill for an injunction had been filed by Pyfer or his sureties to restrain this sale until the new note became due, would a court of equity hesitate a moment to grant it? The sureties have the right to be substituted to all the rights of the creditor upon payment of the notes. Any variation of the contract by the creditor, whether it injures the surety or not, will discharge him. 9 Wheat., 680, 703, Miller vs. Stewart. 2 Caine's Cases, 1, 29, 57, 63, Ludlow vs. Simond. 8 Pick., 122, Baker vs. Briggs. 3 Bland, 173, Salmon vs. Clagett. 6 G. & J. 243, Sasscer vs. Young and Kemp. Chitty on Contracts, 529. 8 Wend., 512, Wright vs. Johnson. 2 Penn. Rep., 27, Bank of Washington vs. Barrington. The sureties were entitled to notice of non-payment as each note [**11]  became due, and receiving none such they had a right to assume that they had been paid. They were by this lulled into a false security to their prejudice. They had the right to make the application of the proceeds, and as prudent men they would have said, pay the $ 900 first. Pyfer was then in Baltimore, and they could have taken steps against him for further security. The sale was, therefore, a violation of the contract and to the prejudice of the sureties.  

JUDGES:
The cause was argued before ECCLESTON, MASON and TUCK, J.  

OPINIONBY:
MASON 

OPINION:

 [*109]  MASON, J., delivered the opinion of this court.
The record in this case shows, that the endorsement by the defendant of Pyfer's notes to the plaintiff was based upon the security afforded by the mortgage, and therefore the mortgage may be regarded as the consideration of the agreement into which the surety entered when he consented to endorse the notes. The terms of the mortgage, therefore, must be strictly complied with by the plaintiff in order to bind the defendant as endorser. One of those terms is, there shall be no sale of the mortgaged property until default of the principal debtor to pay the notes upon their maturity. We think this [**12]  part of the contract between the several parties thereto has been departed from in the sale which has taken place, under the circumstances detailed in the evidence. This sale took place before the maturity and dishonor of the notes in question, and without the assent, and, for all we know, without the knowledge, of the endorsers. It is true the first of the original notes had fallen due and was dishonored, but it is equally true, by the assent of all parties, another note was substituted in the place of it, which thereby took from the plaintiff his right to sell under the mortgage for the non-payment of that note:--the effect of the substitution of the one note for the other was to place the new note in the same relation to the mortgage that the first one had borne. Before these notes became due, as we have already shown, the sale took place.
But it may be said, that although this might have been a departure from the strict letter of the contract between the parties, yet it cannot be shown that the endorsers were prejudiced 

 [*110]  thereby or their liability enlarged. Whether this was of was not the result of the premature sale, does not vary the question. Any dealings with the [**13]  principal debtor by the creditor which amounts to a departure from the contract by which a surety is to be bound, and which by possibility might materially vary or enlarge the latter's liabilities without his assent, operates as a discharge of the surety. In this case it is not improbable, much less impossible, that if the plaintiff had duly protested the first two notes as they fell due and were dishonored, the endorsers, or one of them, might have paid them off, and by immediately suing the debtor thereon might have secured the debt and thereby reserved the whole of the mortgaged property in the hands of the plaintiff for the purpose of meeting the third and last note upon its maturity. The sale of the mortgaged goods, under the circumstances under which it took place, deprived the endorser of the opportunity of pursuing the course we have pointed out, and of the chances, at least, of relieving himself from liability altogether.
Believing that the sale of the property under the circumstances was a violation of the terms of the contract with the endorsers, by which their rights might have been prejudiced, they are thereby discharged.
Judgment affirmed. 

140 of 187 DOCUMENTS 

WILLIAM H. GATCHELL, use of EDWARD WORTHINGTON, vs. GEORGE PRESSTMAN and ROBERT PURVIANCE, JR.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 161; 1853 Md. LEXIS 81 

DECEMBER, 1853, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Equity Side of the Superior Court of Baltimore city.

A mortgage under the act of 1833, ch. 181, was executed on the 13th of September 1849, by Robert A. McAllister and Mary Conrad to the appellant, Gatchell, and on the 18th of April 1851, a decree was passed at the instance of the mortgagee for a sale, which was made by the trustee on the 28th of the same month, and affirmed nisi on the 2nd of June following, the appellees being the purchasers. This decree on the day of its passage was entered for the use of Worthington.

Mary Conrad, one of the mortgagors, died on the 23rd of June, and shortly afterwards the purchasers filed objections to the ratification of the sale, because:--1st. The person who held the legal estate in the property was not made a party to the decree. 2nd. No affidavit of the amount of indebtedness to Gatchell or Worthington had been filed. A question was also raised as to the title of the mortgagors, upon the construction of a deed of trust under which they held the property, but as this court declined to decide the point, the provisions of the deed and the argument as to the title are omitted.

After the sale, affidavits as to the amount [**2]  due upon the mortgage were filed, both by Gatchell and Worthington, accompanied by the written consent of McAllister, the surviving mortgagor, to its final ratification.

The court below, (FRICK, J.,) sustained the second objection and set the sale aside, from which decision this appeal is taken.  

DISPOSITION:
Order affirmed and cause remanded.  

HEADNOTES:

An objection to a sale under the act of 1833, ch. 181, that the affidavit as to the amount due upon the mortgage was not filed by the mortgagee or his assignee before the sale was made, may be taken by the purchaser before final ratification, and is fatal, even though the affidavit may be filed before the final action of the court upon the sale and the mortgagor may consent to its ratification, but such an objection is too late after the final ratification has been duly made.  

COUNSEL:
Wm. H. G. Dorsey and Charles H. Pitts for the appellant, argued the following points:

1st. That under the act of 1833, ch. 181, the mortgagor is the only party who has the right to object to the ratification of the sale, on the ground that no affidavit was filed before the sale, as that provision of the act was intended solely for his benefit, and he having waived this right the sale is good. The case of Williams vs. Williams, 7 Gill 305, shows that courts of equity in passing decrees under this act exercise general equitable jurisdiction, and if this is so there is no difficulty in ratifying the sale.

2nd. If the sale had been finally ratified a good title would have passed to the purchaser.

3rd. The court ought to have ratified the sale, as the only party interested had consented to its ratification before the court acted on [**3]  the objection, and the purchasers were in no worse condition than if the affidavit had been filed before the sale. Act of 1785, ch. 72, sec. 3. 2 H. & G., 94, David vs. Grahame.

4th. No other parties could have been made in a proceeding under this act of 1833, for it provides for a proceeding against the mortgagor alone, and no other persons could be made parties.

T. P. Scott and Benjamin C. Presstman for the appellees, insisted, that the court below was right in setting aside the sale, because no affidavit of the amount of indebtedness to Gatchell or Worthington was filed before the sale was made. The third section of the act of 1833, ch. 181, provides, that before a sale shall be made an affidavit of the amount due on the mortgage shall be filed by the mortgagee or his assignee; that is, no sale shall be made until such affidavit shall be filed. The filing of the affidavit is a prerequisite to the sale. Purchasers would be put to serious inconvenience and sustain serious damage if the theory on the other side be correct.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and TUCK, J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*163]  ECCLESTON, J., delivered the opinion of this court.  [**4]  
The act of 1833, ch. 181, requires that before a sale shall be made under its provisions, "the mortgagees, their executors or administrators, (or their assigns, if the mortgage claim shall have been assigned,)" shall file a statement of the amount remaining due upon the mortgage, verified by affidavit. At the time of this sale no such affidavit had been filed. For this defect in the proceedings the court below set aside the sale, and we think they were right in doing so.
It has been said that the affidavit is made necessary for the protection of the mortgagor, and being designed for his benefit only he may dispense with it, and the purchaser will not be permitted to take any advantage of an omission to comply with this requirement of the law. It is true the mortgagee and his assignee did file affidavits before the final action of the court upon the sale, and the surviving mortgagor, McAllister, gave his consent to the ratification of the sale.
When due notice, in the usual manner, has been given, affording an opportunity for objections to be made, and none are presented, from any quarter, if the sale is finally ratified, being then a judicial sale consummated by a court of competent [**5]  jurisdiction in the premises, it might well be considered too late, then, to make such an objection as the one now relied upon. But to deny to a purchaser the right of objecting under the present circumstances, would subject him to the whim and caprice of a mortgagor. We suppose it cannot be successfully contended that a mortgagor may not object to a final ratification because no affidavit had been filed before the sale. If so, the purchaser would be held bound by his bid, and to keep himself in readiness to comply, without any corresponding obligation on the other side, remaining all the 

 [*164]  while in a perfect state of uncertainty up to the time of final ratification, whether the mortgagor would or would not agree to dispense with the affidavit and consent to the sale. This, in a commercial community, might very well subject a purchaser to much inconvenience and loss, by being obliged, in this state of uncertainty, to keep his funds unemployed, perhaps for many months, for the purpose of being prepared to meet a considerable cash payment at, or shortly after, the confirmation, if that should be the final result. If, by holding such an objection a good one on the part of a [**6]  purchaser, some delay and inconvenience might be imposed upon the mortgagee, it would fall where it should, because his neglect would be the cause of it.
Between the sale and a ratification of it, the offer of an increased price, or any sudden and unexpected rise in the value of the property, resulting from some new plan for a railroad or any other scheme, would afford a strong temptation for the mortgagor to withhold his assent; whilst a diminution in value would operate as an inducement for his agreeing to the ratification. Thus holding the purchaser to a bad bargain and denying him the advantage of a good one.
The law gives a very summary remedy for the benefit of mortgagees, and it is imposing no hardship on them to require their compliance with the perfectly plain and obvious intention of the legislature, that before a sale the affidavit shall be filed.
This view dispenses with the necessity of deciding the other questions which have been presented.
Perceiving no error in the order setting aside and annulling the sale, it must be affirmed, with costs, to the appellees, and the cause will be remanded for further proceedings. For which purpose a decree will be signed.
Order  [**7]   affirmed and cause remanded. 

141 of 187 DOCUMENTS 

THE ASSOCIATED FIREMEN'S INSURANCE COMPANY vs. FREDERICK ASSUM.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 165; 1853 Md. LEXIS 82 

DECEMBER, 1853, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

Covenant by the appellee against the appellant on a policy of insurance, made 10th of October 1850, for one year, and afterwards continued for another year. By agreement all errors in pleading were waived, and leave given to each party to offer any evidence admissible under any state of pleading.

Exception. The plaintiff offered in evidence the policy sued on, which insured him "against loss or damage by fire to the amount of $ 1000, say $ 700 on stock of books and stationery, and $ 300 on music, musical instruments, fancy goods, bronze powder and medicines contained," &c.; and contained a proviso, that "if the assured, or his assigns, shall hereafter make any other insurance on the hereby insured premises, he shall, with all reasonable diligence, notify the same to this corporation and have the same endorsed on this policy or otherwise acknowledged, in writing, by this corporation, or in default thereof, this policy shall cease and be of no effect." This policy was continued by the following endorsement thereon, signed by the secretary of the company: "Received, October 2nd, 1851, $ 7.50, premium on $ 1000, to expire at noon [**2]  October 10th, 1852."

The plaintiff then proved, that on the 19th of November 1851, he effected insurance with the Baltimore Fire Insurance Company as follows: "That is to say, $ 600, say $ 300 on each of two piano fortes, $ 150 on printed music, and $ 50 on vegetable powders in glass bottles, making $ 800 contained," &c.; "$ 300 now insured on music, musical instruments, fancy goods, bronze powders and medicines, in the Associated Firemen's Insurance Company." He then offered evidence as to the contents of the store, the fire and the damage sustained.

The defendant proved that plaintiff asked additional insurance of defendant, in June 1851, and again just previous to the fire, which the latter declined; and also, that defendant had no notice of the insurance with the Baltimore Fire Insurance Company till after the fire; and then asked an instruction to the jury, in substance, that if they found that any part of the goods and chattels mentioned in, and intended to be insured by, the policy in the Baltimore Fire Insurance Company were also included in, and intended to be covered by, the policy sued on, the plaintiff cannot recover in this suit, because he has not shown a notice [**3]  of such other or additional insurance to, and endorsement thereof by the defendant, on the policy in suit. The court, (FRICK, J.,) rejected this prayer and instructed the jury that the plaintiff could not, in this action, recover for any property insured by the defendant, if they believe that the same property was afterwards insured by the plaintiff with the Baltimore Fire Insurance Company without proper notice thereof to the defendant.

To this ruling the defendant excepted. The verdict was in favor of the plaintiff for $ 854.42 and judgment accordingly, from which defendant appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

A policy of insurance "to the amount of $ 1000, say $ 700 on stock of books and stationery, and $ 300 on music, musical instruments, fancy goods, bronze powder and medicines," contained a covenant, that if the assured "shall hereafter make any other insurance on the hereby insured premises, he shall, with all reasonable diligence, notify the same to this corporation," &c., "or in default thereof, this policy shall cease and be of no effect." HELD:

That the proper construction of this covenant is, that if any part of the goods mentioned in the policy was afterwards insured in any other insurance office without notice, as provided in the covenant, the whole policy thereby becomes void. 

COUNSEL:
T. P. Scott for the appellant.

1st. The defendant's prayer ought to have been granted, because the terms of the policy were violated by the plaintiff in making "other insurance on the hereby insured premises" without giving notice thereof to the defendant, which he was bound to do and must affirmatively show that he did do, and the policy is therefore void. See 2 Hall's N. Y. Rep., 493, Moadinger vs. Mechanics Fire Ins. Co. 5 Ohio, 468, Harris vs. Ohio Ins. Co. 17 Wend., 359, Bowery Fire Ins. Co., vs. N. Y. Fire Ins. Co. 16 Pet., 495, Carpenter [**4]  vs. Providence Washington Ins. Co. 4 How., 216. Double insurance is where the same party insures the same property twice with a view to a double compensation. Angel on Fire Ins., 21, 131. Additional insurance is where the same party insures the same property after it has improved or increased in value, for the purpose of additional security. Separate valuation in the same policy does not, as a general rule, require the policy to be construed as separate insurances. The cases cited on the other side are exceptions to the general rule, and depend upon the peculiar phraseology of the particular policies. The exception is, that where the language of the policy is equivocal or admits of alternate constructions, that construction will be given which favors indemnity; but in this policy there is neither equivocal language nor such as will admit of alternate constructions. Its conditions do not point solely to a case of double insurance, but apply to and embrace both double and additional insurances. The subject matter insured the second time was the same. But the renewal of this policy is the same as that in the case in 10 Barbour, 440, cited upon the other side, and upon that authority there [**5]  is an end to the separate policies if they ever were such at the beginning.

2nd. The instruction granted by the court is erroneous, because:--1st, the policy sued on being a contract in writing, its construction is a matter of law to be settled by the court and not the jury. 2nd, the property insured being a shifting stock of merchandise, the court erred in deciding that the plaintiff must recover unless the jury believed the property in the second policy was "the same property" insured by the defendant; the instruction goes upon the idea of identity instead of similarity of a shifting stock, and was, therefore, calculated to mislead the jury. 3rd, there was also error in referring it to the jury to determine what was "proper notice" to the defendant.

Wm. F. Frick for the appellee.

There are but two questions in the case:--1st. Is there a double insurance at all? 2nd. If there is a double insurance of a part only, does this vitiate the whole policy?

1st. There was no double insurance. Double insurance and contribution are correlative terms, and there can be no such thing as a double insurance where there is not a right of contribution between the insurers. Here [**6]  the first insurance was $ 300 on music, musical instruments, &c., generally; the second on piano fortes, printed music, &c., separately valued; and upon all the authorities there can, in such a case, be no contribution between the insurers, and therefore no double insurance. Angel on Ins., 21, 131. 5 Hill, 298, Howard Ins. Co., vs. Scribner. 10 Barbour, 440, Driggs vs. Albany Ins. Co. 2 Watts & Seargt., 545, Stacy vs. Franklin Ins. Co. 1 Marshall on Ins., 146, 148. 2 Do., 600, 601, 788.

2nd. The rule is, that all policies of insurance are to be construed liberally and always in favor of the insured--they are not subjected to any critical strictness or technical interpretation. 1 Duer on Ins., 161 to 166. Here, though all the goods to the extent of $ 1000 were covered by one policy, yet by its true construction there were separate and distinct contracts of insurance, one for $ 700 on books and stationery and the other for $ 300 on music, musical instruments, &c., each governed by the general clauses of the policy; and the condition as to double insurances means, that if double insurance be effected, without notice, on all the property insured, then the policy is void; if upon one [**7]  only of the separately valued subject matters of insurance, then it shall be void as to that one only. Marshall on Ins., 600, 601. 12 Mass., 80, Davis vs. Boardman. 7 Hill, 122, Trench vs. Chenango Co. Ins. Co. 10 Johns., 234, Deidericks vs. Commercial Ins. Co. There was no double insurance on the stock of books and stationery valued at $ 700, and there was, therefore, no forfeiture of his insurance on these.

3rd. If either of the above positions be correct, the court was right in refusing the defendant's prayer. The instruction granted did no injury to the defendant, because it being admitted that no notice of the second insurance was given, the question of notice was not in the case; and the question, whether the goods were the same, is a question of fact for the jury. 2 McMullan, 220, Neve vs. Columbia Ins. Co.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON, MASON and TUCK, J.  

OPINIONBY:
MASON 

OPINION:

 [*169]  MASON, J., delivered the opinion of this court and his own separate opinion as follows:
The court are of opinion this judgment ought to be reversed. A majority of the court think that the proper construction of the covenant is, that if any part of the goods [**8]  mentioned therein was afterwards insured in any other insurance office without notice to the appellants, as provided in the covenant, the policy thereby becomes void and of no effect, and therefore it was error in the court below to refuse the instruction asked for by the appellants.
While I concur with the court that the judgment ought to be reversed, I base my opinion upon different grounds. Although there was but one policy of insurance in fact, yet it embraced, in my opinion, two distinct and separate insurances, one for $ 700 and the other for $ 300, upon different goods. The proper construction of the covenant, I think, is this: if any of the goods embraced in either one of the contracts were insured in another office without notice, it vitiated the policy only as to that contract of insurance in which the goods thus reinsured were embraced; and if a part of the goods embraced in each contract was afterwards insured elsewhere without notice, it would vitiate the whole policy, and there could be no recovery against the appellants by the appellee in this action.
The instruction which was given by the court seems to be based upon the assumption, that the liability of the appellants [**9]  

 [*170]  was discharged only to the extent of the goods actually afterwards reinsured, and the verdict of the jury appears to rest upon the same grounds, otherwise it would be difficult to discover how the amount of the verdict was arrived at.
I think, therefore, the instruction which was given by the court was wrong, while I think that asked for by the appellants was properly refused.
Judgment reversed and procedendo awarded. 

142 of 187 DOCUMENTS 

JOHN T. R. JOYNES and SARAH JOYNES, vs. MICHAEL K. WARTMAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 195; 1853 Md. LEXIS 85 

DECEMBER, 1853, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Court of Common Pleas for Baltimore city.

Replevin by the appellants against the appellee for a negro girl. The defendant's avowry is stated in the opinion of this court. Issues were joined upon the pleas of:--1st, non tenuerunt; 2nd, no rent in arrear; 3rd, eviction; and 4th, insolvency. The last plea was abandoned in argument.

Exception. The testimony is sufficiently stated in the opinion of this court. The plaintiffs then offered fourteen prayers, of which only those having reference to the validity of the proceedings under the act of 1834, ch. 192, need be stated, and which are as follows:

1st. That to entitle the avowant to recover, he must show that the bailiff who made the distress was authorised and empowered to make it by the landlord, and that such power and authority must be in writing and offered in evidence, or proved in some manner.

2nd. That the account filed by the landlord in this case is not in accordance with the requirements of the act of 1834, ch. 192, sec. 3.

To the refusal of the court, (MARSHALL, J.,) to grant these prayers the plaintiffs excepted, and the verdict and judgment being against them they appealed.  

DISPOSITION:
Judgment [**2]  reversed and procedendo refused.  

HEADNOTES:

The account of the landlord, annexed to a distress warrant, did not state against whom it was made out. HELD, that this was not a compliance with the act of 1834, ch. 192, sec. 3, and the plaintiff in an action of replevin for property sold under the distress may show that this act has not been complied with and thus defeat the defence of the avowant. 

COUNSEL:
B. T. B. Worthington for the appellants.

The act of 1834, ch. 192, applies to every case where a distress is authorised to be made, and it prescribes certain forms of proceeding which must be complied with. The third section provides, that "to all and every warrant" to distrain "there shall be prefixed or annexed the account of such landlord, stating in dollars and cents the amount of rent claimed," &c.; and the fifth section declares, "every distress" made "contrary to the provisions of this act" and "every sale" thereunder shall be "absolutely illegal and void." In this case no such account was filed. There is to be sure an account annexed to the warrant, but it does not appear against whom it is made out. The names of the tenants are not in it, and it is, therefore, no compliance with the act of Assembly. This act embraces every case of distress, as well those made off the premises, under the act of 1826, ch. 266, as others.

No counsel appeared for the appellee.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON, MASON and TUCK, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*196]  LE GRAND, C. J., delivered the opinion of this court.
This is [**3]  an action of replevin. In the court below the appellee avowed the taking of the property replevied by the appellants, as a distress for three months' rent, due on the 9th of February 1851, under an alleged demise to them and 

 [*197]  Pomeroy & Co., of "The Sulphur Springs and furniture," in Baltimore county, for $ 600, in quarterly payments, the rent to commence the 9th of May 1850, &c.; and averred, that within thirty days after the said rent had become due, the plaintiffs had fraudulently and clandestinely removed the same with intent, &c., and the defendant had pursued and taken it as a distress.
It appears from the testimony that an account was made out and sworn to by the appellee, but the account does not state against whom it is--it is blank, "Dr., to Michael K. Wartman." The warrant to distrain was given to William Thomas, constable, who returned it nulla bona. Subsequently the appellee went before a justice of the peace, in the city of Baltimore, and made oath that the property had been removed from the demised premises, and under the warrant of the justice a certain D. H. White was appointed to assist the bailiff of the appellee to take and seize the property alleged [**4]  to have been clandestinely removed. It was under this process the property replevied was taken.
At the trial the appellants offered fourteen prayers, some of which were granted and some of them rejected. The appellee asked and obtained the instruction of the court to the effect, that if the jury found the facts set forth in it the appellants were not entitled to recover.
In the view we have of the case it is not necessary we should express an opinion in regard to each of these propositions. The record discloses a state of facts which, under no circumstances, would enable the avowant to defend his distress. The act of 1834, ch. 192, sec. 3, provides, "that to all and every warrant or warrants authorizing any bailiff to levy a distress for rent claimed to be due to any landlord or landlords authorized by law to make a distress, there shall be prefixed or annexed the account of such landlord or landlords, stating," &c.; and the fifth section of the same act provides, "that any and every distress which shall be made, after the date when this act is to take effect, contrary to the provisions of this act, and all and every sale or sales which shall take place under and by virtue [**5]  of such distress shall be held to be absolutely 

 [*198]  illegal and void, any law, custom or usage to the contrary notwithstanding."
Now in the case before us there was no compliance with this statute. It is not denied that at common law it would be very difficult, if not impossible, in an action of replevin to show an irregularity in the distress; the aggrieved party being most generally driven to his action of trespass. It is not unreasonable to presume, that among the reasons which induced the passage of the act of 1834, was the desire to avoid this hardship and prevent circuity of action. It is similar to the act of New York of 1838, ch. 153. That statute has frequently undergone judicial interpretation. It provides, that previous to a distress for rent in the city of New York, the landlord must file an affidavit with the clerk of the city and county that the rent distrained for is due; and it has been held, the avowry must aver that this was done or it will be bad on demurrer.  Burr vs. Van Buskirk, 3 Cowen 263. Without going thus far, we are fully warranted in saying, that the plaintiff in an action of replevin can show the act of 1834 has not [**6]  been complied with, and thus render unavailing the defence of the avowant. The sufficiency of the affidavit is constantly inquired into in actions of replevin in New York, and we think the privilege exists under our act.  17 Wendell, 417; 2 Hill 648, and 20 Wendell 450.
Judgment reversed and procedendo refused.
ECCLESTON, J., dissented.  

143 of 187 DOCUMENTS 

WILLIAM BARKER vs. JACOB AYERS and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 202; 1853 Md. LEXIS 87 

DECEMBER, 1853, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

Assumpsit by the appellees against the appellant and John Barker, as partners, for goods sold and delivered. The nar charged a joint liability against the appellant and said John Barker, and the record was amended by agreement, so as to show a joint plea of non assumpsit by them. In the course of the trial two exceptions were taken by the appellant to the rulings of the court below, (FRICK, J.,) both of which are fully stated in the opinion of this court. The record was further amended by agreement, so as to make William Barker the only appellant.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

In assumpsit against two, as partners, and upon the joint plea of non assumpsit, one defendant is not a competent witness for the other to prove there was no partnership, and that the witness alone was responsible for the claim, but after withdrawing his plea and confessing judgment for the full amount of the claim, with interest and costs, he is no longer interested in the event of the suit, and his competency for the purpose mentioned is restored.

Under a declaration against two charging a joint liability and a joint plea, the plaintiff cannot recover without establishing the joint liability, and the most conclusive proof or unqualified admission of the liability of one defendant, will not entitle the plaintiff to a verdict and judgment against him alone.

A release upon a judgment by confession, necessarily coming from the plaintiff, clearly manifests his consent to the judgment.

Where there is a declaration against two charging a joint liability, and one defendant confesses judgment for the whole claim, he cannot, since the act of 1825, ch. 117, raise in this court the objection that there should have been a joint verdict and judgment, or none.

The fact that the witness is a party to the record does not disqualify him, provided he has no interest in the result of the suit; the reason of the rule which excludes a party to the suit from being a witness is his interest in the result, either as to the claim or costs.

Where the suit is ended as to one of several defendants, and he has no direct interest in its result as to the others, he is a competent witness for them.  

COUNSEL:
F. K. Howard and S. T. Wallis for the appellant.

The only question in this case is, whether John Barker was, under the circumstances, a competent witness for the appellant? The case of Albers vs. Wilkinson, 6 G. & J. 362, was the case of a judgment by default against the party offered as a witness, and is not like the present, where the judgment was by confession. The case of Selby, et al., vs. Clayton, 7 Gill 240, and Owings vs. Emery and Gault, 7 Gill 405, only decide that a legal plaintiff is not a competent witness,  [**2]  because he is responsible for costs; neither of these cases is in point, because in them the party offered as a witness was directly and immediately interested in the event of the suit. In the case of Lizardi vs. Cohen, 3 Gill 430, the court say, they will not look to the fact whether the witness is a party to the record or not, but that his competency will depend solely upon the question whether he is interested or not in the result of the suit. The witness here waived the joinder of the appellant with him, and then said he did not object to the recovery against him in this suit, and confessed judgment for the amount claimed in the nar, with interest and costs, which judgment the plaintiffs accepted by entering up a release thereon. After this was done, what interest had the witness in the result of the suit against the appellant? He could not be placed in a worse position, and his testimony was rather adverse to his own interest, which would have been to establish the partnership so as to compel the appellant to contribute. That the fact that the witness is a party to the record does not of itself disqualify him, see 7 Bing., 395, Worrall vs. Jones. 2 H. & G., 98, Robertson vs.  [**3]  Mills. 2 G. & J. 132, Glenn vs. Von Kapff. 4 Gill 213, Crawford vs. Brooke. Chitty on Pl., 44. 1 Ohio State Rep., 318, Preble Co. Bank, vs. Russell. 1 Greenlf. on Ev., secs. 355, 356. 4 Scammon, 309, Brooks vs. McKinney. 9 Barr., 21, Talmage vs. Burlingame. Do., 112, Mevey vs. Matthews.

As to the question of summons and severance, the case is different from that of Price and Martin, vs. Thomas and George, 4 Md. 514. Instead of a joint judgment, as in that case, there were here separate judgments against each defendant, rendered upon different days, and the appeal is taken by the appellant from the separate judgment against him. Whether the separate judgment against John Barker was properly entered was for the court below to decide, and no question having been raised upon it there none can be here.

Wm. Pinkney Whyte for the appellees.

The suit was against both the Barkers, and they jointly pleaded non assumpsit. No matter how small the interest of the party in the result of the suit may be, it disqualifies him as a witness. 16 Johns., 89, Marquand vs. Webb. The same doctrine is sustained in Albers vs. Wilkinson, 6 G. & J. 362, and in Jordan vs. Trumbo,  [**4]  6 G. & J. 105. In the case of Owings vs. Emery and Gault, 7 Gill 405, the witness was excluded expressly because he was a party to the record. So in Selby, et al., vs. Clayton, 7 Gill 240. See also 1 Barr., 440, Wolf vs. Finks. The case of Worrall vs. Jones, 7 Bing., 395, was a suit upon a bond, and the principal confessed judgment and had no interest in the suit against the other party, whereas here there was a partnership, and the partner was interested in defeating the suit.

But again, the nar charges the defendants as partners, and they enter a joint plea, and in such a case there must be a joint verdict and judgment, or none at all. In cases of a joint contract, where judgment by default is entered against one defendant, and a verdict is afterwards rendered against the other, no judgment can be rendered upon it. 1 Greenlf. on Ev., sec. 356, and notes. 10 Pick, 281, Tuttle vs. Cooper. John Barker, therefore, notwithstanding his confession of judgment against himself, could, if a verdict had been rendered in favor of the appellant, upon appeal, have reversed that judgment, and it was his interest therefore to prove there was no partnership. See also 1 Chitty's Pl.  [**5]  , 44. 2 Starkie on Ev., 83. 1 Philips' Ev., 53. A judgment by default against one defendant will not make him a competent witness for the other. 9 Barr., 21, Talmage vs. Burlingame. 6 G. & J. 358, Albers vs. Wilkinson.

But the appeal should be dismissed, because taken by one without summon and severance, when the judgment was against both. 4 Md. 514, Price and Martin, vs. Thomas and George.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON, MASON and TUCK, J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*205]  ECCLESTON, J., delivered the opinion of this court.
The question arising on the first bill of exceptions is, whether John Barker, one of the defendants, could be examined as a witness at the instance of the other defendant, for the purpose of proving there was no partnership between them, so far as related to the claim in controversy, and that he, John Barker, alone was responsible?
When this offer was first made to examine the party as a witness, no judgment had been confessed by him, but the issue then being tried before the jury was upon the joint plea 

 [*206]  of non assumpsit, the nar having charged the defendants as partners, and jointly liable for the claim [**6]  of the plaintiffs.
The bill of exceptions states the offer as intended, "to prove by the defendant, John Barker, who was willing to be examined in that behalf, that the said William was not a partner with him in the Curtis Creek business; that the goods now sued for were furnished to the witness on his individual credit and for his individual business, and that the witness did not resist the right of the plaintiffs to recover against him."
The record did not set out the plea, but this defect has been cured by an agreement stating it to have been a joint plea of non assumpsit.
Under such a declaration and plea, the plaintiffs could not recover without establishing the joint liability of the defendants. The most conclusive proof, or unqualified admission, of the liability of one defendant, could not entitle the plaintiffs to a verdict and judgment against him alone. 1 Chitty on Pl., 44.  Tuttle vs. Cooper, 10 Pick. 281. As the testimony, if believed by the jury, must have released the witness from responsibility, his interest rendered him incompetent.
In the further progress of the cause, the record shows that John Barker withdrew his plea, and then a [**7]  judgment by confession was entered against him for "$ 1200, damages in nar and costs, to be released on payment of $ 552 71, with interest from 11th day of June 1852, and costs." The sum mentioned in the release being the full amount of the plaintiffs' claim.
Subsequent to the entry of this judgment, John was again called by William to testify in his behalf, but being objected to on the ground of incompetency, the court again sustained the objection, and this decision constitutes the basis of the second bill of exceptions.
Whether the plaintiffs could or could not have successfully objected to the entry of this judgment, and insisted upon a judgment against both defendants, or else that the case should 

 [*207]  have proceeded against both until the verdict, is not now a question before us. A release upon a judgment by confession, necessarily coming from the plaintiff, manifests clearly his consent to the judgment.
In the subsequent proceedings John Barker could have no interest whatever, inducing him to prove that William was not answerable for the claim. The interest was in the opposite direction. The judgment fixed John's responsibility for the full amount. He would not [**8]  be bound even for any further accumulation of costs, in the controversy between the plaintiffs and William. If then a verdict against William could not increase the amount of John's liability, what possible interest, in legal contemplation, could he have in so testifying as to produce a different verdict? It will readily appear how his interest might disqualify him from being a witness for the plaintiffs to prove the partnership, because in the event of a judgment against the other party, if the plaintiffs should compel that party to pay one half of the claim, the witness would be relieved to that extent.
But it has been said, so inflexible is the rule which requires there should be either a joint verdict and judgment, or no judgment, under such a nar as the present, charging the defendants as partners, that notwithstanding the judgment by confession, if a verdict had been rendered in favor of the other defendant, John Barker might have reversed the judgment against him, upon appeal. And if so, he was interested in establishing the fact that there was no partnership. This however is not our view of the subject. In Morgan vs. Briscoe and Clarke, 4 Md. 271, [**9]  the court decided, that where a judgment has been confessed, and, of course, where there is no motion in arrest of judgment, since the act of 1825, ch. 117, there can be no reversal, although there may be no declaration. That statute was certainly designed to prevent any mere technical errors in the proceedings from being taken advantage of in the appellate tribunal, which may not appear to have been relied upon below. And the supposed state of facts, which it is said would authorize a reversal, do not present 

 [*208]  very strong equitable grounds for inducing the court so to construe the act as to permit a reversal under such circumstances. The circumstances being; a nar against two defendants charging a joint liability, a joint plea filed, but subsequently withdrawn by one, who then confesses judgment for the claim, is examined, with his consent, by the other, and proves himself solely responsible, which testimony induces the jury to find a verdict in favor of the other defendant; and then, upon appeal, the defendant in the confessed judgment asks to have it reversed, because the joint claim was not established by a joint judgment.
From the remarks of Mr. Greenleaf, [**10]  in sec. 356 in the 1st Vol. of his work on Evidence, and from the language of the court, in Talmage vs. Burlingame, 9 Barr. 21, and in Albers vs. Wilkinson, 6 G. & J. 358, it has been supposed that a judgment by default against one defendant, will not authorize his examination as a witness in favor of the other, because he is still to be considered incompetent on the ground of interest. And this has been urged as sustaining the refusal to admit the testimony in the present instance. But there is a material distinction between a judgment by default, and a judgment like the one before us. The former only decides or settles the liability of the party without ascertaining the extent of it, in a case like the present. And we think that, without deciding whether a judgment by default would have authorized the admission of the testimony, there is a difference between the two judgments, quite sufficient to justify us in holding the one by confession, as fully removing the objection to the competency of the witness, even if that by default might not have a similar effect.
In Preble County Bank, vs. Russell, 1 McCook's Ohio State Rep., 313, a [**11]  judgment by confession was held so effectual in removing the disability of a co-defendant as a witness, that his testimony in behalf of the other defendant was admitted. There the judgment was before the jury had been sworn and here it was after. But we do not perceive how this difference can render testimony inadmissible in this, which was 

 [*209]  not so in that case. Many authorities on the subject are there referred to. And the court come to the conclusion, that according to the later English decisions, the ground of excluding a party as a witness arises alone from his interest in the event. In 1 Greenlf. on Ev., sec. 355, it is said: "The general doctrine is, that where the suit is ended as to one of several defendants, and he has no direct interest in its event as to the others, he is a competent witness for them, his own fate being at all events certain." And in Pipe vs. Steele, 2 Adol. & Ellis, N. S., in 42 Eng. Com. Law Rep. 889, Lord Denmon, C. J., said: "The objection that he is a party to the record, which prevailed in Brown vs. Brown, and Mant vs. Mainwaring, has been deliberately overruled in Worrall vs. Jones, a [**12]  case of great authority, in which the Lord Chief Justice Tindal gave the unanimous judgment of the Common Pleas, that a party to the record may be examined as a witness, provided he be disinterested."
The general rule of evidence, which excludes a party on the record from being a witness, has been much relied upon in argument; and it is insisted, that no decision in our State is to be found, which so far qualifies or restricts this rule, as to justify a reversal in this case on account of the refusal to admit the proof offered. There can be no doubt that the authorities establish it as a general proposition, that a party to the suit is not a competent witness; but it is equally true, they declare the reason of the rule to be, that he has an interest either in the object of the suit or in the costs. As, therefore, the law is said to be founded in reason, and what is not reason is not law, it would seem to follow, necessarily, that when the reason of a legal rule ceases to exist the rule does not apply. That the mere fact of being a party does not render him incompetent to testify, is most unequivocally announced in Lizardi, et al., vs. Cohen, et al., 3 Gill 430, [**13]  and the reason for excluding him is, as explicitly stated to be, his interest in the result, either in regard to the claim or the costs. On page 435, the opinion of Judge Washington, in Willings and Francis, vs. Consequa, Peters C. C. R., 307, is referred to, 

 [*210]  in which he speaks of a party being excluded as a witness, and states that the interest he has in the event of the suit, as to costs and the subject in dispute, "lies at the foundation of the rule, and when that interest is removed the objection ceases to exist." The court also refer to the decision pronounced by Chief Justice Tindal, in Worrall vs. Jones, 7 Bing. 395, as maintaining the true and sound doctrine on this subject. The opinions of several other distinguished jurists are noticed, and the court say: "When it appears that the party proposed to be examined is not responsible for the costs of the suit, and has no interest in the subject in dispute, and is willing to be sworn, he is not within the operation of the general rule."
When John Barker was called the second time as a witness he had no interest in the cause, which could be beneficially promoted by the testimony [**14]  proposed to be given, and therefore we think he was a competent witness. How far the circumstances disclosed might or might not affect his credibility before the jury we have nothing to say, because it is no part of our duty.
Upon the confession of judgment by John the case was terminated in regard to him, and, in fact, he was no longer a party in the suit subsequently pending between the plaintiffs and William. If this be so, John was then clearly within the principle recognized by Greenleaf, in section 355, and the other authorities on this subject.
The record states the appeal to have been taken by both defendants, and the appeal bond is to the same effect, but by agreement the record is so corrected as to make William the only appellant. Viewing the case as presented by this agreement, the appellees contend that the appeal must be dismissed, because there has been no summons and severance. But there is no joint judgment so as to render a severance necessary. On the contrary, there are two separate judgments, one by confession and the other upon verdict. They are dated on different days, and the interest does not commence on 

 [*211]  each at the same time, nor could [**15]  there be a joint execution upon these judgments.
The decision in the first bill of exceptions will be affirmed, but that in the second must be reversed.
Judgment reversed and procedendo awarded. 

144 of 187 DOCUMENTS 

WILLIAM T. KELLER vs. MARY ANN DONNELLY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 211; 1853 Md. LEXIS 88 

DECEMBER, 1853, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city.

This was an action of trespass on the case, instituted by the appellee against the appellant, on the 22nd of December 1848, to recover damages for the seduction of the plaintiff's daughter, per quod servitium amisit. Plea, non cul.

1st Exception. After the evidence, (which is sufficiently stated in the opinion of this court,) was offered, the plaintiff asked two instructions:

1st. If the jury believe the defendant debauched and carnally knew plaintiff's daughter while she was under the age of twenty-one years, the plaintiff is entitled to recover; provided they find said daughter was residing at the plaintiff's house as her home, and was enticed and persuaded by defendant to leave her said home with the view to her seduction and debauching as aforesaid, and provided said seduction and debauching took place before the institution of this suit.

2nd. If the jury believe that defendant craftily induced plaintiff's minor daughter to leave her mother's house, it being her home, thereby depriving plaintiff of her daughter's services, comfort and society; and that said daughter having so left her said home, was supported [**2]  by, or went to live with, defendant, who, while she was yet a minor, debauched and carnally knew her, and by his control and influence prevented her return to her mother's house, service and society, then plaintiff is entitled to recover.

The defendant asked four instructions:

1st. If the jury believe that defendant did not induce plaintiff's daughter to leave the plaintiff's house, and while she resided with or was working for plaintiff defendant neither seduced nor carnally knew her, nor induced nor persuaded her to submit to any improper connection, then plaintiff is not entitled to recover.

2nd. If the jury believe plaintiff's daughter, without any seduction on the part of defendant, left her mother's house with the determination not to return, and never did return, thereto, and that after she reached eighteen years of age she refused to return to her mother's house, and acted for herself and as her own mistress, then plaintiff is not entitled to recover, though the jury should believe defendant, after such daughter had reached eighteen years of age, had illicit intercourse with her.

3rd. That there is no evidence to show that defendant debauched the plaintiff's [**3]  daughter at any time.

4th. If the jury find that plaintiff's daughter had attained eighteen years of age, and left her mother's house, and did not live with, and was not employed by, and did not render any service to, her mother, and never returned or intended to return to her, and that defendant seduced said daughter after she arrived to the age of eighteen years, and whilst she was so living away from, and not rendering any services to, her mother, the plaintiff is not entitled to recover.

The court, (FRICK, J.,) rejected the defendant's and granted the plaintiff's instructions, to which ruling the defendant excepted.

2nd Exception. The plaintiff, for the purpose of showing the mother's loss and deprivation of her daughter's society, offered to prove by Dr. Metcalf, that since August 1851, he went at defendant's request to visit said daughter, and found her residing at defendant's house; that in January 1852, defendant called witness at four o'clock in the morning to visit her; that he found her in bed, and defendant accompanied him into the bedroom and remained there while witness prescribed for her, and paid witness' bill; that this was in a house in Frederick street,  [**4]  occupied by said daughter and a female servant; that he has visited the house since and never saw any man there but defendant. To the admissibility of this evidence the defendant objected, but the court overruled the objection and allowed it to be given, to which ruling the defendant excepted.

Verdict for plaintiff for $ 2500 damages. The defendant moved for a new trial because the damages were excessive, which motion the court overruled and gave judgment upon the verdict. The defendant appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

A father is entitled to command the services of his daughter during her minority, and he may maintain an action for her seduction whether she be above twenty-one or not, provided, if over twenty-one at the time of her seduction, she be in his service.

During the minority of a female child, any one standing in loco parentis, and she being in their service, may maintain an action for her seduction.

A mother, when left natural guardian, is entitled to her daughter's services until she arrives at eighteen, unless the girl be apprenticed to some trade; and if she be debauched before that age and be in the service of the mother, the latter may maintain an action against her seducer.

A mother is not entitled to command the services of her daughter after she is eighteen, and if she be seduced after that age and be not in her mother's service, the latter cannot maintain the action, the gist of which is, loss of service consequent upon the seduction.

If the daughter be induced to leave her mother before she is eighteen and be afterwards seduced, the mother may recover, because of the loss of service to which she was entitled.

Testimony of what occurred between the daughter and her seducer after the former was twenty-three years of age, is not admissible to show loss and deprivation of society, but may be admitted to explain and illustrate what took place between the parties five years previously.  

COUNSEL:
Charles H. Pitts for the appellant.

1st. The right to maintain an action for seduction per quod servitium amisit, arises from the relation of master and servant, and not from the relation of parent and child. A parent, as parent merely, cannot maintain such an action. 5 H. & J. 34, Mercer vs. Walmsley. 4 Comstock, 38, Bartley vs. Richtmyer. 6 Seargt. & Rawle, 175, Logan vs. Murray. 10 Adol. & Ellis, N. S., 725, Davies vs. Williams. 2 Mees. Wels., 539, Harris vs. Butler. 6 Do., 55, Blaymire vs. Haley. 7 Man. & Granger, 1033, Grinnell vs. Wells. 1 Wels., Hur. & Gor., 61, Eager vs. Grimwood. The relation of master and servant must [**5]  exist either actually; that is, where the party seduced is rendering service to the plaintiff at the time of the seduction, or constructively; that is, where the plaintiff has a legal right to demand and have the services of the party seduced at the time of the seduction. This relation did not actually exist in this case, nor constructively, because the plaintiff had no legal right to the services of the daughter at the time of the alleged seduction, the daughter being over eighteen years of age. Blackstone says, the mother has no legal power over the child, and is only entitled to respect and reverence. 1 Bl. Com., 453. By the common law, upon the death of the father the mother becomes guardian for nurture, and for nurture only, (McPherson on Infants, 53,) and this in case of a female infant ceases at eighteen. The question now under consideration has been expressly decided, in Pennsylvania, by Chief Justice Gibson, and also in New York; see 4 Comstock, 38, Bartley vs. Richtmyer. 2 Watts, 474, South vs. Denniston. Could a widow mother in this State be sued for necessaries furnished the daughter after she was eighteen? or could she sue for her services after that age, on the ground [**6]  that they were due the mother at common law? or could she obtain a habeas corpus to compel the daughter to return to her house? If she could not, then she had no legal title to her services, and if such be the law it must prevail; this court cannot legislate, but only declare what the law is.

2nd. The plaintiff's first prayer was erroneously granted, because it wholly withdraws the question of loss of service from the jury. The authorities say you need not offer proof of such loss, but it is a fact to be found by the jury under the instruction of the court. In this case the girl was never pregnant, and in this particular it differs from all the cases cited in the books.

3rd. The testimony of Dr. Metcalf was improperly admitted, because the daughter, at the time to which his testimony refers, was over twenty-one, and the plaintiff then had clearly no right to her service or society. Facts occurring after the institution of the suit are never admissible to prove the cause of action. Nor was the testimony admissible to prove damages, because it was an act of which the mother had no right to complain, for the daughter was then of age and the mother had no right to her services--she [**7]  sustained no damage. There can be a continuing injury only where there is a continuing right.

Robert J. Brent for the appellee.

1st. The first point presented is the liability of the defendant for the seduction of the plaintiff's daughter, whilst she was under twenty-one and over eighteen years of age. The daughter was an infant until twenty-one. 2 Bland, 502, Corrie's Case. 5 H. & J. 109, Davis vs. Jacquin. 3 G. & J. 103, Fridge vs. State. Act of 1834, ch. 228. 4 Md. 357, Mayor and City Council of Balto., vs. Norman. That the mother was entitled to the services of her daughter until twenty-one, and can maintain the action, is expressly decided in Coon vs. Moffitt, Pennington, 436. An aunt may maintain an action for the seduction of a niece, a mother for an adopted daughter, and the only case where actual loss of service need be proved is in that of an adult child. 5 East., 49, note (a.) 11 East., 23, Irwin vs. Dearman. 1 Atk., 408, Fawkner vs. Watts. 3 Atk., 624, Mendes vs. Mendes. McPherson on Infants, 53, 58, 64, shows that the mother is entitled, as guardian by nature, to the custody of the infant's person. See also 8 Car. & Pay., 7, Andrews vs. Askey. 1 Thos.  [**8]  Coke, 155. 2 Kent's Com., 213. The law presumes services, the daughter being a minor, and it was not, therefore, necessary to prove them. Neither the volition of the daughter whilst under twenty-one deprives the mother of her right to services, nor does the fact that the daughter did not reside with her prevent the mother from maintaining the action, if the daughter was under twenty-one at the time of the seduction, (5 H. & J. 31, Mercer vs. Walmsley;) but she may maintain it at any time before the daughter is twenty-one, if she be entitled to the services of the daughter at the date of the seduction, though the daughter left her house voluntarily. 3 Eng. C. L. Rep., 445, Speight vs. Oliviera. 2 Kent's Com., 213. 2 Wend., 459, Clark vs. Fitch. 21 Do., 81, Hewitt vs. Prime. 9 Johns., 388, Martin vs. Payne. 2 Greenl. on Ev., sec. 572.

2nd. The evidence of Dr. Metcalf is admissible to show the character of the intercourse between the parties, and reflects light back upon their previous conduct. We cannot bring a second suit for damages, but have the right to bring them down to the day of trial. 21 Wend., 81, Hewett vs. Prime. 4 Pet., 182, Wilcox vs. Plummer. Sedgwick on Damages,  [**9]  104 to 106.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and TUCK, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*216]  LE GRAND, C. J., delivered the opinion of this court.
This action was instituted by the appellee against the appellant, to recover damages for the seduction of her daughter, per quod servitium amisit.
It appears from the evidence that the daughter was born on the 2nd day of August 1829. The evidence showing an acquaintance between the defendant and the daughter is first found in a letter from him to her, dated the 14th day of July 1847. This letter alludes to previous interviews between the parties, but does not state when they took place. It also alludes to a conversation had in which she expressed a desire to leave her mother's house, and expresses a willingness, if such should be her determination, to provide for her. There is nothing however in the letter intimating there had been any sexual intercourse between them. There was evidence from which it appeared that the daughter had left the house of her mother sometime in the month of July 1847, and gone to the house of a Mrs. McGee, where the defendant visited her.
These facts are sufficient to present the question [**10]  which lies at the foundation of the suit, which is, whether the mother can maintain the action for the seduction of her daughter?
In the case of Mercer vs. Walmsley, 5 Harr. & Johns. 27, the right of the father to maintain the action was fully recognised, 

 [*217]  whether the daughter be above twenty-one years of age or not, provided, if she be over twenty-one years of age at the time of her seduction, she be in the service of the father. During her minority the father is entitled to command her services, and the law therefore establishes between father and child constructively the relation of master and servant. This doctrine runs through nearly all the cases; but in regard to the mother there has been a great difference of opinion, some of the courts, on the fullest argument and investigation, utterly denying the right of the mother as such to sustain this action. It would be unprofitable in the view we have of the case now before us to review the various decisions on this point. The cases will be found very fully collected and commented on in the case of Bartley vs. Richtmyer, 4 Comstock 43.
But whatever may be the true character of the guardianship [**11]  which the common law casts upon the mother, one thing is certain, that during the minority of the child any one standing in loco parentis, and she being in their service, may maintain the action.  2 Carr. & Payne 303. 2 Term Rep 4. 11 East, 23. 3 Watts & Seargt. 416.
The policy of the legislation of this State in regard to females is, that until they are eighteen years of age they are to be considered minors, and where the mother is left the natural guardian she is entitled to her services, unless under the law the girl be apprenticed to serve at some trade or employment until she arrive at that age. The act of 1834, ch. 228, expressly recognises the mother as the natural guardian of her children, making no distinction between males and females. This act, when taken in connection with the other acts of Assembly fixing the period of eighteen years when a female shall be entitled to her estate, and to which she may be apprenticed, in our judgment, point to the period up to which the mother is entitled to the services of her female children, and we are clearly of the opinion, whatever may be the law elsewhere, that if the daughter be debauched [**12]  before she is eighteen years of age and she be in the service of the mother, that the latter may maintain an action against the seducer.

 [*218]  In the case before us the girl was under eighteen when she left the house of the plaintiff. The slightest evidence will suffice to prove the relation of servant. There is testimony in the case from which the jury had the right to infer it. The witness, Mrs. McGee, proves distinctly and positively that she had seen the girl working about the house of the mother one year before she left it, and this is all sufficient to raise the presumption.
We think the court improperly granted the first prayer of the plaintiff. It puts it to the jury to find whether the girl was debauched at any time before she was twenty-one years of age. We have already said that we do not consider the mother as entitled to command the services of the daughter after she is eighteen years of age, and clearly if the seduction took place after she was over eighteen years of age the plaintiff cannot maintain the action. The gist of the action is, that the parent being entitled to the services of the child, is permitted to maintain an action for the loss of those [**13]  services consequent upon her being debauched. If the girl was not in the service of the mother, and was over eighteen years of age when she was debauched, the mother could not maintain the action, for the very essence of it would be wanting. It would scarcely be contended that if the girl had been bound an apprentice and the time of her indenture had expired, that the mother would be entitled to recover her subsequent earnings; and yet, if this prayer of the plaintiff be correct, such is its effect. We think the second prayer of the plaintiff is erroneous also. It speaks of the minority of the girl without defining what period of time is covered by that term, and therefore was calculated to mislead the jury, the more particularly so as it was granted in connection with the other prayer, in which the term twenty-one years is mentioned as the period up to which the mother was entitled to the services of the girl.
We concur with the court below in the rejection of the prayers of the defendant. The defect in the first prayer is, that it confines the right of recovery of the plaintiff to what 

 [*219]  was done by the defendant while the girl was under the roof of the mother. The objection [**14]  to the second prayer is, that it does not negative the fact that she was induced to leave the house of her mother before she was eighteen years of age. If the girl was induced to leave before she was eighteen years old and her seduction took place afterwards, the mother could recover, because being entitled to her services, and the loss of them being the gist of the action, it was a wrong on the part of the defendant to entice her servant from her duty. The same objection applies to the fourth prayer. In regard to the third, it is only necessary to say there is evidence from which the jury might infer an improper intercourse between the defendant and the daughter of the plaintiff.
We think the testimony of Dr. Metcalf was improperly admitted for the purpose for which it was offered, but think it was admissible in support of the testimony which had previously been given. Whilst what occurred when the girl was twenty-three years of age could not give a cause of action, it might serve to illustrate and explain what took place five years previously. Had the testimony been offered generally it would have been admissible. 6 Gill & Johns. 488.
Judgment reversed and procedendo  [**15]   awarded. 

145 of 187 DOCUMENTS 

WILLIAM D. MILLER and WILLIAM E. MAYHEW, vs. ANNE S. WILLIAMSON and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 219; 1853 Md. LEXIS 89 

DECEMBER, 1853, Decided 

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

This appeal is taken from a decision of the chancellor, reported in 2 Md. Ch. Decisions, 94.

The facts of the case are briefly these: Mrs. Mary Ann Jones, by her will, executed in 1841, devised certain real and personal estate to her niece, Anne S. Williamson, wife of Charles A. Williamson, "for her sole and separate use, benefit and behoof" during her natural life, then to her said husband for life if he survived her, then after the death of the longest liver of them to Mrs. Williamson's children and their descendants, if any, and if none, then $ 500 thereof to the appointee of her will, or failing such appointment, to her legal representatives, and the residue to the children of the brother and sister of the testatrix. Mr. Williamson was the executor of this will.

Among the property so devised was a mortgage for $ 7000, due the 17th of September 1848, to foreclose which a bill was filed by Mr. Williamson, as executor, on the 6th of March 1849. Upon this bill a decree was passed under which the mortgaged property was sold, on the 30th of November 1849. The mortgage debt then amounted to $ 9605.17, and the net proceeds of sale, $ 9123.90,  [**2]  were audited to Mr. Williamson, as executor of Mrs. Jones.

The fund thus in court was claimed by Mrs. Williamson, under the will of Mrs. Jones, and also by Miller and Mayhew, in virtue of an assignment, dated 1st of February 1849, of the mortgage claim to them, signed "Chas. A. Williamson, executor and devisee of Mary Ann Jones," to secure the payment of four promissory notes then outstanding, amounting to $ 5632.77, drawn in their favor by Williamson, Sutton & Co., a firm of which Williamson was a partner, and an order accepted by the trustee directing him to satisfy this assignment. They insisted that Williamson, at the time of this assignment, was, as he assumed to be, the sole and legal owner of the mortgage debt; that as executor of Mrs. Jones he settled a final account in the orphans court, on the 9th of October 1848, wherein he charged himself with $ 7000, the principal of the mortgaged debt, as cash received by him, and paid his wife $ 5761.90, the cash balance of the whole estate, and took her release therefor, dated 7th of October 1848, which was executed and acknowledged before a justice of the peace, and filed and recorded in the orphans court; that by virtue of this [**3]  settlement he became the owner of the mortgage debt; that when he applied to them for the loan, he offered to secure it by an assignment of said mortgage debt, which they would not have taken but upon an assurance that he made it with the knowledge of his wife and after a full satisfaction of all her claims against it.

Mrs. Williamson insisted on her part, that the release was executed by her without consideration. The parties entitled in remainder also claimed to have the fund invested for their ultimate benefit.

To support the claim of his wife Williamson was examined, and proved that nothing was paid by him to her in consideration of her release of October 7th, 1848, and that she never received any part of the property therein mentioned nor any security therefor; that he closed the account in the orphans court by his wife's release because the Register insisted on its being closed, and got his wife to execute the release as a matter of form; that his wife was never present in the orphans court in reference to the estate; that she executed the release at his request, and did not know of the assignment to Miller and Mayhew until after the failure of the firm of Williamson,  [**4]  Sutton & Co.; that he considered he had a right to the mortgage claim, it being personal property, and that he had a right to assign it both in his own capacity and as executor. This witness was cross-examined by Miller and Mayhew, but his testimony was excepted to by them on the ground that he was not a competent witness for his wife.

Mr. Glocker, a clerk in the Register's office, proved that he prepared the account passed by Williamson: the latter asked witness if he could charge himself with the mortgage, though it had not been collected, and witness told him he could do so, and transfer the mortgage to his wife and take her release; Williamson said the mortgage debt had not been collected or settled, witness did not know what arrangement had been made with Mrs. Williamson, but supposed the mortgage had been transferred to her when the release was signed. The mortgage was stated as cash, in order to close the account; the account was not passed until two years or so after it was prepared by witness. This testimony was excepted to, so far as Williamson's declarations were concerned, as hearsay, and further because his declarations to others are inadmissible on points wherein [**5]  his own evidence would be so.

The chancellor decided in favor of Mrs. Williamson's claim, and Miller and Mayhew appealed. The above statement is sufficient for the understanding of the opinion of this court, though a more full one is given by the chancellor in his opinion, in 2 Md. Ch. Decisions, 94.  

DISPOSITION:
Cause sent to the Circuit Court for Baltimore city, under act of 1854, ch. 183.  

HEADNOTES:

An assignment by a party as "executor and devisee," independent of any other fact, passes only his interest as devisee, or what the law authorises him to dispose of in his capacity of executor.

Apart from the act of 1843, ch. 304, an executor might sell, or raise money on, the property of the deceased in the regular execution of his duty, and the party dealing with him is not bound to inquire into his object.

But if the party dealing with him has reasonable ground for believing the executor intended to misapply the money, or was in the very transaction applying it to his own private use, he can take no advantage from the operation.

The fact that the executor executed the assignment to secure a debt due the assignees by a mercantile firm, of which he was a member, is sufficient, in contemplation of law, to notify them that he was about to commit a devastavit.

As a general proposition, a party is authorised to rely upon the disclosures of the public records in support of his title, but it is equally true that he is affected by the equities in others which these records exhibit.

An assignment by a party as "executor and devisee," is notice to the assignee of the will and its contents.

A husband is not a competent witness in behalf of the interest of his wife in her separate estate; the exceptions to the general rule are principally, if not exclusively, in cases where, she, if not permitted to testify, would be exposed, without remedy, to personal injury.

The declarations of the husband, made at the time he was passing his account as executor and taking a release from his wife, are admissible as part of the res gestae, to show that the release was executed without consideration and as a matter of form.

Though a specific bequest of consumable articles vests the absolute property in the legatee for life, yet, if it be the apparent intention of the testator that the thing shall not be consumed, but shall go to the party in remainder, the courts will, in case of danger, compel the tenant for life to give security.

A feme covert has no right to dispose of her separate estate unless that power be given to her by the instrument making the settlement, and where such power is given it must be exercised in the manner specified in the instrument.

A mortgage debt was devised to the separate use of a married woman during her life and then over. HELD, that the executor ought to apply to the orphans court for an order to invest the money secured by the mortgage, and not to pay it over to the legatee for life.

A wife cannot recover from her husband arrears of pin-money where she has not yearly demanded it, but she is entitled to arrears of interest upon a mortgage debt part of her separate estate. 

COUNSEL:
Wm. F. Frick and Thos. S. Alexander for the appellants, argued the following points.

1st. That at the time of the assignment by Williamson to the appellants of the mortgage debt, his duties and responsibilities, as executor of Mrs. Jones, had, by virtue of the final account settled by him in the orphans court, ceased and determined. That the effect of that settlement was to make said debt his individual property, and though it might be necessary and proper for him still to use his title of executor, in dealing with that mortgage, for the purposes of collection, or assignment, or sale thereof, yet the beneficial interest therein was his own, and he could no longer be charged with a devastavit in respect to any disposition he might make of it. 2 Gill 134, Ridenour vs. Keller. 2 G. & J.  [**6]   86, Allender vs. Riston. 7 Johns. Ch. Rep., 20, Sutherland vs. Brush. Act of 1843, ch. 304. 1 Williams on Ex'rs, 408.

2nd. That the legal intent and effect of the proceedings in the orphans court, of October 9, 1848, was this: That Mrs. Williamson, the legatee for life of the estate, and the wife of the executor, was fully satisfied for all her claims against the estate, for principal, and must be presumed to have waived all her claims against her husband for arrears of interest: for principal by receipt of the chattels, and cash balance without interest, found to be in the hands of the executor on final settlement; and for arrears of interest, by the annual support and maintenance which she received from her husband, from the death of the testatrix, up to the date of her release. That the legatees in remainder after that settlement had no further claim upon the executor, and their only protection for their rights was by a proceeding for investment of the principal of the estate against the legatee for life. That by the maintenance of his wife, the payment to her of $ 5761.90, and his over-payment of debts and legacies, and his credit to the estate of the principal of said mortgage [**7]  as cash, the executor became entitled to deal with said mortgage, and all arrears of interest thereon as his own, and under the pleadings and evidence, the assignment of the mortgage to the appellants must be deemed to be valid, and the proceeds of sale to be applicable to the payment, in the first place, of their claim. 6 G. & J. 25, Boyd vs. Boyd. 3 Russ., 149, Bartlett vs. Gillard. 3 Sim., 370, Carter vs. Anderson. 1 Russ. & Mylne., 190, Lynn vs. Ashton. 13 Sim., 643, Beresford vs. Archbishop of Armagh.

3rd. The averment of Mrs. Williamson, that her release was executed without consideration, is unsupported by proof: 1st, because her husband cannot be a witness for her at all. 1 Greenlf. on Ev., secs. 341, 345, note 1, and sec. 108, note 2. Our cross-examination does not in equity make him our witness, or estop us from excepting to his competency, where the cross-examination was as to the subject upon which he had been examined in chief. 2nd, because his evidence is inadmissible to contradict his recorded oath, that he paid her the sum mentioned in the release. 3rd, because his declarations to Glocker on this point are not evidence. If he cannot be a witness directly to [**8]  prove non-payment, how can his declarations proved by some third person be used for this purpose? How can he be a witness indirectly when he cannot be directly? The declarations of a husband or wife are subject to the same exceptions that their testimony is. 1 Greenlf. on Ev., sec. 341, note 6. Again these declarations were not part of the res gestae; most of them were made two years before the settlement of the account and the execution of the release. No separate acknowledgment of the release by the wife was necessary. McQueen on Husband and Wife, 66 Law Lib., 89. Where a wife executes a release in pais, there is no need of a privy examination, and no case can be found sustaining such a proposition. But it is said because she had no jus disponendi, she could not execute the release. If no power is expressly given, Chancellor Kent says, the wife cannot dispose of her separate estate, (2 Kent's Com., 165, 166,) but such is not now the law either in New York or in England. See 2 Leigh, 183, Vizonneau vs. Pegram. 12 G. & J. 236, Gray vs. Crook. But the question here is, whether, when property is settled to the separate use of a feme covert, she has not the power to receive it.

4th.  [**9]  That the orphans court accounts, supposing them not to be correct and conclusive, as between Mr. and Mrs. Williamson, and open to review and resettlement as between them, are nevertheless binding and conclusive, so far as the rights of third parties, acquired under faith in them, are concerned. That the appellants dealt with Williamson, in the faith that he had a valid right to transfer the mortgage; and he had that right, on the supposition that the orphans court accounts were true and correct. They had actual knowledge, derived from Williamson, of the existence of these accounts, and dealt with him in the belief that they were true and fair. And even if they had not actual knowledge of their existence and nature, yet if they dealt with Williamson on the faith of his assurance that he had individually a right to the mortgage and a valid power to transfer it, they are entitled to the benefit of every act of Williamson and Mrs. Williamson, which gave him such right and power, and they are both estopped from denying the conclusiveness and validity of such acts. 9 Gill 185, Kurtz vs. Hillen. That a feme covert is as much bound by fraud in a court of equity as a feme sole, see 1 Drury [**10]  & Warren, 134, Jones vs. Kearney. 2 Madd., 40, Cory vs. Gertcken. Our assignment is prima facie good, and are we not entitled to the benefit of a presumption of notice? Williamson told Miller he had full power to make the assignment, and this assurance was made upon the faith of the papers in the orphans court. If this assurance had been false, we should have been compelled to bear the loss, and where is the justice in saying we shall not have the benefit of them if true? We were bound by the state of the record, and can we not take advantage of it, if in our favor when we should have been bound if it had been to our prejudice?

5th. That the claim of the legatees in remainder against the fund in court is no better than that of Mrs. Williamson, because there is no evidence to support their averment, that there was not payment in fact to Mrs. Williamson. And it is admitted by the chancellor that, if there had been such payment in fact, and that the appellants dealt with Williamson on the faith of such payment, and the final settlement made thereby in the orphans court, they are entitled to the benefit of their assignment. The legatees in remainder may have remedy against the executor [**11]  on his bond, or against Mrs. Williamson for waste, but they cannot follow the fund into the hands of a purchaser from the executor.

6th. That if the legatees in remainder have a right to the investment of the sum of $ 6033.83 for their ultimate benefit, nevertheless the appellants are substituted to all claims of Mr. and Mrs. Williamson against the fund in court. That by means of her release, Mrs. Williamson must be presumed to have transferred to her husband, in consideration of his support and maintenance of her during that period, all interest on the principal of the estate from the death of the testatrix to the date of her release, inasmuch as she expressed herself fully satisfied and paid by receipt of the principal. That to the extent of all such interest in arrear, $ 2715.37, and his overpayments of the estate, amounting to $ 979.10, Williamson had acquired a right in the fund in court, and could therefore lawfully assign it to the appellants. 2 Story's Eq., sec. 1396. 2 Ves., Sr., 190, Peacock vs. Monk. 3 Mylne & Keen, 513, Thrupp vs. Harman. 11 Irish Eq. Rep., 511, Arthur vs. Arthur. 4 Brown's Ch. Rep., 326, Squire vs. Dean. 3 Johns. Ch. Rep., 93, Methodist Episcopal [**12]  Church, vs. Jaques, and same case, 17 Johns., 548, on appeal. 2 Ves. & Bea., 36, Brodie vs. Barry. 1 Macnaghten & Gordon, 599, Caton vs. Rideout. A wife is not entitled to an account against her husband, for arrears of interest or pin-money, 3 Russ., 149, Bartlett vs. Gillard. 3 Sim., 370, Carter vs. Anderson.

F. K. Howard and S. T. Wallis for the appellees, argued the following points:

1st. That the whole claim of the appellants is predicated upon a written assignment signed by Chas. A. Williamson, as "executor and devisee;" that they are precluded from setting up any rights acquired from him in any other capacity, and from giving any evidence to vary the effect of the assignment; that the character of the assignment gave them notice of Williamson's fiduciary position, and of the will which created it; and that they dealt with him at their peril, and subject to all the rights of the parties claiming under the testatrix. 2 Williams on Exc'rs, 612. 7 Ves., 152, Hill vs. Simpson. Lowrey vs. Commercial and Farmers Bank of Baltimore, decided in the Circuit Court for Md. Dist., July 1848, and cited in 2 Md. 167. 7 Johns. Ch. Rep., 155, Field vs. Schieffelin. 2 G. & J. [**13]  98, 99, Allender vs. Riston. Act of 1843, ch. 304.

2nd. That the release of Mrs. Williamson is conclusively shown to have been executed ignorantly and without any consideration, and is besides defective for want of a private examination and acknowledgement; that even if the appellants had known of its existence prior to the assignment under which they claim, they would have taken subject to the right of Mrs. Williamson and the legatees in remainder to impeach it, and to have the account upon which it was predicated reviewed and resettled, such proceedings in the orphans court not being conclusive. 2 Story's Eq., sec. 1395, 3 H. & J. 268, Spedden vs. The State. 2 H. & G., 40, Lowry vs. Tiernan. 1 G. & J. 229, Tiernan vs. Poor. 2 G. & J. 1, Brundige vs. Poor. 11 G. & J. 23, Warfield and Wife. 2 H. & J. 483, Hall vs. Griffith. 7 H. & J. 22, Haslett vs. Glenn. 1 Gill 1, State vs. Reigart.

The above cases show that the release is at most but prima facie evidence of payment and may be rebutted. In this case it was utterly without consideration and was merely a matter of form. Williamson's evidence proves this, and he is a competent witness, having no [**14]  interest in the fund. The rule is, that a husband and wife are not competent witnesses for or against each other:--1st, upon the ground of public policy; and 2nd, because their interests are identical. This rule was established before separate estates for married women were created, and the reason for the rule in such cases no longer exists, and the rule itself should not prevail. See 2 Starkie on Ev., 400. 10 Johns., 44, Fenner vs. Lewis. 10 Pick., 265, Richardson vs. Learned. 22 Pick., 262, Dyer vs. Homer. But having cross-examined him, the appellants cannot object to his testimony. 7 G. & J. 397, Boteler, et al., vs. Beall. 3 Md. Ch. Decisions, 99, Bullett vs. Worthington. But without his testimony they have no standing in court, for without it there is no proof of his indebtedness to them. But it is said his declarations, as testified to by Glocker, are not admissible, because he was not a competent witness himself. Now the fact that a man is not competent as a witness himself is the very reason why his declarations are. But it would be strange to say that we are bound by his acts and cannot show the circumstances surrounding those acts--that he has committed a fraud and we [**15]  cannot show it. These declarations were clearly admissible as part of the res gestae. 3 G. & J. 188, Kolb vs. Whitely. 7 Gill 3, Garner vs. Smith. 9 Gill 222, Powles vs. Dilley. 8 Gill 142, Miller vs. The State.

But this was a settlement by a husband with his wife--a trustee with his cestui que trust; a case which requires uberrima fides, where courts of equity inquire into the transaction with the utmost care and caution. 3 Dessa., 462, Ewing vs. Smith. Hill on Trustees, 156, 157. 2 H. & G., 40, Lowry vs. Tiernan. 1 Story's Eq., sec. 312. 2 Do., sec. 1395. 5 Gill 29, Forbes vs. Forbes. In all such cases the onus is upon the party who claims under the assignment to show the bona fides of the transaction. This again is a release executed by a married woman disposing of an estate over which she had no jus disponendi. This she was not competent to do. The case of Smith vs. Morgan, 8 Gill 139, decides, that neither the husband nor wife, jointly or separately, can, at law, dispose of the wife's separate estate. This was a case at law, but it settles the principle as to equity, because at law the husband and wife, jointly, have the same power over the wife's [**16]  separate estate that the wife alone has in equity, for courts of equity have only made a feme covert as to her separate estate a feme sole. On this point see 2 Kent, 150, 166. 3 Johns. Ch. Rep., 93, Methodist Church vs. Jaques. 4 Yerger, 433, Morgan vs. Elam. 2 Wharton, 15, Thomas vs. Folwell.

But again, the appellants had notice sufficient to put them upon inquiry. They knew, as matter of law, that Williamson was trustee for his wife, and was also executor. 2 Story's Eq., sec. 1380. 1 Gill 1, State vs. Reigart. 3 Md. 550, Ware vs. Richardson. The account in the orphans court was settled in October; the assignment was made in February; the appellants were applied to by Williamson, Sutton & Co., in January, for the loan, and exacted an exorbitant rate of interest. Now could they have supposed that just previous to this he had purchased in this mortgage and paid $ 5000 cash therefor? But again, Williamson was a devisee, and if he acquired a right to the fund by the release he extinguished his own right as devisee, and yet he makes the assignment as "devisee." The use of this word, therefore, was notice to the appellants that the release did not extinguish the right of the [**17]  devisees.

3rd. That the appellants had no knowledge of Mrs. Williamson's release when they took the assignment, and did not part with their money on the faith of it or its legal effect; that, therefore, there is nothing to prevent her relying on its invalidity as against them, to the same extent as against her husband if no assignment had been made, they having notice of Williamson's fiduciary capacity when they dealt with him.

4th. That even if the appellants were otherwise entitled to take any benefit of their assignment, the court would nevertheless, before granting its interposition, give the whole amount to Mrs. Williamson as her equity, under the circumstances of this case. Bell on the Law of Property, 67 Law Lib., 113, 132. 4 G. & J. 282, Duvall vs. Farmers Bank. 11 G. & J. 22, Groverman vs. Diffenderffer. 1 Gill 1, State vs. Reigart.

5th. That the legatees in remainder are entitled to have the property invested for their benefit, and are not precluded, by any act of Williamson or his wife, from setting up all equities against the appellants. 6 H. & J. 484, Darne vs. Catlett. 6 G. & J. 196, Evans vs. Iglehart.  

JUDGES:
The cause was argued before [**18]  LE GRAND, C. J., ECCLESTON, and MASON, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*230]  LE GRAND, C. J., delivered the opinion of this court.
The facts in this case which it is important for us to notice are but few. The appellants' claim rests entirely on the assignment executed on the 1st February 1849, and the effect of the settlement of a final account in the orphans court by Charles A. Williamson, as executor of Mrs. Jones, and the execution of the release to him by his wife, Mrs. Ann S. Williamson.
The assignment of Williamson to the appellants was as "executor and devisee," and, independently of any other fact, could convey to them nothing beyond his interest as devisee, or what in this transaction the law authorised him to dispose of in his capacity as executor. As devisee, his interest under the will of Mrs. Jones was purely contingent, dependent entirely on his surviving his wife. The authority with which he was clothed as executor, will depend on the true nature of the transaction with Miller and Mayhew. Apart from our act of Assembly of 1843, ch. 304, an executor might sell or raise money on the property of the deceased, in the regular execution of his duty, [**19]  and the party dealing with him would not be bound to inquire into his object; but if a party dealing with him knows, or had reasonable ground for believing, that he intended to misapply the money, or was in the very transaction applying it to his own private use, he could take no advantage from the operation.  Albert and Wife, vs. Savings Bank, 2 Md. 159, and the authorities there relied upon.
Now it is clear beyond all possibility of successful controversy, that the assignment and order of Williamson were given to Miller and Mayhew, to secure a debt due by the firm of Williamson, Sutton & Co., a mercantile house of which he was a member. This circumstance sufficiently, in 

 [*231]  contemplation of law, notified the assignees that the executor was about to commit a devastavit. But, it has been urged, that if they had made the proper examination in the orphans court, they would there have discovered a final account had been settled by the executor on the 9th October 1848, and, also, that Mrs. Williamson, his wife, had executed a release to him, and from this it is argued, that whether they knew or not of the final account and release when they [**20]  entered into the transaction, they are nevertheless entitled to invoke these facts in support of their title. It is undoubtedly true, as a general proposition, that a party is authorized to rely upon the disclosures of the public records in support of his title; but it is equally so that he is affected by the equities in others which they exhibit. This being so, how stands the case? Thus: Miller and Mayhew knew, according to the imputation of the law, that the executor was misapplying the funds of the estate, that is, devoting them to his own private purposes; and, moreover, that he professedly acted as executor and devisee, which informed them there was a will on record in which was to be found specified the interests of the objects of the testator's bounty. If, therefore, they entered into the transaction without any knowledge of the final account of the executor, or of the release of Mrs. Williamson, they were not in point of fact deceived by those circumstances; and if, on the other hand, they had examined the public records, they would have seen that the property assigned to them belonged for life to the wife of the executor, and, in a certain contingency, was to go to other [**21]  parties, and thus in fact they would have been affected by any equity of Mrs. Williamson, or of those in remainder. This being so, the question as to the existence of any outstanding equities is presented for our decision, and its solution must depend upon the facts disclosed in evidence and the will of Mrs. Jones under which the property has been acquired.
It is clear from the testimony of the executor, that he did not pay to his wife the sum of money for which she had given her release, but his evidence is objected to on the ground that 

 [*232]  he is incompetent as a witness in behalf of the interest of his wife, and we think the objection well taken. There are but few exceptions to the rule which prohibits husband and wife from testifying for each other, and they relate principally, if not exclusively, to cases where, if she were not permitted to testify, she would be exposed, without remedy, to personal injury. 1 Greenleaf, sec. 343.
But while we sustain the objection to the testimony of Mr. Williamson, we concur with the chancellor in the opinion that the testimony of Mr. Glocker is admissible. The declarations of Williamson, when arranging with him for the preparation [**22]  of the account, are part and parcel of that transaction, and it is apparent, from the whole testimony of the witness, that the account was prepared and the release given by Mrs. Williamson, not because either or both together truly explained the transaction, but to enable the executor to close up the estate by settling a final account. But, apart from these circumstances, it must be obvious to every unprejudiced mind, that the executor did not pay the sum of money mentioned in the release of his wife. That paper bears date the 7th October 1848, and the assignment to Miller and Mayhew the 1st February 1849. The mortgage was not due until 17th September 1848. Now it is clear, from the very terms on which the appellants made the advance, that Williamson was hardly pressed for money, for it is beyond belief that a person in easy circumstances would consent to enter into a contract which subjected him to a most exhorbitant rate of interest; and yet, if we are to believe Williamson paid his wife, we are to believe he anticipated the collection of the mortgage, and then in the course of a few months consented to pledge this very mortgage, on terms perfectly inconsistent with the fact, that [**23]  he was in possession of funds sufficient to enable him to purchase out the mortgage security from the estate of which he was executor. We think all the circumstances surrounding the whole case, show plainly enough that Mrs. Williamson never did receive the money; and also that Miller and Mayhew, when they received the assignment, were wholly 

 [*233]  ignorant of the settlement of the final account by the executor and the execution of the release by his wife. They no doubt supposed, as it is manifest both he and Mr. Glocker did, that he was entitled to the property as his own, jure mariti. But be this as it may, they took from him the title which he had as executor and devisee, and we have shown that the law denies to an executor the power to dispose of the assets of the estate for his own advantage, and if he attempt to do it with the knowledge of his assignee, or under such circumstances as reasonably ought to put the latter on the inquiry, that he can take no advantage from it. If there be any case in which such knowledge can be imputed, this is that case. The evidence shows they received the assignment in security for the payment of a debt, having no connection whatever [**24]  with the estate of Mrs. Jones, and must therefore be taken as affected with all the equities, either of Mrs. Williamson or of the parties in remainder. If they were not apprised of the release until after this controversy commenced, they were not in fact deceived by it, and therefore not induced by it to deal with the executor.
If it avail anything, then it must be because of the force given to it by the law independently of their knowledge, and this involves the inquiry, how far Mrs. Williamson had the right to dispose of the interest acquired under the will of her aunt, Mrs. Jones, for if she had no right to dispose of the estate and thus defeat the interests of the parties in remainder, her act was illegal and of no effect.
Although it has been held in this State, that a specific bequest of consumable articles vests the absolute property in the legatee for life, ( Evans vs. Iglehart, 6 Gill & Johns. 171,) still it has never been denied anywhere, that if it be the apparent intention of the testator that the thing shall not be consumed, but shall go to the party in remainder, that in case of danger the courts will interfere and compel the tenant [**25]  for life to give security. So in the case of Boyd and others, vs.  Dennis Boyd, 6 Gill & Johns. 25, where the devise was as follows: "$ 10,000, of which you (the devisee) are already in possession 

 [*234]  of the greatest part, is to be at your disposition, and for your use, free of interest, during your natural life, but after your death to be invested in bank stock," &c., the court held, that the tenant for life could not be compelled to give security for the amount of the devise, in absence of proof of the same being in danger; but this was placed distinctly on the ground that the language of the will was peculiarly strong and emphatic; the devisee "was to have the use and disposition of the property free of interest during his life."
In the case now before us it is beyond all cavil, that it was the intention of the testatrix, that in the event of the death of Mr. and Mrs. Williamson without issue, that the estate devised was to be enjoyed by the parties indicated by her, and who are now before us asking that their interests may be protected; we think they are entitled to the relief which they solicit.
In the case of Smith's Ex'cr, vs. Morgan, 8 Gill 133, [**26]  although the court held at law neither the wife alone, nor the husband and wife conjointly, can divest the wife's interest in property to which she is entitled to her sole and separate use, yet they declined to decide the question, whether the wife is to be considered in a court of equity as a feme sole, with power to dispose, or possessing only such powers as the instrument which confers her title bestows.
In the case of Tiernan vs. Poor, 1 G. & J. 216, the court say: "It is not meant to intimate in any thing which has been said, that however the complainant might suffer by a reliance upon the conduct of those with whom he contracted, that this contract could be enforced against the right of disposition contained in the deed of trust. That would constitute a paramount law, governing and controlling every contract in relation to it, and it need be scarcely necessary to say that no decree could pass against her, to carry into effect any contract she might make, unless such contract were within the limits of her jus disponendi." In the cases of Tiernan vs. Poor, 1 Gill & Johns. 216, and Brundige vs. Poor, 2 Gill & Johns. 1, [**27]  the deed of settlement provided, that the separate property 

 [*235]  of the wife should be held in trust, "for the sole and separate use, benefit and behoof, of the said Deborah, (the wife,) for life, so that she be suffered to take and receive the entire profits thereof to her own separate use, without being subject to the control of the said Dudley, or of any future husband, &c., and in nowise answerable for the payment of his or their debts or engagements, and subject to be sold and conveyed by the said Deborah absolutely, in such manner as she may think proper." In the case of Warfield and Wife, 11 Gill & Johnson 23, the court held, that the will under which the fund was derived did not contemplate a settlement to her separate use, and therefore it was competent to husband and wife, on their joint application, to authorize the husband to withdraw the fund from chancery.
From this review of the decisions in our State, it appears it never has been decided that the wife has the right to dispose of her separate estate, unless that power be given to her by the instrument making the settlement, nor where such power is exercised in a manner different [**28]  from that pointed out in the deed or will, as the case may be. So far from it, it is expressly said, in the case of Tiernan vs. Poor, that the right of disposition contained in the deed constitutes a paramount law, and that no decree could pass to enforce any contract, unless such contract be within the limits of her jus disponendi.
Besides this, had the appellants made the proper inquiry they would have discovered, to say the least, that it was extremely questionable, under the law of this State, whether the wife, as tenant for life, had the right to receive and receipt for the money. In the case of Evans, et al., vs. Iglehart, et al., 6 Gill & Johns. 171, speaking of the duties of the executor, the court say: "If the surplus or residue thus bequeathed consists of money or property, whose use is the conversion into money, and which it could not for that reason be intended, should be specifically enjoyed nor consumed in the use, but be by the executor converted into money, for the benefit of the estate; as for example, a quantity of merchandise, a crop 

 [*236]  of tobacco, or the like, an investment thereof must be made by the executor, [**29]  in some safe and productive fund, or it must be put out on adequate securities, and most properly under the authority and direction of the orphans court, or a court of equity, so as to secure the dividends, interest or income, to the legatee for life, and the principal after his death to the legatee in remainder."
According to this decision, which has never been overruled, Mr. Williamson, as executor, ought to have applied to the orphans court for an order to invest the money secured by the mortgage, and not have assumed to hand it over to the legatee for life, to be consumed to the prejudice of the rights of those in remainder.
We do not think, as contended in argument, that the appellants are entitled to the interest due on the mortgage, which was not embraced in the final account of the executor. It stands on an entirely different footing from the cases of pin-money which were cited at the bar. In that class of cases, the wife or her representative is interdicted from recovering where she has not yearly demanded it, whatever may be due for pin-money for the years which have elapsed, and this doctrine rests on the idea, that the allowance of pin-money is for the adornment of the [**30]  person of the wife, and as the husband has supported her in the meantime, the presumption is, that she has been compensated by other allowances in lieu of pin-money. 2 Bright on Husband and Wife, 289, and the authorities there collected. But with the private estate the case is wholly different. In all such cases it is her property and may be reclaimed at any time, her husband standing in the relation to her of trustee.
On the whole we are of opinion, the evidence shows that Miller and Mayhew dealt with Williamson, not as purchaser, but as executor and devisee, and, as such, he could not assign, as they claim he did, the estate of his testatrix for his own debt, and that when the transaction was consummated, they had actual knowledge he was so applying the funds of the estate to his own purposes. We also think it equally obvious 

 [*237]  Mrs. Williamson never received the amount specified in the release, and that she and those in remainder are entitled to that sum, with interest due on the mortgage to be invested for their benefit. The investment, however, should be so made as to secure to the complainants the interest on the sum during the life of Mr. Williamson, if he [**31]  should survive his wife. He had clearly the right to dispose of his contingent life estate, and the complainants are entitled to have the fund so invested, as to secure to themselves the interest on it during the survivorship of Mr. Williamson, if such an event should occur. Holding these views, concurring as they do in the main with those expressed by the chancellor, we neither affirm nor reverse his decree, but will sign such an one in the premises as ought to have been passed. The case under the act of 1854, ch. 183, must go to the circuit court for the city of Baltimore, to which court the trustee, T. Parkin Scott, Esq., mentioned in the proceedings, will report his proceeding under our decree.
Cause sent to the Circuit Court for Baltimore city, under act of 1854, ch. 183.  

146 of 187 DOCUMENTS 

DAVID STEUART vs. ELIJAH WILLIAMS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 Md. 425; 1853 Md. LEXIS 1 

JUNE, 1853, Decided 

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

This was a petition for freedom, filed by the appellee against the appellant, and the issue tried was freedom vel non.

Exception. The petitioner offered in evidence the will of Catharine Belt, executed in 1825, containing, among others, this clause: "I give and bequeath my negro woman Esther to my son, George Gordon Belt, for and during the natural life of my son, Thomas Hanson Belt, and the children of the said Esther now born, or that may hereafter be born of the said Esther, in trust, for the sole use and benefit of my said son, Thomas Hanson Belt, and upon his death, if the children of the said Esther shall then be alive, I give and bequeath them as follows, viz: I give and bequeath to my grandson, Thomas Hanson Belt, Elijah, son of the said Esther." Also a codicil executed in the same year, in which the testatrix, after referring to the devise in her will of the negroes to her children, directed, "that none of them shall be sold out of the State of Maryland, and I do hereby order and direct, that if any of them should be sold in the State of Maryland, that they shall serve for a term of years, as I hereby direct, viz: the children of [**2]  my woman Esther," &c., "already born, as specified in my said will, or that may hereafter be born, shall be free and emancipated from slavery at twenty-eight years of age, provided they be sold." He then proved that the slave therein called Elijah was the petitioner himself, and that since the death of the testatrix, Thomas Hanson Belt had sold him to the defendant as a slave for life, and that he was, when he filed his petition, over twenty-eight years old.

The defendant then on his part, having first executed a release to the said T. H. Belt, proved by him, that his mother, the said Catharine Belt, in her lifetime, about the year 1812, gave to him a family of negroes, among whom the said Esther was one, and that ever since she has resided with him, in his house and under his control as her master, and has been used and employed by him as his slave; that in the year 1822 or 1824, the petitioner was born of the said Esther in his house, and was exclusively maintained and supported by him, and used and treated as his slave under the gift aforesaid, until he was sold to the defendant.

The petitioner then, with the object and for the limited purpose of impeaching and contradicting [**3]  the statement of said T. H. Belt, gave in evidence the said will; also the inventory of the estate of said testatrix, in which the petitioner, then nine years old, was appraised as a slave for life at $ 160; also the administration account of said George G. Belt, in which he claims an allowance for the petitioner, as devised to him in trust for said T. H. Belt, subject to the provisions of the will.

To the admissibility of each of these papers for the purpose for which they were offered the defendant objected, which objection the court overruled. The petitioner then asked the instruction set out in full in the opinion of this court, and the defendant also asked an instruction, which, (being granted,) it is unnecessary to state. The court, (NESBITT, A. J.,) granted both instructions, and defendant excepted to the granting of the petitioner's prayer, and to the admission of the will, inventory and account, for the purpose for which they were offered. The verdict and judgment were in favor of the petitioner, and the defendant appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

A testatrix devised to her grandson the children of her slave Esther, but added, that they should "be free and emancipated from slavery at twenty-eight years of age, provided they be sold." HELD:

That this was a conditional limitation of freedom, which it was competent for the testatrix to make, and was not a restraint upon alienation inconsistent with the right of the legatee to the property, and that it took effect as soon as the slaves were sold and attained the age prescribed.

A witness may be impeached by direct evidence as to his character for truth, or by evidence of his acts or declarations, inconsistent with his testimony at the time, but not by the acts of a third party, of which he is not shown to have been either aware or to have sanctioned.

In a petition for freedom the petitioner offered in evidence the will under which he claimed his freedom, and the defendant proved that the testatrix, long before the execution of the will, gave and delivered the petitioner's mother to the witness as a slave for life, and that whilst the mother was so held in slavery by witness the petitioner was born, and was afterwards sold to defendant. HELD:

That it was error to admit the will, inventory and administration account, disposing of and treating the petitioner as part of the estate of the testatrix, for the purpose of impeaching this witness, there being nothing to show that he had any knowledge of the contents of the will when executed, or authorised or sanctioned the correctness of the inventory or accounts.

The gift of a negro accompanied by delivery is just as effective as if evidenced by a bill of sale, and can only be impeached by showing fraud or the falsity of the witness who proves it.

A prayer that the petitioner was entitled to his freedom, if the jury find that he was the son of Esther, mentioned in the will of the testatrix, and was sold to defendant, and was at the time of filing his petition twenty-eight years old, is defective, because it takes from the jury the finding of the fact whether Esther was the slave of the testatrix. 

COUNSEL:
Grafton L. Dulany for the appellant.

1st. The condition annexed by the will to the absolute [**4]  devise of the slave for life, that he should be free if sold, was repugnant and void. 4 Kent's Com., 130, 131. 2 Caine's Rep., 345, 352. 4 Simons, 141. 10 Coke's Rep., 35, Mary Portington's case. 6 Coke's Rep., 40, Lord Mildmay's case. See also the case of Holliday vs. Negro Emily Ann, decided by the Court of Appeals for the eastern shore at November term 1840, and not reported.

2nd. There is no such sale of the petitioner proved in the case at any time, as would, under the true construction of the will of Mrs. Belt, entitle him to his freedom. The sale as proved was made by the cestui que trust for life, and without the concurrence of the trustee or the remainder man, whose interest could not be defeated by the alienation of the tenant for life.

3rd. There was error in permitting the will of Mrs. Belt, the inventory and administration accounts of G. G. Belt, to be given in evidence to impeach the credit of T. H. Belt, who was in no way connected with either of these papers. 2 H. & J., 402. 1 Starkie's Ev., 145.

John H. B. Latrobe for the appellee.

The questions are:--1st, was the slave held under the will or under the alleged gift to T. H. Belt? 2nd, is the condition [**5]  annexed to the devise valid? and 3rd, has there been such a breach of this condition as to entitle the slave to his freedom?

1st. The first question is one of fact, and was submitted to the jury, and they have passed upon it. A witness may be impeached by acts done or said inconsistent with the facts to which he testifies. 1 Starkie's Ev., 145. Here the party standing by and permitting his mother to dispose of the slave by will, his silence is an admission of the mother's title. He also stood by and saw the administrator return and account for the slave as a part of the mother's estate. Surely this was evidence proper to go to the jury, and their finding is conclusive that the slave was held under the will.

2nd. That the condition was valid is conclusively established by the decision of the Supreme Court, in the case of Williams vs. Ash, 1 Howard, 1. See also 9 Peters, 364.

3rd. That there was a sale and therefore a breach of the condition, is fully established by the testimony of Belt, offered by the appellant himself.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON, MASON and TUCK, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*429]  LE GRAND, C. J., delivered the opinion [**6]  of this court.
This was a petition for freedom. The appellee, who was the petitioner below, claimed his freedom under the will of Mrs. Catharine Belt. By that instrument it is provided, that the children of her slave Esther, who was the mother of the petitioner, should be entitled to their freedom at the age of twenty-eight years; provided they should be sold by the legatee of the testator.
It appears from the evidence that the petitioner was sold to the appellant as a slave for life, and that he was upwards of twenty-eight years of age at the time of the filing of his petition. The case of Williams vs. Ash, 1 Howard 1, establishes, that it is competent for a testator in Maryland, to manumit a slave on the happening of a contingency. In that case, the testatrix bequeathed to her nephew certain slaves, with the following proviso in her will, "that he should not carry them out of the State of Maryland, or sell them to any one; in either of which events, I will and desire the said negroes shall be free for life." It was held by the court that the bequest, under the restrictions imposed by the will, was not a restraint on alienation inconsistent with the right to the property [**7]  bequeathed to the legatee; that it was a conditional limitation of freedom, and took effect the moment the negro was sold.
If, then, there were no other facts proved in the case before us than the will and ownership of Mrs. Belt, the age and sale of the petitioner, he would be clearly entitled to his freedom. But the appellant does not claim under the will of Mrs. Belt, but in opposition to it. It was proved by Thomas H. Belt, that long before the execution of the will of Mrs. 

 [*430]  Belt, the mother was given and delivered to him, and that whilst she was held by him in slavery, the petitioner was born. To rebut this evidence and to impeach the witness, the will of Mrs. Belt, the inventory of her personal estate and administration accounts were given in evidence. In admitting this evidence and, consequently, in granting the prayer founded on it, the court erred. There is nothing in the case to show, that the witness had any knowledge of the contents of the will at the time of its execution, nor is there any evidence from which it could be properly inferred, he authorised or sanctioned the correctness of the inventory of the personal estate of his mother, or of the accounts [**8]  of the administrator.
If the evidence of the witness, Belt, was believed by the jury, the petitioner was not entitled to his freedom, and this evidence was not sought to be impeached in the mode pointed out by the law of evidence. His character for truth should have been assailed by evidence directly to that point, or evidence should have been given of his acts or declarations inconsistent with his testimony at the trial. 1 Starkie's Ev., 210. Nothing of this kind was attempted. The petitioner relied entirely on the acts of a third party, without undertaking to show the witness, in any manner or degree, was either aware of or sanctioned them.
It frequently happens, that evidence is introduced into a cause which is properly admissible at the time it is offered, but which, as the case progresses, proves to be of no legal efficacy. It was undoubtedly competent for the petitioner to lay the foundation of his claim to freedom, by offering in evidence the will of Mrs. Belt; but this will could avail him nothing if the witness, Belt, was believed, because he claimed in opposition to Mrs. Belt's will. Had she executed a bill of sale of Esther, and had it been recorded, it is clear [**9]  any subsequent declarations of her's, whether by last will or otherwise, would have been incompetent to impeach his title. Now a gift of a negro, like the gift of any other personal chattel, when accompanied by delivery, is just as effective as though it were evidenced by a bill of sale, and can only be 

 [*431]  impeached according to the known principles of the law of evidence; either by showing fraud, or the falsity of the witness who proves it. This has not been attempted. Had the administrator of Mrs. Belt brought an action of trover against the defendant, and the witness proved the gift and delivery to him, and the sale by him to the defendant, as he has in this case, undoubtedly the title of the defendant could not have been defeated by the acts or declarations of Mrs. Belt or of her administrator.
But in addition to this, the prayer asked on behalf of the petitioner was erroneous for another reason: It asks the court "to instruct the jury, that if they should find the petitioner was the son of Esther, mentioned in the will of Mrs. Belt, and was sold to the defendant, and was of the full age of twenty-eight years at the time of filing his petition, then their verdict must [**10]  be for the petitioner, unless they should also find the gift as testified to by the witness Belt."
All the facts stated in the prayer might have been found by the jury, and yet it would not, therefore, have followed that the petitioner was entitled to his freedom. The prayer was defective in this:--it took away from the jury the finding of the fact, whether Esther was the slave of Mrs. Belt. Unless she was the slave of Mrs. Belt, nothing she could say in her will could give the issue freedom, and this was a fact to be found by the jury, and not to be pronounced by the court as a conclusion of law.  Ellicott vs. Brown, 2 Md. 75, and the cases there referred to.
Judgment reversed and procedendo awarded. 

147 of 187 DOCUMENTS 

JOS. CAIN and others, vs. RICH'D C. WARFORD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 Md. 454; 1853 Md. LEXIS 4 

JUNE, 1853, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Orphans Court for Baltimore city.

This appeal was taken by the appellants from two orders of the court below, the first of which dismissed the petition of the appellants, asking said court to direct plenary proceedings in the application of Richard C. Warford, (the appellee,) for letters of administration pendente lite, on the personal estate of Rachel Colvin, deceased; the second appointed, on his application, the said Warford such administrator, it being admitted that he was the executor and principal legatee named in the will of said Rachel, to which a caveat had been filed. The facts of the case are fully stated in the opinion of this court.

A motion to dismiss was made on the grounds:--1st, because it is a matter of discretion determinable by the orphans court, whether, in a particular case, letters of administration, pendente lite, should be granted or not, and to appoint either the person named as executor in the contested will, or the largest legatee of the personal estate, or the person who would be entitled to letters of administration in case of intestacy, and having done this, their action is not a subject of review by this court; 2nd, because there [**2]  was no such contest in the orphans court between the appellants and the appellee as rendered a plenary proceeding necessary or proper. This motion was argued with the questions upon the merits.  

DISPOSITION:
Orders affirmed with costs.  

HEADNOTES:

Where there is no dispute in regard to the facts, and nothing but a purely legal question to be determined, it is not incumbent on the orphans court to order a plenary proceeding.

The 16th and 17th sections of the act of 1798, ch. 101, sub-ch. 15, only relate to applications, where there are matters properly in issue between the parties, and not to cases where there is no dispute in regard to the facts.

A caveat was filed to a will, and upon application of the party who was admitted to be the executor and largest legatee of the personalty under the will, he was appointed by the orphans court administrator, pendente lite. HELD:

This appointment was resisted by other parties, on the ground that the estate was not in danger, being under charge of a receiver previously appointed by the court of chancery; they also recommended another person as such administrator.

That by the act of 1810, ch. 34, sec. 6, the orphans court had full power to make this appointment, and the eligibility of the party being admitted, the exercise of its discretion by said court must determine the matter.

The death of a lunatic determines the office of the committee; and the court of chancery will order the personal estate to be paid over to the representatives of the deceased. 

COUNSEL:
Grafton L. Dulany for the appellant.

1st. The orphans court had no jurisdiction to appoint an administrator, ad colligendum, because the court of chancery had previously assumed the management, care and preservation of the estate by the appointment of a receiver, pendente lite. There is nothing imperative in the act of 1798, ch. 101, sub-ch. 3, requiring the orphans court to appoint such administrator; they are to do it in their discretion, but this discretion will never be exercised except upon a case properly made out. Here the fact was made known, that a court of equity had appointed a receiver to take charge of this estate, and yet an administrator, ad colligendum, is appointed for the very same purpose. The general power of a court of chancery to take possession, by a receiver, in case of a contested will, is clear. 6 Ves., 172. 1 Ves. and Bea., 544. Shelford on Lunacy, 2 Law Lib., 199. Administrators, pendente lite, are like receivers; their power [**3]  is identical, and the orphans court may grant such letters or chancery may appoint a receiver. 1 Wms. on Ex'rs, 409. Wherever there is concurrent jurisdiction, the court which first gets possession of the case will be entitled to retain it. 7 Gill, 484, 486, Albert and wife vs. Winn and Ross.

2nd. But suppose the orphans court had jurisdiction, it ought not, upon the facts of this case, to have been exercised. By the act of 1810, ch. 34, the granting of letters pendente lite is left to the discretion of the orphans court; they are not compelled to do so; there must be a case made proper to act upon; this is a sound discretion to be governed by fixed principles of law, not an arbitrary one. If the estate is safe, if it will be preserved until the dispute is ended, the effect of granting letters pendente lite, would be to burden it with heavy expenses. 2 Eng. Eccl. Rep., 122. The fact that a receiver was appointed may be called in to show that the estate requires some one to control it, but then the question recurs, is it safe in the hands to which it is entrusted? The very fact that a receiver has been appointed, is the best reason why letters pendente lite should not be granted.  [**4]  

3rd. There was error, also, in refusing to direct the plenary proceedings, as prayed by the appellants. The right to these proceedings is founded on the 16th and 17th sections of the act of 1798, ch. 101, sub-ch. 15. The word "may," in these sections, must be construed "shall." It is the right of the party, therefore, to have a plenary proceeding directed, whenever there is a contest, and the court is bound to grant it. 5 H. & J., 175. This right is not confined to cases where issues are required or a caveat filed, but it extends to all cases where there is a dispute.

4th. There was error in appointing the appellee against the recommendation of a majority in interest, and also in the refusal to appoint Elisha Warford, who had such recommendation. 1 Eng. Eccl. Rep., 60. 5 Do., 371. 6 Do., 145, 218, 244.

As to the right of appeal, it is clearly given by the act of 1818, ch. 204.

Wm. Schley for the appellee.

1st. On the motion to dismiss. The petition of the appellee presented a case of a pending controversy, which clearly authorised the court to appoint an administrator pendente lite, under the act of 1810, ch. 34. The language of that act is "that in all cases [**5]  where the validity of a will is or shall be contested," &c. There are but three grounds of error that can be taken by the appellants:--1st, the refusal to grant the plenary proceedings; 2nd, the appointment of the appellee; and 3rd, the refusal to appoint Elisha Warford.

A plenary proceeding will not be granted when the question is purely one of law. 5 Gill, 204, 206, Smith and wife vs. Young. The 20th section of the act of 1798, ch. 101, sub-ch. 8, prescribes the mode of trying issues on plenary proceedings. But what in this case is to be decided by a jury? The sole question is, whether the appointment of a receiver by the chancellor prevented the orphans court from acting? This is a pure question of law. The appointment of a receiver is only until the orphans court acts. 8 G. & J., 226. Such was the opinion of the chancellor here. What then is the use of issues? What is to be tried? The facts are all admitted, there is no dispute about them. Again, there is no conflict of jurisdiction here; the orphans court has general power over the subject, the chancery court only ancillary jurisdiction until the former acts. The administrator pendente lite is not a mere collector, but is,  [**6]  to all intents administrator pending the controversy. We therefore insist upon the motion to dismiss.

2nd. Upon the merits. 1st. There being no question as to the eligibility of the appellee, the act of the court appointing him, is the act of a tribunal clothed by law with exclusive jurisdiction over the subject matter. 3 G. & J., 20, Wilson vs. Wilson. 2 Gill, 241, Compton vs. Compton. Hanna vs. Munn and Placide, ante., 230. 2nd. Ellicott, one of the persons recommended by the appellants, was clearly ineligible, hence their application was properly refused. 8 G. & J., 84, Hoffman vs. Smith. The right to administration cannot be delegated. 8 Gill, 285, Ex-parte Young. 3rd. There was no error in refusing the plenary proceedings. 5 Gill, 204, 206, Smith and wife vs. Young. 4th. The appellants have no right to complain, for they do not show that they would be entitled to administer in case of intestacy. They may have been relatives on the mother's side, or of the half-blood. They might be nearest of kin as to distribution, and yet not entitled to administer. Act of 1798, ch. 101, sub-ch. 5, secs. 16 & 21; and sub-ch. 11, secs. 9 & 11.

Reverdy Johnson on the same side.

The [**7]  appointment of the appellee is resisted upon three grounds:--1st, that his petition presents no case, because the estate was not in danger; 2nd, that the court ought to have granted plenary proceedings; and 3rd, that the orphans court had no jurisdiction, because of the appointment of a receiver by the chancellor.

1st. The act of 1810, ch. 34, gives the orphans court the power to make the appointment when there is a contest about the will; the parties from whom he is to be selected are either the executor, the largest legatee, or the persons entitled to administration in case of intestacy. Here the case presented was one of a contested will; the length and nature of this controversy is presumed to have been before the court below. But what is the use of evidence? The act says the letters are to be granted in "its discretion," not the discretion of any one else, or any other court.

2nd. The counsel for the appellants supposes, that in every case in which there is any contest, of any kind whatever, about any subject whatever, there must be plenary proceedings whenever asked for by either side. There is some sort of a contest here. 1st. Is there to be an administration? This [**8]  is to be decided by the orphans court in its discretion, and under the act of 1810, ch. 34. 2nd. Who is to be appointed? this is to be decided in the same way by the same act. This is the contest. Now how is it to be contested on plenary proceedings? There was no dispute as to the fact of the will; that the appellee was named as executor, and was the largest legatee, and that the other parties were the next of kin. What then was to be tried?

But to grant plenary proceedings here would make the law a contradiction, as I will show: It is clear, that by the act of 1810, ch. 34, exclusive power and jurisdiction is given to the orphans court to appoint an administrator pendente lite. Now the right to plenary proceedings is conferred by the 16th section of the act of 1798, ch. 101, sub-ch. 15, but the 17th section prescribes, that in all cases of plenary proceedings, issues may be framed and sent for trial. The issue then in this case would be, whether the appellee should be appointed administrator pendente lite; and whichever way the jury might give their verdict on this issue, the orphans court would be bound to decide accordingly. Thus the result would be to deprive this court of [**9]  its discretion, previously and in express terms given it by the act of 1810. I say, therefore, that it never could have been the design of the legislature to give the right of plenary proceedings in such a case as this.

3rd. There is nothing in the record to show, that the court of chancery has ever exercised its jurisdiction. But we contend that the chancellor had no right to appoint the receiver. 2 Law Lib., 132, Shelford on Lunacy, Alex. Ch. Practice, 238, the death of the lunatic having determined the jurisdiction of chancery. But the chancellor only appointed him until the persons entitled should come forward and claim the property, and he has now passed an order directing him to pay over to the administrator pendente lite. But if the effect of appointing a receiver is to oust the orphans court of the power to appoint an administrator pendente lite, why should it not divest them of the power to appoint an administrator at all?

Dulany for the appellant, in reply.

1st. The first position assumed upon the other side is, that the orphans court has an absolute, exclusive and arbitrary discretion over the subject of the appointments of administrators pendente lite, and [**10]  for this they rely upon the act of 1810, ch. 34. But there are numerous cases in which discretion, though expressly given by statute, is yet held to be a sound discretion, to the proper exercise of which the parties are entitled, and the subject of review on appeal. 12 G. & J., 258. 1 H. & G., 404, 407. 5 H. & J., 460. 5 G. & J., 64. The estate must be in danger, and this fact must be affirmatively proved before an administrator pendente lite will be appointed. 2 Eccl. Rep., 124. There was no such averment or proof in this case. Where the court below has an absolute and exclusive jurisdiction, yet if in the exercise of it they mistake as to the law, this court will, quoad hoc, revise their judgment and send the case back for a proper exercise of their discretion. Such is this case, and there is every reason why this decision should be reviewed as the exercise of a sound and not an arbitrary discretion.

2nd. There is a fact in dispute here, and that is, whether the estate was or was not in danger, and the act of 1798 expressly gives the right to plenary proceedings wherever there is a contest, without any qualification as to the character of that contest. The term party does not [**11]  necessarily mean a party litigant, but any one who is injured by the order may appeal. 9 G. & J., 234. The argument on the other side as to making the law a contradiction by granting the plenary proceedings in this case is defective in assuming, first, that there is no fact to be tried; and secondly, that the orphans court have an absolute, exclusive and arbitrary discretion over the subject; both of which assumptions I deny, and without these the argument fails. That these proceedings would occasion delay is an objection that cannot be taken in a court of justice. 12 G. & J., 387.

3rd. As to the conflict of jurisdiction: The estate was under the control of the court of chancery, by a receiver duly appointed. The power of chancery was formerly much more ample. 37 Law Lib., 62, where Lord Eldon doubts but that a receiver may be appointed even where there is an administrator pendente lite, and this doubt is strengthened by the decision in 1 Ves. and Bea., 541. There is nothing in our statutes describing what an administrator pendente lite is, or what his character and qualifications are. For all these we must go to the English law for light. There is no case in England where a receiver [**12]  has ever been directed to give up the estate to an administrator pendente lite subsequently appointed. If such an one can be found, I will give up the case. A court of chancery will interfere, as a matter of course, to appoint a receiver pendente lite. Shelford on Lunacy, 2 Law Lib., 136, 199.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and MASON, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*460]  LE GRAND, C. J., delivered the opinion of this court.
This case comes before us on appeal from orders passed by the orphans court for Baltimore city.

 [*461]  It appears from the record, that, on the 1st day of March 1853, the appellee filed in the orphans court his application, asking to be granted letters of administration pendente lite on the personal estate of Rachel Colvin, deceased, stating that she had left a will, bearing date the 6th day of April 1848, and that it had been left for probate, but that a caveat had been filed. On the 15th of March following, the appellants filed their objection to the appointment of the appellee, because, as alleged by them, "the high court of chancery of this State has assumed the management and control of the real and personal estate of [**13]  said Rachel, and has appointed Benjamin H. Ellicott receiver thereof, subject to any order in the premises which it might seem necessary or proper thereafter to pass." On the 26th day of March Elisha Warford filed his application to have himself and Benjamin H. Ellicott appointed administrators pendente lite, stating that the said Elisha was of the nearest of kin of the deceased, and that he represents the interest, with his own, of the majority of the nearest of kin of the deceased. This application was supported by the recommendation of the appellants, who allege themselves to be a majority in interest of those entitled to distribution. They also filed a petition, asking that the court would order and direct plenary proceedings in the matter of the petition of appellee. The court granted the prayer of the petition of the appellee, and dismissed the petition of the appellants praying an order directing plenary proceedings. It is from this action of the court that the appeal has been taken.
We see no error in the ruling of the orphans court. The person to whom the letters were granted was, admittedly, eligible to the office to which he was appointed, and we see nothing in the [**14]  acts of Assembly which made it the duty of the court, under the circumstances of this case, to have directed a plenary proceeding.
It does not appear from the record how the court of chancery obtained control of the estate of the deceased, but it was conceded by counsel in argument, that it was acquired by means of a proceeding against her during her life, on the ground of mental incapacity to superintend and manage her estate. It has been 

 [*462]  always understood that the death of the lunatic will determine the office of the committee, and the court of chancery will order the personal estate to be passed over to the representative of the deceased. Alexander's Ch. Prac., 238.
The claim set up by the appellants to an order for plenary proceedings, is founded on the 16th and 17th sections of sub-chapter 15, of the act of 1798, chapter 101.
The sixteenth section provides, that whenever either of the parties having a contest in the orphans court shall require, the said court may direct a plenary proceeding, by bill or petition, to which there shall be an answer; and the seventeenth section provides "in case either party shall require, the court shall direct an issue or [**15]  issues to be made up and sent to any court of law," &c.
The obvious purpose of the sixteenth section is, to enable the court to advertise itself of the real facts in the case, but where there is no dispute in regard to them, as in this case, and nothing but a purely legal question to be determined, it is not incumbent on the court to order a plenary proceeding. It could result in nothing more than what was already established. There was no dispute in the case, as to the fact that the court had assumed jurisdiction of the estate of the deceased, and the fact could not have been more distinctly placed before the court, either by the finding of a jury, or by the answer of the appellee to any petition or bill which might have been filed by the appellants, or by the appellee against them. And this being so, we are of opinion, that the court did right in refusing to order, in conformity with the prayer of the petition. These sections of the act of 1798 can only be supposed to relate to applications where there are matters properly in issue between the parties, and not to cases in which there is no dispute in regard to the facts of the case.  Smith vs. Young, 2 Gill 204. [**16]  
We regard the sixth section of the act of 1810, chapter 34, as vesting in the orphans court full power to appoint the appellee administrator pendente lite, it being admitted, that he was the executor named in the will, and the person to whom the largest portion of the personal estate was bequeathed. When the facts 

 [*463]  are admitted, which is the case here, the exercise of the discretion of the orphans court must determine the matter.
Orders affirmed with costs. 

148 of 187 DOCUMENTS 

JAMES H. CASSILLY and wife, FRANCIS J. MEYER and THOMAS PATTON, and wife, vs. ANDREW and Jos. MEYER, Exc'rs of ANDREW MEYER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Md. 1; 1853 Md. LEXIS 10 

JUNE, 1853, Decided 

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

This appeal was taken from an order of the orphans court, dismissing the petition of the appellants for an account and distribution of certain assets of the estate of Andrew Meyer, deceased, in this State. The facts of the case are fully stated in the opinion of this court.  

DISPOSITION:
Order reversed and cause remanded.  

HEADNOTES:

A citizen of Ohio executed his will there, and died leaving real and personal estate in Maryland, and also five children, all residents of Ohio, two of whom he made his executors. Three of these children filed a petition in the orphans court of Baltimore city, where ancillary letters of administration had been granted, against the executors, alleging payment of debts, legacies, &c., and praying for an account of all the assets in this State and distribution thereof here. The executors answered, admitting the facts, but insisting, among other things, that the distribution belongs exclusively to the courts of Ohio. HELD:

That the courts of this State are not bound to transfer the assets to Ohio for distribution there, but it is a matter of judicial discretion with them to do so, or to distribute them here, that discretion to be exercised according to the circumstances of the case.

Under such discretion the assets may be distributed by the court granting the ancillary administration, where the legatees or distributees reside within the jurisdiction of such court, or when they seek their remedy there.

In this case all the parties interested in the assets being before the court in this State, and no circumstance showing any particular propriety or necessity for transferring the property to Ohio being presented, but, by so doing, further delay and expense would be incurred, it was HELD, that distribution should be made here.

A testator directed certain "real estate to remain as at present as long as the law will allow," the rent to be divided equally among his children and their legal representatives, and his "bank stock also to remain unsold and the dividends divided in the same manner, and any money" he might "have at interest, the interest to be divided in the same manner, and the principal, as fast as the same may be paid, to be reinvested, and the interest divided as aforesaid." HELD:

That by this devise the stock itself and the principal of the debts passed to the devisees; the direction that the one should remain unsold, and the other be reinvested as it might be received, cannot prevent the children from now claiming the principal.

A life estate in a chattel may be given to one, and the same, with its increase, be limited over to another, but this can only be done by express words or necessary implication.

The gift of the produce of a fund without limit as to time, is a gift of the fund, and the legatee takes a vested interest.

A devise of the rents and profits of land is equivalent to a devise of the land itself, and will carry the legal as well as beneficial interest therein.  

COUNSEL:
T. P. Scott for the appellants.

1st. The testator was a resident of Ohio, and the will was made there, though he had real and personal estate in Maryland. The will of the testator is the law governing the courts in the settlement of the estate. He had the right to direct that all his estate should be divided where he chose. In this case he has directed a part to be sold and invested in Ohio, and left the other to be distributed here--the bank stock to remain unsold, and the income arising therefrom to be divided. The Frederick street property has been sold and taken to Ohio, to be there invested, the remainder is to be distributed here.

2nd. The executors having taken to Ohio more than the proceeds of the Frederick street property, and enough to secure the annuity to Margaret Hossafross, and all the debts having [**2]  been paid, there is no reason why distribution of the remaining assets in Maryland should not now be made. The provision of the tenth section of the will have been gratified, $ 13,000 having been distributed in Ohio, and the distributees have therefore received more than $ 500 each.

3rd. The devise of the rents, dividends and interest on loans, carries with it the principal of the estate, and entitles the devisees to a distribution of it. 22 Eng. C. L. Rep., 23. 2 Jarman on Wills, 534. So much of the will as seeks to prevent the distribution of the estate after the time required by law, is void. 3 Green's N. J. Rep., 436. A devise over of personal property must be by express words or necessary implication. 6 G. & J., 185. This devise would have given the devisees the absolute estate in land, a fortiori, will it in personalty.

4th. The will does not create a trust in contemplation of the act of 1798, ch. 101, so as to arrest the jurisdiction of the orphans court. The 12th sec. of the 15th sub-ch., gives to the orphans court power, authority and jurisdiction to hear and decree upon all claims and demands between wards and guardians, legatees and distributees, and executors [**3]  and administrators, in as full and ample a manner as the court of chancery may. See also sub-ch. 14, sec. 12; sub-ch. 12, sec. 16; and sub-ch. 15, sec. 20.

5th. The orphans court of Baltimore city had jurisdiction and authority to make distribution, notwithstanding the fact that the testator, the executors and the petitioners were all of them non-residents of Maryland, and citizens of Ohio, the parties to this suit being in Maryland when the petition was filed, and the defendants having appeared and answered. 2 G. & J., 506, 507. 4 G. & J., 340. 5 G. & J., 484, 488. 1 Story's Conflict of Laws, secs. 513, 514. 1 Story's Eq., sec. 589. 1 Mason, 381, 430. 3 Pick., 128.

John Nelson for the appellees.

There are two points in the case:--1st. As to the power of the orphans court of Baltimore city to distribute any portion of the fund. 2nd. Admitting its jurisdiction, how far does it extend? to the fund itself or the income from it?

1st. The testator and all the legatees resided in the State of Ohio, and letters testamentary were granted there. There is no case to be found where it has ever been held competent for a foreign jurisdiction to make distribution in a case like [**4]  this. The general principle is, that the law of the domicil governs the distribution of the decedent's estate. The letters here are letters pro forma or auxilliary. The object of granting them is, that when a foreign executor comes into this State he shall not be permitted to take assets away, without first satisfying the claims of creditors residents of this State against them. The fund, after payment of debts, is to be transmitted to the principal administrator in cases of intestacy. 2 H. & J., 191. And the same rule applies to cases of testacy. 2 Kent's Com., 527, 528, (last Ed.) 3 Story's Rep., 755, Grattan vs. Appleton. The authority in Story's Conflict of Laws, 403, 404, 423, 424, makes the distinction as to the right of creditors, legatees or distributees resident within the country. See also 2 Bland, 488. The will does not give a different law to this case,--it does not direct distribution in Maryland,--it directs distribution by the executors who lived in Ohio, and it would be a strange interpretation to compel the executors to come here to distribute, and the distributees to come here to receive their money. The parties to receive and the parties to distribute were both in [**5]  Ohio.

2nd. What amount of distribution is to be made, conceding that there is any? The devise of rents and profits of lands, and the dividends of stocks, does not always pass the land or stock--never ex vi termini, but as only indicating the intent of the devisor that they should pass. The case cited in 22 Eng. C. L. Rep., was the case of a devise of rents and profits directly to the devisee himself,--here it is in trust to the executors. An interposed trust will prevent the estate from passing. The case in 3 Green, 436, only decides, that a court of chancery will interfere to change investments. There is sufficient upon the face of this will to show that the testator designed the legatees should not have the principal, but that the same should be reinvested. The clause "as long as the law will allow," refers exclusively to the real estate, and has nothing to do with the stocks.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and MASON, J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*5]  ECCLESTON, J., delivered the opinion of this court.
On the 27th of June 1848, Andrew Meyer, then a resident in the State of Ohio, died leaving a will, in which he appointed two of his sons, Andrew and [**6]  Joseph, his executors. The will was proved and recorded in that State, and letters testamentary were there granted to the executors. A transcript of the record of the will, under seal, having been sent to this State and recorded, letters testamentary were granted to the executors therein named, by the orphans court of Baltimore county, in July 1848.
The following eighth, ninth and tenth items of this will contain the provisions which relate to the matter in controversy:
"Eighth. I do constitute Andrew and Joseph Meyer, executors of this my last will and testament; and it is my will, that after my death, as soon as may be conveniently done, they sell the property owned by me on Frederick street, Baltimore, and invest the avails here, by loaning the same on real estate security, and out of the interest, or interest of other moneys, pay Margaret Hossafross the sum of one hundred and twenty dollars per annum, during her natural life, provided she remains single."
"Ninth. It is my will, that the rest of my real estate in Baltimore shall remain as at present, as long as the law will allow, drawing rent, and the rent to be divided equally among my children and their legal representatives;  [**7]  my bank stock also to remain unsold, and the dividends divided in the same manner, and any money I may have at interest, the interest to be divided in the same manner, and the principal, as fast as the same may be paid, to be reinvested, and the interest divided as aforesaid."
"Tenth. In case of the death of Andrew, Francis J. or Joseph, leaving a widow, she is to be paid by my executors, from my personal estate, five hundred dollars, provided, however, 

 [*6]  that should they, or either of them, have received from item No. 9, before his or their death, the sum of five hundred dollars, then his or their widow to receive nothing on his or their death."
The children of the testator are his two executors, Elizabeth, wife of James H. Cassilly, Alena, wife of Thomas Patton, and Francis J. Meyer.
In October 1852, the two daughters, with their husbands, and Francis J. Meyer, filed their petition in the orphans court of Baltimore city, stating that the debts of the deceased had all been paid; that the executors have in their hands money and property in Ohio, more than sufficient to secure and pay the annuity given to Margaret Hossafross by the will. The petition concludes with a prayer, [**8]  that the executors may be compelled to account for all the estate which has come to their hands in this State, principal and interest, and make distribution thereof among the legatees. The executors answered the petition, and filed as exhibits certain accounts and proceedings, in the courts of Ohio, in regard to the estate, and also two administration accounts passed in this State. These exhibits show a considerable amount of assets in their hands in Ohio, that a sum has been transferred there from Maryland, more than sufficient to pay to each of the three sons, Andrew, Francis J. and Joseph, $ 500, and that they had each received more than that sum.
In their answer the executors resist the application of the petitioners, and insist, that by the true construction of the will of the deceased, they are trustees of the estate mentioned in the ninth clause, and not subject to the jurisdiction of the orphans court of Baltimore, further than by their settlements as executors, to ascertain the amount of the principal, and to pay any debts due to citizens of Maryland. That with regard to the distribution of the estate, the jurisdiction belongs exclusively to the courts of Ohio, the petitioners [**9]  being citizens of, and residing in, that State. They also contend, that the income from the estate in Maryland of right should be, and 

 [*7]  in fact has been, accounted for in Ohio, as their accounts will show.
Only two judges were present in the court below, and being divided in opinion, an order was passed dismissing the petition. This order we are called upon to revise.
In argument the prayer of the petitioners was resisted on two grounds:--1st. Because, if the provisions of the will authorised, at present, a distribution of the whole of the personal estate, now in Maryland, among the legatees, the same should be transferred to Ohio for distribution, the courts of this State having no jurisdiction in such a case.
2nd. Admitting that our courts would have the authority to distribute the assets, if they were now in a proper condition for that purpose, still the petition was rightfully dismissed, inasmuch as, according to the provisions of the will, the petitioners are not entitled to demand a distribution of the bank stock, or of the principal of the debts due to the deceased, because they are subject to a trust not yet terminated.
The first ground presents a question which [**10]  has occasioned much controversy, and elicited a great deal of learning in its discussion. The decisions in the different States have been treated of, with their usual ability, by the two very distinguished writers, Chancellor Kent and Mr. Justice Story, as may be seen in the 2nd vol. of the Commentaries of the former, commencing at marginal page 431, (new Ed.,) and in note a, page 434; and in the Commentaries of the latter, on the Conflict of Laws, sec. 513, and note 2.
From a careful examination of these authorities and the cases referred to, we think it may be considered as a well settled principle, that in a case like the present the courts of this State are not bound to transfer the assets to Ohio, for distribution there; but that it is matter of judicial discretion to do so, or to distribute them here, that discretion to be exercised according to the circumstances of the case.
At pages 432 and 433, Chancellor Kent, speaking of Harvey vs. Richards, says: "It was held, upon a masterly consideration of the case, that whether a court of equity would proceed 

 [*8]  to decree an account and distribution according to the lex loci rei sitoe,  [**11]   or direct the assets to be distributed by the foreign tribunal of the domicil of the party, would depend upon circumstances." Again it is said: "Though the property was to be distributed according to the lex domicilii, national comity did not require that the distribution should be made abroad. Whether the court here ought to decree distribution, or remit the property abroad, was a matter of judicial discretion, and there was no universal or uniform rule on the subject." And in the note referred to the chancellor informs us, that in Vermont this judicial discretion is recognised; that it rests on courtesy and expediency alone, and though it is the usual course to remit the assets, still this will not be done when the rights of those entitled to the estate would be endangered by it.
In the 513 section of Story, he advances the doctrine, that the new administration is ancillary or auxiliary to the original foreign administration, so far as regards the collection of the effects and the proper distribution of them. But that "the new administration is made subservient to the rights of creditors, legatees and distributees, resident within the country." In note 2, he [**12]  refers with decided approbation to the learned opinion of Chief Justice Parker, in Dawes vs. Head, 3 Pick. 128, from which large extracts are made. In that case the court thought it could not be, that in every case a final settlement of the estate should take place under the jurisdiction which granted the ancillary administration; for, if so, then, if there were no debts there, "and none to claim as legatees or next of kin," all would be required to prove their right and receive their distributive shares there, notwithstanding the lex domicilii must regulate the settlement. They considered it clear, that in such a case the assets should be remitted to the foreign executor or administrator, because the distribution should be made according to the laws of the country, where the deceased was domiciled. It is then said: "And if any part is to be retained for distribution here, it will be only by virtue of some exception to this general rule, or because the 

 [*9]  parties interested seek their remedy here; in which case it might be within the legal discretion of the court here to cause distribution, or to remit, according to the circumstances and condition [**13]  of the estate."
These authorities seem very clearly to establish, that there is a judicial discretion on this subject, which is to be regulated by the circumstances of each particular case. And especially that under such discretion, the assets may be distributed by the court granting the ancillary administration, where the legatees or distributees reside there, or, in the language of Chief Justice Parker, where they "seek their remedy there." If the residence of claimants will entitle them to expect this discretion to be exercised for their benefit, we see no just reason why non-resident parties may not, voluntarily, come in and ask the same privilege; particularly, when, as in the present case, all the parties having any interest in the assets are before the court.
The executors being here as parties, they, together with the petitioners, are all the legatees, having an interest in the assets now in this State.
No circumstances showing any particular propriety or necessity for transferring the property to Ohio have been presented. It is not alleged that there are outstanding debts to be paid; but the only objections urged against the application of the petitioners, are those which [**14]  have been stated, as based upon a want of jurisdiction over the subject in the Maryland courts, and an alleged subsisting trust created by the will.
On the subject of jurisdiction, believing our courts have a discretion, we think the prayer of the petition should have been granted. We see no good reason why it should not, whilst there are reasons to the contrary. The proceedings in the record exhibit clear proof of a failure, in several particulars, on the part of the executors to perform their duty in Ohio; the administration in Maryland had been standing in an unsettled condition for more than four years when this petition was filed, and directing the estate to be transferred, 

 [*10]  would only be productive of still more delay and further expense, without, as far as we can see, benefitting any one.
In our opinion, there is no trust which can take from the orphans court its jurisdiction over the personal estate of the deceased, now remaining in this State. The property on Frederick street in Baltimore has been sold, and the proceeds taken to Ohio, in obedience to the directions of the will.
The bequest of the dividends of the bank stock and interest of the debts to his children,  [**15]  is a gift to them of the stock itself, and also the principal of the debts. The direction that the one should remain unsold, and the other reinvested, as it might be received, cannot prevent the children from now claiming the principal.
It is true, as has been contended, that a life estate in a chattel may be given to one person, and the same, with its increase, be limited over to another. But this can only be done by express words or necessary implication. Evans vs. Iglehart, 6 G. & J. 171. In this case there are no such express words, and it will be exceedingly difficult to discover any such necessary implication. The dividends and interest are given to the children in general terms, without limitation as to time. Neither is there any limitation as to the duration of the direction not to sell the stock and to reinvest the principal of the debts, unless the expression, "as long as the law will allow," used in connection with the real estate, mentioned in the same clause, is to be considered as applicable to the stock. But this discloses no intention on the part of the testator, that the principal of those portions of his estate should be preserved for the ultimate [**16]  benefit of any other persons than his children; neither can we discover a design that the same should be paid or delivered over to them as they arrive at age, or at any specified period, so as to prohibit them from demanding a distribution thereof until then. But the bequest is a simple unqualified gift of the dividends and interest, which carries with it the principal of the debts and the stock also. On this point the case before us is very analogous to that of Manning vs. Craig, et al., 3 Green's N. J. Rep., 436. There 

 [*11]  the will contained the following bequest: "Two hundred and fifty shares of stock that I hold in the great western turnpike company, in the State of New York, to remain unsold, and the dividends arising thereon I direct to be equally divided between" certain of his children and grandchildren, naming them. The application was to have the stock divided among the legatees, which the court ordered to be done. It was there held, that the gift of the produce of a fund, without limit as to time, is a gift of the fund, and that the interest of each legatee was vested.
A devise of the rents and profits of land, is equivalent to a devise of the land itself,  [**17]  and will carry the legal as well as beneficial interest therein. 2 Jarman on Wills, marg. p. 534.
If at any time there was a necessity for retaining a portion of the Maryland estate, to meet the contingency depending upon the decease of Andrew, Francis J. and Joseph, leaving widows, that necessity no longer exists, because each of those sons has received the $ 500, which puts an end to all claim on the part of his widow.
We think the order of the court below ought to be reversed and the cause remanded, that the orphans court may direct a sale of the bank stock, the collection of any outstanding debts due the estate, and requiring the executors to account, so that a distribution may be made among the legatees.
Order reversed and cause remanded. 

149 of 187 DOCUMENTS 

MOSES M. CLAYTON and others, vs. JOHN CAREY and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Md. 26; 1853 Md. LEXIS 12 

JUNE, 1853, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Equity Side of the Superior Court of Baltimore city.

The bill in this case was filed on the 16th of February 1852 by the appellants, charging that they are members of a religious corporation styled "The Colored Peoples' First Baptist Church in the city of Baltimore," originally incorporated in March 1837; that complainant, Clayton, was for many years the minister in charge of said congregation, and they have been duly elected trustees of the corporation. That the corporation was the owner of a house and lot on Lewis street, in said city, in which they have been in the habit of worshipping. That five of the defendants, professing to have control of said building, did, in November 1851, fraudulently and wilfully conspire and collude with Benjamin Brown, the other defendant, for the purpose of depriving complainants of their just rights and privileges in said building, and with that view pretended to sell the property to Brown, who under color of this sale, with the aid of the other defendants, took and kept possession of the building, and they have excluded complainants therefrom, whereby they are prevented from worshipping therein, and enjoying their religious and [**2]  legal rights and privileges. The bill then prays for an injunction, enjoining the defendants from using, occupying or entering in the said church, except for the purpose of worshipping therein as other members, which was accordingly granted. The injunction was afterwards, upon petition, enlarged so as to command the defendants not to interfere with complainants in getting and keeping possession of the premises.

The answers deny that complainants were, at the time of filing their bill or at any time since, the trustees of said corporation, or that they were as trustees or individuals then or since, the owners of said lot and building, and aver that defendants are the trustees, duly elected to serve for one and two years from the 1st of March 1850 and 1851, and that defendant, Carey, was, on the 25th of June 1849, duly elected minister, &c., congregation. They further aver that the sale to Brown was bona fide and legal, and with his consent they continue to hold meetings in said building for religious public worship, and deny that they have excluded the complainants from attending said meetings.

A motion was then made to dissolve the injunction and testimony taken, the purport [**3]  of which sufficiently appears from the opinion of this court, and in the following opinion of the court below, (FRICK, J.,) delivered upon the hearing of this motion:

"It would seem to be sufficient for the sanction of the court, in their action upon this motion, to refer to that part of defendants' answer which expressly denies that the complainants are excluded from attending the meetings held for religious worship in the church; nor does the testimony taken to sustain the injunction establish any such actual exclusion as is alleged. It rather discloses a conflict between these parties about the right to administer the affairs of the corporation, asserted by two distinct bodies of trustees, which in this stage of the proceedings is not to be decided. It sufficiently appears that the defendants, in March 1851, were duly elected under the provisions of the charter for one year, and that they were in possession, exercising their functions as trustees, at the time of the alleged sale to Brown.

"How far that sale was legal, and if so how far it operated upon the corporate franchises, may be matter for future inquiry; and if the defendants, after this sale, were elected trustees [**4]  with the laudable intention to continue the corporate organization, it still remains a question, whether such election superseded the prior trustees in their character as trustees of the franchise, even if the property passed from them by the sale. Whether they could or have divested themselves as depositories of the franchise by any act or declaration on their part, I am not now to decide. The bill of complaint admits they were in possession before the sale, and asserts that they kept possession after the sale, (though it avers such possession was fraudulent.) But this possession in either aspect does not and has not (if the answer is true,) exclude the complainants from participation in the religious exercises of the church, which the defendants claim to control, under their election and possession of one year from the 1st of March 1851. I cannot as yet say they disqualified themselves or dissolved the franchise by the sale to Brown, without pronouncing in advance upon the validity of that sale, which is matter only for the final hearing. By dissolving the injunction, I mean to leave the complainants for the present where they originally were at the filing of the bill, in the full [**5]  legal and religious right to worship in the church under the administration of the defendants, until the final decision upon the merits of the case, as it shall hereafter be presented." An order was then passed dissolving the injunction, from which the complainants appealed.  

DISPOSITION:
Order affirmed with costs.  

HEADNOTES:

Where there is a complete remedy at law, except in a few peculiar instances in which there is concurrent jurisdiction, the powers of a court of equity cannot be invoked.

Mandamus is the proper remedy for the intrusion, usurpation or unlawfully holding of the office of trustee of a church incorporated under the general incorporation law of this State.  

COUNSEL:
Charles F. Mayer and O. Horwitz for the appellants.

1st. The only proper evidence of the corporate proceedings is the books of the corporation, and they show no authorization to sell the property in question. They show no means prescribed for selling at private sale, nor limitation of price, nor that a due number of the congregation attended, nor that a majority of all the members of the congregation, according to the articles of incorporation, authorised the sale. Angel and Ames on Corp., 378, 379, (1st Ed.,) ch. 17, sec. 2.

2nd. That there was an implied resignation in this case by the first trustees, is clear from their acts and their declining to serve as trustees, because of their concurring in the disposition of the church to Brown; as to implied resignation, and that a new election implies acceptance of resignations, see Angel and Ames, 254, (1st Ed.,) ch. 11,  [**6]  sec. 11. Acts inconsistent with the duty (as was the conduct here,) of officers, the same authority shows, amount to an implied resignation.

3rd. Whatever may be the force of other positions, it is enough for us to point out the utter futility of the pretension, that a sale has been validly made, to maintain our injunction; that sale being virtually relied on, and as matter in avoidance to justify our exclusion, and proving to be the only ground of opposition to our acknowledged original rights. It is but matter in avoidance not substantiated, but, on the contrary, shown by the defendants themselves to be incapable of proof and without any effect.

T. P. Scott for the appellees.

The title and all the equities of the complainants are denied by the defendants, and the injunction would have been properly dissolved on bill and answer. The evidence shows conclusively that defendants were the rightful trustees of the church. The bill having alleged a fraudulent pretended sale, the answers are responsive in denying the fraud, and are sustained by the evidence in regard to the whole transaction. But even if defendants were mistaken in supposing that a sale of the property produced [**7]  a dissolution of the corporation, yet they continued trustees in law until the next general election. The appellees therefore ask an affirmance of the order dissolving the injunction, and that this court will dismiss the bill. 4 Gill, 471, 478.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON, MASON and TUCK, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*30]  LE GRAND, C. J., delivered the opinion of this court.
We concur with the Superior Court in the opinion pronounced on the motion to dissolve the injunction, which had been previously granted. The equity of the bill is completely sworn away by the answers, and the proof fully sustains the denials contained in them.
It sufficiently appears from the evidence, that the defendants were legally elected trustees of the church, in March 1851, and there is a total failure of proof on the part of the complainant to show they had been denied the right to enter the building and participate in religious worship.
Besides, the second section of the act of 1828, ch. 78, provides the remedy of mandamus for all cases of "intrusion or usurpation, or of any breach or violation of any terms, conditions, privileges or franchises, or of unlawfully holding [**8]  of any office under any charter or incorporation granted by this State;" and the principle is well settled, that where there is a complete remedy at law--except in a few peculiar instances 

 [*31]  in which there is concurrent jurisdiction--the powers of a court of equity cannot be invoked.
Order affirmed with costs. 

150 of 187 DOCUMENTS 

JOHN H. ING vs. RICHARD CROMWELL, JR.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Md. 31; 1853 Md. LEXIS 13 

JUNE, 1853, Decided 

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

The appellant executed a mortgage to the appellee, dated the 5th of November 1849, of certain lots in the city of Baltimore, to secure the payment of $ 3600, and interest thereon, for the principal of which he had passed to the mortgagee his promissory note, of even date with the mortgage, payable in three years, and for the interest, his six notes also bearing even date with the mortgage and payable respectively at six, twelve, eighteen, twenty-four, thirty and thirty-six months. The condition was, that the mortgage should be void upon payment of said sum, with legal interest thereon, at the times and in the manner specified in said notes, otherwise to be in full force, &c. This mortgage was executed under the act of 1833, ch. 181, and contains the assent of the mortgagor to the passing of a decree, as provided for in said act. A portion of the property embraced in this mortgage was conveyed to the mortgagor, by deeds of mortgage from several parties.

The mortgagee filed his petition in Baltimore county court, on the 22nd of January 1851, for a decree for a sale, according to the provisions of said act; and on the same [**2]  day, the court passed a decree for the sale of the lots on Madison street, embraced in the mortgage, or so much thereof as may be necessary, appointing a trustee for that purpose, directing him to sell upon the usual notice, by advertisement, and prescribing the terms of sale to be for cash. Afterwards and before the sale, the mortgagor filed his petition, asking leave, upon the grounds therein stated, to file a bill of review for errors of law upon the face of the decree, upon which the court passed an order granting leave to file such bill on or before the 1st of March then next, and in the meantime suspending proceedings under the decree. Afterwards, on the 20th of March 1851, no bill of review having been filed, the court passed an order directing the trustee to proceed in the execution of the decree. The mortgagor thereupon appealed from the decree.  

DISPOSITION:
Decree affirmed, with costs.  

HEADNOTES:

Under the 2nd section of the act of 1833, ch. 181, relating to mortgages in Baltimore city, the court is only restricted in fixing a time for the sale to "one of the periods limited" in the mortgage for forfeiture thereof, and it may prescribe such terms of sale as shall seem proper.

Under this authority it is clearly within the power of the court to direct, as one of the terms of sale, that the property shall be sold for cash.

The mortgage itself fixes the time for the payment of the money, and the mortgagor cannot complain that further notice was not given to him.  

COUNSEL:
John H. Ing for the appellant.

1st. The proceeding being ex-parte, the law must be followed strictly. The appellant respectfully insists, that under this act of 1833, no decree for sale can pass, without giving to the defendant a day to pay into court the amount justly due to the complainant [**3]  under his mortgage, and no day having been fixed by the decree in this case, that is error, and should on appeal be corrected.

2nd. Under the second section of this act, the terms of sale are left discretionary with the court. In this case the terms are "cash." To allow the property so to be sold will be ruinous and oppressive to the defendant, and without benefit to the complainant. A modification of the decree in this respect, allowing the complainant, through the trustee, to sell upon terms, one-third cash, one-third on credit of one year, and remaining one-third on credit of two years from day of sale, credit payments to bear interest and be secured to the satisfaction of the trustee, would be equitable and just, and in nowise affect the complainant or impair his rights.

3rd. Under this act, all parties who may in anywise be affected by the sale ordered by the court, should be made parties to the proceeding, and thus opportunity be afforded them to arrest the sale, by paying, on or before the day provided and fixed by the decree, the sum necessary to save their property and interest from being sacrificed by a public sale. The record shows a number of persons to be interested [**4]  in the property who are not brought before the court, and the decree is erroneous in not having proper parties made to it.

4th. The decree does not give the title of the term of the court at which it was passed, and this is error.

5th. The appellant having brought himself before the court by his petition, and having made himself a party thereto, and being before the court, ex-parte proceedings were taken in the case, when he should have had notice and a hearing before the court's order, of the 20th March 1851, was passed.

Milton Whitney for the appellee.

1st. There is no error in the decree, in not giving the defendant a day to pay into court the amount due on the mortgage. By section second of this act the object thereof is expressed: "In order to the facilitating the enforcement of mortgages of real property and estate in the city of Baltimore." It authorises the mortgagee, at any time after filing the mortgage to be recorded, to submit to the court the conveyance or copies thereof; and the court may thereupon forthwith decree, that the mortgaged premises be sold, not as prescribed by the third section of the act of 1785, ch. 72: "If the money is not paid within [**5]  the time limited in the decree," therefore making it imperative upon the court to fix a day for the payment of the money, but "at any one of the periods limited in said conveyance for the forfeiture of said mortgage." And by section third, it authorises the trustee to sell "after the arrival of said period." The right of the defendant under the act of 1785 to a day, to be limited in the decree for payment of the money, arises from the language used in its third section. See David, et al., vs. Grahame, 2 H. & G., 94. The act of 1833 was passed to facilitate the enforcement of mortgages, and provides for a decree before forfeiture, and the only limit to be fixed by the decree is that fixed by the parties by the terms of their contract. In the case of David vs. Grahame, the court held, that under the act of 1785, where the sale was ordered on credit, no day need be limited, as the sale on credit was equivalent to a day being given. Under the act of 1833: a decree for a sale at the time limited in the conveyance for a forfeiture, is a day limited for the payment of the money, to wit, the day fixed upon by the parties; and it was the intention of the legislature to hold the parties to their [**6]  contract, and not allow the court to make a new contract between them, by giving an additional time after forfeiture. The intention was, to remove the delay incident to the giving of time for the payment of the money after forfeiture of the mortgage, and the language used can receive no other construction.

2nd. There is no error in ordering the premises to be sold "for cash." The terms of sale are left entirely at the discretion of the court, having jurisdiction to pass the decree. This court is to presume that this discretion was exercised by the court below, and will not, upon appeal, exercise the powers vested in that court and undertake to say, whether the terms of sale prescribed are or are not advantageous to the parties. The defendant below might have come into court, and, by petition, set forth any facts to operate upon their minds.

3rd. There was no error in not making other persons parties to the proceedings. The decree is for the sale of the two houses on Madison street. It touches none of the other property embraced in the mortgage. The record shows no persons to be interested in that property prior to the appellee. His mortgage constitutes the first incumbrance [**7]  on it. Under the act of 1785, the ordinary proceedings in chancery were to be observed--all persons interested to be made parties, subpoenas to be issued, and all the delay incident thereto. The act of 1833 requires the assent of the mortgagor. That assent goes upon record, and is information to the world, in the same manner and to the same extent, as a decree. He who takes a subsequent interest in the mortgaged premises, takes it not only subject to the mortgage, but also to this special power. The mortgagee acquires a right which he did not possess under the act of 1785, and no act of the mortgagor can deprive him of it. If the mortgagor could, by various assignments subsequent to the mortgage, compel him to resort to all the delays incident to the old system, and make all persons subsequently interested parties, he would then deprive him of that right. The object of the statute is to facilitate: can the mortgagor defeat it by making an assignment? This act contemplates the making of no person party. All it requires is, "that the conveyance be submitted to the court," who may thereupon forthwith decree. It is a proceeding in rem, and all subsequent incumbrancers take the property [**8]  subject to this power in the court, and right in the mortgagee, by virtue of the assent, which is made a matter of record. They are not to be made parties except upon their own petition.

4th. There is no law or rule of practice requiring a decree to give the title of the term of the court at which it was passed. The practice has uniformly been, not to give the title, but the day of the month upon which the decree is passed. This is given in the present decree. The courts have authority to pass decrees at any time. The month of March and August are not "term-times." A decree passed in either of those months could not give the title of the term, as it would not be passed in term-time.

5th. The appellant was not entitled to notice and a hearing before the court's order of March 20th, 1851. By order of the court, the appellant had leave to file a bill of review, provided the same was filed on or before the 1st of March then next. On the 20th March, no bill of review having been filed, the trustee was ordered to proceed. The appellant had lost all benefit of the prior order in not complying with its conditions, and there was no error in not giving him notice before the order of [**9]  March 20th.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and TUCK, J.  

OPINIONBY:
MASON 

OPINION:

 [*36]  MASON, J., delivered the opinion of this court.
We find no error in the decree of the court below. The application for a sale was not made till after default by the mortgagor, and therefore no sale could take place till after such default. By reference to the act of 1833, ch. 181, sec. 2, the court is only restricted in fixing the time for a sale, "to one of the periods limited in said conveyance for the forfeiture of said mortgage."
The act further provides, that the court shall prescribe such terms of sale as shall seem proper. Under this authority it was clearly within the power of the court to direct, as one of the terms of sale, that the property should be sold for cash.
The mortgage itself fixes the time for the payment of the money, and therefore the mortgagor can have no good reason to complain that further notice was not given to him.
We think the decree should be affirmed.
Decree affirmed, with costs. 

151 of 187 DOCUMENTS 

WILLIAM WEST vs. ANDREW FLANNAGAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Md. 36; 1853 Md. LEXIS 14 

JUNE, 1853, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Equity Side of the Superior Court for Baltimore city.

The bill in this case was filed by the appellee, on the 4th of March 1852, and alleges that complainant and one Trimble were partners in the business of making and repairing vessels, under the firm of Flannagan and Trimble, which began on the 1st of January 1843 and ended by the death of Trimble, on the 6th of August 1850, leaving complainant, as survivor, in possession of the partnership property; that this partnership was the successor of a previous one for the same business of Goodwin & Co., of which complainant was also a partner, and which was dissolved on the 1st of January 1843, and its effects, including the railway afterwards mentioned, assigned to Flannagan and Trimble. That in 1842, Goodwin & Co. constructed and owned a marine railway for hauling vessels out of the water to be repaired, and Flannagan and Trimble, in 1846, constructed and owned another such railway, the title and possession to both of which is now in complainant; that these railways are inclined plains, made partly on the shore and partly in and under the water of the harbor of Baltimore, into which they pass by a gentle grade, so as [**2]  to facilitate the hauling up of vessels by machinery; that they are necessarily made strong to bear the heavy weight on them, and are supported by piles driven deep in the bottom of the harbor, and cut off at varying depths under the water to give the necessary inclination to the ways, and from the character of the work, requiring great precision and skill in constructing the parts under water, and some of them to the depth of eighteen or nineteen feet, the expense of making them was $ 16,000 or thereabouts; that the length of one is about three hundred and eighty feet, of which one hundred and eighty are under water, of the other four hundred and twenty feet, of which two hundred and twenty are under water; that they are constructed of wood and iron, and calculated, with inconsiderable repairs, to last for twenty years or thereabouts, and required twelve months to construct them; that their chief expense was for labor, and all the materials now capable of being taken away and put to other uses would not bring more than $ 2000, if as much.

The bill further alleges, that the wharf on which said railways are constructed belongs to West, the appellant, who is owner in fee of all [**3]  the lots on which they are made except three, which belong to Flannagan and Trimble; that said lots have been rented from year to year by Flannagan and Trimble, both prior and since the construction of said railways, at a rent therein stated. That the construction of said railways took place with the knowledge and approbation and acquiescence, and by the implied leave and license thereby of the said West, whose office was hard by all the time, who was frequently present during their construction, furnished the materials for the machine to cut the piles, and expressed his approval of the manner in which the work was done; that they would not have been made if the parties making them had supposed there was any probability of their removal whilst fit for use, and that West, during their construction, never gave their makers any reason to suppose that they would be so removed; that the rent was a fair one; that to obviate any difficulty, complainant has offered West to take a lease for ninety-nine years renewable forever, at a rent, or to buy the lots at a price, to be fixed by three disinterested witnesses, which West has as often refused; and that the assertion and exercise by West of [**4]  any right to resume, at this time, possession of said lots, and compel complainant to break up his railways, will operate as a fraud on him.

The bill then avers that West has given complainant notice to quit, and has had a warrant of forcible detainer served upon him to turn him out of possession. That under the circumstances before stated, he has obtained a right of property in said structures on West's lots, and the right to continue and use them while they last, subject only to the payment of a reasonable rent, which he admits may be raised from time to time as the lots appreciate in value; that it is against equity that West, without any complaint as to the rent now paid, should resume possession and compel complainant to break up his railways at a ruinous sacrifice, when he well knew that those concerned would never have made them except upon the faith that they would be permitted to use them so long as they were fit for use; and complainant offers to pay such advanced rent for the lots as shall, upon legal evidence produced for that purpose in this cause, appear just.

The bill then prays for a decree that complainant is entitled to maintain and use the said railways [**5]  so long as they last, subject to the payment of the present rent, or such other rent as the court shall deem equitable, and for an injunction to restrain West from prosecuting further his warrant of detainer, or otherwise disturbing complainant's possession or use of said railways while they last and the rents therefor are duly paid. The injunction was granted as prayed.

The answer of the appellant admits the partnership of Flannagan and Trimble, and its successorship to Goodwin & Co., which latter firm commenced in 1830, and about the year 1842, constructed a marine railway, which was immediately preceded by one built on the same site and used for the same purpose as far back as 1835; that Flannagan and Trimble, in 1846, built another alongside of that of 1842, which has since been used by them for the purposes of such a structure, and that both are now in possession of complainant, and the title to them is in him so far as to authorise him to remove them on quitting respondent's property on which they are used. It also admits the manner of their construction as charged in the bill, but as to their cost he knows nothing, except that complainant, in 1850, told him that up to that [**6]  time they had cost about $ 12,000. It avers that by repairs which a careful man might make, renewing the decayed or broken parts at once, they might be indefinitely continued, and certainly for a much longer period than twenty years. Respondent admits that he is owner of the wharf on which said railways are built and of all the lots over which they are made except three, as charged in the bill, but avers that they also extend over two streets dedicated to public use and liable to be opened at any time, which streets existed as they do now when the railways were built. He admits that these lots were rented of him from year to year by Flannagan and Trimble, and Goodwin & Co., before the railways of 1842 and 1846 were built, and that when the latter firm so rented them in the year    , there was then erected and in use the earliest railway which preceded that of 1842, and he refers to an agreement to rent for one year during the existence of the earliest railway, containing stipulations for the removal thereof, to show that the cost and other matters relied on in the bill, as to those of 1842 and 1846, were not available to give any privileges beyond those ordinarily enjoyed by tenants [**7]  from year to year, but rather the contrary. As to the allegation as to the sufficiency of the rent he further avers, that before the building of the railway of 1846, complainant applied to him for a permanent lease at an increased rent, which lease he always refused to give, declaring to complainant that he would not put the lots beyond his control, and that if complainant put and kept railways on them, it was at the risk of being removed when he wanted to improve them, at the same time assuring the complainant, that so long as the lots were rented for a ship yard, he would give him the preference. That having determined so to improve the lots, he has instituted proceedings for their recovery, as stated in the bill; that he has built on property hard by, six three-story brick warehouses, and has foundations of others prepared, the use of which, when completed, will be materially interfered with by the use of said lots as a ship-yard, and that he will never permit them to be so used if he can prevent it. He admits that he knew of the fact of the construction of these railways, but does not admit that even if he had disapproved of it, it would have been competent to him to object to [**8]  any use complainant or his predecessors thought proper to make of the property during their tenancy from year to year; nor if competent, was there any obligation on him to make the objection, in order to protect his rights as landlord, the tenant holding under a title as well known to himself as to the landlord; and denies that by not objecting to their construction he in any way prejudiced his rights as landlord. He explicitly denies that any contract, obligation, leave or license was ever given or intended to be given, either expressly or by implication, to complainant or his predecessors or any of them, for any other use or occupation of said lots than as tenants from year to year, liable to be removed on due legal notice. And he insists that any such right, leave or license to use and occupy his land, as claimed in the bill, is such an interest in land as could not pass except by writing, as required by the statute of frauds, of which he claims the benefit, as if pleaded.

The answer also denies the allegation, that the railways would not have been erected if the parties making them had supposed there was any probability of their removal while fit for use, as they were erected [**9]  in the very face of his refusal to give a lease for years of said lots, or to rent them except from year to year, the first railway being made under an agreement for a yearly renting that required its removal at the end of the year, and the last in the face of his refusal to give more than a tenancy from year to year. He denies that the rent now paid is a fair rent, except as for a tenant from year to year, liable to removal on due notice. He admits that complainant has offered to take a lease for ninety-nine years or to buy the property, as stated in the bill, and that he has refused said offer which was made to him several times, and amongst others before the erection of the last railway, and always refused, as he had the right to do. He also denies that the court has any right to fix and determine what is a proper rent now or hereafter to be paid for the use of his property.

After the filing of the answer there was a motion for the dissolution of the injunction, and testimony taken, to be considered on the hearing thereof. On the part of the complainant, John Brown proves a conversation between the parties, in 1845, in which Flannagan said to West, "see what I am spending on [**10]  your ground," to which West replied, "spend on, sir, you shan't be disturbed, and every thing shall be settled in an amicable way or to your satisfaction;" and also stated twice if not thrice for Flannagan to spend on, that all should be right. Other witnesses proved the cost and value of the railways, as charged in the bill. Samuel Kirby, examined on the part of defendant to prove Flannagan's admissions, on cross-examination proved, that in these conversations, Flannagan said West told him he should not be disturbed, and that having asked Flannagan if, under the same circumstances, he would put valuable improvements on a lot having but twelve months time in it? his reply was, that under the same assurances from the same man he would. Wesley Farrell proved, that in a conversation between the parties, in 1845, West said Flannagan "would have to confide in him." Langly B. Cully proves that West said to Mr. Goodwin, "put what improvements you please on this property, I shall charge you in proportion thereto." On the part of the defendant it was proved, that the railways were located over streets, as charged in the answer; that West repeatedly refused to give a lease for more than a year,  [**11]  and that the railways did injury to his other property, and that by constantly renewing the defective parts, they might be kept fit for use for an indefinite time.

By consent of parties, a pro forma decree was passed continuing the injunction till the final hearing, from which the defendant appealed.  

DISPOSITION:
Decree reversed, injunction dissolved and bill dismissed with costs to the defendant, in both courts.  

HEADNOTES:

A tenant constructed certain marine railways at heavy expense upon the leased premises, and, as he alleged, "with the knowledge, approbation and acquiescence, and by the implied leave and license" of his landlord, which he would not have made if he had supposed there was any probability of their removal while fit for use; and that the landlord well knew he never would have incurred the expense of their construction, but upon the faith that he should be permitted to use them as long as they were fit for use. The tenant held under a lease from year to year, and repeatedly requested his landlord to give him a more permanent lease, who as often refused, and afterwards gave notice to his tenant to quit. HELD:

That from these facts, there are no equities entitling the tenant to an injunction restraining the landlord from proceeding to gain possession of the premises.

Implied contracts are only sustained in order to supply the place of express agreements, and the latter never yield to the former unless by the express or implied understanding of the parties that such shall be the result.

An express agreement admitted to be in full force, negatives an implied inconsistent agreement relating to the same subject matter.

The lease from year to year being established and recognised by both parties, they are in law supposed to know the nature and incidents of such a tenancy.

The improvements made in this case by the tenant and permitted and sanctioned by the landlord, are in perfect consistency with the terms of a tenancy from year to year, and the tenant must be presumed to have acted under this lease with his eyes open to the rights and powers it conferred both upon himself and the landlord.

The knowledge, approbation and acquiescence, and the implied leave and license of the landlord for these improvements, could no more enlarge the rights of the tenant under the lease than an opposite course could have curtailed them.

The force of an answer responsive to the bill can only be avoided by the contradictory testimony of two witnesses, or of one supported by pregnant circumstances.  

COUNSEL:
John H. B. Latrobe for the appellant.

The object of the bill is to obtain the specific performance of an alleged agreement. The injunction is ancillary, and unless a case is shown by the bill which would, upon final hearing, authorise the specific performance of the contract, it will be dissolved. 4 Gill, 477, Geiger vs. Green. 2 Md. Ch. Decisions, 534. The complainant must recover upon the case made by the bill. 4 G. & J., 437. 2 Md. Ch. Decisions, 537. Now what is the case made by the bill? The complainant is a tenant from year to year,--the bill starts with this allegation--and this excludes the idea of any other contract than that resulting from such tenancy. The bill alleges, that the railways were built with the knowledge of the defendant, and his implied leave,  [**12]  acquiescence, &c., and that they would not have been built if those making them supposed they would be removed, and that defendant never gave them reason to suppose he would require them to be removed, and asks that complainant may be permitted to use them as long as they last, and that the court shall hear testimony of what the rents shall be. The complainant knew he was but a tenant from year to year, and yet he asks that these railways may be contined, and that defendant shall receive the rent. This is taking a man's property against his consent. To give the complainant the slightest equity, there must be an inconsistency between the erection of a railway and a tenancy from year to year. But these railways are but the mere tools of a ship-builder, like the vat of the soap-maker, the spring-house of the gardener, the steam-engine of the miner, that may be put upon the land at the tenant's risk. There is then no case made by the bill. He asks the court upon the simple fact that he put up the railways to imply a contract, but he did this with his eyes open, knowing his title, and if he had put up an Astor House on the lots, he could not successfully ask the court to aid him.

But [**13]  proof has been taken. This is valuable only so far as connected with the showing of the bill; it is clear that a new case cannot be made out. Now how far does the testimony corroborate the bill? does it show a contract, express or implied, under which the railways were built? The assent of West was not necessary to the structure, for it was also put over the streets over which West had no control whatever. This fact is potent against the equity of the bill as to the question of assent. But a railway was built in 1835, of which there is no testimony of assent,--it was built merely under a lease from year to year, with no agreement, express or implied, as to its continuance. There is again no testimony of West's assent to the road of 1842. As to that of 1846 the testimony is, that West, in 1844, refused to give a lease when pressed to give one. There is nothing like a contract.

But suppose I am wrong in this, and that there is a contract, what is it? Vague and uncertain,--not such as equity will enforce. It wants mutuality--it wants a limit as to time--it wants a stipulation as to rent. It is not mutual, because there is no obligation upon Flannagan to keep the roads in repair.  [**14]  4 Gill, 476, 477. 7 Gill, 124, Tyson vs. Watts. 2 Md. Ch. Decisions, 404. It has no limit as to time, because the roads may be kept in repair indefinitely. 2 Md. Ch. Decisions, 534. It contains no stipulations for rent, and this is an objection. 26 Wendell, 55, Diffield vs. Whitlock. Again, the contract must be clear, definite and unequivocal. 2 Story's Eq., sec. 764. 4 Gill, 477, Geiger vs. Green. 2 Md. Ch. Decisions, 534. 4 Sandford, 95. The court must make a contract here to get at anything tangible, but this they cannot do; they cannot interfere to make a contract for the parties. 7 Gill, 499, Emory vs. Owings. 2 Story's Eq., sec. 764. 65 Law Lib., 45, 62. 26 Wendell, 55.

But suppose there is a contract certain and definite, it is still a parol contract, and therefore void under the statute of frauds. A license coupled with an interest in land can only be created by deed. 13 Mees. and Wels., 837, and note by Editor, though not so as to a license not coupled with an interest in land. 11 Eng. C. L. Rep., 207. A parol license to do an act on the land of another, which may affect the owner in the use of the land, is within the statute and void. 5 Barbour's S. C. Rep., 379, Houghtaling [**15]  vs. Houghtaling. See also 4 Sandford, 72. 6 Hill, 63. 1 G. & J., 377, Hays vs. Richardson. Possession by a tenant who was in possession at the time of the contract, will not be considered a part performance. 65 Law Lib., 524.

J. Mason Campbell for the appellee.

There is no evidence in the record that the streets over which the railways were built, are upon the plot of the city, but it is proved that they have never been opened, and as far as the railways extend, the land on both sides is occupied either by West or Flannagan, the only parties authorised to open them.

These railways cost at least $ 16,000. If removed, the materials would be worth little or nothing, not more than $ 2000. The destruction therefore is a total one if West at once exercises his legal rights, and the question is, whether such a destruction will be permitted by a court of equity? This depends upon the case made by the bill and evidence. The equity of the bill is, that the roads were constructed by the leave and license of West, with his knowledge, approbation, acquiescence and permission. The answer admits knowledge, approbation and acquiescence, but denies that they constitute a leave or license.  [**16]  This is the question between us. The evidence shows that West resided in the immediate vicinity of the lots, was cognizant of every thing done upon them, was actually upon the spot looking at what was going on, critically examining the work and expressing his approbation of it. His knowledge then was complete. His approbation is equally full, for he told Flannagan to spend on, that he should not be disturbed and to confide in him. The bill charges that he furnished a part of the materials, which is not denied by the answer, and on this motion is therefore to be taken as true. This acquiescence is also fully proved; the existing roads were built not upon terms, as was the case with the original one, but upon a simple acquiescence, as full and complete as words could make it. Is it to be supposed that Flannagan would have incurred this immense expenditure with no assurances? Such an assumption would be monstrous; but the facts of the case, upon bill, answer and evidence, are conclusive upon this subject.

Now, upon such a case as this, where heavy expenditures are made on the land of another with the latter's consent, what is the rule in equity? It is well settled, that without any [**17]  contract between the parties, equity will not permit the owner of land to lie by and see another improve upon it, and then deal with his property to the improver's injury as if the improver were a wrong doer. 8 G. & J., 108. 2 White and Tudor's Eq. Cases, 87, Earl of Oxford's case. 2 Eq. Cases Abr., 522. 5 Ves., 690, Jackson vs. Cator. 31 Eng. Ch. Rep., 304. Powell vs. Thomas. And this principle applies to cases where the expenditure is made by a tenant from year to year. 7 Ves., 231, Dann vs. Spurrier. 12 Ves., 78, Pilling vs. Armitage, 7 Eng. Law and Eq. Rep., 212, The Rockdale Canal Co. vs. King. 23 Eng. Ch. Rep., 26, Sutherland vs. Briggs. Nor is this interference of equity obnoxious to the criticism that the statute of frauds must be violated to allow it, for, independently of the acts of part performance proved in this case, it is now settled in this country, that a right of property may exist in a permanent structure erected by one man on the land of another, apart from any interest or estate in the land itself. Equity, under such circumstances, will protect the licensee in the use of what he has acquired by his license, on the ground that he is a purchaser for a valuable consideration,  [**18]  and entitled to what he has paid for. 2 Amer. Leading Cases, 511.

It is said on the other side that this is a bill for the specific performance of a contract, but this is not so, and all the cases cited, therefore, fail to be applicable. This case comes under a different head of equity; the prayer of the bill is, that complainant is entitled to have the roads as long as they exist. It alleges that this right is about to be disturbed, and seeks to prevent this being done. A bill for specific performance always asks, that the legal title to the land on which acts of part performance are due may be decreed to the complainant. This case is different, and is like that of White vs. Flannigain, 1 Md. Rep., 525. We ask that our equitable rights may not be interfered with. This raises the question, whether one may not have a recognised right of property in a structure erected on the land of another? 2 Amer. Leading Cases, 524. It is upon this theory that the bill was filed, and it has nothing to do with specific performance. But if this position of specific performance were insisted upon, the cases are not altogether with the appellant. 2 Story's Eq., sec. 798. This is a contract which [**19]  cannot be specifically performed, and where equity will give the innocent expender the expenditures he has incurred.

As to the question of license, the case in 13 Mees. and Wels., 855, note and cases there cited, shows that the case of Leadbitter vs. Wood, is not altogether unquestioned, but has been considerably qualified by the decisions in this country. There are certain licenses which cannot be revoked without tender to the licensee of all the money he has expended under the license. The case followed in this State is 8 East, 308, Winter vs. Brockwell. A license executed is not countermandable. 2 Gill, 227, Addison vs. Hack, adopts the case of Winter vs. Brockwell. The statute of frauds in such cases does not apply. The difference between a license when set up in a court of law or in a court of equity, has been decided in this country in the case in 14 Searg. and Rawle, 267. See also 4 Searg. and Rawle, 241, Le Fevre vs. Le Fevre. We claim by virtue of a license from West, under which we have made heavy expeditures, and we say that in equity we are free from the statute of frauds--the license is irrevocable, and its revocation would act as a direct fraud.

Reverdy Johnson [**20]  on the same side.

There are two points presented by the appellants, which are sufficiently distinct to argue the whole case upon. The first is, that the appellee has presented no case by his bill; and the second, that if he has a case as by his bill, it is denied by the answer and disproved by the evidence.

1st. Has the appellee made a case by the bill entitling him to the relief asked, or any thing like the relief asked? The bill alleges that the complainant, who was a ship-builder, erected the railways at great expense, and the loss cast upon him, if now forced to take them away, will be the difference between $ 2000 and $ 16,000; that these ways were made with the knowledge and approbation of the defendant--that he furnished part of the materials; that they would not have been made and the expense incurred, had the party making them supposed they would be liable to be removed; that complainant had obtained a right of property in the structures thus erected; that he and West well knew that the expense would not have been incurred except upon the faith that they would not be disturbed so long as they should last. The case then is that of a tenant from year to year making [**21]  expenditures to the extent of $ 16,000 with the consent of the landlord, which he would not have made except upon the faith that he would not be compelled to remove them so long as they would be fit for use. The prayer of the bill is, that he may be quieted in the possession and enjoyment of this right. The question then is, whether this case thus presented is not one for equitable relief in the manner proposed by the bill?

2nd. Supposing the bill presents a case, it is said it is denied by the answer and evidence. But the answer admits every thing except that there was any assurance that the ways should continue, and there is no proof on the part of the defendant negativing the case made by the bill. The only proof on his side is, that from time to time he refused to give a lease different from that of one from year to year;--there is no proof that West ever notified the complainant that he designed to take away from him the use of the roads. He was told to spend on, you shan't be disturbed, everything shall be settled in an amicable way or to your satisfaction; that he should not be disturbed; that West would not remove him to give the lots to any one else for a ship yard at [**22]  any price. This evidence shows that Flannagan would not have made this expenditure except for the assurances thus given. The entire value of the structure was in its use there, upon the spot where it was erected. He would have been a madman to have engaged in such an expense, except upon assurances that he would not be disturbed. West must also have known that Flannagan would not so have expended his money without such assurance.

Now as to the law: Is not this a case for the interposition of equity? Why is it not? First, it is said, because the acquiescence is not in conflict with the right of the landlord,--that the lessee had the right to erect the structure there as tenant from year to year. But this is not the question here--this is not the whole case. The question is, did he erect the structure and expend his money simply as tenant? As tenant he could have built a palace or paved it with gold, and if he did so simply as tenant, he must bear the loss when turned out; but if he built the palace or laid the pavement with the assurance that he should have the use of them, then a question of good faith arises. Where a party stands by and sees another spending his money under the [**23]  belief that the title is in him, it is a fraud for the party afterwards to dispossess him. This is a general principle, and covers every variety of case where one expends money supposing he has the right to hold and enjoy the fruits of his labor. 1 Md. Rep., 475, Hoffman vs. Smith. It applies a fortiori here, where the expenditure was made upon the faith and express assurance that he should have the benefit of his expenditure. Mere silence will estop a party, and if the omission to speak will create an equitable estoppel a fortiori will such estoppel be created in a case where there is an actual speaking, inducing the party to make the expenditure upon the promise that he would have the benefit of it? Suppose West had said when applied to, "I cannot give a lease, but go on and spend your money, you shall not be disturbed," and Flannagan had gone on to do so, and West had turned round and said, "I have caught the man, and as soon as he puts the railway down I will turn him out," would not this be a case of actual fraud?

Is it true that such a contract as this is not protected in equity because of the statute of frauds? I say not. 3 Kent, 452, (5th Ed.) 2 Gill, 224, 226, Addison [**24]  vs. Hack. 1 Story's Eq., sec. 338. 31 Eng. Ch. Rep., 300, Powell vs. Thomas. 23 Eng. Ch. Rep., 26, Sutherland vs. Briggs. 13 Mees. and Wels., 855, and note. The case of Dann vs. Spurrier, 7 Ves., 231, covers the case at bar and has never been questioned--not a doubt has ever been cast upon it.

Will not the court interfere by injunction? We have made out such a case as Lord Eldon, in 7 Ves., 231, says would entitled the party to relief upon final decree. The agreement set up here is, that we are to have the railway as long as it lasts. How are we to have it? Either at the present rent or a different one. If West had designed to charge more, he ought to have told us so. It is not a bill for a specific execution, but we ask to be quieted in the possession of this structure which we have put upon his lot, and under assurances that we should not be disturbed in the use of it.

John V. L. McMahon for the appellant, in reply.

There is no difference between us as to the point that the injunction must be dissolved, unless the case made by the bill shows such an agreement as the court could or would, at final hearing, enforce by the decree. The cases cited (4 Gill, 475, 477. 2 [**25]  Md. Ch. Decisions, 534,) fully sustain it. The injunction is always ancillary to some right, either legal or equitable.

The tenancy from year to year is by consent ended; we have given him notice to quit, and upon his own showing, the old tenancy ceased the moment he put up the railways. He alleges, as a substitute for the tenancy from year to year, that a prolonged tenancy was created. The right which he claims is not a license, it is a claim for a lease--he asks for possession of land upon the payment of a rent, and this, as all the books say, is a lease. What is the duration of this interest? he asks to keep the railway as long as it lasts, at least for twenty years,--it is for an uncertain period, and this brings it within the statute of frauds. 11 Eng. C. L. Rep., 207. The rent is not fixed and the court is to fix it, and there is to be a sliding scale to be adjusted by the court who is to be the landlord. It is not pretended that this is a legal claim; the bill asserts it to be an equitable one. But if this right is claimed by any contract, either express or implied, it is clearly within the statute, for it is a claim of an interest in lands for at least twenty years. The [**26]  claim to the exclusive use of land, and to keep the owner out is an estate or interest in land. 11 Eng. C. L. Rep., 207. 13 Mees. and Wels., 837. It is such as cannot pass by any parol contract. It is claimed upon the ground of fraud or upon an acquiescense, which would amount to fraud. Upon the ground of fraud the case cannot be made out, except upon some contract, or some negotiation or treaty upon which the party was induced to act.

The bill does not state that there was any assurance from West of any other title. He alleges, as his only title, that he was in as tenant from year to year. His equity is that being thus in, he went on and put down fixtures in the way of his trade, with the consent of his landlord and his approbation. This is the bill upon which an injunction is asked. How useless the discussion upon the question of fixtures, which may be removed, if the tenant can have the right to stay with them as long as they last!!

The cases cited on the other side all go upon the ground of mistake as to title, and forfeiture of title by reason of some secret lien or trust, which was unknown to the party making the expenditure. But this is a case of open title, known [**27]  to both parties--they are bound to know it. Young vs, Frost, 1 Md. Rep., 377. Casey vs. Inloes, 1 Gill, 430.

But the expenditures here made are not of a character to raise an equity--they are not for the benefit of the land. 4 Sandford, 92, 94, and the case in 12 Ves., 84, Pilling vs. Armitage, cited on the other side. The case in 7 Ves., 231, was the case of a written agreement for a lease, and there was a mistake upon the construction of it, and the party then asked for a specific performance of the alleged agreement. The case in 23 Eng. Ch. Rep., 32, is one for the specific performance of an agreement to give a lease for a specific duration.

There is no such principle as this bill seeks to set up, that equity will decree a lease to a tenant under such circumstances as these, uncoupled with any allegation of mistake as to title. The ground of fraud therefore fails. If you acted upon the theory of fraud, how would you decree this lease? You cannot do it without some agreement, or contract, or treaty, for a lease.

But upon the answer what doubt can there be? The whole ground of the bill is upon the silence of West, not upon any promise or assurance on his part that he [**28]  would not disturb the complainant. The answer explicitly denies any such assurance, and on the contrary avers, that he told Flannagan that he would remove them whenever he wanted to improve the lots. If there was a shadow of equity in the bill, the answer has denied it, and standing upon bill and answer, before the act of 1835, ch. 380, the answer must preponderate. That act gave the right to take testimony in support of the bill. If the answer is to be looked to, there is an end of the case, whether the evidence is in or out. Flannagan does not say in his bill that he made these roads upon any assurance or promise on the part of West. If there was any such promise, he had every inducement to put it in his bill. He had $ 16,000 at stake, yet he fails to pledge his conscience to any such promise.

The improvements were not for the amelioration of the estate. We do not want to take the fruits of his labor,--we want it away--it is a great inconvenience to us,--our warehouses are obstructed whenever there is a ship on the ways.

The evidence relied on is suspicious--he failed to make the averment in the bill--but what is it? It shows that the work was not commenced upon the faith [**29]  of such assurances--the witness says the work was going on when the conversation was held. The only assurance ever given was, that West would not let anybody else have the lots for a ship-yard at any price.

There is no agreement shown which a court of equity will execute, and if any, it is wanting in the essential element, of the rent to be paid, uncertain as to the duration of the term or interest claimed, and is wanting in mutuality. 7 Gill, 124, 130, 155, 156, 449. 4 Sandford, 95. 2 Story's Eq., secs. 763 to 767. 65 Law Lib., 524, 525. 1 Gill, 383. 26 Wendell, 55. 2 Md. Ch. Decisions, 404, 405, 538. 1 Do., 348, 349. 4 Gill, 477. 3 Md. Rep., 480, Young vs. The Ches. and Ohio Canal Co.

There must be proof of the identical contract. There is no contract alleged by the bill or proved by the evidence. But suppose there was, there is nothing to take it out of the statute of frauds. There is no allegation of acts of part performance or proof of them. His possession was under the contract of lease from year to year, and he had the right to put the road down under this title. There must be mutuality. What right have we to make Flannagan stay there a single day? Mutuality must be [**30]  determined by the contract itself, not by what occurs subsequently. Suppose we had gone into court and asked for a decree requiring Flannagan to stay there! it is needless to state the result.

That the right claimed by the appellee is such an interest in lands as could not, either under the statute of frauds or our registry acts be created by mere parol agreement or license, and especially not by any mere implied lease or license, see 11 Eng. C. L. Rep., 207, 209, 212. 13 Mees. and Wels., 837. 15 Wendell, 380, 392, 393. 6 Hill, 61. 5 Barbour's S. C. Rep., 379, 383, 384. 4 Sandford, 72. 1 G. & J., 377 to 385. 2 Gill, 228, 229.

That there can be no implication of such an interest in lands or of an agreement to give it, from the mere fact of the expenditures on the appellant's property, with his knowledge and without objection, the appellee knowing the appellant's title as well as his own, and confessedly holding the premises and entitled to the occupation and use of them as tenant from year to year, see 1 Gill, 401, 402. 1 Md. Rep., 400, 490. Upon the whole then we insist:

1st. That the case made by the bill presents no equity entitling the complainant to the injunction.  [**31]  Its equity is grounded on the allegation that the appellee, or his predecessors, whilst confessedly but lessees from year to year of the premises, put down the railways at a large cost to them, for the purposes of their trade and business as ship-builders: that said railways were so put down, with the knowledge, approbation and acquiescence of the appellant, and his implied leave or license thereby: and that they would not have been put down if they had supposed there was any probability of their removal whilst fit for use, and that West never gave them any reason to suppose that they would be so removed. And it is maintained for the appellant--that the appellee and his predecessors, confessedly holding said premises under the appellant as his tenants from year to year, and having the right to put the structures there for the purposes of their trade, could not and did not, by the making of such structures and their expenditures thereby, acquire any right as against their lessor (the appellant) to keep possession of said leased premises after their said lease was duly ended, even if said railways were put down with the knowledge, approbation and acquiescence of the appellant, and the [**32]  appellant gave them no reason to suppose they would be liable to removal--that the title to the premises claimed by the bill, and as ancillary to which the injunction is prayed and granted, is the right, as lessees of the appellant, to keep the premises after the expiration of their tenancy from year to year, and so long as said railways can be kept up and fit for use by repairs, subject to the payment of a reasonable rent, which, they admit, may be raised from time to time as the lots appreciate in value: that the bill does not allege or show any agreement on the part of the appellant to give any such title, or any lease or agreement for it except the tenancy from year to year: and that even if it had been so alleged or shown, it could give the appellee no title to the premises, after the tenancy from year to year was duly ended by the notice, nor any right to the injunction granted.

2nd. That the equity of the bill, if there was any, is removed by the averments of the answer responsive to it: and that the evidence taken, to support the allegations of the bill, does not help the case, or entitle the appellee to the continuance of the injunction.  

JUDGES:
The cause was argued before [**33]  LE GRAND, C. J., ECCLESTON and MASON, J.  

OPINIONBY:
MASON 

OPINION:

 [*55]  MASON, J., delivered the opinion of this court.
The alleged equities of the present bill consist in the averments that the complainant as tenant of the defendant had made certain marine railways, at a heavy expense, upon the demised premises; that "the construction of said railways took place with the knowledge and approbation and acquiescence, and by the implied leave and license of the said West, whose office was hard by all the time, and who was frequently present during their construction, and furnished materials for the machine with which the piles were cut, and expressed his approval of the manner in which the work was done; and that said railways would not have been made if the parties making them had supposed there was any probability of their removal while fit for use, and that said West during their construction never gave their makers any reason to suppose that they would be so removed;" and that "it is well known to said West, that your orator and those concerned would never have encountered the expenses of their construction, but upon the faith that they would be permitted to use them, so long as they [**34]  were fit for use;" and then complains, "that notwithstanding the premises, the said West has given him notice to quit," &c.
It is admitted by the complainant in his bill, that he and his predecessors held the property of the defendants, under a lease from year to year; and it is also admitted and proved, 

 [*56]  that he repeatedly requested West to give him a more permanent lease, and that West as often refused.
From such a state of facts we cannot recognise any equities entitling the complainant to the injunction prayed for in his bill.
The defendant on the one hand relies upon the express contract between himself and the complainant, that the latter should hold and enjoy the property as tenant from year to year, as the rule by which their respective rights, in the present transaction are to be governed; while the complainant sets up an implied agreement or license creating rights wholly inconsistent with those existing under the express contract or lease.
The terms of the lease or contract are expressly established by the admissions of both parties; while the facts, out of which grows the alleged implied contract or license, are denied by the defendant, and are [**35]  far from being satisfactorily established by the evidence.
As a general rule implied contracts are only sustained in order to supply the place of express agreements, and we know of no case where the latter have been made to yield to the former unless by the express or implied understanding of the parties that such should be the result. Indeed an express agreement, admitted to be, as this one is, in full force, negatives an implied, inconsistent agreement, relating to the same subject matter. Therefore conceding that there was no dispute about the facts charged in the bill, and out of which the implication of a contract or license might under other circumstances arise in the absence of an express contract, yet, we can discover no reasons why the general rule should be departed from, in the present instance, and the implied contract substituted in the place of the one expressly established and still recognised as continuing, up to the time of filing the bill.
The lease from year to year being established and recognised by both parties, they are in law supposed to know the nature and incidents of such a tenancy. The improvements 

 [*57]  made by the complainant and permitted and sanctioned [**36]  by the defendant, are in perfect consistency with the terms of the lease under which the former was enjoying the property, and, therefore, no other implication of a contract or license is necessary as a justification or authority for the conduct of the complainant in making those improvements, than is to be drawn from the lease itself. He must be presumed to have been acting under and by virtue of the lease, and with his eyes open as to the rights and powers conferred by that lease, upon both himself and the defendant; and "the knowledge, approbation and acquiescence, and the implied leave and license" of the defendant, could have had no more to do with enlarging the rights of the complainant under the lease, than an opposite course would have had in curtailing them.
Such then is the case as made by the bill. But admitting et gratia argumenti, that the allegations of the bill do actually disclose equities in favor of the complainant, how are those equities affected by the subsequent proceedings in the case?
In the first place the answer swears away every substantial equitable allegation made by the bill, and if the case stood alone upon bill and answer the complainant would be [**37]  out of court. But it is contended that the force of the answer is broken, and the averments of the bill established by the proof in the cause. Is this true? The force of an answer, responsive to the bill, can only be avoided by the contradicting testimony of two witnesses, or by the testimony of one, supported by pregnant circumstances. The complainant's witnesses do not sufficiently concur in their statements so as to destroy the weight of the answer taken in connection with the defendant's proof. As to the circumstances developed in the progress of the trial, so far from being pregnant with support of complainant's case, they in fact mainly tend to sustain the truth of the answer. The anxiety of the complainant to obtain a more permanent lease than the subsisting one, and the refusal of the defendant to grant it, are facts almost conclusive that the defendant did not intend to surrender the rights he held under the then existing 

 [*58]  lease, one of which was the right to terminate the tenancy at the end of any one year. And admitting what the witnesses say to be undenied, that the defendant said, complainant must confide in him, and that he would not disturb him in  [**38]   the use of the roads, and that they were built upon the faith that the defendant would not interfere with him, &c., and that all this evidence supported the averments of the bill; still the demand at this time by the defendant to be restored to the possession of his property, would not be in conflict with the obligations imposed upon him by such promises and assurances. How long was the complainant, under the above assurances, to remain undisturbed in the enjoyment and use of the defendant's property? For two, four, or seven years? If so, the pledged faith of the defendant was not violated. The first railway was used for more than ten, the other for more than seven years. But it is said the obligation is, to allow the complainant to enjoy the road as long as it lasts, or is fit for use. Is then the first defect or break in the road, requiring repair or renewal, to amount to a forfeiture or termination of the complainant's rights? Clearly not, we presume, for this doubtless repeatedly occurred during the period in which he was undisturbed in the use of the roads: for one of the witnesses says "these railways require constant repair and watchfulness to keep them in working order."  [**39]  If these repairs are once allowed when and where are they to end? The same witness says, and no doubt truthfully, "by constantly renewing the defective parts, the railway might be kept fit for use for an indefinite time." Thus the license would become perpetual. Such an interest in realty, little less than a fee-simple estate, could hardly be supposed to rest upon so flimsy a basis as the one set up by the complainant.
A striking peculiarity of this case is to be found in the circumstance that the complainant has proved a better case than he has made in his bill. If the conduct of the defendant as shown by the witnesses had induced the faith upon which the complainant acted, is it not singular that at the time he filed his bill that conduct did not occur to him so that he might 

 [*59]  have averred it? The equity alleged to be raised by the proof, consists in the fact, assumed to have been proved, that the railways were made upon the faith that the defendant would permit the complainant to use them as long as they were fit for use. The evidence establishes no such fact, so far from showing that these improvements were made upon the faith of the acts and conversations of [**40]  the defendant, the proof is express that those acts and conversations took place after one of the roads had been completed, and while the other was in progress of construction.
Upon the whole we regard the doctrine contended for by the appellee on the present appeal, as fraught with the most serious and dangerous consequences, and we cannot see that it is sustained by any sound principle, or well adjudicated decision. It amounts virtually to the assertion of the right in this court under certain circumstances, to condemn the property of one individual, against his will, for the private beneficial purposes of another.
The views already expressed will render unnecessary any opinion upon the subject of the operation of the statute of frauds upon the present transaction.
The decree in the present case, which was a pro forma decree continuing the injunction, must be reversed.
Decree reversed, injunction dissolved and bill dismissed with costs to the defendant, in both courts. 

152 of 187 DOCUMENTS 

GEORGE WADSWORTH vs. SAMUEL MANNING, JAMES H. STIMPSON, ALEX. S. MCTAVISH, and JOSIAS PENNINGTON, Trustee of EMILY MCTAVISH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Md. 59; 1853 Md. LEXIS 15 

JUNE, 1853, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Equity Side of the Superior Court for Baltimore city.

The bill in this case was filed by the appellant on the 14th of August 1851, stating that in 1849, he became possessed of the right to mine zinc ore on certain lands in Lehigh county, Pennsylvania, for the space of three years from the 1st of January 1850, which ore was of unexampled purity and richness, yielding over sixty per cent of clear metal, but could only be rendered profitable by being manufactured into metals and paints, and that for this purpose he, on the 1st of December 1849, entered into the contract in writing with the defendants, Manning, Stimpson & Co., the terms of which are sufficiently stated in the opinion of this court; the defendants thereby agreeing to devote their time and attention to the conduct of the business. The bill then charges that the plaintiff delivered in pursuance of this contract, 746 tons of ore, when defendants refused to receive any more, leaving a balance of $ 1600 due on what had been delivered. That defendants leased for six years a lot on the south side of the basin in the city of Baltimore, and put up buildings and machinery thereon, but at very heavy and unnecessary [**2]  cost, because of their gross ignorance and negligence, and then refused to go on with the contract never having in fact worked up a single pound of ore, and have perverted the buildings from their proper object, to the making of sulphuric acid for their own exclusive profit and benefit. It further states that Manning and McTavish sold out their interest in said partnership to Stimpson, who has endeavored to supplant the plaintiff in the mining privilege: that plaintiff offered to take the work, furnish the capital, and carry out the contract, and give ample security for the performance of this offer. It then alleges that the defendant, Mrs Emily McTavish, through her trustee, Josias Pennington, claims an interest in the lot and buildings under a mortgage from Stimpson, to secure money loaned by her to him, and charges that she had knowledge of said contract before she took her mortgage, and, therefore, that it is subject to the plaintiff's rights under said contract. The bill then prays for the appointment of a receiver, to whom he offers to furnish money to work up the ores; compensation for his alleged losses by reason of the non-compliance of defendants with the terms of their contract,  [**3]  and for an injunction restraining defendants from using the buildings for the manufacture of sulphuric acid, and Mrs. McTavish from enforcing her mortgage, and for general relief. The injunction was granted as prayed.

The answers of Mrs. McTavish and Pennington, her trustee, set up the mortgage for her benefit, and deny all knowledge of the contract between the complainant and Manning, Stimpson & Co., at the time of its execution, and until a long time thereafter. The answer of Stimpson avers that the undertaking was a new business, that plaintiff induced him to enter into it by false representations, as to the cost of the buildings and machinery, he (plaintiff) saying that they would not cost more than $ 5000, but their actual cost was more than $ 22,000: that he paid the plaintiff $ 6016.81, on account of said ore, and the latter has sued him at law for the balance claimed. He then states the dissolution of the partnership, the loan by Mrs. McTavish to him, the mortgage to secure it, and her ignorance of the terms of his agreement with the plaintiff. He then denies that the ore can be profitably worked, and avers that it cannot be worked upon the terms agreed upon without loss [**4]  and injury to all parties concerned. The answer of Manning admits the statements of the bill and confirms its allegations.

A motion was then made to dissolve the injunction and testimony taken to be used at the hearing thereof. This testimony consisted principally of the estimates of scientific men as to the cost of manufacturing the ore, and the probable profits per ton. These estimates differed greatly, some showing a profit of $ 45 per ton, others $ 70, others $ 80, with a corresponding difference as to the cost of manufacture.

The court below (FRICK, J.,) passed a decree dissolving the injunction and dismissing the bill, from which the complainant appealed.  

DISPOSITION:
Decree affirmed with costs.  

HEADNOTES:

The appellant being the owner of a zinc mine, entered into a written agreement with the appellees, by which he agreed to furnish 2000 tons of ore per annum, for three years, on being paid $ 10 per ton therefor, and they, to provide suitable buildings and machinery for its conversion into paints, &c., and to divide with him the profits in the proportion of one-fourth to themselves, and the remainder to him: the costs of the buildings and machinery to be paid out of the profits after a specified time. HELD:

That this agreement constituted a partnership between the parties; and if a proper case were presented a specified performance of it would be decreed.

The appellant under this agreement furnished 746 tons of ore, receiving therefor $ 5860, leaving $ 1600 still due, when the appellees refused to receive any more, or to appropriate the buildings to the purpose of its manufacture, upon the ground that the business could only be followed by the ruin of all parties concerned. The time specified for which the appellant was to furnish the ore had expired, the business was proved to be hazardous and uncertain, and the buildings and machinery entirely unfit for its manufacture. HELD:

That in such a case equity ought not to decree a specific performance, if the appellant has full and adequate remedy at law; and it is clear, that his redress is ample and complete at law.

A decree for specific performance is not ex debito justitioe, but rests in the sound discretion of the court, to be given or refused as the particular circumstances of each case may demand.

Though one partner cannot sue another at law, in an action of account, unless there be an account stated, yet he may in covenant, if the articles be under seal and any agreement in them be violated.

If the partners agree to contribute each a particular sum, an action will lie by one against the other to recover it, and the sum agreed to be advanced will be the measure of damages.

Where a partnership consists of more than two, and they have contributed severally in different proportions, and one withdraws in violation of their mutual agreement, each has his remedy for the breach.

It is an indisputable proposition that in every instance where an action if covenant is maintainable for the breach of a covenant in a deed of co-partnership, an action of assumpsit can be maintained if the partnership instead of being by deed were contracted verbally or in writing only.

The failure of the appellees in this case to comply with their contract to furnish the buildings and machinery gave the appellant a clear right to maintain his action of assumpsit at law against them, for any damages thereby occasioned him, and a jury is the proper tribunal to ascertain the extent of such damage.  

COUNSEL:
Grafton L. Dulany for the appellant.

1st. The appellant contends that he is entitled to a decree for a partial specific performance of his contract with the defendants, and that the court below ought to have directed the appointment of a receiver to take possession of the works of the defendant and appellant, with the machinery and materials on hand, and work up the same, as had been agreed upon; or that the appellant himself, should have been permitted so to do; that the motion [**5]  to dissolve the injunction should have been overruled by the court below, and the injunction continued: wherefore the court erred in dissolving said injunction, and dismissing the bill filed in the cause; and, at any rate, that the same should have been modified, and not absolutely dissolved. 3 Atk., 385. 2 Story's Eq., 28, 31, 34. See also same vol., secs. 717, 718. Story on Partnership, 476.

2nd. That for the violation of the agreement on the part of the defendant, as proved by the evidence, there was no complete and adequate remedy at law, by an action for damages by the appellant, and that, therefore, equity will interfere in his behalf, and he ought not to be driven before a legal tribunal. 3 Atk., 385. 2 Story's Eq., sec. 718. 1 Simons and Stewart, 607. 2 Ves., Sr., 629. 5 Munf., 442.

3rd. That the evidence that one of the defendants, Stimpson, was very heavily indebted, and so much in want of money, as to lead to a just apprehension of his solvency; nor does it appear that Manning or McTavish are, either of them, worth any thing, which in equity is another reason and ground for its interposition on behalf of the appellant, as the pecuniary inability of the parties [**6]  would render an action at law against them useless. 2 Story's Eq., 31.

4th. That upon the facts disclosed by the record, it appears that the defendant, Stimpson, misapplied, with the concurrence and assent of his co-defendants, the partnership property, to his individual interest and purposes, excluding his co-partners, especially the appellant, from any participation in the management thereof, and, was guilty of gross misconduct towards the appellant. Wherefore the court below ought to have decreed a dissolution of the partnership, and appointed a receiver to wind up the concerns of the partnership; or that complainant should have gone on with the business himself, and an injunction granted to prevent his being interrupted by Stimpson. Story on Partnership, sec. 228, and note. 1 Story's Eq., pp. 622, 623, 333, 339, 340, and note. Gow. on Partnership, 110, 114. 19 Ves., 148. 18 Ves., 281. 1 Bland, 418.

5th. That the mortgage to Mrs. McTavish ought not to have prevented the granting of the injunction, because she took the property as bound by the previous contract of the partners with complainant, and the doctrine, "caveat emptor," applied, and that, at any rate, the interest [**7]  which she had, should not have prevented the injunction as to Stimpson. 7 H. & J., 320, Kemp's Ex'x vs. McPherson. Do., 458. 4 H. & J., 269. 2 Bland, 542. 2 H. & J., 176, 415. There was enough to put her upon inquiry. 3 Gill, 137. 1 Md. Rep., 403, Price vs. Bevans and McDonald. 3 Do., 334, Baxter and Wife vs. Sewell.

6th. The court erred in pronouncing a final decree dismissing the bill in this case, because it had not been set down for hearing except upon the motion to dissolve the injunction.

Charles J. Pennington and T. P. Scott for the appellees

1st. The main object of the bill is to obtain a specific performance of the alleged contract between the appellant and Manning, Stimpson & Co., and the prayer for an injunction and receiver is only incidental. A decree for a specific performance is not ex debito justitioe, but rests entirely in the discretion of the court. 4 Gill, 472, Geiger vs. Green. 5 Gill, 223, Gurly vs. Hiteshue. 7 Gill, 124, Tyson vs. Watts. The contract was made upon the representations of the complainant, that the business would be profitable--all parties designed to carry it out, if possible, and Stimpson only refused when he found it would not [**8]  be profitable. The court must look into the circumstances of the case at the time the specific execution is asked. 1 H. & J., 124. Where a mistake is made in a contract of this kind, or where one party labors under a misapprehension, it will not be enforced. The contract must be fair, reasonable and just. 3 Atk., 385. 67 Law. Lib., 43, 146. The very terms of the contract show, that the parties did not understand the nature of it or what would be the result of the experiment. Neither party knew anything about the manufacture of the article. The witnesses differ in their estimate of the cost to at least $ 100,000 per annum; and there is the same difference as to the probable profits--they differ between $ 300,000 gain and $ 80,000 loss. Is this a case where the court in the exercise of a sound discretion will decree the specific performance of the contract?

2nd. Again, the improbability of a favorable result from the undertaking in consequence of the short time Stimpson has in the lot of ground, and the short time the appellant has in the mines, is sufficient to induce the court to refuse the decree for specific performance, and to leave the parties to their remedy at law. Stimpson [**9]  had but a six years lease of the lot, and Wadsworth's lease of the mine is now out; how then are you to decree a specific execution?--to carry on a manufacturing enterprise of so large a nature?

3rd. The mortgage from Stimpson to Mrs. McTavish having been made in good faith, and without any knowledge on her part, she is not to be disturbed even if the appellant had a good claim as against Stimpson. The property mortgaged to her was not partnership effects, but she advanced the money with which the lot was purchased, and this gave her a prior lien. 67 Law Lib., 90. Her mortgage was not only for a past debt, but for a present advance. Wadsworth's name is not mentioned in it--he had nothing to do with the lot--the mining interest was his, but the lot was Stimpson's. The mortgagee takes nothing in the mine, although it is embraced in the mortgage, simply because Stimpson had nothing to give therein. The two pieces of property are entirely distinct. The answer of Mrs. McTavish positively denies that she had notice, and this is responsive and is evidence. Again, her mortgage is protected by the act of 1826, ch. 192, sec. 8, from injunction, unless the appellant shall bring himself within [**10]  the provisions of that act, which he has not done. By this act no person except a party to the deed or one who claims some right accruing after the recording of the mortgage, can ask for an injunction restraining the enforcement of it. The appellant occupies neither position.

4th. If the court is satisfied that a case is not made out for relief, the bill was properly dismissed though set down for hearing upon motion to dissolve the injunction. 4 Gill, 463, 471, 477, 478.

Thos. S. Alexander for the appellant, in reply.

The dismissal of the bill upon motion to dissolve is not warranted by the English practice; and the cases in this State (cited in 4 Gill,) only decide that where the plaintiff, upon his own showing, cannot have relief the bill will be dismissed, and to this extent only do they go. If the bill makes a case entitling the party to some sort of relief, it ought to be held over until final hearing.

The agreement gives Manning, Stimpson & Co. an interest in equity in the mines, and Wadsworth an interest in equity in the buildings erected for the manufacture of the ore. The defendants, in fraud of the agreement, have not worked up the ore furnished; and Stimpson [**11]  has also, in fraud of the agreement, executed a mortgage of the property to Mrs. McTavish for money advanced on his own account. The bill asks for a specific performance of the contract so far as to work up the ore furnished, and that money may be supplied under the agreement; and it asks, first, that as defendants are insolvent, the work shall be carried on by a receiver, with the funds furnished by Wadsworth himself; and in the alternative, it asks for a dissolution of the partnership, the appointment of a receiver to work up the ore now on hand, and for an injunction prohibiting the use of the buildings--the partnership property--for any other purpose than that contemplated by the agreement; in other words, that partnership property shall not be used, except for partnership purposes. The answer of Stimpson admits the agreement set out in the bill, but insists that there was a subsidiary verbal agreement differing from and explanatory of the written one; but Manning, another partner, denies this and says the written agreement is the true one. Mrs. McTavish, in her answer, admits that her advances were to pay the general partnership debts of the firm, and her mortgage is on the partnership [**12]  property.

The partnership is determined by lapse of time, we cannot then, of course, ask for a specific execution of the whole agreement, but still, if we offer funds to carry on the manufacture and to work up the ore on hand, it can be done. The cases in 3 Atk., 383 and 10 Ves., 161, are almost identical with this, and show that courts of equity are in the habit of decreeing specific performance in such cases. There is no want of mutuality in the contract; the proof is that there is but one other such mine in the country, and the ore was of unexampled purity and richness; both parties had their eyes open as to the amount of the profits and the share that each was to receive. A specific performance would therefore be decreed if the partnership now existed.

But we have a right to the alternative relief asked in the bill. The buildings are all partnership property, erected by the firm with partnership funds, and actually expended under the direction of Wadsworth for the purposes of the partnership. Every thing acquired for the purpose of the partnership is partnership property, and to be treated as part thereof. Story on Partnership, 98. This property then is to be treated [**13]  as partnership property, and is now to be converted into money for the purpose of distribution, and the only question is as to the proper distribution of it. This could be most properly and advantageously done by causing the ore to be manufactured and then sold. Courts of equity usually wind up partnerships by directing a sale, but this is not always done. If Wadsworth will undertake to indemnify the concern against loss, the court will provide that the receiver shall go on and work up the ore, and has the power to do so. The case is then made out as against Manning, Stimpson & Co.

Now as to Mrs. McTavish: It can be shown that she had actual notice. She says she had no notice of the contract, but she says she heard that this firm was engaged in the manufacture of zinc into paints, and that she induced her son to withdraw from it. She therefore knew what was going on and to what purposes the buildings were applied. She knew the fact that Manning & Co. had some interest in the mines derived from Wadsworth, and she should have gone to him and have found out what this contract was. The case of Price and Bevans vs. McDonald, 1 Md. Rep., 403, is conclusive upon this question of notice.  [**14]  Her mortgage is upon partnership property, and will not prevent the closing up of the partnership. On this point we do not ask that she shall be prohibited from selling the interest she had under the mortgage; we only ask that the partnership property shall not be diverted from its use. She came in with notice of our equities as against the firm, and is it possible that she cannot be enjoined? The defendants are liable for all the profits they have made by reason of the misapplication of the partnership property.  

JUDGES:
The cause was argued before LE GRAND, C. J. ECCLESTON, MASON and TUCK, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*68]  LE GRAND, C. J., delivered the opinion of this court.
We discover no error in the decree of the Superior Court. The pleadings and proof show, plainly enough, that it is not such a case as to demand of a court of equity a decree for the specific performance of the contract relied upon, nor to justify its interposition, by way of injunction, against the rights of the mortgagee.
It seems that the appellant, having an interest in a zinc mine in Pennsylvania, was anxious to make some arrangement by which it could be manufactured into paints, &c., and, with this view, entered [**15]  into a contract with the defendants, Stimpson, Manning and McTavish, by which it was agreed on his part, to furnish each year, for the period of three years, two thousand tons of the ore, on his being paid ten dollars per ton; the other parties stipulating to provide suitable buildings and machinery for its conversion into paints, &c., and to divide with him the profits of the enterprise, in the proportion of one-fourth to themselves and the remainder to him. It was also agreed, that the cost of the buildings and machinery, after 

 [*69]  a specified time, was to be paid out of the profits. In pursuance of this agreement the complainant, from time to time, delivered in all seven hundred and forty-six tons of the ore, and received therefor $ 5860, leaving a balance of $ 1600 still due. The other parties refused to receive or pay for any more of the ore, and, also, to appropriate the buildings to the purpose of its manufacture as contemplated; alleging as a reason, that the manufacture of the ore, as originally designed, could only be followed by the ruin of all the parties concerned.
It seems that Manning and Alexander S. McTavish, dissatisfied with the prospect of profits to be [**16]  realised from the business, disposed of their interest to Stimpson, who, to secure Mrs. McTavish for loans made to him, mortgaged the buildings and machinery.
The bill prays for the appointment of a receiver to take possession of the premises, and work up the ore; or, that the plaintiff be permitted to do so; for compensation for alleged losses, and that Mrs. McTavish may be restrained from enforcing her mortgage.
We regard the agreement, of date the 1st day of December 1849, as establishing a partnership between the complainant and those who at that time constituted the firm of Stimpson, Manning & Co., and did this appear to us to be a proper case, we would decree a performance of it.
The testimony shows that the business was one uncertain and speculative in its character. Scientific and practical persons differ most widely in their estimates in regard to the cost of conducting it; so much so, indeed, as to render it impossible for this court to see, with any degree of certainty, what would have been the probable result of the operation had the works been carried on in conformity with the stipulations of the agreement. By its terms the complainant was bound to furnish, each year,  [**17]  for the period of three years, two thousand tons of ore, and, according to the testimony of the witnesses, the cost of its manufacture was wholly uncertain. Some of them compute it at forty dollars per ton more than others, making a difference in the operations of three years of upwards 

 [*70]  of two hundred thousand dollars, or of four hundred thousand dollars in six years, if the business should be so long continued. Such disagreement in the opinions of those supposed, from their scientific knowledge and actual experience, to be well acquainted with the business, was well calculated to induce the most adventurous to pause.
As was properly remarked by counsel, a decree for specific performance is not ex debito justitioe, but rests in the sound discretion of the court, to be given or refused as the particular circumstances of each case may demand. In the particular one now under consideration, it is manifest to us, the purposes of justice would not be subserved by granting the prayer of the bill. The time specified for which the complainant was bound to furnish the ore has expired, and it is abundantly shown that the buildings and machinery are not adapted to its manufacture. [**18]  In such a case a court of equity ought not to decree a specific performance, if the party complaining has a full and adequate remedy at law; and, we hold it clear, if the complainant can make out the allegations of his bill, his redress is ample and complete at law.
Although it is true that one partner cannot sue another at law in an action of account, unless there be an account stated, yet it is equally so, that he may in covenant, if the articles be under seal, and any covenant or agreement in them be violated. If the partners agree to contribute each a particular sum, an action will lie by one partner against the other to recover it, and the sum agreed to be advanced will be the measure of the damages. Terrill vs. Richards, 1 Nott and McCord's Rep., 20. So where the partnership consists of more than two persons, and they have contributed severally, and in different proportions, and one of them withdraws from the co-partnership, in violation of their mutual agreement, each has his remedy for the breach.  Dunham vs. Gillis, 8 Mass. 462. And it has been held, where a sole trader covenants in consideration of a certain sum being paid to him in instalments, [**19]  and after one instalment is paid he becomes a bankrupt, that his assignees may maintain an action for the 

 [*71]  remaining instalments. These, and the like, are cases where the articles are under seal. But, to use the language of Mr. Gow, in his Treatise on Partnership, page 72, "it may be advanced as an indisputable proposition, that, in whatever instances an action of covenant is maintainable for the breach of a covenant comprised in a deed of co-partnership, in the same instances an action of assumpsit can be sustained, if the partnership, instead of being constituted by deed, were contracted verbally or by writing only."
Now we consider the case as made by the bill as one of total failure on the part of Stimpson, Manning and McTavish, to fulfil their agreement. In principle--for they did grind an half ton of the ore--like the case of Gale vs. Leckie, 2 Starkie 107. In that case one person agreed with another to furnish him with a manuscript to be printed by the latter, the profits to be equally divided between them. It appeared that a portion of the manuscript had been furnished, and that the work of printing had gone to the extent of upwards [**20]  of three hundred pages, when the defendant refused to furnish any more matter for the printer. It was held that an action of special assumpsit would lie in such a case, and that it ought not to be considered as an action for partnership profits, but for refusing to contribute the labor of the defendant towards the attainment of profits. So in the case now before us: the complainant alleges a refusal, on the part of those with whom he has contracted, either to contribute their labor and attention, or appropriate the proper buildings to the manufacture of the ore. If this allegation be maintainable, then he has a clear right to sustain his action of assumpsit for the non-performance of the engagement on their part.
These views dispose of the objection to Mrs. McTavish's mortgage. We do not regard the complainant as having any lien on the buildings on the south side of the basin. They were not erected out of funds of the partnership. The fact is, the defendants who constituted the firm of Stimpson, Manning & Co., refused to comply with their contract, in other words, they failed to furnish the necessary buildings and machinery, 

 [*72]  and they are, therefore, responsible to the complainant [**21]  for any damage which their non-compliance with their contract may have occasioned him. A jury is the proper tribunal to ascertain their extent.
For these reasons we affirm the decree of the court below.
Decree affirmed with costs. 

153 of 187 DOCUMENTS 

CHARLES T. MADDOX and ADOLPH AUR vs. JOHN WHITE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Md. 72; 1853 Md. LEXIS 16 

JUNE, 1853, Decided 

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

The appeal in this case was taken by the appellees, the defendants below, from the order of the court below overruling their demurrer to the bill of the appellee, and also from the order granting the injunction prayed for by the bill. The allegations of the bill and the facts of the case are fully stated in the opinion of this court, as well as in the following opinion of the court below, (FRICK, C. J., PURVIANCE AND LE GRAND, A. J.,) delivered upon the passage of the order overruling the demurrer above referred to:

"The bill alleges in substance that the complainant, as owner of a certain building in the city of Baltimore, leased a portion of the same to James M. Buchanan, the postmaster for the city of Baltimore, "to be used as the Baltimore post office," and to be restored at the expiration of the term in the same good condition, the necessary wear and tear excepted; that the defendant, Maddox, has succeeded Buchanan as postmaster, and that with his permission the other defendant is about to appropriate the premises to a liquor establishment, and is about to commit waste by the destruction or alteration of the walls [**2]  of the tenement. The bill prays an injunction to stay waste. To this bill a demurrer has been filed, exhibiting for cause of demurrer the following reasons, (which are fully stated in the opinion of this court.)

The demurrer of course admits the truth of the averments of the bill, and the question therefore arises, is such a case presented by the bill as entitles the complainant to an injunction? It is clear that it is such a case. See 5 Ves., 555. 1 Johns. Ch. Rep., 435. 3 Paige, 254, and 4 Sandford's Ch. Rep., 562, 587. In regard to a want to proper parties it need only be observed, that it is not a bill to enforce a specific performance but to stay waste, and prevent the violation of the terms of a contract. Neither the United States nor the Postmaster General are parties to the wrong complained of, and this court could pass no decree nor grant any process against them. The court are of opinion that the proper parties are in court, and that the demurrer is not well founded, and therefore, on this 14th day of October 1851, order that the demurrer be and the same is hereby overruled and the defendants ordered to answer the bill." 

DISPOSITION:
Orders affirmed and cause remanded.  

HEADNOTES:

The appellee leased a building to B., then postmaster of Baltimore city, to be used as the Baltimore post office, and at the expiration of the term, to be returned in as good order as when demised, reasonable wear and tear excepted. B. was succeeded as postmaster by M., who entered upon the premises and was accepted as tenant, but afterwards removed the post office and put the premises in possession of A., with authority to convert them into a beer establishment, and A. accordingly was proceeding to do so by tearing down petitions and committing other material waste and injury to the property. HELD:

That these acts of A. could be restrained by injunction upon a bill filed by the lessor, and neither the Postmaster General nor the United States are necessary parties to the suit.

A lessor may, by injunction, prevent his lessee, or those claiming under him or acting by his authority, from converting the demised premises to uses inconsistent with the terms of the lease, and from making material alterations for such purposes, and committing other kinds of waste.

When a case comes before this court upon demurrer, all the averments of the bill are to be considered as true.

A sub-lessee may be restrained by injunction from violating the stipulations in the original lease, without making the original lessee a party.  

COUNSEL:
Thos.  [**3]  G. Pratt for the appellants.

1st. The contract for the lease of the house was made by Buchanan, as the agent of and by the authority of the United States. The lease was to him as postmaster, and signed by him as such. The contract was made on account of the government, and was a public and not a personal contract, which enured to the benefit of, and was obligatory upon, the government and not upon him, consequently the United States was a necessary party to this suit. 1 Term Rep., 172, Macbeath vs. Haldimand. 1 Cranch, 363, Hodgson vs. Dexter.

2nd. If the contract is to be considered personal and not public, enuring to the benefit of and binding upon Buchanan and not the government, then Buchanan was a necessary party to the suit. 2 Story's Eq., sec. 1526. 6 H. & J., 14, Cromwell vs. Owings. 5 Metcalf, 124, Ingraham vs. Dunnell. 2 G. & J., 376, Mayor of Balto., vs. Chase.

3rd. There is no privity of interest between the complainant and the defendants, and the acts complained of are consequently acts of trespass and not waste. There are many cases where a landlord would be entitled to an injunction against his tenant where he would not be against a stranger, such as Aur [**4]  is in this case. 2 Story's Eq., secs. 720, 721.

4th. An injunction will not be granted either in cases of trespass or waste, unless the bill states facts sufficient to satisfy the court that the injuries complained of would be irreparable, and incapable of being compensated for by damages at law, and no such statement is made by the bill in this case. Jeremy's Eq., 328, 424. 7 Metcalf, 404, 405, Atkins vs. Chilson. 9 G. & J., 473, 474, Amelung vs. Seekamp. 5 Metcalf, 125.

Thos. S. Alexander for the appellee.

1st. The appeal from the order granting the injunction is warranted only by the act of 1835, ch. 380, sec. 3, which requires as preliminary thereto, that the defendants shall have filed their answers to the bill. It is insisted that a demurrer is not an answer within the letter and object of the act. And again, that the demurrer being overruled, there was not, at the time of the entry of the appeal, any thing on the record which could in any sense be treated as an answer. In addition to the act of 1835, see 9 G. & J., 475, Richter vs. Pue.

2nd. Assuming that the demurrer overruled could be treated as an answer filed, and thus gratify the requisitions of the [**5]  act, we next insist that the injunction was properly granted upon the case stated by the bill; and in support of this point, we rely on the authorities referred to by the county court. 5 Ves., 554. 14 Ves., 525. 1 Johns. Ch. Rep., 435. 3 Paige, 254. 4 Sandford Ch. Rep., 562.

3rd. An appeal will not lie from an order simply overruling a demurrer; and therefore the correctness of the order of the 14th October 1851, is not open for revision at this time. The act of 1830, ch. 185, limits the right of appeal to the case of a final decree or order in the nature of a final decree. None of the later acts extends the right of appeal to an order overruling a demurrer. And although an appeal from such order was entertained by this court in 2 H. & G., 382, Wolf vs. Wolf, it is to be observed that the question was not raised in the case; and that in the subsequent case of Danels vs. Taggart, 1 G. & J., 311, it was, upon consideration, expressly adjudged that an appeal will not lie from an order overruling a plea. The cases, it will be insisted, are identical in principle.

4th. If the merits of the demurrer are now before the court, we insist that the order of the court below is correct [**6]  and ought to be affirmed. A court of equity has a clear jurisdiction, on a bill filed by a landlord, to restrain the tenant of premises demised for a specific purpose from devoting them to a different purpose; and especially when this change in purpose will involve the necessity of repairs and alterations tending to waste and injury, and will create a nuisance to the landlord, his family and his tenants occupying adjacent premises. As to the alleged want of parties we insist, that as the post office has been removed and the injunction is asked to prevent the tenant in actual possession from appropriating the demised premises to the purposes of his own private business, in which the United States and the Postmaster General can have no interest, neither the United States nor the Postmaster General are necessary or proper parties to the suit.

Pratt for the appellants, in reply.

The act of 1835, ch. 380, authorises the appeal. Why is not the demurrer for all essential purposes an answer? It admits every thing in the bill to be true--and is therefore equivalent to an answer admitting all the allegations of the bill, and saying that the plaintiff is not entitled to recover. The [**7]  order is a final one; it decides that the case made by the bill entitles the complainant to an injunction, for it not only grants but continues it. In 2 H. & G., 387, the whole case was brought up by demurrer; see also 5 Gill, 359, White vs. White. 3 G. & J., 491. 8 Gill, 376. 5 H. & J., 459. 1 Md. Rep., 344, McChesney vs. Bruce.  

JUDGES:
The cause was argued before ECCLESTON, MASON and TUCK, J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*76]  ECCLESTON, J., delivered the opinion of this court.
The bill in this case was filed on the equity side of Baltimore county court, by the appellee against the appellants. It states that the complainant, as the owner of a building in the city of Baltimore, which for some time had been, and still was, used as a post office, on the first day of June 1848, demised several apartments of the building to James M. Buchanan, then postmaster of the United States for the city of Baltimore. The demise being for the term of four years from the 1st of July ensuing. That it was stipulated that the premises should be used as the Baltimore post office; and that at the expiration of the term, the premises should be restored to the possession of the complainant, in the order and condition [**8]  they were when demised, reasonable wear and tear excepted. That in virtue of this contract Buchanan, as postmaster, entered upon or retained possession of the premises, and continued to use the same for the purposes of a post office, from the 1st of July 1848, until some time during the year after; 

 [*77]  when he resigned or was removed from the office of postmaster, and the defendant, Maddox, was appointed his successor. Whereupon Maddox, as postmaster, and in virtue thereof, assignee of Buchanan, entered upon the premises, and was accepted as tenant of the same, by the complainant, and occupied the demised property as a post office until about the month of August 1851, at which time Maddox removed the post office, and placed the premises, or the principal part thereof, in the possession of the defendant Aur, with directions or authority to the said Aur, to convert and use the same for the purposes of a beer establishment, or depot for the sale of beer and other fermented liquors. And the bill avers, that at the time of filing the same, Aur, claiming as assignee of Maddox, was actually engaged in tearing down partitions and committing other material waste and injury to the property,  [**9]  and making alterations in the arrangement thereof, with a view of fitting it up for the purposes of preparing and selling beer and other fermented liquors; and that he avowed his purpose of establishing and opening a depot or place for sale of such liquors, as soon as he could make the necessary alterations. And the complainant insists, that by the terms of the agreement, the demised premises were to be used as a post office exclusively, and the appropriation thereof to a different purpose, would be a fraud on the agreement; that the alterations proposed to be made would materially injure the property, and lessen its value, and directly violate the stipulation requiring the premises to be restored in like order and condition as at the time of the demise; that the conversion thereof to the purposes intended by Aur, would be exceedingly offensive and a nuisance to the complainant and his family, who reside in an adjacent building, and to his tenants occupying parts of the same building; and he apprehended he would lose those tenants and be compelled to leave the premises occupied by them vacant, or appropriate them to other purposes.
The bill prays for an injunction to restrain the [**10]  defendants from using the demised property for any other purposes than those of a post office--and especially from altering or changing the order or condition thereof, by tearing down partitions or 

 [*78]  other fixtures, or making repairs or erections thereon, to fit the same for the purposes of a depot, for the manufacture, preparation or sale of beer, or other fermented liquors, or committing other waste or injury to the premises.
An injunction was granted, and then the defendants appeared and filed a demurrer to the bill, assigning for cause of demurrer the following reasons.
1st. That the complainant has not stated such a case in his bill as entitles him to the injunction or relief prayed for against the defendants.
2nd. That if the matters stated entitle the complainant to any relief against the defendants, his remedy is at law and not in equity.
3rd. That according to the complainants own showing the Postmaster General of the United States and the United States should have been made parties.
After argument the court below overruled the demurrer and ordered the defendants to answer. From this order and also from the order granting the injunction this appeal is taken.  [**11]  
Believing the appellee entitled to an affirmance on the merits, we deem it unnecessary to notice the preliminary questions, presented on his part, in regard to the regularity of the appeal.
On behalf of the appellants, in relation to the first and second grounds of demurrer, it was contended, that there was no privity between the complainant and defendants; but more especially so in reference to Aur. That his acts complained of were those of a stranger and mere trespasser, which would not authorise the interposition of a court of equity, by an injunction; but if the complainant was entitled to relief his remedy could only be at law. It was conceded by the appellant's counsel, that a landlord, by injunction, could restrain injuries to his property, committed, or about to be committed by his tenant, when for similar acts by a stranger he could not have such relief.
That a lessor may, by injunction, prevent his lessee, or those claiming or holding under him, or acting by his authority, from converting the demised premises to uses inconsistent 

 [*79]  with the terms of the contract, and from making material alterations for such purposes, as also from committing other kinds of waste, [**12]  will be found fully sustained by, 5 Ves. 555. 1 John. Ch. R. 435, and 4 Sandf. Ch. R. 587. Which authorities are referred to by the court below. See also Eden on Injunctions, 377 and 378, and 2 Story's Eq., sec., 913.
As this case comes before us upon demurrer, we are to consider all the averments in the bill as true. And under the allegations therein contained, in connection with the exhibit therewith filed, we cannot consider either of the defendants as a stranger and mere trespasser, in the view insisted upon by appellants, but we agree with the county court in thinking the principles established in the authorities referred to are applicable to this case.
Nor was there any error in overruling the third objection presented by the demurrer. The United States and the Postmaster General were not necessary parties. No injury was done to the complainant by them or either of them, which it was important for him to restrain by the injunction, nor had he any ground on which to ask relief against them. In the case of Barret vs. Blagrave, 5 Ves. 555, a sub-lessee, or rather his wife, during his insanity, was violating [**13]  a stipulation contained in the original lease; which the lord chancellor restrained by injunction.
The bill did not make the original lessees parties, but the sub-lessee and his wife were the only defendants.
The orders of the county court will be affirmed with costs to the appellee, and a decree will be signed to that effect, and remanding the cause for further proceedings.
Orders affirmed and cause remanded. 

154 of 187 DOCUMENTS 

BENJAMIN H. ELLICOTT, Receiver of RACHEL COLVIN, vs. RICHARD C. WARFORD, Adm'r pendente lite of RACHEL COLVIN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Md. 80; 1853 Md. LEXIS 17 

JUNE, 1853, Decided 

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

The appeal in this case was taken by the appellant from an order of the chancellor, passed on the 19th of April 1853, discharging him as receiver of the estate of Rachel Colvin, a deceased lunatic, and directing him to account for and deliver up the property under his control to the appellee, who had been appointed administrator pendente lite of the deceased by the orphans court of Baltimore city. The facts of the case are fully stated in the opinion of this court and in the opinion of the chancellor, (JOHNSON,) accompanying the passage of the order appealed from, which is reported in 3 Md. Ch. Decisions, 289. A motion was made by the appellee to dismiss this appeal, upon the grounds stated in the opinion of this court.  

DISPOSITION:
Appeal dismissed.  

HEADNOTES:

After the death of a lunatic, the person who had been her committee was appointed receiver of her estate, by an order of the chancellor, which expressly reserved power to the court to change, modify or annul the same, to discharge the receiver, and pass other orders, &c. Afterwards, an administrator pendente lite of the deceased lunatic having been appointed, the chancellor passed an order discharging the receiver, and directing him to account and deliver the personalty to such administrator. HELD, that the receiver has no right to appeal from this order.

The appointment of a receiver does not determine any right, or affect the title of either party in any manner whatever: he is the officer of the court, and his holding is the holding of the court for him from whom the possession was taken.

He is appointed on behalf of all parties, and not of the plaintiff or one defendant only. His appointment is not to oust any party of his right to the possession, but merely to retain it for the benefit of the party ultimately entitled, and when he is ascertained, the receiver will be considered as his receiver.

The case of Ellicott vs. Ellicott, 6 G. & J., 35, differs from this in several particulars; there the order, from which the trustee appealed, finally adjudicated the rights of the parties to the fund, the trustee was not removed, and none of the other interested parties themselves appealed.  

COUNSEL:
William Schley for the motion.

1st. The appeal should be dismissed, because the order appealed from decides no matter of right between the parties. The act of 1835, ch. 346, sec. 3, allows an appeal from an order appointing a receiver, but not from an order discharging him. There is no other act of Assembly bearing upon the subject, and the general principle that an appeal will only lie from orders [**2]  deciding matters of right between parties must apply. It has been decided that an appeal will not lie from an order requiring money to be brought into court. 3 G. & J., 163, Richardson vs. Jones. 7 Gill, 307, Ellicott vs. The U. S. Ins. Co. 9 G. & J., 164, Sanderson vs. Alcock. 4 Gill, 38, Wheeler vs. Stone.

2nd. Because the appellant has no such title as will enable him to maintain an appeal from this order. He had no vested right to be continued in the office of receiver, and no interest in the real or personal estate of the deceased, so as to complain of the order directing him to deliver the property to the appellee. He is the mere officer of the court, bound to obey its orders. He is no party to the suit, but appointed outside of the case, because he was deemed a safe hand in which to entrust the property, for the purpose of preserving it until the proper party authorised to receive should be appointed. 7 Gill, 307, Ellicott vs. The U. S. Co.

Henry Winter Davis against the motion.

1st. Ellicott was the committee when he filed his petition upon the death of the lunatic to have a receiver appointed. Cain and others also filed a petition for the same purpose, and upon [**3]  their petition Ellicott was appointed receiver. Warford was then appointed administrator pendente lite by the orphans court. His rights by this appointment were confined to personalty, but from this appointment an appeal was taken, and if properly taken, it suspended his rights even over the personalty. He then filed a petition for the discharge of the receiver and the delivery over of the property to him. The Cains appear and answer this petition, and the chancellor discharged the receiver, and directed the property to be delivered over to the party who, we say, has no authority to receive it. From such an order it is said we have no right to appeal. It is not an order removing one receiver and appointing another, but an order refusing the whole relief prayed for in the petition. The injury in case of refusal to appoint a receiver, and after he is appointed to discharge him, is the same. The whole tenor of legislation on this subject is in favor of an appeal in such cases. The argument on the other side goes the length of saying that there is no appeal from an order in any case discharging a receiver. But the order in this case goes further, for it directs the delivery of property [**4]  from one party to another--a change of possession--which is of itself a subject matter of appeal. In England there would be no doubt but an appeal would lie--it would be a decretal order. The learned counsel then proceeded to review the various acts of Assembly of this State relating to appeals, and contended that the right of appeal did exist, either upon general principles regulating this subject, or by implication from the various acts in relation thereto, or from the general scope and spirit embodied in them as a whole.

2nd. I admit that the receiver cannot appeal for his own interest, but he can maintain an appeal for the benefit of other parties interested. The case is similar to that of Ellicott vs. Ellicott, 6 G. & J., 35, where a trustee was allowed to appeal for the benefit of those interested in the fund.

Reverdy Johnson for the motion, in reply.

1st. The order appealed from revoked the order appointing Ellicott, and directed him to hand over the personal estate to Warford, the administrator pendente lite. Ellicott refused to do this, and an attachment was applied for, and in that application the chancellor delivered an opinion, in which he decides that an [**5]  appeal will not lie from his order revoking the order appointing the receiver, both because the order itself was not the subject of an appeal, and because the receiver himself could not appeal. 3 Md. Ch. Decisions, 300.

But this is not an order from which any appeal will lie by anybody. In the absence of statutory provisions, the refusal to appoint a receiver is not a subject of appeal: it is merely a matter of discretion in the court below. The refusal to appoint the receiver settles nothing as to the controversy during which he is asked to be appointed. An appeal in such a case has never been heard of. The appointment of receivers was sometimes injurious, hence the act of 1835, ch. 380, gave the right of appeal from orders appointing them, but it gave none from orders refusing to appoint. The same was the case in reference to injunctions, see act of 1832, ch. 197. It is very clear, therefore, that if this had been an order refusing to appoint, no appeal would lie, and does it not necessarily follow that none will lie from an order rescinding the appointment?

2nd. It is admitted that Ellicott has no right to appeal on account of any interest he has in the property, but it [**6]  is said that he has a right to appeal, because he was appointed at the instance of Cain and others. This is something new, for Ellicott is not their receiver. When appointed he is the officer of the court, holding for the parties entitled.  

JUDGES:
This motion to dismiss was argued before LE GRAND, C. J., ECCLESTON, MASON and TUCK, J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*83]  ECCLESTON, J., delivered the opinion of this court.
Upon the motion to dismiss in this case, it was contended that the motion should be sustained on two grounds.
1st. Because the order of the 19th of April 1853, removing the receiver and directing him to deliver up the property under his control was such an order as could not be appealed from.
2nd. If it could the receiver was not a party having the right to appeal.
Believing the motion ought to be sustained on the second ground, we shall confine our remarks to that, exclusively.
In the lifetime of Rachel Colvin, by virtue of proceedings in chancery, B. H. Ellicott was appointed a committee for her as a lunatic.

 [*84]  After her decease, considering his control and authority over her property at an end, he filed a petition praying the chancellor to appoint him as receiver. [**7]  
Joseph Cain, Richard Cain, Mary Laruc, and Daniel her husband, Elisha Warford, Anne Hudnutt, John Cain of Gershom, and John Cain of Daniel, also filed a petition representing themselves as among the next of kin, and heirs at law of Rachel Colvin; that she had died leaving a will, the probat of which was disputed, and asking for the appointment of B. H. Ellicott as a receiver, to take possession of the real and personal property "until some one having right to the same shall appear to whom it can be delivered, or until the further order of the court."
On these petitions the chancellor passed an order dated the 9th of February 1853, appointing Ellicott the receiver; but expressly reserving to the court, power to change, modify or annul the order, to discharge the receiver and to pass such orders and decrees in the premises, as might be deemed necessary and proper.
Subsequently R. C. Warford filed a petition stating that he had been appointed administrator pendente lite of Rachel Colvin, by the orphans court of Baltimore city, and praying that the chancellor would revoke the appointment of the receiver, and direct the personal property to be delivered over to the petitioner.  [**8]  This application not only asked for a revocation of the receiver's authority in regard to the personalty, but to the realty likewise; the petitioner stating that in the event of such revocation it was his intention to apply, immediately, to the Superior Court of Baltimore city, to be appointed receiver of the estate. Among the reasons assigned for such revocation, he states that he is not only appointed the executor of Rachel Colvin in her will, but that he is also the principal legatee and devisee.
Jesse H. Landis, Rebecca Landis, Mary Quick and Theophilus Quick her husband Elizabeth Large and James Large her husband, likewise presented a petition, alleging that they were the heirs at law of Rachel Colvin, and so far as they knew her only heirs at law. They also prayed that the appointment of Ellicott as receiver might be revoked, 

 [*85]  and asked for the appointment of one of their solicitors or some other proper person in his place, until the controversy should be ended.
On the 19th of April 1853, the chancellor passed an order removing B. H. Ellicott from the office of receiver, and directing him to make a report, rendering an account of the property and money which came [**9]  to his hands, and to deliver over to the administrator pendente lite, the personal estate of the deceased. From this order the appeal is taken.
In deciding the question as to the right of the receiver to appeal, it is proper to ascertain what is the nature of his office. It is defined in sundry quotations, in the case of Ellicott vs. The U.S. Insurance Co., 7 Gill 307. From which it appears the appointment of a receiver does not determine any right, or affect the title of either party, in any manner whatever. He is the officer of the court; and truly the hand of the court. His holding is the holding of the court from him from whom the possession was taken. He is appointed on behalf of all parties, and not of the plaintiff or of one defendant only. His appointment is not to oust any party of his right to the possession of the property, but merely to retain it for the benefit of the party who may, ultimately, appear to be entitled to it; and when that is ascertained the receiver will be considered as his receiver.
It was conceded, in argument, on the part of the appellant, that he could not appeal in his own right, but it was said he could do so as representing [**10]  the parties interested. How can this be true? He was as much the representative of the administrator pendente lite as any one else. The possession of the property did not come to him from any of the litigant parties. There had been no final adjudication as to whom the property belonged; so as to constitute him the receiver for the persons in whose favor such decision was made, thereby authorising him to represent them in particular. But the only action of the court being that which removed him from office, and ordered the personalty to be delivered over to the administrator pendente lite, if the receiver could be considered more the representative of one than another, the administrator was that one.

 [*86]  As regards Ellicott, personally, he is not injured, for we have seen that he took the appointment, under an order reserving, in express terms, full power in the court, to change, modify or annul the same, and to discharge him as receiver. His counsel, therefore, might well concede he could not appeal, so far as his own rights are concerned.
To sustain the right of appeal the case of Ellicott vs. Ellicott, 6 G. & J. 35, was referred to, where a trustee [**11]  under a decree in chancery was allowed to appeal, for the benefit of those interested in the fund. That case differs from this in several particulars. There the order directed the fund to be applied in a certain way, by which the rights of parties were to be most materially affected, indeed finally adjudicated. The trustee was not removed from office, but was still the trustee. And none of the interested parties, themselves, appealed from the same order. Here the decision did not profess, or attempt, to settle any question as to the right of property. But the receiver was removed or dismissed, and when the appeal was taken he was functus officio. And sundry persons, professing to be parties in interest, have appealed from the same order, now under consideration. They are the same persons on whose petition, in part, the original order of the 9th of February, appointing Ellicott as receiver, was passed; and who also filed a petition praying that the receiver should not be removed. It will be seen that the two last mentioned petitions, as well as all others which have been spoken of, were filed in the same original cause in chancery, relating to the matter of Rachel Colvin, a lunatic. [**12]  The ground of necessity, therefore, cannot be relied upon as furnishing an argument in favor of allowing the dismissed receiver to appeal, for the purpose of protecting the rights of parties, in interest, for there is an appeal independent of his.
We have refrained from saying anything in reference to the first ground taken in support of this motion, because we wish to avoid interfering in any manner with questions which may probably arise in the other appeal. But on the second ground the present motion will be sustained.
Appeal dismissed. 

155 of 187 DOCUMENTS 

WM. PETERKIN and others' Lessee, vs. WM. INLOES and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Md. 175; 1853 Md. LEXIS 23 

JUNE, 1853, Decided 

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

This was an action of ejectment, instituted by the lessors of the appellant to recover one acre of land, described in the declaration as part of "Mountenay's Neck," which is referred to in the preceding case of Hammond's Lessee vs. Inloes, et al., and in the cases in 11 G. & J., 351; 6 Gill, 321; and 1 Gill, 430. The plea and defence were the same as in those cases.

Exception. The plaintiffs claimed under the title of "Mountenay's Neck," and the title papers offered by them, exhibiting the chain of title from Alexander Mountenay, in 1663, to Thomas Sligh, in 1759, and from Sligh to William Hammond, as heir at law of Thomas Hammond, for fourteen and one-quarter acres, part of "Mountenay's Neck," are the same set forth in 1 Gill, 435 to 442. They then offered two successive leases of part of this fourteen and one-fourth acres, the first, dated 6th of December 1776, from William Hammond to Isaac Hall; the second, dated 24th of July 1782, from John Hall to Benjamin Spencer, under whom the plaintiffs claim by descent. They further offered deeds conveying eleven acres, part of "Mountenay's Neck," in fee, from Thomas Sligh, in 1760, to Charles [**2]  Weisenthal; from Weisenthal, in 1775, to John Cornthwait; and from Cornthwait, in 1782, to said Benjamin Spencer. They then proved the death of said Spencer before 1820, and that two of the lessors of the plaintiff, William and Joshua Peterkin, are the grand-children of said Spencer, and the two others, William and Ellen Peterkin, his great-grandchildren, those who stood before them in the line of descent, being proved to be dead. They then offered a license by the mayor of Baltimore to said Spencer, to extend a wharf therein described, and the same acts and ordinances as in the preceding case of Hammond vs. Inloes, and also the act of 1784, ch. 39, and 1816, ch. 209, and proved that the land opposite the lot claimed by them had, from time to time, been extended, filled up and made fast land out of the water, as delineated in the plats, and the possession of it by the defendants. They also offered the plat of the addition to Baltimore town under the act of 1773, ch. 4. The defendants then offered the patent of "Bold Venture," and the same evidence appearing in 1 Gill, 451 to 468. The plaintiffs then offered the patent of "Rogers' Inspection," granted in 1759 to affect in part "Bold [**3]  Venture," which is described therein as "escheat land," (see 1 Gill, 471 to 474,) and also a certified copy of a certificate for a tract of land called "Pemblico," surveyed for John Oulton and others, on the 26th of April 1669, and an assignment thereof, on the 5th of August 1714, by John Hays, as administrator of John Oulton, to Thomas MacNemara, and the patent for said tract subsequently, on the 10th of December 1714, issued to said MacNemara. They then also offered certificates from the register of wills for Anne Arundel county, showing that letters of administration were granted on the estate of John Oulton, on the 23rd of September 1709, and on the estate of Mary Oulton, widow, on the 7th of October 1709. The defendants then offered the will of John Oulton, executed on the 4th of May 1709, and admitted to probate on the 11th of July 1709, by which he devised to his wife, Mary Oulton, "Bold Venture," and all his other lands in fee. The plaintiffs then offered the following prayers:

1st. If the jury find the patents, deeds and permission or license of the mayor and city council of Baltimore, offered in evidence on the part of the plaintiffs, and that the same are properly located;  [**4]  and if, from the evidence and from said deeds, and the recitals therein, and from the acts of possession of Benjamin Spencer, and those claiming under him, that possession had gone along with said deeds, &c., then they are bound to presume a deed from Mountenay to Blunt, and from Isaac Hall to John Hall, or if they find the deeds from Sligh to Weisenthal, from Weisenthal to Cornthwait, and from Cornthwait to Benjamin Spencer, the elder, and that said Spencer died intestate before the year 1820, leaving Elizabeth, his only child and heir at law, and that said Elizabeth, previous to the death of her father, intermarried, in the year 1802, with William Peterkin, and that said Elizabeth and William died intestate about the year 1825, leaving five children, two girls, both of whom died intestate and without ever having been married, and three boys, George, William and Joshua, the two last named being plaintiffs; that George intermarried with Maria Anne Atkinson, by whom he had two children, his heirs at law, living at his death, to wit, William and Ellen Peterkin, two of the plaintiffs; that said George died between the years 1830 and 1835; that if they find the acts of Assembly and ordinances [**5]  given in evidence, and further find, that in pursuance thereof, the grounds in front of the plaintiffs' lot, as located, was filled up and extended for the width thereof from time to time, as far as to the dock at Lancaster street, and made fast land, and was in possession of defendants before the institution of this suit, then, by force of the operation of said acts and ordinances, and facts aforesaid, if the jury find them, the plaintiffs are entitled to recover.

2nd. If they find the facts of the aforegoing prayer, and also the papers given in evidence relating to "Pemblico," and those relating to the administrations granted on the estates of John Oulton and Mary Oulton, respectively, and that said Mary Oulton is the Mary Oulton named in the writing offered in evidence as the will of John Oulton; and that said John and Mary died in the year 1709, and shall not find any claim made by any one under said John or said Mary for "Bold Venture," at any time between their deaths, respectively, and the year 1745, then they may find, that before that year there had ceased to be any heirs of John Oulton to take said tract by descent, and any persons to take the same through said Mary,  [**6]  as devisee under said will by descent, and that said tract so became, before the year 1745, vested in the State, and if they find as aforesaid, then the plaintiffs are entitled to recover, if the jury also find the addition made to Baltimore town, under the act of 1773, ch. 4, as testified, and as shown by the plat of said addition given in evidence, and by the locations in the cause.

3rd. If they find from the facts of the aforegoing prayers, and shall not find any claim to have been made by any one under said John or Mary for "Bold Venture," after their said deaths, and before the year 1700 and 1743, then they may find, that before the latter year there had ceased to be any heirs of said John to take said tract by descent, and any persons to take the same through said Mary, as devisee under said will by descent, and that before the year 1773, the said tract so became vested in the State; and that if they shall find as aforesaid, the plaintiffs are entitled to recover, if they also find the addition made to Baltimore town, under the act of 1773, ch. 4, as testified, and as shown by the plot of said addition given in evidence, and by the locations in the cause.

The defendants [**7]  offered the same three prayers as in the preceding case. The court, (LE GRAND, A. J.,) rejected the plaintiffs' and granted the defendants' prayers, to which granting and refusal the plaintiffs excepted, and the verdict and judgment being against them they appealed.  

DISPOSITION:
Judgment affirmed with costs.  

HEADNOTES:

The grant of letters of administration is prima facie evidence that the person, upon whose estate they were granted, was dead at the date of the letters.

The plaintiffs claimed title under the patent of a tract of land, which was authorised to be added to the city of Baltimore by the act of 1773, ch. 4, and the privileges conferred by that act. HELD:

That this act conferred no privileges to the owners of this tract, unless the addition was made in pursuance thereof; and a prayer setting out the grounds on which the plaintiffs were entitled to recover, and which failed to leave to the jury to find that the addition was made under this act, is for this reason defective.

A prayer asserting the escheat of a tract of land, without submitting to the jury to find that the patentee died intestate as well as without heirs, is for this reason defectively framed.

The patentee of a tract of land covered by navigable water died in 1709, devising the same by will to his wife, who died the same year. No claim was made by any one, under the patentee or his wife, before 1745. HELD:

That this evidence was not sufficient to warrant the finding, that the tract escheated before 1745; the law does not presume that a person dies without heirs, and the absence of claim is not to be taken against the defendants, the land being covered by navigable water.

The further lapse of twenty-eight years from 1745, or sixty-four years from the death of the wife of the patentee, will not authorise the finding, that the tract was escheat as of that time.

An escheat patent is evidence of escheat at the date of the warrant, and not before.

An escheat warrant authorised the party to take up the whole tract called "Bold Venture," as escheat, but the escheat patent, dated in 1759, granted to the patentee a certain number of acres of said tract, "clear of elder surveys." HELD:

That from this patent it may fairly be inferred, that the State had, previous to the act of 1773, under which the plaintiff claimed, granted the whole tract; the recital, "clear of elder surveys," means elder surveys of "Bold Venture," and is evidence of a previous grant of the residue of the tract. 

COUNSEL:
Grafton L. Dulany for the appellants, argued and insisted upon the same points as argued by the counsel for the appellants in the preceding case; and further contended, that in this case there was evidence tending to show that both John and Mary Oulton died intestate and without heirs before the act of 1745, ch. 9, and that, consequently, before or at the time of the passage of said law, the title to "Bold Venture" was vested in the State, and passed, by that act and the law of 1773, to all improvers under them. That the facts of the death of Oulton and his wife, without heirs, ought to have been submitted to the jury. The second and third prayers of the plaintiffs should have been granted, and the second and third prayers of the defendants ought to have been refused. 2 Howard's Rep., 319, 385. 12 Peters, 454. 3 H. & J., 554. 7 G. & J., 369. 7 H. & J., 136. 6 G. & J., 481. 11 G. & J.  [**8]  , 360. 1 Gill, 509.

William F. Giles for the appellees.

1st. As to the rights of the parties, independent of "Bold Venture:" The proprietors of "Fell's Prospect" have equal rights with the owners of "Mountenay's Neck." "Fell's Prospect" was granted 1763, and the act of 1773 is the only act under which the plaintiffs claim. In 11 G. & J., 359, no act of 1773 was referred to, but that decision went upon the act of 1745. The act of 1773, in fact, added two hundred acres to the city, and included "Fell's Prospect." A legislative act is a grant, and the defendants are therefore grantees of equal date with the plaintiffs, for "Fell's Prospect" was added to the city the same day with "Mountenay's Neck." This makes the distinction between this case and the case in 11 G. & J., because in that there was no reference to the act of 1773, and the plat made under it. The legislature could distribute favors to whom it chose. There was no inherent power in the elder patent, that it should alone be the recipient of these favors. The right to improve is a quasi property, but it vests only when the improvements are made, and this applies to us, the owners of "Fell's Prospect," as well as the [**9]  owners of "Mountenay's Neck." The legislature have the right to grant land covered by water. "Mountenay's Neck" originally ran across an arm of the sea, and therefore was not riparian any more than "Bold Venture." The grant of "Bold Venture" has been again and again affirmed by this court. The only limitation upon the sovereign power is, that it cannot grant land so as to interfere with the rights of navigation and fishery. The case in 2 H. & McH., 246, turned upon the point that there had been a fraud committed upon the lord proprietary in obtaining the grant of the patent of "Bold Marsh." The directions of the lord proprietary to the land office was, that all lands within five miles of Baltimore should be reserved and not granted, and the application for the resurvey of "Bold Marsh" did not aver that it was within five miles of the city, which was in fact the case, and the patent was vacated on this ground. The doctrine of alluvion never sanctioned the idea that if there was a sudden subsiding of the sea, the land would belong to the riparian proprietor; in such a case it would belong to the State, and so if an island suddenly springs up. The riparian proprietor gets what increases [**10]  little by little, of which the law takes no notice--gradual accretion.

2nd. As to the effect of "Bold Venture:" If an heir of Mrs. Oulton should appear, what would bar his recovery? nothing! The outstanding title is good. The evidence shows that the property became fast land in 1836, and could not have been taken possession of before. Limitations could not run against an heir of Oulton, except from the time when the land became fast, and if such an heir should come forward to-day he could recover. There has been no claim or possession adverse to that of John Oulton. But the case has been twice decided, and unless this case differs in a material point from the case in 6 Gill, the judgment must be affirmed. It is said that it is different, because the acts of 1796 and 1816 are now in. But the act of 1796, ch. 68, gives new rights to nobody, it simply erects Baltimore town into a city. The 11th sec. gives the city council full power to control all improvements into the basin, but it makes no new grants to anybody. The act of 1816 is merely an act to enlarge the city of Baltimore. These acts therefore make no difference in the two cases. The only additional evidence is the administration [**11]  on the estates of John and Mary Oulton, and the grant of "Pemblico," and this is introduced to show an escheat of "Bold Venture" prior to 1745. But this evidence falls, because the defendants show the will of Oulton, by which he devises the land to his wife and makes her his heir. But Mrs. Oulton also died the same year, and administration was granted on her estate. This is no evidence that she died intestate, because the custom then was to grant letters of administration as well where there was a will as where not. There has been no search for her will; she may have left a large family and the record still be correct. The answer to this is, that no claim has been made by the heirs of Oulton. No claim could be made until 1836, when the land first appeared above water.

The propositions of law embraced in the plaintiff's prayers could, by no possibility, be granted. The first prayer is defective for various reasons. There is but one Spencer mentioned in the evidence. There is no proof that the daughters of Peterkin died intestate and without issue. They may have had issue without being married, and in such case the issue, though illegitimate, would have been the heir at law. There [**12]  is no evidence as to when these children died. This prayer does not raise the question which survived, Peterkin or his wife. There is no evidence that Benjamin Spencer died intestate. Again it could not be granted, because it takes no notice of "Bold Venture." It supposes that the plaintiffs could recover in spite of "Bold Venture," which is directly in the teeth of the decision in 6 Gill.

The second prayer could not be granted, because it calls upon the jury to say that if there was no descent the plaintiffs could recover, whereas there might have been a devise of the land in question. An escheat cannot be proved by proving that there are no parties claiming by descent.

Reverdy Johnson on the same side.

1st. As to the true interpretation of the acts of 1745 and 1773: What are the rights a proprietor gets where his land borders on a navigable river? The first right such riparian owner has is a right of navigation and of fishery. As to fishery, he has the exclusive right to draw his net to his own shore. He has no exclusive right to navigate, though he has to start his vessels from his own land. But there is another right belonging to such properties, and that is the [**13]  right of alluvion. Now what is this right? It is the right to become the owner of all the land which may accrue by gradual accretion; but such increase must be gradual. The reason of this right is, because he is liable to lose by the washing away of his lands. It must be gradually acquired, it cannot be made: if the sea subsides at once, the land uncovered does not belong to the proprietors of the original tract, because in such case there is not found the essential ingredient of gradual accretion--so if an island suddenly springs up. If this be so, there is then no impropriety in granting fast land to one and land covered by water to another. But this is not now an open question. The State may grant land covered by water outside of the fast land. The opinion in 1 Gill, 512, by Judge Dorsey, is sustained by the case of Brown vs. Kennedy, 5 H. & J., 202, 204, 208, 209. The same doctrine is advanced in 11 G. & J., 358, by Justice Stephens. The law of this State then is, that the grant of "Mountenay's Neck" does not include the land covered by "Bold Venture," and gave no title to land south of its southernmost line. Independent then of the act of 1745, if the owners of "Mountenay's Neck"  [**14]  had undertaken to fill up the land included within the lines of "Bold Venture," by driving down piles, or anything else, the owner of "Bold Venture" could have brought ejectment and stopped them. Apart from the escheat of "Bold Venture," then, the case is clear of difficulty.

Up to 1745, then, the patentee of "Bold Venture" was the owner of all the land within its lines. If the State had the right to grant this patent, it is inconsistent that the owners of "Mountenay's Neck" should be entitled to any part of it. But it is admitted for the sake of the argument, that this rule is qualified so far as to prohibit the grant of land in "Bold Venture," so as to interfere with the alluvial rights of "Mountenay's Neck." This would only give the first grantee the same right as against the second grantee that he would have as against the State. But what is this right of alluvion?--it is not the right to improve. The act of 1745 gave the riparian owners the right to have what they would not have by the right of alluvion. All the owners of these water lots under this act had equally the right to improve, including the owners of "Bold Venture." The land here has not been made by any alluvion,  [**15]  but by artificial causes. The same facts exist here as in Brown vs. Kennedy. The act of 1745 has nothing to do with the alluvial rights belonging to "Mountenay's Neck"--it is entirely separate and distinct. The State had the right to grant the land, and having granted "Bold Venture" in 1695, she could not, in 1745, by any power of grant, authorise the owner of "Mountenay's Neck" to come within the lines of "Bold Venture."

Again, the doctrine of 11 G. & J. is not applicable to this case. In that case the defendants claimed title by virtue of "Fell's Prospect," and claimed as riparian owners also. But at the time the act of 1745 was passed, "Fell's Prospect" was not granted, and this was the weakness of the defendants' case. The court did not, in that case, decide, that in reference to the dates of the patents themselves, the right to improve belonged to the eldest title, they only decide, that as "Fell's Prospect" was not then granted, the right to improve belonged to "Mountenay's Neck." 11 G. & J., 359. The act of 1745 was a quasi grant, and attached to each of the water lots which the State had previously granted by patent. If the act of 1773 had not passed, the owner of "Mountenay's [**16]  Neck" could lay no claim to this property; they only had it by that act. They do not get this right by seniority of patent by virtue of that act, because it then, for the first time, brings "Mountenay's Neck" into Baltimore city, but at the same time "Fell's Prospect" was brought in. Suppose these two tracts were granted by the same patent, with the power to make this improvement, would one part of it have any right over that of another? But the fact that they were granted at different times makes no difference. The right here was a right in the nature of a franchise attaching to the lands, first given by the act of 1773. At that time we were then holders of water lots as well as were the holders of "Mountenay's Neck." The right vested eo instanti in the proprietors of the two tracts.

Dulany for the appellants, in reply.

The merits of the case are not affected by the little discrepancies and omissions in the prayers, and these points ought to be discouraged, and this is in strict conformity to the act of 1825, ch. 117. 11 G. & J., 361. The objection comes too late, and moreover, there is sufficient in the record to submit the question of possession, independent of the deeds.  [**17]  

It is said, that as the act of 1773 was passed after both patents of "Fell's Prospect" and "Mountenay's Neck," it threw the right of improvement upon both equally. This puts the parties in conflict as to their rights, and the rule then is to give it to the eldest patent. This was the rule laid down in 11 G. & J., in analogy to the seniority of patents when granted of the same land. 1 Gill, 510. 1 Gill, 506, 507. The effect of an escheat is to draw with it all the rights which belonged to the original patent.

The points involved in this case have been decided in the case of 2 H. & McH., 246. The fact that the lands in that case were within in the reserves does not vary the case, for the act of 1782, ch. 38, appropriates these reserves to such purposes as the General Assembly should thereafter direct. This reserve was therefore dedicated by the act of 1773 to the improvements specified by that act. 2 Md. Ch. Decisions, 495.

The ground of the decision in 1 Gill and 6 Gill is upon the effect of the outstanding title of "Bold Venture." The construction of the act of 1745 and 1773 was unquestionably erroneous. The doctrine of estoppel does not apply to a legislative act. The [**18]  words of the act of 1745 are in the future tense as well as in the past.  

JUDGES:
The cause was argued before ECCLESTON, MASON and TUCK, J.  

OPINIONBY:
TUCK 

OPINION:

 [*186]  TUCK, J., delivered the opinion of this court.
As the present controversy grows out of the same title as that set up in the case of Hammond vs. Inloes, (ante, 138,) and the suit was defended in the same manner, reference is made to the opinion in that case for a statement of what we consider to have been settled by the former decisions of this court, and by which some of the questions argued on this appeal are also to be determined.
It is sufficiently shown by the letters of administration on the estate of John and Mary Oulton, that they were dead in the year 1709. 1 Greenlf. on Ev., sec. 550. He devised "Bold Venture" to Mary Oulton in fee. As evidence that this tract escheated after her death, the plaintiffs relied on the patent of "Rogers' Inspection," granted in 1759, which was also in evidence in the case of Wilson vs. Inloes, 6 Gill, and on the first trial of Casey vs. Inloes, 1 Gill.
The plaintiffs offered three prayers and the defendants offered three, identical with those presented [**19]  in 6 Gill, and the case of Hammond vs. Inloes, at this term. If the plaintiffs' case has not been materially improved, the judgment of this court must be the same in both cases.
Objection has been made on the part of the appellees to the title of the plaintiffs, independently of any defence on their part founded upon the grant of "Bold Venture." They have also contended, that as the title of the plaintiffs commenced 

 [*187]  in 1773 by the legislative grant of that year, (as now insisted by them,) no priority of franchise or right to improve could be claimed by one riparian owner over another, both being such at the passage of that act; and that as the addition to Baltimore town, then made, first included the water line of "Mountenay" and that of "Fell's Prospect," under which the defendants claim, both of which had been previously granted, the owners of these tracts must be considered as entitled, cotemporaneously, to the "immunities and privileges" conferred by that act; that is, the right to improve, mentioned in the act of 1745: and that "Mountenay" is in no better situation in that respect than "Fell's Prospect." We deem it unnecessary to express [**20]  any opinion upon these points, because we think that the interests of the parties require that the case should be disposed of by a decision of the others.
The first prayer of the plaintiffs was defective, in not submitting to the jury to find, whether the addition to Baltimore was made as located on the plats. If the act of 1745, at the time of its passage, did not affect the property in controversy, because it had not then become a part of Baltimore, the act of 1773 conferred no privileges to the riparian owners, unless it appeared that the addition was made in pursuance of that act. According to the prayer, the jury might have found for the plaintiffs, even if the addition had never been made.
But this prayer is defective in not taking notice of the title of "Bold Venture," for the reasons assigned by us in Hammond vs. Inloes, to which reference is made.
The second prayer asserts that "Bold Venture" escheated before 1745. The evidence shows that Mary Oulton died in 1709. But it does not submit to the jury whether she died intestate as well as without heirs. But apart from this defect in the frame of the prayer, we think that the evidence was not sufficient [**21]  to warrant the finding of an escheat before 1745. The law does not presume that a person dies without heirs. The absence of any claim of title by those representing her is not to be taken against the defendants, when we consider the nature of the property, as we have heretofore said, in Hammond's 

 [*188]  case. If "Rogers' Inspection" be relied on as proof of escheat, we must not forget that the Court of Appeals, in 1 Gill 510, decided that a patent is evidence of escheat at the date of the warrant and not before. The other evidence, in our opinion, does not show that the property had returned to the State at an earlier period than April 1759, the date of the warrant for "Rogers' Inspection."
The third prayer, predicated on the same proof, refers the escheat of "Bold Venture" to 1773, and asserts that it was sufficient to authorise the jury to find that fact as of that time. We do not think that the further lapse of twenty-eight years from the time of Mary Oulton's death will, under the circumstances of this case, produce that result. And if "Rogers' Inspection" is supposed to be evidence of the fact, as of the date of the warrant, it must [**22]  be taken altogether, as well against, as for, the party offering it in evidence. And from it it may fairly be inferred, that the State had, previously to the act of 1773, granted all of "Bold Venture;" for that patent grants to Rogers a certain number of acres, "clear of elder surveys," which must mean elder surveys of "Bold Venture," because Rogers was entitled by his warrant to take up the whole of that tract as escheat. This statement in the patent we regard as evidence, upon the authority of this court in 1 Gill 492, where an ancient certificate of the surveyor was received as evidence, that at that time the premises were in possession of the persons named therein as being in possession.
We are of opinion that this case is not materially different from Hammond vs. Inloes; and for the reasons assigned and upon the authorities cited in both cases, we approve of the refusal by the court below to grant the plaintiffs' prayers, and of their instructions to the jury as prayed on the part of the defendants.
Judgment affirmed with costs. 

156 of 187 DOCUMENTS 

WILLIAM J. ALBERT, and EMILY J. ALBERT his wife, vs. THE MAYOR AND CITY COUNCIL OF BALTIMORE, SAMUEL JONES, and the SAVINGS BANK OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 Md. 159; 1852 Md. LEXIS 18 

DECEMBER, 1852, Decided 

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

This appeal was taken by the appellants from a decree of the chancellor, dismissing their bill, passed on the 16th of July, 1849. The bill was filed on the 29th of May 1847, and its averments, together with those of the several answers, and the facts and proofs in the case, will be found fully stated in the arguments of counsel, and in the opinion of this court, delivered by LE GRAND, C. J., and also in the opinion of the chancellor, Johnson, accompanying his decree dismissing the bill, reported in 1st Md. Ch. Decisions, 407.  

DISPOSITION:
Bill dismissed as to the city of Baltimore, and decree reversed so far as the savings bank is concerned.  

HEADNOTES:

Upon a suit in chancery to procure a division of the residuary estate of a testator among the legatees in the will, a decree was passed, directing the executors to hold, as trustees, $ 6,300 of six per cent. stock, of the city of Baltimore, in trust, for the sole and separate use of a daughter of the testator, and one of the cestui que trusts in the will. HELD:

That this decree was not, by force of the act of 1785, chap. 72, sec. 13, notice to the city of the will of the testator, and of the interests of the cestui que trusts under it, as ascertained by the decree.

The mere fact that a bank permitted stock, which stood in the name of a testator, to be transferred by the executor, furnishes no ground of complaint against the bank, though it turns out that the executor was, by the act of transfer, converting the property to his own use.

A party dealing with an executor is not bound to inquire into his object nor liable for his misapplication of the money, for an executor may sell or raise money in the regular execution of his duty.

But if a party dealing with an executor, has, at the time, reasonable ground for believing that he intended to misapply the money, or is in the very transaction applying it to his own private use, the party so dealing is responsible to the persons injured.

The facts that stock on the books of a corporation once stood in the name of certain persons, "as executors," and was afterwards, by their act, transferred to themselves "as trustees," in connection with the privilege to Mrs. A. to draw the dividends until the authority should be withdrawn; are wholly inadequate to affect the corporation with notice and render it liable for the loss resulting to the cestui que trusts from the act of allowing the trustees to transfer the stock.

The mere designation of the parties in whose name the stock stood, as "trustees," without a specification of the trust, or description of the cestui que trust, could not give the corporation any information, nor make it liable to restore the stock which was transferred by the trustees and applied to their own use.

A trustee transferred stock, standing on the books of a corporation, in his name, as "trustee," to a bank, of which he was a director, as security for a loan of money made to him by said bank. The bank denied all knowledge of the trust, and the transfer was in the usual form of proceeding in such transactions. HELD: That independent of the provisions of its charter, the bank would have a perfect title to the stock so obtained.

But the charter of the bank prohibited the loan of any of its funds to any director. HELD: That the transfer of this stock for the security of such a loan, vested in the bank no title to the stock, and that it was liable to the parties injured by such transfer.

A loan to a director, where the bank has no power to make it, could not be recovered by the bank, and such loan, and any security taken for it, would be void.

The manifest design of the legislature was, to prevent any of the directors of the bank from applying to their use its deposits; and a director cannot defeat this design by applying for a loan under a name different from his own, but which at the time of his application was known to indicate a commercial house, of which he was a partner.

It is the duty of courts of justice to effectuate the purposes of the legislature, and not thwart them.

A loan made by such a bank to a corporation, of which one of its directors was a stockholder, would not be void.

When a person becomes a partner in a private mercantile firm, he does not lose his individuality, as he does, so far as the transactions of the corporation are concerned, when he becomes a stockholder.

Though the contract has been executed, and though the trustee might be estopped from denying the legality of the transaction, yet it does not follow that the rights of his cestui que trust are thereby concluded.

The law imputes a knowledge to the bank, that in making the loan it was acting in violation of its charter, and if any injury has resulted to third parties from its illegal acts, it should be held liable.

A corporation has no power to do what it is inhibited by its charter from doing, and if, in violation of its charter, injury should be done to the property of a third person, it is liable.

The transfer, by the trustee, was a wrong on the rights of the cestui que trusts, and if the bank, in violation of its charter, aided him in the perpetration of the fraud, there is no reason, either of public policy, or in law, which should exempt it from responsibility for the injury occasioned by its co-operation.  

COUNSEL:
Reverdy Johnson, Jr., and J. Mason Campbell, for the appellants, contended:

1st. That the decree of the 6th of November 1841, by force of the act of 1785, ch. 72, sec. 13, was notice to the city of the will of Talbot Jones, and of the cestui que trusts to the stock in question. Ferebee and Procton, 2 Devereux and Battles, 449.

2nd. That if the decree was not notice, yet, that the stock having originally stood upon the books of the corporation, in the names of Samuel and Andrew D. Jones, as executors of [**2]  Talbot Jones, the city was thereby affected with notice of the will of Talbot Jones, and of the cestui que trusts named in it; and that the transfer of the 16th of October 1845, to which it assented, was a breach of trust. Lowrey vs. The Commercial and Farmers Bank of Baltimore, Circuit Court, U. S., 1848. 1 Story's Equity, sec. 400 2 Vernon, 384, Ferras vs. Cherry. Ambler, 311, Mertins vs. Jollifee. 2 Vernon, 662, Draper's Co. vs. Yardley. 4 Madd., 190, Keane vs. Roberts.

3d. That having notice of the will, and having, from January 1842 to October 1845, paid dividends on this stock to Mrs. Albert, the city had notice that she was the cestui que trust under said will, of the stock in question; and that the transfer of October 1845 was a breach of trust. 5 Gill, 336, Farmers and Mechanics Bank, vs. Wayman and Stockett. Hardy vs. Summers, 10 G. & J., 316.

4th. That although from November 1841, to October 1845, the stock stood in the name of Samuel Jones and Andrew D. Jones, as trustees, yet during all that time the dividends were paid upon the order of those persons, as executors, and the-city thus having notice that they, as executors, were interested in the stock, was in [**3]  default in permitting a transfer without the order of the orphans court, under the act of 1843, ch. 304, and is liable for the consequences in this suit. Lowrey vs. The Commercial and Farmers Bank of Baltimore, Circuit Court, U. S., 1848.

5th. That the fact that the stock stood in the names of Samuel and Andrew D. Jones, as trustees, on the books of the city, was sufficient notice to it of the trust affecting the stock, even if it did not know who the cestui que trust was, and it was at its peril that it permitted a transfer without inquiry, whether it was made bona fide for the purpose of the trust. Walsh vs. Stille, 2 Parson's Select Eq. Cases, 23. Mechanics Bank vs. Seton, 1 Pet., 299. Christmas vs. Mitchell, 3 Ire. Ch. Rep., 535. Stockdale vs. South Sea Co., Barnardiston Chy. Rep., 363. 1 Murphy, N. C. Rep., 223, Maples vs. Medlin.

6th. That if actual notice of the cestui que trust be requisite the city had it in the order for the payment of the dividends to Mrs. Albert, and her receipt of them for years, and is liable to her.

7th. That the very fact of the transfer to the Savings Bank, one of the great money lenders of Baltimore, of stock which had stood so many [**4]  years in the names of fiduciaries, and the dividends of which had been enjoyed all that time by a married woman, under a will which gave no power of disposition of the stock to her or to the trustees, was, of itself, a suspicious circumstance, and enough to have put the city, which was cognizant of the will, upon inquiry, and the consequences of its failure to make the inquiry ought to be visited upon it. Price vs. McDonald, 1 Maryland Rep., 403. Murray vs. Ballou, 1 Johns. Ch. Rep., 575, 577, 581. Hill vs. Simpson, 7 Vez., 170. De Bouchout vs. Goldsmid, 5 Vez., 211.

8th. The knowledge of Jones, that the stock in question was trust property, and that he was misappropriating it, was, under the circumstances of this case, the knowledge of the Savings Bank, and it had notice otherwise. Porter vs. Bank of Rutland, 19 Verm., 410. Story on Agency, 131, 132. Paley on Agency, 262. Angel and Ames on Corporations, 241. 2 Hill, 451, Bank of U. S. vs. Davis.

9th. It being proved that the stock in question was transferred to the Savings Bank, the bank cannot hold it without making out a good title thereto, as against the complainants, which it cannot do, as the contract under which it [**5]  took the stock and holds the proceeds thereof was in violation of its charter. Act of 1818, ch. 93. 7 Wend., 31, Life Ins. Co. vs. Mechanics Fire Co. Dandridge Case, 8 G. & J., 248. 2 Spence's Eq. Juris., 733, Equal Equity. 2 Story's Eq., sec. 1502, note. 11 Seargeant and Rawle, 164.

Archer Ropes and William Schley for the Mayor and City Council of Baltimore, after stating that it was clear from the pleadings and the evidence, that the officers of the city of Baltimore had no knowledge of the trusts of the will of Talbot Jones, and no knowledge of the decree in chancery of the 6th November 1841; and that Mr. Albert had knowledge of the transfers, if not before, at least soon after they were made, and that no complaint was made nor any notice given to the city of non-acquiescence until the filing of this bill, insisted:

1st. That Samuel Jones and Andrew D. Jones had legal power to make the transfers, notwithstanding the certificates were issued to them as "trustees," and that the register was not only not bound, but had no right to inquire, on what consideration or for what purposes the transfers were made. Davis vs. Bank of England, 9 Eng. C. L. Rep., 444. Lewin on Trusts,  [**6]  86, 88, and cases in notes there cited. Bank of England vs. Moffatt, 3 Bro. Ch. Cases, 260. Hartga vs. Bank of England, 3 Vez., 55. Bank of England vs. Parson, 5 Vez., 665. Bank of England vs. Lunn, 15 Vez., 569. Field vs. Schuffler, 7 Johns. Ch. Rep., 150, and cases cited by the chancellor in his opinion in that case.

2nd. Even if it would have been the duty of the officers of the city, in case of knowledge or suspicion on their part, that the transfers were made in violation of their duty as trustees, and that their act amounted to a breach of trust, yet there is no proof of such knowledge or suspicion, or of any facts from which either can be inferred.

3rd. As the officers of the corporation had no notice in fact of the provisions of the decree, of the 6th of November 1841, or even of its existence, its existence is not constructive notice of its contents. 1 Story's Eq. Juris., secs. 406, 408. Worsley vs. Earl of Scarborough, 3 Atk., 392.

4th. There was nothing in the order in favor of Mrs. Albert, which gave notice to the officers of the city that the stock was held in trust for her benefit; on the contrary, the terms of the order exclude the idea of any right whatever [**7]  on her part in the corpus, and as the order is revocable at their mere pleasure, it is, in its terms, inconsistent with the notion of a vested right on her part, even in the interest, and the very fact that the order thus limited is signed by them as executors and not as trustees, (if not imputed to mere accident,) would negative any inference, that she was interested in the trust, or that her rights as executors extended beyond the right to the accruing interest during their pleasure. The order here referred to is as follows: "We hereby authorise and empower Mrs. Emily J. Albert, or order, to draw the interest on six thousand and three hundred dollars of city of Baltimore six per cent. corporation stock, standing in our names as trustees until this power is withdrawn." Signed-- "Samuel Jones, Jr., Andrew D. Jones, executors." And on the back thereof is the following endorsement: "Baltimore, December 10th, 1841, pay to the order of William J. Albert." Signed--"Emily J. Albert."

5th. There is enough shown to justify the inference of previous consent to the transfers, or subsequent acquiescence on the part of the complainants. If not, yet the omission to give prompt notice of the [**8]  alleged breach of trust was gross laches, and should produce the same result as positive assent. Lewin on Trusts, 641. Walker vs. Symonds, 3 Swanston, 80, and notes there. Brice vs. Stokes, 11 Vez., 326.

Samuel J. Donaldson and Reverdy Johnson, Sen., for the Savings Bank of Baltimore, contended:

1st. That by the transfer of the stock of the city of Baltimore, by Samuel Jones and Andrew D. Jones, the bank became the legal owner of the stock and was not bound to inquire into the regularity of said transfer, as the bank had no knowledge of said stock having been held by the said Jones as trustees for any other person. 7 G. & J., 306. 5 Gill, 356. 9 Eng. C. L. Rep., 444. 7 Johns. Ch. Rep., 150. 2 Atk., 121. 17 Vez., 152.

2nd. That making a loan on the certificates of the city authorities of their indebtedness to said bank, to the firm of Talbot Jones & Co., there was no violation of the charter of said bank, although Samuel Jones was a director of said bank, and also a member of said firm, the bank believing that he was not the sole member of said firm.

3rd. That if said loan should be construed to be a violation of the charter of said bank, it cannot be drawn in question [**9]  by the complainants in this proceeding, as they could have no greater right than Jones, who could not recover the stock without paying the debt.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and TUCK, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*165]  LE GRAND, C. J., delivered the opinion of the court.
It appears from the proceedings in this case, that Talbot Jones, a citizen of Baltimore, in the year 1834, died seized and possessed of a considerable estate; that he made a will and appointed his two sons, Samuel and Andrew D. Jones, as his executors, and that among the objects of his bounty was his daughter Emily, one of the complainants.
The bill states, that by virtue of a decree of the high court of chancery, passed on the 6th November 1841, in a suit instituted to procure a division of the residuary estate of Talbot 

 [*166]  Jones among the legatees designated in his will, it was ordered that $ 6300 of six per cent. stock of the city of Baltimore should be set apart and held by Samuel Jones, Jr., and Andrew D. Jones, as trustees, in trust, for the sole and separate use of Emily J. Albert.
The bill alleges, that this decree was made known to the proper officer of the corporation [**10]  of Baltimore city, and, in pursuance of said decree, the stock was entered on the city's books in the name of Samuel and Andrew D. Jones, as trustees, and so remained until the 16th October 1845, when the trustees transferred it to the Savings Bank of Baltimore; that at the time of the transfer, the bank knew the stock stood on the books of the city, in the name of Samuel and Andrew D. Jones, as trustees, and if any consideration passed for the transfer, it was a loan made by the bank of part of its deposits to Samuel Jones, in his individual name, or by his mercantile style of Talbot Jones & Co., which was known to the bank to be his mercantile style, and it was also aware at that time he had no partner in the business carried on in the name of Talbot Jones & Co. It charges, that at the time of the loans, Jones, to whom they were made, was a director in the Savings Bank, and that they were made in violation of its charter, which prohibits loans to any of its directors. The death of Andrew and the insolvency of Samuel Jones is alleged, and decree prayed, entitling the surviving trustee to $ 6300 of six per cent. city stock, for the use of the complainant, Emily J. Albert; that the [**11]  transfer to the Savings Bank be declared void, and to pass no title, and the city and bank be decreed to refund all the dividends that may have accrued on the stock since the 16th October 1845.
Both the city and the bank deny all knowledge of the contents of the will of Talbot Jones, and of the decree of the court of chancery, and the bank, in addition, denies all knowlege of the fact, that Samuel Jones traded without a partner, under the style and name of Talbot Jones & Co.
The above summary of the principal, averments of the bill and answers, is sufficiently full to present the questions this court is called upon to consider and decide.

 [*167]  It appears from the proceedings, that the stock, which is the subject of the controversy, did not belong to the estate of Talbot Jones at the time of his decease, but that it was subsequently purchased by the executors, and stood on the city books in their name as such, until it was transferred by them, as executors, to themselves, as trustees. On the 10th of December 1841, Samuel Jones and Andrew D. Jones, as executors, authorised Emily J. Albert, or order, to draw the interest on the stock standing in their names as trustees [**12]  until the power should be withdrawn, and, on the same day, she directed the same to be paid to her husband, one of the complainants.
On this state of facts, it is contended, the city is responsible for the misapplication of the private estate of Mrs. Albert. This supposition rests on the hypothesis, that the decree of the 6th of November 1841, by force of the act of 1785, chap. 72, sec. 13, was notice to the city of the will of Talbot Jones, and the interests of cestui que trusts under it, as ascertained by the decree; or, on the idea, that as the stock having originally stood upon the books in the names of Andrew and Samuel Jones, as executors, the city was, by force of that fact, affected with notice of the will and of the cestui que trusts named in it, and that the transfer of the 16th of October 1845, to which it assented, was a breach of trust.
We are of opinion, that the section of the act of 1785 is not available in this case for the purpose for which it has been cited.
In support of the proposition, that the city is responsible for the misappropriation of the stock by Samuel Jones, the counsel for the appellants cited many authorities. We do not deem it necessary [**13]  to enter into an examination of them, because the principles which they annouce had been very clearly evolved by the learned Chief Justice of the United States, in an opinion pronounced by him in a case, in many particulars, like the one now before this court. We allude to the decision in the case of Lowrey vs. The Commercial and Farmers Bank of Baltimore, and others, to be found reported in the 3rd vol. of the Bankers Magazine, page 201.

 [*168]  The principles recognized by the court in that case seem to us to be founded in sound policy, and fully sustained by the authorities; and we therefore adopt them, so far as they are applicable to the case before us.
It was a case growing out of a breach of trust on the part of an executor, the will and executor being the same to which reference is had in this suit. In that case, a certain number of shares of bank stock belonging to the estate of Talbot Jones, were transferred by the executor, Samuel Jones, to another bank, as security for a loan which he had procured for his own use.
The learned court held the particular circumstances of that case sufficient to affect the bank on whose books the stock stood, with all the consequences [**14]  of notice of the trust, and, therefore, whilst the transferee took a good title, the bank, through the negligence of whose officers the fraud was permitted to be perpetrated, was held responsible for the misapplication of the stock.
In the case before us, however, we are unable to perceive any circumstances which affect the city with such notice of the trust, or with the purposes of Jones in making the transfer, so as to render it liable to a decree for restitution.
In the case to which we have already referred, the court say: "Undoubtedly, the mere act of permitting this stock to be transferred by one of the executors, furnishes no ground for complaint against the bank, although it turns out that this executor was, by the act of transfer, converting the property to his own use. For an executor may sell or raise money on the property of the deceased, in the regular execution of his duty, and the party dealing with him is not bound to inquire into his object, nor liable for his misapplication of the money. Such is the doctrine in the English courts, and would seem to have been the law of this State previous to the act of Assembly of December session 1843, ch. 304, and the transaction [**15]  now before us took place before that act went into operation. But it is equally clear, that if a party dealing with an executor has, at the time, reasonable ground for believing that 

 [*169]  he intended to misapply the money, or is in the very transaction applying it to his own private use, the party so dealing is responsible to the persons injured." For this doctrine the court refer to the cases collected and commented on in the cases of McLeod vs. Drummond, 17 Vezey 152, and Field vs. Schiefflin, 7 John. Ch. Rep. 150.
These being the principles which must govern the decision of the question as to the liability of the city, the next inquiry is, are there any circumstances in the case before us which furnished reasonable ground to the officer of the city to suspect that Jones was about to commit a breach of trust, by appropriating the city stock to his own private use?
If any exist, they are to be found in the record entries; and they are, that the stock once was in the name of Samuel and Andrew Jones, as executors, and afterwards, by their act, transferred to them as trustees; these, in connection with the privilege to Mrs. Albert to draw [**16]  the dividends until the authority should be withdrawn, constitute all the facts on which the presumption of reasonable grounds for knowledge, or suspicion of the purposes of Jones, can be placed. We think them wholly inadequate to sustain the theory of the appellant. The register of the city--the officer charged with the custody of the records of the public stock of the city--expressly declares, he had no knowledge that the transfers of the stock were made to the two Jones' as trustees, because of a decree of the court of chancery; and that it was, and had been, the uniform practice of the office, to transfer stock standing in the name of trustees on the endorsement of such trustees.
We have seen, that the mere act of permitting the executors to transfer the stock, could furnish no ground of complaint against the city, and the question, therefore, is, could any arise out of the mere act of allowing the trustees to transfer? The same doctrine is applicable to both cases, for there is no difference in principle between them. We attach no importance to the authority given to Mrs. Albert, to take the dividends. By its very terms it was revocable at the pleasure of the parties who [**17]  gave it. And the authority to her to take the 

 [*170]  dividends, was as well calculated to arouse the suspicions of the register of the city as to its propriety, as the transfer to the Savings Bank, to suggest the purpose of Jones to apply the stock to his own uses. The mere designation of the parties as trustees, without a specification of the trust, or designation of the cestui que trust, could not possibly give the city officer any information, and had he made inquiry in regard to the object and purposes of the trust, there was no one to whom he could with propriety apply but to the trustees themselves, for the entry on his books gave him no clue whatever. A reference to the will of Talbot Jones would have given no information on the subject, for it was silent in regard to the particular stock in question; in fact, it was purchased by the executors subsequently to his death. For these reasons we concur in opinion with the chancellor, that there was not such knowledge on the part of the city of the designs of Samuel Jones, or such neglect of duty on the part of its officers, as to make it liable to restore the stock or its equivalent in value.
The next question is, as to [**18]  the responsibility of the Savings Bank? Independently of the provisions of its charter, we are clear in the opinion, the circumstances under which it obtained the stock would have given it a perfect title. As is very justly remarked by the court, in the case of Lowrey vs. The Commercial Bank, "A transfer of stock cannot be likened to an ordinary conveyance of real or personal property. The instrument transferring the title is not delivered to the party. *** The party to whom it is delivered, rarely, if ever, sees the entry, and relies altogether upon the certificate of the proper officer, stating that he is entitled to so many shares." In the case before the court, the bank denies, explicitly, all knowledge of the trust, and there was nothing in the manner of the transfer different from the usual course of proceeding in such transactions, which are of hourly occurrence in a large commercial city like Baltimore, where stocks are the subjects of sale and of hypothecation.
But the real difficulty in the case of the bank grows out of its charter. The second section of the act of 1818, chapter 

 [*171]  93, provides, that the "corporation shall not be authorised to make any bills [**19]  or notes in the nature or description of bank notes, or to loan any part of the funds deposited to any director of said corporation."
At the time of the loans to Samuel Jones, by the bank, and the hypothecation by him of the city stock, he was a director of the bank, and the question arises, whether the transactions had with him touching the stock in question, vested in the corporation, under its charter, any title to the stock?
It cannot be denied, that a loan to a director could not be recovered, the bank having no power to make it. Such loan and any security taken for it, would be void. 3 Wendell 574. But it is said, the loans were not made to a director, but to a firm of which he was a member, and that, to give such a construction to the charter of the bank as would inhibit it from loaning any portion of its deposits, to a company, of which one of its directors might chance to be a member, would be productive of consequences of an alarming character. However this may be, we do not feel ourselves called upon to disregard what we conceive to be the clearly expressed purpose of the legislature. Its policy, in this particular, is as much the law for our government,  [**20]  as it is for that of the corporation which is the creature of its power. We cannot disguise from ourselves the manifest purpose of the legislature, to prevent any of the directors of the bank from applying to their use its deposits, and if we were to sanction the doctrine, that any director could avail himself of the advantages of loans by procuring them in the name of a firm instead of his individual name, we should defeat the very object which the legislature had in view when it authorised the establishment of the bank. No better case could be adduced to show the unsoundness of the construction contended for on behalf of the bank, than the one now before the court. It is admitted on all sides, that Samuel Jones, as such, could not, under the charter of the bank, obtain a loan of any of its deposits; and yet, if the views of counsel be correct, he could obtain it by applying for the loan under a name different from 

 [*172]  his own, but which, at the time of his application, should be known to indicate a commercial house, of which he was a partner, if not the only one constituting it. Such a state of things cannot receive the sanction of a court of justice, whose duty it is to [**21]  effectuate the purposes of the legislature, and not to thwart them. But it is urged, such a construction as we have given to the charter would render void any loan which might be made by the bank to a corporation, of which one of its directors might be a stockholder. Such a consequence by no means follows from what we have said. The distinction between a private mercantile firm and a corporation is obvious, and exists in this: that when a person becomes a partner in the transactions of a commercial business he does not lose his individuality, whilst he does, so far as the transactions of the corporation are concerned, when he becomes a stockholder. "A corporation," says Chancellor Kent, 2 Vol. Com. 266, "is a franchise possessed by one or more individuals, who subsist as a body politic, under a special denomination, and are vested, by the policy of the law, with the capacity of perpetual succession, and of acting in several respects, however numerous the association may be, as a single individual."
But it is urged, that conceding the bank had no power, under its charter, to make the loans to Samuel Jones, and to receive as security for the same an hypothecation of the stock, yet,  [**22]  inasmuch as the contract has been executed, it is now too late to object. To this reasoning we cannot assent. It is true, Jones might be estopped from denying the legality of the transaction, but it does not therefore follow, that the rights of his cestui que trust are also concluded by what has been done.
If what the bank did was illegal, no valid defence can be deduced from it against the party who has been injured by its acts. The bank ought to have known--and the law imputed such knowledge to it--when it was making the contract, that it was acting in violation of its charter, and if any injury accrued to a third party from its acts, in justice, it should be held liable. Any other view would sanction the 

 [*173]  doctrine, that a creature of the law, with but limited powers, by an usurpation of power, and in defiance of the plain inhibition of the legislature, may enable a fraudulent person to dispose of the property of a third person, without being answerable for so doing. What Jones did, was a wrong on the rights of the appellants, and if the bank, in contempt of the limitation imposed upon it by its charter, aided him in the perpetration of the fraud, there is no reason,  [**23]  either of public policy, or in law, which should exempt it from responsibility for the injury occasioned by its co-operation. To announce any other doctrine, would be to proclaim a perfect immunity to the bank to assist in the infliction of wrong, provided all knowledge of its unauthorised acts be kept from the party to be injured, until the injustice should be complete.
We hold, that a corporation has no power to do what it is inhibited by its charter from doing, and if, in violation of it, injury should be done to the property of a third party, it is liable. There can be no hardship in such a rule. All that is necessary for it to do, to avoid liability, is to confine itself within the limits prescribed by the law which gives it existence, and defines and regulates the extent and exercise of its delegated powers.
We concur with the chancellor in opinion, in so far as his decree has reference to the city of Baltimore, but dissent from that portion of it which exempts the Savings Bank from liability to complainants for the amount of the stock sold. We will sign a decree in conformity with these views.
Bill dismissed as to the city of Baltimore, and decree reversed so far as the  [**24]   Savings Bank is concerned. 

157 of 187 DOCUMENTS 

NEGROES JERRY, ANTHONY, and others, vs. JEREMIAH TOWNSHEND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 Md. 274; 1852 Md. LEXIS 26 

DECEMBER, 1852, Decided 

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

This was a petition for freedom, filed by the appellants on the 9th of October 1847, in Prince George's county court, at that time forming part of the first judicial district. Upon the suggestion of the appellants, supported by the affidavit of their counsel, that they could not have a fair and impartial trial in that county, that court removed the cause to Anne Arundel county court, which was at that time a part of the third judicial district, for trial. On motion of the defendant the latter court remanded the cause to Prince George's county court, on the ground, that the removal ought to have been made to the court of a county within the first judicial district. From the order thus remanding the cause, this appeal was taken.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

The act of 1849, ch. 518, authorising the removal of any suit or action at law to the county court of any adjoining judicial district, for trial, is constitutional and valid.

The proviso to the second section of the act of 1804, ch. 55, "that such further remedy may be provided by law in the premises as the legislature shall, from time to time, direct and enact," conferred upon the legislature the power to regulate at will the subject of removals.

The second and third sections of the act of 1804, ch. 55, are constitutional provisions for the removal of civil and criminal cases, but their provisos confer upon the legislature the power further to regulate the subject. Until the legislature exercises such power these sections are the law to govern and limit the courts in all cases of removal.

The case of the State vs. Dashiell, 6 H. & J., 268, is a decision denying the right of the legislature to curtail the powers of the courts as conferred by the constitution, but is silent as to the right of the legislature to enlarge those powers.

The object of all laws for the removal of cases is to promote the ends of justice, by getting rid of the influence of local prejudice. It is a common law right belonging to our courts, and as such, can be exercised by them in all cases, where not controlled or modified by our constitutional or statutory enactments.

The case of a petition for freedom is not only within the reason of the law, but is embraced within the meaning of the terms, "suit or action at law." 

COUNSEL:
Alexander for the appellants. The question in this case is one of importance, as involving a construction of a part of the old constitution. The appellants are negroes, petitioning for freedom, and upon their suggestion their cause was removed from a county in one judicial district to an adjoining county in another judicial district, and the question is, could such a removal [**2]  be made?

This removal is expressly authorised by the act of 1849, ch. 518, and then the question recurs, is this a constitutional act? Unless expressly or by necessary implication restrained, the legislature had the power to pass the law. The act of 1804, ch. 55, sec. 2, is not an express prohibition upon the legislature. It also expressly provides, that the legislature may make such other and further remedies in the premises as they may think proper. The "premises" here meant, are the removal of cases. The object to be attained is a fair trial before an impartial jury. The prejudice which it is the object of this act to avoid, may exist in the entire district, and hence the provision, that the legislature may in their discretion authorise a removal to an adjoining district.

The acts of 1806, ch. 90, sec. 9, 1810, ch. 63, 1819, ch. 49, 1836, ch. 269, 1838, ch. 245, are all acts passed under this proviso in the act of 1804, ch. 55. They are further remedies-- legislative interpretations of the constitution in this particular. In the case of Davis vs. The State, 3 H. & J., 154, there was a removal from the court of oyer and terminer to Anne Arundel county. In 8 Gill, State [**3]  vs. Price, there was a removal from Baltimore city court to Anne Arundel county court. The case of Anderson vs. Garret, 9 Gill, 128, decides the constitutionality of the act of 1810, ch. 63. Issues from the orphans court may be removed from one county to another in an adjoining judicial district. Townshend vs. Townshend, 9 Gill, 506.

A petition for freedom is a suit or action at law, 3 H. & J., 158.

Thos. F. Bowie for the appellee. None of the acts referred to have any reference to this case, except the act of 1849, and this is the first time that the constitutionality of any of these acts has been argued in this court. The act of 1806, ch. 90, sec. 9, gives the power to remove to an adjoining county within the same judicial district. This simply extends the vicinage, still confining it to the same judicial district. The constitutionality of the act of 1810, ch. 63, has never been argued, and the present case does not come under it.

The act of 1819, ch. 140, giving powers to this court in sending back cases under a procedendo, is also inapplicable to the case at bar. It applies solely to the appellate court, and has nothing to do with the county courts. The act of 1836,  [**4]  ch. 269, relates only to issues of fact from the orphans court or from chancery, and has no application to the removal of suits or actions at law.

Petitions for freedom are not actions at law. A slave cannot bring an action at law, but assuming that he could, the removal must still be made to a county within the same judicial district. All this power of removal is in derogation of the common law, which says, that the trial shall be had in the vicinage where the fact occurred. What would be the use of putting into the constitution a restriction of that power if it can be altered, enlarged or changed at the mere whim or caprice of the legislature? All the cases of removal under the acts of 1836, 1838 and 1849, have passed sub silentio. They are all clearly unconstitutional.

The new constitution, art. 4, sec. 28, confines removals to the same judicial circuit.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and MASON, J.  

OPINIONBY:
MASON 

OPINION:

 [*277]  MASON, J., delivered the opinion of the court.
The proceedings in this case were instituted in Prince George's county court, and removed from that county, upon suggestion and affidavit, to Anne Arundel county court, the [**5]  latter county being in a different judicial district from the former.
Upon motion, Anne Arundel county court refused to hear the case, and ordered it to be remanded to Prince George's county. From this order the present appeal was taken.
The only questions arising out of this appeal are, first, the constitutionality of the act of 1849, chap. 518, under which this removal was made, and secondly, whether the present proceeding be such a "suit or action at law," as was contemplated by that act.
It is alleged, that the act of 1849 is in contravention of that part of the old constitution embraced in the act of 1804, chap. 55, sec. 2, which requires removals to be made "within the district." Independent of any legislative or judicial interpretation of this constitutional provision, we find no difficulty in pronouncing it to be in perfect harmony with the act of 1849. We will not pause to discuss the question whether the provision in the constitution, (if it stood alone, unqualified by the proviso,) directing how removals were to be made, is or is not a virtual denial of all power over the subject by the 

 [*278]  legislature. But for the proviso, "that such further remedy may be [**6]  provided by law in the premises as the legislature shall from time to time direct and enact," the argument of the appellee's counsel on this point would be unanswerable. The court however regard the proviso as designed to confer on the legislature the power to regulate at will the subject of removals. If this be not its meaning, we are at a loss to conjecture what other purpose it could have had in view. Besides, without referring to particular instances, we can safely assert that both the courts and the legislature have uniformly acted upon the same assumption, and recognised this power as vested in the legislature.
We regard the second and third sections of the act of 1804, ch. 55, as a constitutional provision for the removal of civil and criminal cases, but which, by their provisos, confer upon the legislature the power further to regulate the subject. Until such power is exercised by the legislature, the provisions of the constitution referred to, are to be regarded as the law to govern and limit the courts in all such cases.
The case of the State vs. Dashiell, 6 Har. & John. 268, does not affect the present question. That was a decision denying the right of the [**7]  legislature to curtail the powers of the court as conferred by the constitution, but is silent upon the subject of the right conferred upon the legislature, by the provisos, to enlarge those powers.
The remaining question is, does the act of 1849 embrace the present case? It is contended, that a petition for freedom is neither "a suit" nor "an action at law."
All laws for the removal of causes from one vicinage to another, were passed for the purpose of promoting the ends of justice, by getting rid of the influence of some local prejudice which might be supposed to operate detrimentally to the interests and rights of one or the other of the parties to the suit. This is a common law right belonging to our courts, and as such can be exercised by them in all cases, when not modified or controlled by our constitutional or statutory enactments.  Price vs. The State, 8 Gill 295. The reason of 

 [*279]  the law would apply with equal force to a case like the present, as to one strictly and technically embraced within the term "action at law." The plaintiff in the present suit, of all the classes in our community, belongs to that which is the most defenceless.  [**8]  Our laws give him a standing in court to prosecute his petition for freedom. An unimpeachable attorney of the court makes oath that he cannot have justice done him in his own county. Under such circumstances, would it not be a mockery of justice to refuse him his application to have the cause removed? Would it not involve a contradiction of terms to say that he shall have the benefit of our courts of justice, but at the same time that his case shall be tried in a county where he cannot have a fair and impartial trial? This view is not only supported by reason and justice, but by an authority directly in point. In the case of Queen vs. Neale, 3 Har. & John. 158, the court decide, that although the negro petitioning for freedom, could not himself make the affidavit necessary to lay the foundation for a removal of his case, yet, "upon other proper and competent evidence that an impartial trial cannot be had in the county in which the petition is pending," the removal must take place. In other words, a petition for freedom is embraced within the meaning of the terms "suit or action at law."
Judgment reversed and procedendo awarded. 

158 of 187 DOCUMENTS 

THOMAS C. GREEN and PHILIP TRAMMELL, vs. MICHAEL TRIEBER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 Md. 11; 1852 Md. LEXIS 47 

DECEMBER, 1852, Decided 

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

On the 4th of January 1849, an attachment on warrant was issued out of Allegany county court, at the instance of Michael Trieber, the appellee, to affect the goods, chattels, lands, tenements and credits, of one John Gamber, a non resident debtor. This attachment was levied by the sheriff upon certain personal property, consisting of two wagons, twelve mules, and twelve sets of harness for the same, and upon the petition of the attaching creditor, under the act of 1839, ch. 39, Judge Wiesel, one of the judges of said court, on the 15th of January 1849, passed an order for the sale of said property, which was accordingly sold by the sheriff, on the 23rd of the same month, for $ 823.38 1/3, on a credit of ninety days, and the proceeds brought into court to await the event of the suit.

At April term 1849 of said county court, the appellants, Green and Trammell, upon motion, came in as claimants, and being allowed to appear, pleaded:--1st, that the goods and chattels attached, were not the property of said Gamber when the attachment was issued and levied, but were the property of said claimants, as trustees under a certain deed of trust executed [**2]  to them by said Gamber, on the 1st of June 1848. 2nd, that the proceeds of sale ought not to be paid over to Trieber, by order of the court or otherwise, because the goods belonged to said claimants, as trustees as aforesaid, and not to said Gamber, when the attachment issued and the levy and sale were made. 3rd, non assumpsit for Gamber. The appellee traversed the first and second pleas, and issues were joined on them.

1st Exception. The plaintiff to support the issues on his part, offered the attachment papers, consisting of the account on which the attachment issued, showing that Gamber was indebted to him in the sum of $ 182.91, the usual affidavit, &c. The claimants then offered in evidence the following deed of trust, executed to them by Gamber, on the 1st of June 1848:

"This indenture, made this 1st day of June, A. D., 1848, between John Gamber, of the county of Hampshire and State of Virginia, of the first part; Thomas C. Green and Philip Trammell, of the same county and State, of the second part, and Susan J. Gamber, J. C. Manning and S. S. Lee, merchants and partners, trading under the name and firm of Manning and Lee; Adolphus W. Peabody and Edward L. Fant, merchants [**3]  and partners, trading under the name and firm of Peabody and Company; Foley and Woodsides, merchants and partners, trading under that name and firm; William Montgomery, J. R. Annan and Samuel D. Brady, of the third part. Whereas the said John Gamber is justly indebted to the said several parties of the third part in large sums of money, as well as can be ascertained at this time as follows: to Susan J. Gamber in the sum of $ 9053.27; to Manning and Lee in the sum of $ 8200; to Peabody and Company in two several sums, the one of $ 500 and the other of $ 1510; to Foley and Woodside in the sum of $ 153.19; to William Montgomery in the sum of $ 195; to J. R. Annan in the sum of $ 205; to Samuel D. Brady in the sum of $ 489.56, due by three bonds, payable by John Gamber to the said Brady, in which Susan J. Gamber is surety, falling due in six, twelve and eighteen months from their date. And whereas the said John Gamber is desirous to secure the payment of the aforesaid several sums of money to the said Brady, and to such of the parties of the third part other than said Brady who shall sign this deed."

The deed then proceeds to convey certain real and leasehold property, situated in [**4]  said county of Hampshire, which is particularly described by references to the several deeds by which the same was conveyed to the said Gamber; also various articles of personal property specifically enumerated, among which were six four-horse wagons, twenty-three mules and harness for the same, fifty-two tons of iron, &c., a stock of merchandise, an inventory of which was appended to the deed, "the same being all the personal property of John Gamber, in the county and State aforesaid," unto the "said Thomas C. Green and Philip Trammell, their heirs, executors, administrators and assigns, upon trust nevertheless for the following purposes and uses, and none other; that is to say, that the said trustees shall permit the said John Gamber to hold possession of all the said property, real, personal and mixed, to take the rents, issues and profits thereof, and to possess and enjoy the use and benefit thereof, and the said incorporeal hereditaments, paying no rent therefor until a sale shall have been effected under the provisions of this deed, the said John Gamber having first executed a bond, with approved security, to the said trustees, that he will deliver up to them on the day of sale,  [**5]  or when thereunto required, for the purpose of making a sale under this deed, all the property so left in his possession, which bond the said trustees shall hold for the benefit of Samuel D. Brady, and such other parties of the third part, other than the said Brady, who shall sign this deed, and in like manner as the other property hereby conveyed is held. And upon this further trust, that the said trustees shall, as soon as they conveniently can, sell at private sale the aforesaid fifty-two tons of iron, or thereabouts, or so much thereof as there may be, and apply the proceeds thereof as hereinafter directed, as to the distribution of the proceeds arising from the sale of the other property, real, personal and mixed, hereby conveyed; and upon this further trust, that if the said John Gamber, his executors, administrators and assigns, shall pay to the said Samuel D. Brady his debt, in three equal semi-annual instalments, and to such of the parties of the third part, other than the said Samuel D. Brady, who shall sign this deed, their debts, in four equal semi-annual instalments from the date of this deed, and all the costs of executing this trust, including a commission of two and-a-half [**6]  per cent. on the amount of the debt due to the said Samuel D. Brady, and of the debts due to such of the parties of the third part, other than said Brady, who shall sign this deed, to the said trustees: then the said trustees, so soon after the default in the payment of any of said instalments or of said costs, including said commission, as they may think proper, or any of the parties of the third part may require, shall and will sell on the premises, to the highest bidder at public auction, for cash, the said estate, real, personal and mixed, and all the rights and privileges, easements and incorporeal hereditaments, or such part thereof as may be deemed necessary, after having fixed the time of sale at their discretion, and given notice thereof and of the place of sale for six weeks, in one newspaper published at Cumberland and another published at Baltimore city, in the State of Maryland, and out of the moneys arising from such sale, as well public as private, after satisfying the charges thereof and all other expenses attending the premises, including a commission of five per cent. on the amount of said sales to the said trustees, shall first pay to the said Peabody and Company [**7]  the debt of $ 500, aforesaid, and then pay over to the said Samuel D. Brady, and to such of the parties of the third part, other than said Brady, who shall sign this deed, the amount of their respective debts aforesaid, including the other debt of $ 1510 to Peabody and Company, and the balance, if any, shall pay over to the said John Gamber, his executors, heirs and assigns; but if the proceeds of said sales be insufficient for the purpose above mentioned, then and in that case the said trustees, after having first satisfied the charges of said sale and all costs attending the premises, including said commission of five per cent. to the said trustees, shall pay first the debt of $ 500, with interest, to Peabody and Company, and then the residue shall distribute ratably to said Samuel D. Brady and to such parties of the third part, other than Samuel D. Brady, who shall sign this deed, in such manner that the said distributees shall receive the same per centum on their respective debts and interests, including any payments which may then have been made to them by said Gamber of the first part thereon, the said second debt of Peabody and Company of $ 1510, and interest thereon, being [**8]  included in said pro rata distribution. And in case the said John Gamber shall fully pay off and satisfy the debt and interest due to the said Samuel D. Brady, and the several debts and interest due to such parties of the third part, other than the said Brady, who shall sign this deed, and all costs and charges attending the premises, including a commission of two and-a-half per cent. on said debts and interest to said trustees, before a sale shall have taken place under the provisions of this deed, then this indenture to be void, else to remain in full force and virtue. And such parties of the third part, other than Samuel D. Brady, whose names are hereto subscribed, do hereby covenant and agree, to and with said John Gamber, to extend to him a credit of six, twelve, eighteen and twenty-four months on their several debts aforesaid, divided into four equal instalments, provided that a public sale shall not sooner take place under the provisions of this deed." This deed was signed by Gamber, the grantor, Green and Trammell, the trustees, Susan J. Gamber, and Fant, Annan, Montgomery, Peabody, Manning and Lee, of the third part.

The claimants further proved, that the property attached [**9]  by the sheriff in this case was part of the property embraced in said deed of trust, and that said Gamber, at the time of the execution of the said deed, was a citizen and resident of Hampshire county, Virginia, and was such citizen when the attachment issued, and that said property, when seized under this attachment, had been sent over to Maryland by the said trustees for a temporary purpose.

The plaintiff then proved, that on the 1st of June 1848, when said deed was executed, the said Gamber was wholly unable to pay his debts and was totally insolvent, that said deed conveyed all the property, of every description, which said Gamber owned and possessed, and prayed the court to instruct the jury, that if they believed the evidence so adduced, the said deed is fraudulent and void as against creditors; which instruction the court, (MARTIN, C. J., and MARSHALL, A. J.,) gave, upon the ground that the said deed is to be regarded as a deed of trust, and that it is void at common law and under the statute of 13th Elizabeth, chap. 5, on account of the reservations therein contained in favor of the grantor. To this direction to the jury the claimants excepted.

2nd Exception. The [**10]  plaintiff then proved, that Susan J. Gamber, mentioned in said deed as one of the parties of the third part, was the wife of the grantor, and then prayed the court to instruct the jury, that if they believe this evidence, then said deed is also fraudulent and void, because of the large sum of money thereby secured to the said Susan, no marriage articles or marriage settlement, or other evidence, being adduced to show that she could in law stand in the relation of creditor to her own husband, which direction the court gave and the claimants excepted. This decision of the court below was made pro forma, by consent of parties, in order that the opinion of the Court of Appeals might be expressed upon the question raised by this exception.

The verdict and judgment being in favor of the plaintiff, the claimants appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

A debtor in insolvent circumstances executed a conveyance, in which, after reciting his indebtedness to certain creditors, parties of the third part, named in the deed, and his desire to pay the debt of one of them, and such of the others named as should sign the deed, he conveyed all his property to trustees in trust: -- 1st, to permit the grantor to possess and enjoy all said property, paying no rent therefor, until a sale be made according to the deed, he giving bond, with security, to deliver the property on the day of sale, said bond to be held on the trusts declared in reference to the property. 2nd, if the grantor should not pay one of said creditors his debt in three semi-annual instalments, and the other parties signing the deed their debts in four such instalments, and all costs, &c., the trustees should sell the property, and, (if the proceeds proved sufficient,) pay two of said creditors, and such others named in the deed as should sign the same, and the balance, if any, to pay over to the grantor. 3rd, if the proceeds be insufficient for this purpose, then to pay a certain claim of one of said creditors, and distribute the residue ratably to another creditor, and to such of the others named in the deed as might sign the same. 4th, the deed to be void, if the grantor should pay all the debts mentioned in it, with costs, commissions, &c; and 5th, the creditors named in and signing the deed, covenanted with the grantor to extend to him a credit of six, twelve, eighteen and twenty-four months on their claims, subject to the power to sell in case default be made in paying these instalments as they fell due. There was no provision stipulating for releases from the creditors who might sign, and no time limited within which they were to signify their assent to the deed by signing it. HELD, that this deed was fraudulent and void as against creditors.

If this deed be regarded as an assignment for the payment of his creditors on terms proposed by the grantor, it is void, because, instead of passing the property over to the trustees for the benefit of the creditors, it is retained by the debtor himself, for six and perhaps twenty-four months, and for so long a time as the trustees may deem proper, provided none of the assenting creditors require the sale to be made.

A debtor cannot rightfully put his property beyond the reach of his creditors, and turn them over for their debts to the rents and profits uncertain in quantity and fluctuating in value, nor has he a right to transfer his property and substitute his own bond in its place.

The law makes a debtor's property liable for his debts, and if the bond be as good as the property, it does not affect the question, because the effect of the arrangement is to change the property and frustrate the recovery of just demands by pursuing it.

If this deed be regarded as a security in the nature of a mortgage, it is equally void, because the clause containing the equity of redemption, secures to the debtor no right he would not otherwise possess, and cannot give effect to an instrument that would be void but for its insertion.

But the right to redeem in this case is not to be exercised as to all the debts named in the deed, but only as to such of the creditors as may assent to its provisions, the effect of which is to gain time by coercing the creditors who may come in, and to hinder and delay those who may refuse the terms of the deed as well as those not provided for.

The law does not tolerate any hindrance in assignments for the benefit of creditors, beyond what may be reasonable and necessary to the purposes of the trust; if no time be named within which the assent must be given, or if the time be unreasonable, the deed is void.

Reservations for the support of the insolvent debtor and his family, must be treated like any other reservation of his property for his own use, and all such are void as against creditors.

These assignments must be made in good faith, for the purpose of paying debts, and without any intent to lock up the property from other creditors for the use of the debtor: a conveyance by the owner to another in trust for himself, is in effect a conveyance to himself, and the grantor in such a deed can have but one motive, and that must be to defeat or hinder the claims of others.

This court will hereafter follow the decisions in the cases of McCall vs. Hinkley, 4 Gill, 128, and Kettlewell vs. Stewart, 8 Gill, 472, sustaining the validity of assignments, exacting releases from creditors who may assent to the deed, and embracing all the grantor's property, without reservations to himself.

If the assignment contain but a part of the property of the debtor, or if before the full payment of the entire claims of creditors, any part of the property assigned be reserved to the debtor, such an assignment is fraudulent and void.

An assignment for the benefit of creditors, exacting releases as the condition on which they may participate in the fund, must transfer all the debtor's estate.

The principle on which such assignments are sustained, is, that the statute of Elizabeth does not operate on one's time and future labor, but only devotes his property to the payment of his debts, and prevents that only from being placed beyond the reach of his creditors by fraudulent conveyances.

The case of Estwick vs. Caillaud, 5 Term Rep., 420, was the case of a debtor securing a portion of his creditors the full payment of their claims ultimately, and leaving other property to pay other debts, and is manifestly distinguishable from the deed in this case, and is not applicable to it.

The case of Kevan vs. Branch, 1 Grattan, 274, sustaining a deed containing reservations to the grantor, similar to those of the deed in this case, is opposed to nearly all the cases in which the subject has been discussed, and this court cannot acknowledge its authority.

The case of Wilkes vs. Ferris, 5 Johns. Rep., 335, was decided on the authority of Estwick vs. Caillaud, 5 Term Rep., 420, and has been followed by scarcely any subsequent case in New York, while most of them have adopted the opposite doctrine.

Later decisions in New York have gone so far in vacating deeds containing such reservations, that the decision of the Court of Errors, in the case of Murray vs. Riggs, 15 Johns., 571, may be considered as justly exploded.

A debtor cannot make a reservation, at the expense of his creditors, of any part of his income or property for his own benefit, nor can he stipulate for any advantage to himself or family.

Where a deed reserves to the grantor the power of making leases, or of revoking or altering the trusts, or of charging the estate, or gives the trustee power to change the order of preferences, it is void.

There is a distinction between conveyances of the whole or a part of the debtor's property, as a security for particular debts, on an agreement with the creditors for further time, and voluntary conveyances by debtors for the payment of their debts. The character and design of the instruments are not the same; in the former, the object is to gain time by agreement with the creditor, in which it is consistent with the nature of the transaction that the debtor shall keep possession, in the latter, satisfaction to the extent of the whole property is proposed, and the law presumes them to be executed with reference to the benefit of the creditors.

The reservation to the grantor of the surplus that may remain after paying the assenting creditors, will avoid the assignment.

When the court can see that the deed is fraudulent on its face, there is nothing for the jury to pass upon; if the law imputes to the grantor a design in making the deed, no evidence of intention can change the presumption; if the law declares such deeds to be void, it is no matter how the question of fraud in fact may stand.

The written laws of a foreign State or country should be proved by the law itself as written, and the common customary or unwritten law by witnesses acquainted with the law.  

COUNSEL:
Geo. A. Pearre for the appellants, contended:

1st. The deed in this case is valid. It is simply a deed of mortgage, by way of trust to third parties, for the benefit of creditors. It contains no provisions requiring creditors to release, and the only point in which it differs from a common mortgage, is the covenant for the extension of [**11]  time to the grantor. The difference between a deed of trust and a mortgage is, that in the former no redemption is contemplated by the grantor, whereas, in the latter, a redemption is always contemplated by the mortgagor. Here a redemption is clearly contemplated, and the clause by which possession is to be retained by the mortgagor does not alter the nature of the deed, for such clauses, as well as a power to sell, are usually inserted in such instruments, both in this country and in England. 4 Kent's Com., 146. Coote on Mortgages, 325. 6 G. & J., 219. The mortgagor is not liable to the mortgagee for rents and profits. This is his privilege implied from the assent of the mortgagee to his possession, in the absence of a covenant for possession. Coote on Mort., 332. 4 Kent's Com., 164.

Any creditor not a party to this deed could have recovered his debt against the debtor, hence the reservation of the rents and profits could not be in fraud of creditors under the statute of Elizabeth.

In Virginia a deed of trust reserving possession to the grantor, even where a release was required, is good, though no redemption by the grantor is contemplated by it. 1 Grattan, 274. 10 Leigh,  [**12]  186. 6 Randolph, 285.

The execution of such a mortgage as this on personal property, though it may hinder creditors from levying their fi. fas., has never yet been regarded as such a hinderance, as will render the deed fraudulent under the statute of Elizabeth, for the creditor still has his remedy in equity. Alcock vs. Harris, 10 G. & J., 226.

A debtor in failing circumstances may prefer one creditor to another; he has a legal, equitable and moral right to do this. 8 Leigh, 426, 427. 6 G. & J., 205. 7 Peters, 614. 11 Wheat., 98.

Where a deed expressly declares that no one who does not execute it and sign the release, shall receive the benefit thereof, a creditor standing out may still in equity receive the benefit of the surplus. 8 Leigh, 294. 7 Peters, 615. The provision in this deed, that in case the proceeds should not be sufficient to pay all, to pay Peabody, clearly shows that no fraud was intended.

I shall now notice briefly some of the authorities cited by the counsel on the other side in their brief. In 2 Kent's Com., 534, 535, the author is speaking of deeds requiring releases, and containing reservations to the grantor out of the proceeds of sale, and [**13]  the cases cited by him are not simply cases where the possession, and the rents and profits are reserved as here, but cases where, out of the proceeds of sale, large sums are reserved to the grantor--he evidently means onerous, durable and beneficial reservations in favor of the grantor.

In the case of Murray vs. Riggs, 2 Johns. Ch. Rep., 580, the absence of a clause requiring a release rendered the deed valid, although there was an enormous reservation to the grantors. In 5 Cowen, 554, there was a reservation of a like nature out of the proceeds of sale, of more than $ 2000 for the benefit of the grantor and his family; this deed also contained a power of revocation. The deed in 14 Johns., 464, required a release, contained a power of revocation and appointment to other uses, and was to be void if any one of the creditors should refuse to sign it. The case in 1 Cranch, 309, only decides that absolute sales are not within the statute and is entirely foreign to the present case. See 3 Cranch, 87, 88.

The deed in 11 Wendell, 187, required a release from a certain class of creditors, in order that they might obtain the preference therein provided for, and the question here first [**14]  arose and was decided, that the mere requiring of a release was sufficient to avoid the deed. This is the strongest case to be found in the books.

The Court of Appeals in this State have not been able to agree upon the bold proposition decided in 11 Wendell. They have decided it both ways, but the question does not arise in this case, because no release is required.

2nd. Susan Gamber is spoken of in the deed as a creditor of the grantor. The deed upon its face does not show that she is the wife grantor, it merely provides for her debt as for that of any other creditor of the mortgagor. The consideration for a deed of trust need not be a legal claim, for an equitable claim will do. But the prayer concedes that the relation of debtor and creditor may exist between husband and wife-- this concession is all we need, for it concedes a sufficient consideration for the deed. This court must decide upon the deed as it stands, and in order to sustain the prayer in the second exception, the court must establish the bold, naked, proposition, that a wife never can be, either at law or in equity, a creditor of her husband--that the relation of debtor and creditor never can exist between [**15]  them. But the authorities clearly show, that such a relation may exist and may arise after marriage. 2 Story's Eq., sec. 1373. 2 Roper on Husband and Wife. 32 Law Lib., 79, 81, (marg.) 1 Gill, 1.

3rd. Though the deed may be void as to the debt of the wife, (it being a specified sum,) it is still good as to the rest. 5 Term Rep., 424, Estwick vs. Caillaud. 6 G. & J., 209, which approves the case of Estwick vs. Caillaud. Chitty on Contracts, 536, 537. 9 Pick., 176. 2 Johns. Ch. Rep., 565, 580. 8 Leigh, 293. There is no difference between an instrument void under the common law and under the statute of Elizabeth. 43 Law Lib., 284. Smith's Leading Cases. The statute of Elizabeth is common law in Maryland. The deed is good, though it does not convey all the debtor's property. 4 Meason, 218, Halsey vs. Whitney.

Wm. Price for the appellee.

1st. The question is, is this a fraudulent deed as to creditors? and 1st, is it void by reason of the reservations to the grantor himself? and 2nd, is it void by reason of the benefit to the wife of the grantor?

If the proceeds should be sufficient to satisfy the preferred creditors, and there should be a balance, it was to be paid over,  [**16]  with the rent, to the grantor.

This deed cannot be called a mortgage--it is a conveyance, by a man totally insolvent, of all the property he possesses, upon conditions to his creditors, saying to them in effect, if you do not sign you get nothing, if you do not agree to all the terms of the instrument you get nothing. The general creditors are entirely shut out.

The reservation that avoids a deed need not be of something permanent and durable; if it be a part of the income, it is sufficient to avoid the deed. 2 Kent's Com., 535, notes (c) and (d.)

The condition of creditors in this State, requires that there should be some protection extended to them. Imprisonment for debt has been abolished, the insolvent system has been abrogated, and hereafter all deeds must be sustained or avoided under the statute of Elizabeth.

The whole subject as to the validity or invalidity of such deeds, has been fully and most ably argued, in the cases of Albert and Wife, vs. Winn and Ross, 7 Gill, 446, and Kettlewell vs. Stewart, 8 Gill, 472, and this court must now decide between those two decisions.

2nd. It is not disclosed upon the face of the deed that Susan Gamber was the wife [**17]  of the grantor. This fact was proved by evidence aliunde, and being so proved, the onus of proof was thrown upon the other parties, to show how she became a creditor. Marriage is an absolute gift of all the wife's personal property to the husband, she cannot contract, grant, covenant, or do any other act in law. This being the general principle, and we having shown this woman to be the wife of the grantor in this deed, it became necessary for the appellants to show that under some special law she was a creditor.

3rd. The deed, if declared fraudulent and void, is killed at once, and entirely, it cannot be dead in part and effectual in part.

Thos. J. McKaig on the same side. The statute of Elizabeth applies in Maryland, and if a deed is intended to delay or hinder creditors, it is void by this statute. This deed introduces the wife of the grantor simply as Susan J. Gamber, this is an indication that he intended to delay and defraud his creditors. 8 Leigh, 415.

It is a deed of trust and not a mortgage. Coote on Mort. 69 Law Lib., 50. 6 G. & J., 205, State vs. Bank of Maryland. 2 Ball and Beatty, 274. The whole question rests upon the intent of the instrument.

The presumption [**18]  was shifted when it was proved that Susan Gamber was the wife of the grantor, and the appellants then ought to have produced the exception by which a wife could become the creditor of the husband.

There was a reservation of rents and profits for at least six months, which would amount to $ 10,000, and this added to the $ 7057 secured to his wife, would be more than the grantor's creditors were to receive. This surely was a sufficient reservation to delay creditors and avoid the deed. 4 Gill, 135. Under the statute of Elizabeth, it makes no difference whether a release was required or not, provided there be some provision by which the creditors were to be delayed. 2 Pick., 129. All the creditors signing this deed were participators in the fraud, and they cannot take anything from their executing the deed.

If a deed is void in part it is void in toto. 4 Yerger, 164, 541. 3 Yerger, 502. 8 Yerger, 417. 9 Alabama, 305. 14 Johns., 554. 5 Cowen, 548. 2 Kent's Com., 535.

Giving time is delay, and if the intent was to cover up the property for the purpose of delaying creditors, the deed must be void.

Pearre in reply. The great point contended for on the other side is, that [**19]  the surplus is to be paid over to the grantor. But suppose this provision was stricken from the deed, the effect would still be the same, for the residue would go to the grantor by operation of law--it is in effect a mere resulting trust for the benefit of the grantor--it is not to be secured to him so that his creditors cannot reach it. Every creditor could pursue this balance after it came back to the hands of the grantor.

The bond given was to be held as a mere security for the delivery up of the property and for its proper use, and so far from being a badge of fraud, it is on the contrary an index of care on the part of the trustees.

It makes no difference whether the party was insolvent or not. Outside of the insolvent laws of this State, he had the perfect right to prefer one creditor to another, and no question is raised on the insolvent laws in this case and none can be. 6 G. & J., 218, 219.

It is a mistake to suppose that because the effect of an instrument is to delay creditors, it is therefore void, it must be made with a design and intent to defraud and delay creditors. 5 Term Rep., 33, shows what sort of preferences make a deed void under the statute of [**20]  Elizabeth. 2 Johns. Ch. Rep., 289. 1 Bald. C. C. Rep., 359. There must be covin or collusion participated in by both parties, in order to avoid a deed under this statute of Elizabeth. Though the grantor may have conceived the design of defrauding his creditors, yet if the grantees do not participate it will be good. The 6th sec. of 13 Elizabeth, requires both parties to concur in the illegal design. 7 Pet., 393. 4 East, 1, 13. Though the trustees may participate in the illegal design, yet the cestui que trusts will thereby be implicated and their rights affected. 11 Wheat., 78. The title of the trustees is good as to all honest cestui que trusts, and void only as to those who are fraudulent. The case in 1 Plowden, 54, depends entirely upon the doctrine of covin. 3 Coke, 78. If all the cestui que trusts had joined in the fraud or covin, the deed would have been void, because the beneficiaries were fraudulent. If these creditors had been secured by separate deeds, those only would have been void which were made in covin. The statute of Elizabeth was enacted in affirmance of the common law. 43 Law Lib., 38. Smith's Leading Cases. Twyne's Case.

If the trusts are only in favor of those [**21]  who can execute a binding covenant, and Mrs. Gamber was unable to make such a covenant, then there was no trust in her favor and the deed will stand. But the deed does not profess to provide except for those who signed it. A fraud intended but not carried into execution, does not vitiate a deed.

But it is said there is here a reservation of the income, as stated by Kent. But income means something arising from previous investments--here the grantor was obliged to work, and from his own labor procure the means of subsistence-- this is not income. In the case in 2 Pick., the deed was imperfect, being signed only by the grantor and trustee, when it was intended to be of three parts. 5 Cowen, 553.

Lastly, this deed ought to be decided upon Virginia law, for Virginia was the lex loci contractus. The question arises, not upon the validity of Trieber's debt, but upon the validity of the deed, which, if good at the place of its execution, is good everywhere. 2 Kent's Com., 458, note (b.) The lex rei sitae does not apply in such a case as this; the goods here conveyed were situated in Virginia. 3 G. & J., 244. The laws of Virginia may be proved to this court by the decisions of their [**22]  adjudged cases. 4 Philips on Evidence, 1142.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and TUCK, J.  

OPINIONBY:
TUCK 

OPINION:

 [*25]  TUCK, J., delivered the opinion of this court.
The opinion on this appeal has been delayed at the request of counsel in the case of Sangston vs. Gaither, in which some of the questions presented by this record were said to arise. The court were disposed to accede to this request, in view of the contrariety of decisions in other courts in which assignments for the benefit of creditors had been contested, and, especially, because of the embarrassing fact, that although the subject of such assignments had been three times before 

 [*26]  the Court of Appeals of Maryland, the ultimate judgment was rendered by three of the judges only, the others being of the opposite opinion, by which the question then under review was left, as it was in the first of these cases, in equilibrio. Having carefully examined the authorities referred to in both cases, with the general principles applicable to the subject, we proceed to express our views upon the exceptions in this cause.
John Gamber being indebted to the appellee, an attachment was issued [**23]  and levied on certain personal property, which had been conveyed, with other personal and a large real estate in Virginia, to the appellants, as trustees. This deed was executed in Virginia, where the grantor and the trustees resided, and where all the property then was. In the progress of the cause the appellants came in, by petition, and claimed to be the owners of the property on which the attachment had been laid, in virtue of this conveyance. The plaintiff proved his debt, that Gamber was a non-resident, that he was insolvent at the date of the deed, and that he thereby conveyed all his property. The court below decided that the deed was void as against creditors, on account of the reservations in favor of the grantor.
This conveyance recites Gamber's indebtedness to Samuel Brady, and to other parties of the third part named in the deed, and his desire to secure the payment of said debts to Brady, and to such of the other creditors named in the deed as should sign the same. The property is conveyed to the appellants in trust, for the following purposes:
1st. To permit the grantor to hold possession of all the property, real, personal and mixed, to take the rents, issues and [**24]  profits, and to possess and enjoy the use and benefits thereof, paying no rent therefor, until a sale should be effected according to the provisions of the deed, the grantor giving bond, with security, for the delivery of the property at the day of sale, which bond was to be held on the trusts declared in reference to the property.
2nd. That if the grantor should not pay to Brady, in three 

 [*27]  semi-annual payments, the debt due to him, and to such of the other parties as should sign the deed, in four semi-annual payments, the amounts due them, and all costs and commission, the trustee should sell the property, and (if the proceeds of sale proved sufficient,) pay Peabody & Co., then Brady, and such other of the parties of the third part as should sign the deed, and the balance, if any, to pay over to the grantor himself. There is no time limited within which these creditors are required to signify their assent by signing the deed.
3rd. If the proceeds of sale should prove insufficient for the above purposes, then to pay a certain claim of Peabody & Co., and to distribute the residue ratably to Brady, and such other of the creditors named in the deed as might sign the same.  [**25]  
4th. The deed to be void if Gamber should pay all the debts mentioned in the deed, with costs, commission, &c., &c.
5th. The creditors named in the deed, by signing the same, covenanted and agreed with Gamber to extend to him a credit of six, twelve, eighteen and twenty-four months on their respective claims, subject to the power to sell in case default should be made in paying these instalments as they might fall due.
It will be observed that this deed does not stipulate for releases from the creditors who might sign. In this respect it differs from the instruments which were the subjects of controversy in the cases of McCall vs. Hinkley, 4 Gill 128; Albert and Wife, vs. Winn and Ross, 7 Gill 446, and Kettlewell vs. Stewart, 8 Gill 472, to which allusion has been made. But the grantor reserves to himself the possession and enjoyment of all the property for at least six, perhaps for twenty-four months, and, indeed, for an indefinite time, if the trustees should not think proper to sell, and none of the preferred creditors should require the sale to be made. He also reserves to himself the surplus, after payment of the [**26]  claims of the assenting creditors, and of Brady, (whose assent is not required,) to the exclusion of all other creditors, who can in no event obtain any part of their claims by the provisions of 

 [*28]  the deed, and these benefits, confined as they are to such of the named creditors as might assent, are extended to them only on the condition that they will, while the debtor is using and enjoying the property, grant further time on their claims against him.
Various questions have arisen in the courts of the several States upon the construction and effect of assignments of this description. The contest, however, has been carried on, principally, between those who affirm and those who deny the validity of preferential deeds requiring releases, as one class of such instruments has been designated in this court.  8 Gill 506. With whatever force of argument or weight of authority these have been sustained, there is little difference among the authorities, as to the necessity of the debtor's conveying all his property for the benefit of his creditors. And although there are cases in which deeds, reserving a part of the property or the whole, for a limited time, for the [**27]  use of the grantor or his family, have been held to be valid, yet much the greater number of decisions have condemned them as fraudulent and void. Those in which partial assignments have been thus stigmatized, have but asserted a plain principle of justice--that a debtor, confessedly unable to pay his debts, when he asks to have his future earnings released from liability, must accompany this appeal to the humanity of his creditors, by a tender of all the property that he has, and that if he wishes to retain any portion for the benefit of himself or family, it must be done with the assent of all those who have a just and legal claim upon it; because if a debtor can rightfully coerce his creditor into releases of this kind, it must be on the principle that the statute of Elizabeth does not operate on one's time and future labor, but only devotes that which is the subject of assignment--his property--to the payment of his debts, and protects that only from being placed beyond the reach of his creditors by fraudulent conveyances; and that, therefore, while exercising his undoubted right to prefer some creditors to all the others, by paying them in full or by assigning property in [**28]  satisfaction of their claims, he may so 

 [*29]  discriminate as to protect his future earnings, provided he parts with all that he has.  5 Rawle 221.
It is not our purpose to examine the decisions on this point. The subject has been elaborately discussed in most of the States, and in none with greater ability than in the late Court of Appeals. It is much to be regretted that a difference of opinion among the judges should have left so material a question unsettled, and it is because the subject has been fully argued before us, and the counsel in both cases have suggested the importance to the public of having it settled, whether assignments, as common as those are said to have been in this State, are valid or void, for the reasons assigned in those cases, that we feel warranted in saying, that hereafter, as to deeds presenting the question which we understand to have been before the Court of Appeals, we shall follow the decisions in 4 Gill and 8 Gill. The first of these was decided in 1846, since when the same question arose in 8 Gill, and in the Circuit Court of the United States, in the case of White, Warner & Co., vs. Winn and Ross, in which Chief [**29]  Justice Taney delivered the opinion of the court, affirming the validity of the same deed which the Court of Appeals, in 7 Gill, declared to be void. These decisions have probably induced the belief, with the community and the profession, that such conveyances would thereafter be sustained, and it is not unlikely that, under this impression, much property is now held by titles of this kind. These considerations, and the state in which we find this question in Maryland, are, we think, of sufficient weight to render unnecessary a re-examination of the principles on which the doctrine adverted to has been maintained. We, therefore, content ourselves with recognising the law as declared in the two cases to which we have referred, as more conducive to the public interest, than that these decisions should now be disturbed.
The deed before us does not require releases from the assenting creditors, and it was on this ground, as we understood the appellants' counsel, that he mainly contended that it is valid; because, as he urged, most if not all such instruments 

 [*30]  which had been declared void, contained this coercive stipulation, while others have been sustained, notwithstanding [**30]  the possession of the property was reserved to the grantor. Several cases were referred to in support of these positions, and especially that of Estwick vs. Caillaud, 5 Term Rep. 420. This decision has been remarked upon in many of the cases in which the subject has been presented; efforts have been made to lessen its authority, on various grounds, and judges have sought to avoid its effect, either by denying its authority or by distinguishing it from the cases before them. See Senator Colden's opinion, in Mackie vs. Cairns, 5 Cowen 569, and Ch. J. Savage's, same case, 583. It will be found, on comparing this deed with that in 5 Term Rep., as explained by the judges in their opinions, that in terms and effect they are very different. The names of the creditors were mentioned as here, but the trust was created with the assent of the creditors themselves, and after he had offered payment, out of other property which he retained, to the creditor in whose behalf the deed was contested. It required no release from any of the creditors, it did not exclude any for dissenting, nor impose conditions or restraints of any kind upon them. It was [**31]  the case of a debtor securing a portion of his creditors for the full payment of their claims, ultimately, and leaving other property to pay other debts. This was the view taken of the case by Savage, Ch. J., in 5 Cowen 583. See 1 Hopkins 397. We do not deem this case as entitled to the authority, on the present appeal, ascribed to it by the appellants' counsel, for it is manifest that there are several stipulations in the deed of Gamber, which do not appear in that of Lord Abingdon, and which, in our opinion, render it void.
The appellants' counsel has also referred to the cases of Rose's Adm'x, vs. Burgess, 10 Leigh 186. Claytor vs. Anthony, 6 Randolph 285, and Kevan vs. Branch, 1 Grattan 274. The deed in the first of these cases was executed by an administrator, to indemnify the sureties in his official bond; and the property might, without objection, remain with the 

 [*31]  grantor until it became necessary to take it for the purposes of the trust.
In the second the deed was for personal property to secure a particular debt, with power in the trustee to sell, and did not, in any sense, partake of the character [**32]  of an assignment for the benefit of creditors.
The last of these cases, however, is very much like the one before us, as respects the reservation of the property to the grantor, and does sustain the view taken, on the part of the appellant, of this branch of the case. But there is no opinion of the court, nor statement of the grounds of the decision; under which circumstances, and being opposed by nearly all the cases in which the subject has been discussed, we cannot acknowledge its authority.
The counsel for the appellant has also relied on the case of Halsey vs. Whitney, 4 Mason 218, to show that the assignment need not transfer all the debtor's property. It was suggested at the bar that the debtor had no other property; but Judge Story did not deem it material, in that case, to introduce the fact by amendment of the pleadings. The only reason assigned by the judge is this: "But if he has other property, then the presumption of fraud is less cogent; for a debtor, conveying part only of his estate to certain privileged creditors, does not thereby necessarily impair the rights of other dissenting creditors. The argument has generally come from the other side, as repelling [**33]  any inference of fraud, such was the reasoning of Estwick vs. Caillaud, 4 Term. Rep. 420, and Wilkes vs. Ferris, 5 Johns. Rep. 335." We have shown the character of the case, in 4 Term Rep. 420, and that it does not in our opinion, apply to cases like the one before us. The case in 5 Johns. 335, also referred to by the learned judge, was decided on the authority of Estwick vs. Caillaud, and has been followed by scarcely any case in New York, since, while most of them have adopted the opposite doctrine.
It is worthy of remark, also, that Judge Story in deciding Halsey vs. Whitney, sustained a deed exacting releases from the creditors, against his own judgment, upon the authority 

 [*32]  of cases, in which it was held that the transfer of all the debtor's property is necessary to the validity of such assignments.
In the case of Riggs vs. Murray, 2 Johns. Ch. Rep. 565, Chancellor Kent pronounced against a deed which reserved to each of the insolvent grantors two thousand dollars per annum, for the support of their families, until the creditors executed releases, or until one year [**34]  after they were discharged by law, for the reason that this and other conditions were onerous and oppressive to creditors, using in his opinion (page 582,) this language: "If an insolvent debtor may make sweeping dispositions of his property to select and favorite creditors, yet loaded with such durable and beneficial provisions, for the debtor himself, and incumbered with such onerous and arbitrary conditions and penalties, it would be impossible for courts of justice to uphold credit, or to exact the punctual performance of contracts." This decree was subsequently (15 Johns. 571,) reversed by the Court of Errors. Afterwards Ch. J. Spencer, in sustaining a similar deed, (20 Johns. 447, Austin vs. Bell,) on the authority of this case, said. "We are bound by that decision," (the decree of reversal,) "whatever our private opinions may be as to its accuracy and solidity." Later decisions in the courts of New York have gone so far in vacating deeds containing such reservations to the grantor, that Chancellor Kent, in his Com., 2nd Vol., 535, note, says, that the decision of the Court of Errors, in Murray vs. Riggs, may be considered [**35]  as justly exploded.  Mackie vs. Cairns, 5 Cowen 547, was a deed reserving $ 2000 per annum for the benefit of the grantor, until he should be discharged from his debts. Colden, senator, thus states this case: "Mr. Cairns being insolvent, assigned, by several instruments, all his property to S. and L., in trust, that they should allow him out of the proceeds, or out of the rents and profits, $ 2000 a year, till he should be discharged from his debts, but the allowance was not to extend beyond four years; and upon the further trust, that the residue should be distributed among certain of his creditors." This is not very dissimilar to the deed before us, the material difference 

 [*33]  is, that here all the property, with the income and profits, is reserved to the grantor, for six, twelve, eighteen or twenty-four months, according as the debtor might or might not meet his engagements in the deed, with a reservation, after paying certain debts, of the entire residue to himself. In the one case the creditors would receive payment out of the income after deducting the $ 2000, annually; in the other they could get nothing, however large the profits might be, until [**36]  the time specified in the assignment. There was no release required, nor other provision to coerce the creditors, nor any reservation of the residue. Of that deed, however, Senator Colden said: "Here then is a conveyance by which an insolvent debtor reserves to himself, out of his property, such revenue as he sees fit, for such time as he thinks will suit his convenience; and when his creditors, who are not among those he has chosen to favor, and who are dissatisfied, obtain an execution against his estate, they find in their way a conveyance which not only hinders them from levying their debt, but secures the property, in part at least, to their debtor. If there be such a thing as natural equity; if we may ever appeal to those perceptions of right and wrong, which are independent of all learning, it seems to me that we may do so on this occasion, and cannot hesitate to decide that such a disposition of property is invalid." And Savage, Ch. J., in the same case, says, (580:) "Suppose the debtor finding himself in failing circumstances, had conveyed the whole of his property to assignees, in trust for himself, could there be a question on the subject? An insolvent will not be permitted [**37]  thus to defraud his creditors, and mock the insulted majesty of the laws. When a debtor fails, either from misfortune or folly, or from dishonest motives, his property, in moral justice, belongs to his creditors. He is permitted to prefer in payment such creditors as he pleases. This is giving him power enough, but when he appropriates the property to his own use the act becomes fraudulent." "If he may take to his own use $ 2000 a year, why not $ 5000? And if for four years, why not for ten or even twenty? To state such a proposition is a sufficient refutation. It offends the 

 [*34]  moral sense; it shocks the conscience and produces an exclamation. It is directly against the statute and cannot stand before it." See also Goodrich vs. Downs, 6 Hill 440. The Commercial and Rail Road Bank of Vicksburg made an assignment of its effects to trustees, with authority to collect all debts due, to complete the railroad, for which purpose they were authorised to borrow $ 250,000, to allow claims against the bank, and out of the proceeds, first to pay the loan, to pay the trustees $ 8000 per annum, each, and to distribute the balance ratably among creditors who should [**38]  file their claims against the bank. The Supreme Court (7 Howard 276, Bodley vs. Goodrich,) said: "Upon its face, this deed shows an intention by the bank to postpone its creditors, use the effects of the bank for the completion of the railroad, pay the trustees enormous salaries, and make no dividend among the creditors of the bank until these objects were accomplished," and declared the assignment to be void.
And the same law prevails in Virginia, whose courts sustain assignments requiring releases from creditors. In Skipwith vs. Cunningham, 8 Leigh 271, Judge Tucker says, in speaking of assignments requiring releases: "On this subject a distinction has been made in the cases, between the conveyance of the whole and the conveyance of part only of the debtor's property, upon condition that the creditors should compound and accept a part of their debts, and give releases for the residue. The former is considered admissible and valid, the latter as oppressive upon the creditors, and as fraudulent and pernicious in its tendencies. The English cases are all founded upon the concessum of the principle, that such compositions are lawful, where the [**39]  party has conveyed the whole of his property, and there is no concealment or underhand agreement with particular creditors." And in M'Cullough vs. Sommerville, 8 Leigh 415, the same court said: "There is no evidence of fraud, nothing to show an intention to withdraw the effects of the firm from the creditors. On the contrary the whole property, of every kind and description, not only of the firm, but of the individual partner, McCullough, 

 [*35]  is conveyed, thus stripping himself and the firm (so far as the grantor could,) of every atom of property, and subjecting it to the payment of the creditors named." The same doctrine is maintained in 13 La. 454, Graves vs Roy. The Watchman, Ware, 232.  5 Johns. Ch. Rep., 229. 14 Johns., 458. 6 Binny 338.  2 Pick., 129. 2 Comstock, 365. 17 Vermont, 310, 390. 6 Hill, 440.
And in Pennsylvania, where also assignments for the benefit of creditors and stipulating for releases, are held to be valid, it has been decided, that conveyances of this kind by partners in trade, must transfer all the separate [**40]  estate of the individual partners, as well as the effects of the firm.  Thomas vs. Jenks, 5 Rawle 221. Hennessy vs. Western Bank, 6 Watts and Serg't, 300. In the last of these cases it is said: "A debtor cannot make a reservation, at the expense of his creditors, of any part of his income or property, for his own benefit, nor can he stipulate for any advantage either to himself or family;" which Chancellor Kent, in his Com., 2nd Vol., 535, also states to be the result of the authorities.
And so where deeds reserved to the grantor the power of making leases, or of revoking or altering the trusts, or of charging the estate, or gave the trustees power to change the order of preferences, they have been held to be void. 2 Johns. Ch. Rep. 579, 580. Tarback vs. Marbury, 2 Vern. 510. 4 Barb., S. C. Rep. 539, Strong vs. Skinner. 9 Gill 211, Beatty vs. Davis.
And however the judges of the Court of Appeals may have differed in the cases to which allusion has been made, on the question then before them for decision, it is manifest that they sanctioned this doctrine. In 4 Gill 136, [**41]  Dorsey, J., says: "It was admitted in the discussion of this case, (and such is the principle established by a current of authorities,) that if the assignment contain but a part of the property of the debtor, or if before the full payment of the entire claims of creditors, any part of the property assigned be reserved to the debtor, such an assignment is fraudulent and void." And Magruder, J., page 158, says: "The deed, it is true, must not be so framed as to keep the property in the power of the debtor." And 

 [*36]  Frick, J., (7 Gill, 478,) says: "The assignment is conceded to be void, if there be any reservation in it for the benefit of the debtor." See also 8 Gill 502. 9 Gill 211.
We must observe the distinction between conveyances of the whole or a part of the debtor's property, as a security for particular debts, on an agreement with the creditors for further time, and voluntary conveyances by debtors for the payment of their debts; the latter the law presumes to be executed with reference to the benefit of the creditors, and not to the advantage of the debtor, further than the exaction of releases, where such a provision [**42]  is allowed without avoiding the deed. In one class the object is to gain time for the debtor by agreement with the creditor, in which it is quite consistent with the nature of the transaction that the former shall keep possession. In the other the debtor offers his property to his creditors in payment of their claims, or for distribution according to such priorities as he may prescribe. Payment being the professed object of the assignment, it must not contain any provision to defeat or hinder this purpose, beyond such reasonable delay as may be incidental and necessary to the proper execution of the trust.  Hart vs. Crane, 7 Paige, 37. 4 Wash. C. C. 235, 237.
Applying these principles to the deed under consideration, we are brought to the conclusion that the court below committed no error in condemning it as void. If it be regarded as an assignment for the payment of his creditors, on terms proposed by the grantor, it cannot be sustained, because, instead of passing the property over to the trustees for the benefit of the creditors, it is retained by the debtor himself for six, and perhaps for twenty-four months, and indeed for so long a time as [**43]  the trustees may deem proper, provided none of the assenting creditors require the sale to be made. During this time the property would be protected from process issued at the instance of the other creditors, as well those not named in the deed, as those who were named and might not accept its terms. It is not a satisfactory answer to say, that the income and products of the property would be liable, in 

 [*37]  the meantime, to be seized under such process. It does not appear what would be the character of these products, whether liable to execution or not. Besides, we are ascertaining and dealing with the intent of the party in making the deed, and not whether a remedy was or was not open to the other creditors. 4 Mason 227. A debtor cannot rightfully put his property beyond the reach of creditors, and turn them over for their debts to the rents and profits, uncertain in quantity and fluctuating in value; nor has he a right to transfer his property and substitute his own bond in its place, as in this case. The law makes one's property liable for his debts, and even if the bond should be as good as the property, this does not affect the question, because the effect of the arrangement [**44]  is to change the property, and to frustrate and defeat the recovery of just demands by pursuing it.
If it be regarded as a security in the nature of a mortgage, as was insisted on the part of the appellants, it is equally objectionable; because, if the equity of redemption relieves this deed from the imputation of fraud, we cannot perceive that it would not have the same effect in other deeds which would be fraudulent without it; and thus a clause which secures to the debtor no right that he would not otherwise possess, and which is, therefore, wholly unnecessary, would give effect to an instrument that would be void but for its insertion. But this right to redeem is to be exercised, not as to all the debts named in the deed, but, only, as to such of the creditors as may assent to its provisions. By this means, the debtor, in his efforts to retain the use of the property, seeks to coerce his creditors to sign the deed by a double motive--the security and preference offered, and the hope, which this provision is calculated to excite, that he really intended and would pay the debts from the rents and profits of the estate--and if the object of the debtor was, as we must now assume,  [**45]  to secure his creditors, he had no right to subject them to the alternative of agreeing that he should have further time, and pay by instalments prescribed by himself, as the price of the security offered, or lose all benefit of his property, and chance of being 

 [*38]  paid in that way, in case it should require the whole to satisfy those who might assent to the deed. The effect is to gain time by coercing the creditors who may come in, and to hinder and delay those who may refuse the terms of the deed, as well as those not provided for. If it be asked, why not allow a debtor craving time on security offered, to prescribe terms, as well as one who is making a general assignment, to stipulate for releases? the answer is (as before observed,) that the character and design of the instruments are not the same. In one class of these deeds satisfaction to the extent of the whole property is proposed; in the other indulgence is demanded by the debtor, and many persons would be willing to compound with their debtor, at once, for a fair proportion of the assets, and take what he can pay, who would not grant further time, stipulated by the debtor to suit himself, on an uncertain security,  [**46]  the debtor in the meantime to have the use and enjoyment of the estate, however large the profits, without applying any portion thereof to the reduction of the debts while the security may be daily depreciating. And, besides, this indulgence cannot be demanded at the option of the debtor, and on his own terms. If he may thus restrain his creditor for six months, he may as rightfully do so for as many years. The law does not tolerate any hindrance in assignments for the benefit of creditors, beyond what may be reasonable and necessary to the purposes of the trust. Thus if no time is named, as in this case, within which the assent must be given, or if the time be unreasonable, the deed cannot stand.  4 Wash. C. C. 235, 237.
The argument, that a party may be honestly endeavoring to pay his debts, and that for that purpose and to support his family, the property should be allowed to remain in his possession until default in paying the instalments, was well answered by the chancellor in 1 Hopkins 403. "It is now urged that the support of the grantor, from his own estate, is an object, which if not lawful is at least so reasonable, as to entitle these provisions to some [**47]  favor. This object is clearly illegal. The fundamental principle of law and justice, is, that all the 

 [*39]  property of an insolvent debtor, should be applied to the discharge of his debts. If the debtor may want sustenance so also may the creditor, and if one of them must suffer, the misfortune must, according to law and morals, fall on the debtor. But if it is reasonable that some moderate portion of the property of an insolvent debtor, should be allowed for his sustenance, what shall be the allowance, and by whom shall it be made? Shall the debtor, finding himself insolvent, determine both for himself and his creditors, what allowance will be reasonable or convenient for his own wants, and the period during which he shall be maintained from his own estate? Can an insolvent debtor, first set apart a portion of his estate for himself, and leave the residue for his creditors? Is it law, that every insolvent debtor in this State may, by assigning all his property in trust, secure to himself an allowance for two thousand dollars a year, or any other sum, from his own property? Reservations for the support of the insolvent debtor must be treated like any other reservations of his [**48]  property for his own use; and all such are void against creditors." These assignments must be made in good faith, for the purpose of paying debts, and without any intent to lock up the property from other creditors, for the use of the debtor. A conveyance by the owner to another in trust for himself, is in effect a conveyance to himself. Such a measure never can be necessary for any honest purpose, and the grantor, in such a deed, can, in the general course of human conduct, have but one motive, and that must be to defeat or hinder the claims of others.
There is also, in this deed, a reservation to the grantor of the surplus that might remain after paying the assenting creditors. It is unnecessary to examine this question, in this opinion, as it is presented in two aspects in the case of Sangston vs. Gaither, in which the authorities particularly applicable to this feature of the assignment are cited. We there decide that such a reservation avoids the deed.
The counsel for the appellants suggested that the circumstances attending the transaction should have been left to the jury, before whom the question of fraud could better have 

 [*40]  been inquired into. There is nothing [**49]  for that tribunal to pass upon, when the court can see that the instrument is fraudulent on its face. We are to look to the character with which the law stamps the deed, without reference to extrinsic facts as to motive. If the law imputes to the grantor a design in making the deed, no evidence of intention can change the presumption. Here is a creditor, with process in his hands, contesting this conveyance. We see that by it the debtor has attempted to place his property beyond the reach of this process, upon certain trusts in favor of himself. If the law declares such deeds to be void, it is no matter how the question of fraud in fact may stand.
It is said, also, that the laws of Virginia must govern this case, according to which the deed would be treated as a mortgage. There is no evidence before us of what the foreign law is. The mode of such proof is stated in Gardner vs. Lewis, 7 Gill 377.
From the view taken of this conveyance, under the first exception, it is unnecessary to express any opinion on the points arising under the second.
Judgment affirmed. 

159 of 187 DOCUMENTS 

WILLIAM C. GLENN vs. ISAAC ROGERS, Adm'r of JOSEPH M. ROGERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 Md. 312; 1852 Md. LEXIS 74 

DECEMBER, 1852, Decided 

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

This was an action of assumpsit, brought by the appellee, to recover money loaned by his intestate to the appellant. The plea was non assumpsit, with notice of set-off.

1st Exception. The plaintiff proved that the defendant, Glenn, purchased a mare from one Barber, for $ 250, and on the next day, by a written order, dated 20th of October 1845, requested Rogers, the plaintiff's intestate, to advance the money for him to Barber, which Rogers did. Proof was then offered by defendant tending to prove that he bought the mare from Barber with a warranty of soundness, and upon the verbal guaranty by plaintiff's intestate of this warranty by Barber. It was also proved, that defendant complained that he had been deceived by Barber, and that the mare did not turn out well, and that he intended to hold Barber liable for damages.

The defendant then proved, that after the case had been called, and while a list of the jurors was about to be furnished to the counsel, but before the jury were empannelled, he caused notice to be served on the plaintiff's counsel, to produce a note written by defendant to plaintiff's intestate, about the winter or fall [**2]  of 1846, requesting him to return a sum of money theretofore borrowed by said intestate from defendant, the amount being between fifty and sixty dollars. And then, further to lay the foundation on which to admit secondary evidence of the contents of said note, proved by a witness, who was a partner of the intestate in 1845 and 1846, that no such note was among the papers of said copartnership, that the intestate kept his private papers in a private desk, all of which were, after his decease, taken possession of by plaintiff; then further proved by plaintiff, who consented to be sworn, that he had made a general examination of the papers of his intestate for all papers of importance or value, and that he found no such paper as the one described in said notice, but he did not search particularly for such a paper, and that the same might possibly now be among his papers. And though he found the paper signed by the defendant on the 20th October 1845, he has no recollection of seeing any other paper whatever with the name of the defendant signed thereto, and that part of said intestate's papers are in Harford county, where plaintiff resides, and part are in Baltimore city. Thereupon defendant [**3]  offered to prove by a witness, that during the winter or fall of 1846, witness, at the request of defendant, carried an open note to said intestate, which contained a request from defendant, the writer thereof, that said intestate would return to defendant some money loaned by defendant to him, being in amount between fifty and sixty dollars; that said intestate read said note, and thereupon told witness to say to defendant that "he would bring it up." But the court, (LE GRAND, A. J.,) refused to allow this evidence to be given, and defendant excepted.

2nd Exception. The plaintiff asked instructions to the jury: 1st. If they find that plaintiff's intestate, at the request of defendant, paid $ 250 to Barber, being the purchase money agreed to be paid to said Barber for a certain mare sold by him to defendant, then plaintiff is entitled to recover said sum, with interest from the time it was so paid, unless they shall find that it has been since paid to the intestate, or the plaintiff, his administrator. 2nd. If they find that the order, dated October 20th, 1845, was drawn by defendant on Rogers for the amount agreed to be paid by defendant to Barber, for the purchase of a mare [**4]  sold to defendant by Barber; and that Rogers did, in pursuance of said order, pay the amount of it to Barber, and that the claim made in this cause is for that sum so paid, then plaintiff is entitled to recover, even though the jury should find that Rogers, at the time of the sale, agreed to become security for the faithful performance by Barber of his contract with defendant, said agreement not being in writing; both of which the court granted and the defendant excepted, and the verdict and judgment being against him, he appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

As to the time and place of service of notice to produce papers no precise rule can be laid down, except that it must be such as to enable the party under the known circumstances of the case to comply with the call.

Notice served when the jury to try the case was about being drawn, and it did not appear that the paper was in court, is insufficient.

A witness stated in substance that he never looked for the particular paper among those of his intestate, though he had made a general examination for such as were of value or importance, that he had found no such letter, and that it might possibly then be among the papers. HELD, that this was not sufficient evidence of the loss of the letter to admit secondary proof of its contents.

The law requires bona fide and diligent search for the paper itself in the place where it is most likely to be found.

The degree of diligence depends on the character and value of the paper, but the party relying on secondary proof must show that he has, in good faith, exhausted, in a reasonable degree, all the sources of information and means of discovery accessible to him, which the nature of the case would suggest.

Facts are sometimes proved by parol of which there is evidence in writing; if a written communication be accompanied by a verbal one to the same effect, the latter may be received as independent evidence, though not to prove the contents of the writing nor as a substitute for it.

Where no verbal message of the same import was sent, but the witness simply stated that he took a note containing a request from the writer to return a sum of money loaned, and the party to whom it was given read it and in reply told witness to say to the writer, that "he would bring it up:" HELD, that both the evidence and reply were properly rejected.

A guaranty by a third party of the vendor's warranty of the soundness of a horse, is a collateral undertaking and must be in writing, and where the party making such guaranty paid the purchase money for the horse to the vendor, at the purchaser's request, the latter cannot rely upon such parol agreement as a defence to an action at law against him by the guarantor to recover the money so paid.

Where the party appealing could not have been prejudiced by the erroneous granting of a prayer, this court will not reverse the judgment for such error.

An instruction that the plaintiff is entitled to recover upon certain stated facts, even though the jury find a certain agreement made by plaintiff with defendant, "said agreement not being in writing," is erroneous, because it assumes that the agreement was not in writing.  

COUNSEL:
Thomas G. Pratt for the appellant.

1st Exception. No particular time is established by decided cases or by elementary writers, within which such notices are required to be given. The sufficiency of the notice, in point of time, must depend upon the circumstances of each case. If a paper be in the possession of counsel at the trial table, a notice given whilst a witness is on the stand has always been held sufficient to allow the witness to speak of the contents of the paper if the party declines to produce it. In this case, except for the proof volunteered by the plaintiff, the notice would not have been in time, but it is [**5]  submitted, that this evidence was sufficient to let in the secondary proof. The general rule is, that parol proof of the contents of a written paper will not be received. The exception is, that such evidence will be received where the paper is lost or cannot be produced, and the loss or inability to produce the paper is the question for the decision of the court, upon which depends the admissibility of the parol proof. If the court should be satisfied by the preliminary evidence that the paper is lost, the secondary evidence is admissible; and if the party is prepared to prove the loss of the paper, it is all that the law requires.

In this case the defendant proved by the voluntary evidence of the plaintiff, that the papers of his intestate were all examined by him, and that the paper in question was not amongst them. The law presumes that the papers of his intestate are in the plaintiff's possession, and as he proves that this paper is not in his possession, he proves its loss sufficiently to let in secondary proof of its contents.

The plaintiff had the right to rely upon the inadequacy of the notice in point of time, but by being examined himself as to the loss of the paper,  [**6]  he has waived the right to interpose that objection, and the court below, therefore, erred in refusing to permit the proof to go to the jury.

The court also erred in the refusal, because the testimony was admissible, even if the note was in existence. There can be no doubt, that parol evidence is admissible to prove a fact by virtue of its own weight and authority, notwithstanding the existence of collateral written evidence to prove or disprove the same fact. The mere circumstance, that a written instrument exists, which may be made evidence of a particular transaction, does not exclude oral testimony either to prove or disprove the fact, unless that written instrument be by law constituted the authentic and sole medium of proving that fact. It is conceded, that where facts are required by statutory provisions to be evidenced by writing, (as for example the statute of frauds,) or where the contract itself is reduced to writing, written evidence can alone be relied on; but it is utterly denied that any rule of evidence prohibits a party from proving a fact by oral testimony, because of the existence of written evidence of the same fact. Owings vs. Wyant, 3 H. & McH., 393. Widdifield [**7]  vs. Widdifield, 2 Binney, 245. Beeler vs. Young, 3 Bibb., 520. Gratz vs. Wilson, 1 Halsted, 419. United States vs. The Jason, 1 Pet. C. C. Rep., 450. Price vs. Read, 2 H. & G., 294. Southwick vs. Hayden, 7 Cowen Rep., 335.

The message, at any rate, which was sent by the plaintiff's intestate, "that he would send it up or carry it up" should have been admitted, for that, at least, was not in writing, and was, with his other testimony, evidence to go to the jury, tending to prove an indebtedness at that time on the part of the plaintiff's intestate to the defendant.

2nd Exception. In the argument of the law of the second exception, I beg to remind the court, that defendant had offered proof to show, that plaintiff's intestate had guaranteed the vendor's warranty of the horse, and had paid for the horse at the request of defendant; that the horse was unsound; and that the suit was instituted to recover from defendant the money so paid to the vendor of the horse.

The first prayer excludes altogether from the jury the proof offered by defendant, and the second assumes the defendant's testimony to be true, but instructs the jury that the plaintiff is entitled to recover, notwithstanding [**8]  that proof, because the guaranty of the plaintiff's intestate was not in writing.

If the position of the parties were reversed--if this were a suit by the defendant against the plaintiff upon this guaranty, it might be necessary to argue the question, whether the guaranty is void under the statute of frauds? Whether it would be looked upon as the promise to pay the debt of a third party, or would be considered as an assurance to defendant, that he might rely upon the word and promise of the vendor, and which being false, would entitle the defendant to recover for any loss he might have sustained, in consequence of his relying upon such false representation?

But this is not a suit upon this guaranty; it is a suit by the administrator of the guarantor, to recover back money which the prayer concedes his estate would have been bound to pay if his agreement had been in writing. The court is familiar with the class of cases where oral agreements, void by the statute, in part performed, or admitted by the parties to have been made, have been enforced by courts of equity. Worley vs. Walling, 1 H. & J., 208.

This is the only case in which the law of the second prayer has been [**9]  attempted to be maintained. The legal proposition is, that the plaintiff is entitled to recover the money paid for the horse, because the guaranty or agreement, which, if in writing, would have compelled him to pay, was merely oral, and therefore void by the statute; that a court of equity will enforce the specific performance of an oral agreement void by the statute, if in part performed; but a court of law will permit a party who has performed his oral agreement, by paying money thereby required to be paid, to recover back the money, because he had paid in conformity with a mere oral agreement.

The attempt will be made to distinguish the case, in some way, from what I have supposed it to be, but it is impossible to contend, that the second prayer does not admit the liability of the plaintiff's intestate by the oral guaranty, and claim exemption because of its not being in writing; that is the case upon which this argument is predicated.

Coleman Yellott for the appellee.

It will be found, upon examination of the evidence, that there was not the slightest legal testimony to prove that the horse was unsound. The witness did not pretend to have any personal knowledge upon [**10]  the subject; and he only says, "I have heard William C. Glenn complain of being deceived by said William Barber, with reference to the sale of the mare; Mr. Glenn did say that he intended to hold Barber liable for the damages sustained by him." This evidence was competent only to show, that defendant held Barber liable on the contract, and that therefore the guaranty of Rogers was merely collateral. This the defendant's declarations were competent to prove; but they were not evidence to establish the fact that the mare was unsound. It is well settled, that testimony may be properly admitted for one purpose, and rejected as to others. Goodhand vs. Benton, 6 G. & J., 488. Sothoron vs. Weems, 3 G. & J., 435, 441. If we are correct in this construction of the evidence, much of the argument of the appellant's counsel must fall.

It seems to be conceded that, according to general principles, the promise or guaranty of the plaintiff's intestate, not being in writing, was void. It is, therefore, only necessary to refer, on this point, to Roberts on Frauds, 207, 208. Theobald on Principal and Surety, ch. 2 and 3. Elder vs. Warfield, 7 H. & J., 391, 396.

The only other points necessary [**11]  to notice are:--1st. There was no evidence of the loss or destruction of the note referred to, which would authorise the admission of parol evidence of its contents. The plaintiff, when examined, expressly stated, that "he did not search particularly for such a paper, and that the same might possibly now be among his papers." In the case of the State vs. Wayman, 2 G. & J., 283, 284, the court say: "This testimony is inconclusive and unsatisfactory, and leaves the mind in doubt, whether by a further search the record books sought for might not have been regained." This is the general rule in all the cases, and under it the proof of loss was not sufficient. 2nd. The notice was not sufficient, in point of time, to authorise the admission of secondary evidence. Under this head we refer to 1 Starkie on Ev., 91. Doe vs. Grey, 2 Eng. Com. Law Rep., 391. How vs. Hall, 14 East, 277. Utica Ins. Co. vs. Cadwell, 3 Wendell, 296, 230. Gorham vs. Gale, 7 Cowen, 739, 743. Fox vs. Lambson, 3 Halsted, 275, 279. Ringgold vs. Galloway, 3 H. & J., 451. State vs. Wayman, 2 G. & J., 283, 284. Divers vs. Fulton, 8 G. & J., 208. Boothe vs. Dorsey, 11 G. & J., 252. Mulliken vs. Boyce, 1 Gill, 64, 66. Some [**12]  of these authorities are to the effect, that the notice must be reasonable in point of time, in order that the party may not only have an opportunity to produce the paper, but may also, if necessary, have an opportunity of producing evidence to explain it. At least one of them, (3 Halsted, 279,) is to the effect, that the search must have been made not generally, but for the identical paper. We are sure no case can be produced to show, that a notice like this was sufficient in point of time. A portion of the plaintiff's papers were in Harford county, where he resided, and the notice was given only about one hour before the evidence was offered. 3rd. Parol evidence of the contents of the letter not being admissible, the verbal answer of Rogers, as proposed to be proved, was properly rejected. That answer was, "he would bring it up." If we are right on the two first points, then not one word could have been said as to the contents of the note. Under such circumstances the answer given was inadmissible, because calculated to mislead the jury. What was he "to bring up?" The answer could only be explained by the letter, which could not be spoken of. But even if the answer standing by itself [**13]  was evidence, still it was of such a slight and inconclusive nature, that no prejudice was done to defendant by its rejection, and this ruling of the court below is, therefore, no sufficient ground for reversing its judgment. 3 G. & J., 450. 9 G. & J., 439.  

JUDGES:
The cause was argued before ECCLESTON, MASON and TUCK, J.  

OPINIONBY:
TUCK 

OPINION:

 [*320]  TUCK, J., delivered the opinion of this court.
We are of opinion that the defendant did not lay a proper foundation for the introduction of parol proof of the contents of the letter mentioned in the first bill of exceptions. Before secondary evidence can be received the court should be satisfied that a reasonable opportunity has been afforded the opposite party to produce the original. The notice was served when the jury was about being drawn, and when the plaintiff could not have complied, in all probability, unless the paper was in court, which does not appear to have been the fact. Whether, if the paper had been in court, the notice would have been sufficient in point of time, we need not determine. "As to the time and place of the service, no precise rule can be laid down, except that it must be such as to enable the party, under the known [**14]  circumstances of the case, to comply with the call." 1 Greenl. Ev., sec. 562. 8 Gill and Johns., 208, Divers vs. Fulton.
We also think, that the evidence offered of the loss of the letter, was insufficient. The law requires a bona fide and diligent search for the paper itself, in the place where it is most likely to be found. 1 Greenl. Ev., sec. 558. 3 Cowen's Philip's Ev., 1231. 3 Halsted 275, Fox vs. Lambson. The degree of diligence will depend on the character and value of the instrument. But it must appear that the party relying upon the secondary proof has, in good faith, exhausted, in a reasonable degree, all the sources of information and means of discovery 

 [*321]  which the nature of the case would suggest, and which were accessible to him. We cannot say that this has been done in the present case. If the defendant had served timely notice on the plaintiff to produce the letter, the objection would have been obviated. Having omitted this, he relied on the evidence of the plaintiff, who consented to be sworn for this purpose, the substance of whose statement is, that he never looked for this particular paper among those of his intestate, [**15]  though he had made a general examination among them for such as were of value or importance, that he had found no such letter, and that it might possibly then be among them. If this paper were necessary to maintain the plaintiff's action it is impossible to suppose that such an examination would let in parol proof of its contents. Why should it be deemed sufficient when offered by the defendant to defeat the claim? This case is not distinguishable in principle from State vs. Wayman, 2 G. and Johns., 283, and Mulliken vs. Boyce, 1 Gill 60, in the former of which the proof of loss was said to be inconclusive and unsatisfactory, and left the mind in doubt whether by a further search the record books sought for might not have been found.
It is said, however, that the evidence of the witness was admissible, although the paper was not shown to be lost, because it was offered to prove an independent fact which need not be established by written evidence. Facts are sometimes proved by parol of which there is evidence in writing. The authorities referred to on the part of the appellant furnish examples. 2 Binney 245.  3 Bibb 520. 1 Halsted [**16]  419.  7 Cowen 335. And others are given in 1 Greenlf. on Ev. sec. 90. The rule applicable to cases like the one before us is thus stated: "If a written communication be accompanied by a verbal one, to the same effect, the latter may be received as independent evidence, though not to prove the contents of the writing, nor as a substitute for it." We do not understand that this witness carried a verbal message to the plaintiff's intestate of the same import with the written communication. He spoke of the contents of the letter. The reply 

 [*322]  given by Rogers, standing alone, means nothing, though it would have been evidence in connection with the letter if in the cause, or with the verbal message, if one had been sent with the letter. It could only have received character and force from proof of the matter to which it related, to wit, the contents of the letter. The evidence offered being merely a substitute for the letter, and the reply by itself, having no relation to the subject matter in controversy, both were properly rejected.
The second exception was taken to two instructions granted at the instance of the plaintiff. There is no material difference [**17]  between them, except that the last refers to the supposed guarantee by the plaintiff's intestate. This was a collateral undertaking, and should have been in writing.  Elder vs. Warfield, 7 H. & J. 391. Conolly vs. Kettlewell, 1 Gill 260. The argument on the part of the appellant, as to performance cannot, in the present action, entitle him to rely upon the parol agreement.
But we think that the second prayer was erroneously granted because it assumes that the agreement was not in writing. For this reason, however, the record will not be remanded, for the defendant could not have been prejudiced by this error on the part of the court below. 3 Gill and Johns., 472. 8 Do. 111. The plaintiff had offered uncontroverted evidence of his claim, and even if the guarantee had been in writing, it would have been no answer to his cause of action, unless accompanied by proof of the condition and actual value of the mare at the time of the sale.
The witnesses stated that the defendant complained that she did not turn out well, and said he would hold Barber liable; but there was nothing to show the extent of damage by reason of defects in the mare, and the jury [**18]  could have made no allowance on that account except upon conjecture. If the judgment were reversed, and a new trial had, such proof would not avail the defendant, because the agreement, under which alone it could be offered, is not in writing.  1 Gill 260.
Judgment affirmed. 

160 of 187 DOCUMENTS 

JAMES BAXTER and wife, and others, vs. SEPTIMUS D. SEWELL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 Md. 334; 1852 Md. LEXIS 77 

DECEMBER, 1852, Decided 

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

The bill in this case was filed by the appellee on the 20th August 1849, and states, that Joshua Swan, of Baltimore county, deceased, was, in his lifetime, possessed of certain lands in said county, which, on the 22nd October 1819, he conveyed to his daughter Emily, now the wife of the appellant, James Baxter, in consideration of the natural love and affection which he bore his said daughter; that before and at the time of said conveyance, made without proper and valid consideration, he was indebted, among others, to Charles S. Sewell and Matthew Murray, and that said conveyance was made fraudulently and with intent to cheat and defraud his creditors; that said Swan, after said conveyance, retained possession and exercised rights of ownership, receiving the rents and profits therefrom; that at September term 1821 of Baltimore county court, Sewell and Murray, respectively, recovered judgment for a large sum of money for debts due and owing prior to said conveyance. That writs of fi. fa. were issued upon these judgments, and the property was sold thereunder and purchased at sheriff's sale by Sewell; and that Swan being in possession at the time [**2]  of the sale, acknowledged the title of Sewell and consented to become his tenant at a certain rent, and that he continued to pay moneys on account thereof until his death in 1842.

That after his death, Baxter and wife entered into possession, and with knowledge of the fraudulent character of the said deed, and the title of Sewell as purchaser, and of the lease aforesaid, conveyed away, in the years 1845 and 1847, respectively, portions of said premises to the defendants, Parlett, Moore and Buckingham, who were aware at the time of the fraudulent origin of Baxter and wife's pretended title. That Sewell has lately died, leaving a will, and has thereby devised said premises to complainant and his heirs; the complainant so entitled has claimed payment of the rent reserved, but Baxter and wife have declined to pay, denying complainant's right thereto. The bill then prays, that the deed from Swan to his daughter Emily, and the several conveyances from Baxter and wife to the parties grantees, may be adjudged to be fraudulent and void, and delivered up to be cancelled, or declared to operate only by way of assignment of the interest of Swan in said premises, as lessee as aforesaid, and [**3]  for general relief.

The answer of Baxter denies all personal knowledge of the matters charged in the bill. The answer of his wife alleges, that the property was originally paid for out of her money, to which she became entitled as legatee of her uncle, James Helm, and that the consideration moving to Swan, her father, was this and other money belonging to her, which he had appropriated to redeem a mortgage upon property in Baltimore city, owned and possessed by him; she utterly denies that said property was conveyed to her without valuable consideration and with intent to defraud creditors; she denies all knowledge of her father's indebtedness to Sewell and Murray, prior to the execution of said deed. She admits that her father occupied said lands until his death; that she resided there during a portion of the time, but having means beside the profits of the lands, from feelings of kindness to her father, who was poor and afflicted, she permitted him to occupy the same, not thinking to impair her title thereby. She and her husband admit, that after the death of her father they entered into possession, in and by title of the deed of the 22nd October 1819; they deny that they had [**4]  knowledge of the deed of Swan to Sewell, or of the lease from Sewell to Swan, and that at the time of executing the same, Swan had any title whatever; they admit that they have sold portions of said land to the persons aforesaid, but that it was done honestly and for good and valuable considerations; they admit the demand for rent and their refusal to pay.

The answers of Parlett, Moore and Buckingham, grantees from Baxter and wife, aver, that they purchased the several parcels of land conveyed to them respectively, fairly and for a valuable consideration, under the belief that the title of Baxter and wife was good, and that they acquired by their several deeds a safe and unincumbered fee-simple estate.

The various deeds and judgments were proved under the commission, as well as a single bill from Swan to Sewell for $ 380, dated August 10th 1816. The deed from Swan to his daughter Emily, of the 22nd of October 1819, recites that it was made in consideration of natural love and affection and five dollars money paid. Swan purchased the lands in controversy at a sheriff's sale, in 1818, and received a deed therefor from the sheriff, on the 28th of October 1818. The sale to Sewell,  [**5]  under his judgments, was on the 20th of July 1824, but he did not obtain a deed from the sheriff until the 22nd of April 1831. Sewell executed a lease of the lands to Swan, on the 15th of April 1839 for ninety-nine years, renewable forever, at the yearly rent of $ 53, which, as well as all the deeds above mentioned, was duly recorded. Some proof was also taken to sustain the averments of the answer, particularly that Swan, about the time of the purchase, frequently declared that he had purchased said land with the money of his daughter, and promised he would make her a deed for the same. The chancellor, (JOHNSON,) decreed the deed of the 22nd of October 1819, so far as it related to the property purchased by Sewell from the sheriff, and the deeds of the same property from Baxter and wife to Parlett and others, to be vacated, and defendants appealed. Accompanying this decree, the chancellor delivered an opinion, which is reported in 2nd Md. Ch. Decisions, 447, in which, as well as the report there made, a more extended statement of the facts of the case will be found.  

DISPOSITION:
Decree affirmed with costs.  

HEADNOTES:

A deed from a father to his daughter, voluntary upon its face, the consideration expressed being "natural love and affection," cannot be supported by showing by parol, that the land conveyed by the deed was purchased and paid for with the daughter's money.

Parol proof is inadmissible to vary the considerations stated in deeds, and thereby either to alter their character, or to maintain them when impeached for fraud, by showing considerations differing from those mentioned in them, though evidence of the same kind of consideration, varying only in amount from that expressed, may be offered.

An indebtment at the time of executing a voluntary conveyance is only prima facie, and not conclusive evidence of fraud even as to a prior creditor.

The presumption of fraud arising from such indebtedness may be repelled by proving, that the grantor, at the time of the gift, was in prosperous circumstances, possessed of ample means to pay all his debts, and that the settlement was a reasonable provision, according to the child's station and condition in life.

But if such indebtedness be shown, the deed is prima facie fraudulent as to creditors, and the onus is thrown upon the grantee, of establishing the circumstances which shall repel the fraudulent intent.

Where it was admitted by the answer that the grantor had become poor and dependent upon his daughter for a home and support, and there was no proof that he held any other property than that conveyed by the deed, such deed being voluntary, is void as to pre existing creditors.

Resulting trusts, implied by law from the manifest intention of the parties and the nature and justice of the case, are expressly excepted from the statute of frauds, and the fact of payment may be established by parol, but this fact must be made out by plain, direct and unequivocal evidence.

A father made a voluntary conveyance of lands to his daughter in 1819, but continued to occupy them until his death in 1842. In 1824 the lands were sold at sheriff's sale under judgments against the father, and in 1831 conveyed by the sheriff to the purchaser, who in 1839 leased them to the father, by lease signed by both parties. After 1842, the daughter and her husband entered, claiming under the deed of 1819, and in 1849, the devisee of the purchaser filed his bill to vacate said deed. HELD:

1st. That as there was no clear evidence of possession by the daughter and her husband prior to 1842, and the lease being a clear recognition of the purchaser's title by the father, and the possession subsequent to the lease being a tenancy, and therefore not to be used against the purchaser, the lapse of time from 1842 to 1849, when the bill was filed, was too brief to bar relief.

2nd. The deed from the sheriff and the lease both being on record, subsequent purchasers from the daughter and her husband cannot be treated as bona fide purchasers without notice of complainant's title.

3rd. If such purchasers were claiming against a mere equitable title, the circumstances of the case were such as to have put them upon inquiry, which is equivalent to notice. 

COUNSEL:
Coleman Yellott for the appellant.

1. The complainant having applied to a court [**6]  of equity for relief, the defendants can rely upon all equitable defences, and if the equities are equal the court will not interpose, the rule being, "in equali jure melior est conditio possidentis." 1 Story's Eq., sec. 64, (c.)

2. Equity discountenances laches; and the extraordinary neglect of the complainant and his testator, in failing to assert their alleged title until thirty years after the execution of the deed of October 1819, is a bar to the relief now asked. 1 Story's Eq., sec. 64, (a.) 2 Story's Eq., sec. 1520, and note 3.

3. There is no proof in the record, that the deed of October 22nd, 1819, was executed by Joshua Swan "to delay, hinder and defraud" his creditors. 1 Story's Eq., secs. 353, 362, 365. There is not any satisfactory evidence to prove even that Sewell was a creditor of Swan at the time of the execution of said deed; or that Swan was at that time indebted to any party except his daughter Emily, one of the appellants.

4. Parol evidence was admissible to explain the real consideration for the deed of October 22nd, 1819, the consideration mentioned in the deed itself being not merely natural love and affection, but also five dollars money paid.  [**7]  The evidence produced tended to prove "not a different consideration, but the same kind of consideration, differing only in amount;" and was therefore admissible. Cole vs. Albers and Runge, 1 Gill, 423. 2 Hilliard on Real Property, 275, 276, 278. The parol evidence was also admissible, to show the bona fides of the transaction, and thus disprove the charge of fraud, for which alone the deed could be avoided. Clagett vs. Hall, 9 G. & J., 83, 91. Harris vs. Alcock, 10 G. & J., 248. 11 Wheat., 212, 213, 214, 215.

5. Even if the deed of October 1819 is void, still the deed from Murray to Swan, of October 28th, 1818, operated as a resulting trust, to pass a valid title to the defendant, Emily A. Baxter, Swan having made the purchase with her money. Hollis vs. Hollis, 1 Md. Ch. Dec., 482. 4 H. & J., 556, 557. Hays vs. Hollis, 8 Gill, 363. Boyd vs. McLean and wife, 1 Johns. Ch. Rep., 582, 586. Ambrose vs. Ambrose, 1 Peere Williams, 322. 2 Wash. C. C. Rep., 445, 446. 4 Kent's Com., 305. 2 Story's Eq., secs. 1201, 1211.

6. The defendants, Parlett, Buckingham and Moore, having purchased bona fide and without notice of any claim on the part of Sewell, will be protected in their purchases [**8]  by a court of equity. 1 Story's Eq., secs. 381, 409, 434.

J. Shaaff Stockett and Thos. S. Alexander for the appellees contended:

1. That the deed of the 22nd October 1819, from Joshua Swan to his daughter Emily, is void as being voluntary and without valuable consideration, and was intended to delay, hinder and defraud the creditors of the grantor. Salmon vs. Bennett, 1 Conn., 542. 11 Wheat., 211, 213. 8 Wheat., 250. 1 Story's Eq., notes to secs. 362, 364. 17 Eng. Ch. Rep., 344. 5 Gill, 449.

2. That parol proof is inadmissible to vary the consideration stated in said deed, either to alter its character or to maintain it when impeached. And if otherwise, there is no proof that said deed was founded on a valuable consideration. 1 J. J. Marshall's Rep., 390. 6 H. & J., 27, Wesley vs. Thomas. Hurn vs. Soper, Ib., 281. Watkins vs. Stockett, Ib., 444. 1 H. & G., 201, Betts vs. Union Bank. 5 G. & J., 432. 1 Gill, 84, 412.

3. That the deed of the 28th October 1818, from the sheriff to Swan, cannot be successfully relied on to create a resulting trust in favor of Mrs. Baxter, by showing that the consideration money paid by Swan to the sheriff was the money of Mrs. Baxter,  [**9]  even if the evidence were sufficient, (as it is not,) to prove the allegation. 4 Kent's Com., 304, 305, and notes and cases therein referred to. 4 H. & J., 556, 557. Willis vs. Willis, 2 Atk., 71. 2 Story's Eq., 1201, 1201 (a.) To create a resulting trust, there must be an actual payment of the money by the party, in whose favor the trust is sought to be set up. 1 Johns. Ch. Rep., 582.

4. That lapse of time cannot be urged to bar the complainant of his rights, as the said Swan continued in the possession and enjoyment of the said premises, under the title of the appellees' testator.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and TUCK, J.  

OPINIONBY:
TUCK 

OPINION:

 [*340]  TUCK, J., delivered the opinion of this court.
The appellants' solicitor has suggested no argument upon which the decree in this case should be disturbed. The law and the facts are so fully discussed by the chancellor, in his opinion, that we shall content ourselves with affirming the decree as to the first five points presented on the part of the appellants, for the reasons assigned by him. Upon the sixth point little need be said.
We do not think that Parlett, Buckingham and Moore are to be treated [**10]  as bona fide purchasers without notice of the title of the complainant's testator. Swan had lived upon this property from the conveyance to his daughter to the time of his death, using and dealing with it as his own. It is true that his deed to Mrs. Baxter was on record, from which it might have been inferred that the title was in her. But it must be remembered, that the sheriff's deed to Sewell and his lease to Swan were also recorded, and were notice to these defendants that Sewell claimed title to the property. They purchased under Baxter and wife in the face of this notice, and, if their vendors had no title, they cannot complain if the owner of the property asserts his rights. If they were claiming against a mere equitable title in Sewell, the circumstances of the case 

 [*341]  were such as to have put them upon inquiry, which is equivalent to notice. 5 Gill 483. 1 Md. Rep., 415. Coming in under a party who had no title, as against a prior legal title, they can assert no better equity than those under whom they claim.
Decree affirmed with costs. 

161 of 187 DOCUMENTS 

FARMERS BANK OF MARYLAND vs. BENJAMIN M. HEIGHE and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 Md. 357; 1852 Md. LEXIS 79 

DECEMBER, 1852, Decided 

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

On the 1st of February 1843, David Steuart, Jr., and wife, residents of Baltimore city, mortgaged lands lying in Anne Arundel county to Handel M. Hayden, to secure the sum of $ 1500, owing to the latter. On the 14th of March 1848, Hayden filed his bill to foreclose this mortgage, and there being no dispute, the defendants consented to a decree for a sale, which was passed on the 18th of the same month. The trustee made the sale on the 22nd of June following, but did not report the same until the 2nd of October 1848, when, on the same day, by consent of parties, it was finally ratified by the chancellor.

Previous to the ratification, viz., on the 11th of September 1848, the Farmers Bank recovered judgments against Steuart, in Baltimore county court, with stay of execution till January 1849, upon his acceptances, which had matured between the 26th of February and the 6th of May 1848, amounting to $ 2147.25. The land sold for $ 4351.20, and the purchaser, according to the terms of the decree, paid one-third in cash and gave his two bonds, with sureties, for the residue, payable, respectively, with interest, in one and two years from the day [**2]  of sale.

On the 11th of October 1848, the auditor filed his report and account, in which he applied the net proceeds of sale to the payment of the mortgage debt, and assigned the balance, amounting to $ 2521.73, to Steuart, the mortgagor; which report and account was, on the same day, ratified and confirmed, and the trustee, as usual, directed to pay the money accordingly, with a due proportion of interest. On the 11th of February 1849, fi. fas. were issued on the bank's judgments, returnable to the following May term, when they were returned nulla bona by the sheriff of Baltimore county. Steuart petitioned for the benefit of the insolvent laws, on the 7th of February 1849, and received his final discharge, on the 2nd of June following.

On the 16th of March and 25th of June 1849, the bank filed petitions in the cause, claiming, by virtue of its judgments, a lien on the surplus proceeds of sale appropriated to Steuart, and seeking to have the same applied thereto. The defence taken by the appellee, Heighe, was, that in April 1848, Steuart had given him an order on the trustee for $ 1500, in payment of which the trustee passed to him one of the purchaser's bonds for $ 1450,  [**3]  by endorsement, which was received as cash, and paid the residue in money; that this assignment was bona fide and for a valuable consideration, and that the bank had no lien on the fund. The answer of Steuart and the trustee was to the same effect. The purchaser, upon the order of the chancellor, paid the money into court, and the cause being afterwards submitted on petition and answer, the chancellor, (JOHNSON,) ordered the amount of the bond to be paid to Heighe, from which order the bank appealed.

The residue of the surplus had been assigned by Steuart to the other appellees, Freeland, and Hall and Welsh, on the 14th of October 1848, and upon their petition the chancellor ordered the same to be paid to them, from which order also the bank appealed. The opinion of the chancellor in these cases, to the effect that the judgments recovered by the bank in Baltimore county, were not liens upon the land in Anne Arundel county, not having been transferred to said county, as required by the acts of 1794, ch. 54, sec. 9, and 1795, ch. 23, is reported in 1 Maryland Chancery Decisions, 459.  

DISPOSITION:
Order affirmed, with costs to appellee.  

HEADNOTES:

A judgment recovered in one county court is not a lien upon land situated in a different county when such judgment has not been transferred to the county where the land lies, according to the provisions of the acts of 1794, ch. 54, sec. 9, and 1795, ch. 23.  

COUNSEL:
Oliver Miller for the appellant, contended:

1st.  [**4]  The proceeds of the sale are to be regarded as real estate at the time the bank recovered its judgments, and therefore would admittedly be subject to the liens of the judgments, had they been recovered in the county where the land was situated. Where a conversion of realty into personalty is brought about by operation of law, and the effect of legal proceedings, the conversion will not be regarded as complete for any purpose until the sale has been ratified, and the purchaser has complied with the terms of it, by paying the money or giving such securities as the decree directs. 6 H. & J., 31. State vs. Krebs. 1 H. & G., 267, Leadenham vs. Nicholson. 2 G. & J., 81, Hammond vs. Stier. 1 Bland, 443, Jones vs. Jones. 2 Md. Ch. Decisions, 366, Manship vs. Evitts.

2nd. The fund was under the control of the chancellor until it had been paid over by the purchaser, and the bank had the right to come in by petition to assert its claim to it. The purchaser himself asked the protection of the court, and the money was paid into court under its order. The case, therefore, is similar to that of Clagett vs. Worthington, 3 Gill, 95. Again the trustee had no right to assign the bond. 1 Bland, 527,  [**5]  Iglehart vs. Armiger.

3rd. The recovery of these judgments in another county makes no difference as to the attaching of these liens. A judgment is a lien upon lands, because the lands are liable to be sold in satisfaction of the judgment. Statute of Elegit, Westminster the 2nd, 13th Edw. 1st, ch. 18. 1 Powell on Mortgages, 273, 274, note O. Cross on Lien, 62, 18 Law Lib., 27. 3 Bland, 298, Coombs vs. Jordan. 1 Brockenbrough, 170, Scriba vs. Deanes. Such is also the view of the Court of Appeals in 8 G. & J., 38, Miller vs. Allison. Again, this lien binds from the date of the rendition of the judgment, and extends to all lands liable to be taken in execution for its satisfaction, without regard to the mode, direct or indirect, of that liability. 1 Powell on Mortgages, 275. 3 Bland, 660 to 669, Cape Sable Company's case. 12 G. & J., 182, Murphy vs. Cord. 4 Gill, 11, Doub vs. Barnes. Act of 1794, ch. 54, sec. 9, and 1795, ch. 23. Such have been the decisions in Virginia. 2 Call, 103 to 152, Eppes vs. Randolph. 4 Hen. and Munf., 57, Nimmo's Executors, vs. The Commonwealth. 2 Grattan, 44, Taylor's Adm'r, vs. Spindle. And so in Alabama. 4 Alabama Rep., new series, 549. Prior to the revolution [**6]  the act of 1732, ch. 4, made all the lands situated in the colony liable for any debt in any court of law or equity in the colony. 3 Bland, 306. This statute is now in force, and by virtue of it the writ of fi. fa. is now issued against the lands and tenements of the debtor. 3 Bland, 308.

Reverdy Johnson on the same side.

The only question I intend to discuss is, whether the bank had a lien by virtue of its judgments? and that involves the questions, is a judgment in one county a lien upon land in another? and if so, when does it commence?

What is the reason why a judgment is a lien? If the reason includes a particular case, the court have no right to exempt that case from the general rule because of inconvenience.

If, as is the fact, the chancery court of the State has decided this question, in the Cape Sable Company's case, 3 Bland, and that decision was published and long regarded as the law of that court, and no contradictory decision was ever made or published, this fact should have great weight. There has been no legislation or attempt to legislate on the subject, notwithstanding this decision, so long made known as the construction of the law upon this point [**7]  by the court of chancery.

The reason of the lien is because the creditor can compel payment of his judgment out of the land. Formerly the land could not be sold under a judgment. Afterwards the rents and profits might be reached by the creditors, by a levari facias. But still the judgment was no lien, until the statute of Elegit made the land liable to execution, after which the judgment was held to be a lien. See the Eng. statute of 1732, in 3 Bland, 305, and particularly the 4th section. The mode or manner of the execution is not pointed out in this statute, but it simply gives the right to make the debt out of the land without reference to the manner of doing so. It was this statute which gives to a judgment the effect of a lien upon real estate. It is then the mere right to make the debt which gives the lien.

There has always been a court in Maryland, whose jurisdiction in issuing executions extended all over the State, and the judgments of which were liens over the whole State. The general court was one of this description, the chancery court another. The powers of the general court were given to the county courts, and the powers of the court of chancery are now transferred [**8]  to the circuit courts. Was it intended by these changes to lessen or diminish the rights of creditors? The debtor must be sued in his own county--his lands may all lie in another.

The act of 1794, ch. 54, sec. 9, being in force when the changes in the courts took place, this fact shows, that the legislature did not mean to lessen the rights of creditors. See also Act of 1795, ch. 23.

It is the authority to sell given by the statue of 1732, not the mode, manner, or time of selling, which makes the judgment a lien from its date.

The act of 1795, ch. 23, surely gives the right where a fi. fa. is sent to another county, to send it again from the second to a third county, and so on throughout the State. Does not this make the judgment a lien from its date throughout the State?

As to inconvenience: The debtor is required to be sued where he resides, and not in every county where he has lands, and this privilege was given for his benefit, and as a compensation for this the creditor ought to have a lien everywhere, because of the inconvenience he is put to in being required to sue the debtor at his home. The chancellor says, our rule will subject innocent purchasers to [**9]  frauds, but he does not consider that the debtor may, by the other theory, defraud the creditor, for he may defeat the judgment by selling the land after it has been rendered, but before its removal to the county where the land is situated. Purchasers from the debtor are but volunteers, and the creditor ought to be taken care of.

But this inconvenience is merely imaginary, for the purchaser has only to go into the county where the land-owner resides to see if there are any judgments. It is true a man may confess a judgment in the county where the land lies, but this would always be suspicious. But the purchaser now must not only examine the records of the county where the debtor resides, but he must look to the records of the Court of Appeals and the court of chancery.

If the theory on the other side is to prevail, the creditor had better have a judgment against him in the court below, and then appeal and get a judgment here, and then he would have a general lien.

The chancellor in this case is in error in regard to the overruling of the Cape Sable case by the decision of the Court of Appeals, in Murphy vs. Cord, 12 G. & J., 182, 185. What the court say on this point [**10]  in reference to Murphy vs. Cord, is in 4 Gill, 11, and this, so far from overruling the Cape Sable case in this particular, sustains it. See also 8 G. & J., 38, Miller vs. Allison. 5 Do., 1.

The testamentary act of 1798, ch. 101, sub-ch. 8, sec. 13, directs judgments and decrees to be paid first, no matter where rendered or passed, and why? because they are a lien upon the real estate of the deceased.

This question has been discussed and decided in 4 Peters' Rep., 134, 135, and 12 Howard, 409, 416, 420, and in 4 Alabama Rep., 549.

Frank H. Stockett, Cornelius McLean and Thos. S. Alexander, were of counsel for the appellees, but the court having expressed a desire to hear the whole argument on the part of the appellants first, the argument for the appellees was made chiefly by Mr. Alexander in reply.

1st. It is admitted that not having raised the question as to the form of proceeding instituted by the bank, that question is not open here, although I think the cases of Maccubbin vs. Cromwell, 2 H. & G., 443, and Clagett vs. Worthington, 3 Gill, 95, do not conclude the point.

2nd. Was the fund realty, and such that it would be the subject of a lien? The cases [**11]  of Leadensam vs. Nicholson, 1 H. & G., 267, and Hammond vs. Stier, 2 G. & J., 81, are not conclusive on this point. See case of Hunter vs. Hatton, 4 Gill, 127, where it was decided, that the conveyance by the trustee relates back to the day of sale. Steuart had no interest in the land and he could have had none in the fund. The purchase money was not bound by the lien of his judgment. Hampson vs. Edelen, 2 H. & J., 64. Such would have been the law if the sale had been made by a private vendor. The principle cannot be varied by the fact, that the sale was a judicial one. The moment the vendor makes a sale capable of enforcement in law or in equity, he has no longer an estate of inheritance in the land, this has passed to the vendee, and the estate remaining in the vendor is but personalty.

3rd. But the important question is, whether a judgment in one county is a lien on lands in a different county? Though the opinion in the Cape Sable case was given in 1832, it was not published until 1841, when it was immediately discredited by the case of Murphy vs. Cord. The chancellor, in that case, had said, that when the right of execution was supended the lien was suspended also; but the [**12]  Court of Appeals said, the lien was not so suspended.

The statute of the 5th of Geo. the 2nd, 1732, authorising a fi. fa. to sell the lands, instead of extending them under an Elegit, was relied upon by the other side; but the chancellor, in the Cape Sable case, does not rely upon this statute, but solely upon the Statute of Westminster, giving the Elegit as the origin of the lien. The acts of 1715, ch. 41, sec. 8, and 1777, ch. 12, sec. 3, as to the issuing of a fi. fa. against an absconding debtor, gave no right to levy in another county except against such debtor.

By the acts of 1794, ch. 54, sec. 9, and 1795, ch. 23, the process must be exhausted in the county where the debtor lives before the land lying in another county can be touched. This cannot be done until the creditor has elected into which county he will go, and the writ has been actually issued. And where there has been one removal the power is exhausted, and you cannot go from the second to a third county. A scire facias against terre-tenants cannot go against terre-tenants in several counties, yet this would be necessary to carry out the doctrine of lien, contended for on the other side. The chancellor, in [**13]  his opinion in the Cape Sable case, admits that before the act of 1794, this extensive right of lien did not exist. He is mistaken in reference to the practice in England--there several fi. fas. may be sent to different counties. 2 Tidd's Pr., 1033, 1131. 1 Lord Raymond, 216. 3 Term Rep., 657. 3 Blackstone, 662. He is also wrong in reference to the date of the lien of a pocket judgment, and the authorities cited do not sustain his position. See 2 Tidd, 1132, 1135. 2 Vernon, 750. The statute of frauds permits statutes merchants and recognizances to bind only from enrolment. The argument on the other side would make magistrates' judgments binding all over the State, yet the act of 1835, ch. 201, makes the liens of judgments recovered in the magistrates' courts attach only from the time of enrolment in the county court.

Our act of 1798, and the Statute of Westminster, granting the Elegit, relate to entirely different subjects; the former relates to personalty, not to realty, and by it all judgments are placed on an equal footing. The policy of the law is to facilitate the transfer of estates. 1 H. & McH., 407, Waters vs. Caton.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON [**14]  and MASON, J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*365]  ECCLESTON, J., delivered the opinion of this court.
In this case the chancellor has decided, that a judgment in one county court is not a lien upon land situate in a different county, when such judgment has not been transferred to the county where the land is. In the reasoning and conclusion of the chancellor, on this particular point, we agree with him. And as this necessarily denies the right of the appellants to that portion of the fund claimed by the appellee, the order on which this appeal was taken will be affirmed, with costs to the appellee.
As the record presents no question in regard to the precise time at which a lien attaches, where a fi. fa. is sent from one county to another, we deem it unnecessary to express any opinion on that point. And the view we have taken of the case renders it unnecessary for us to decide the question, whether the sale and proceedings under the chancellor's decree had effected a mutation of the property from real to personal estate, at the time the appellants obtained their judgments in Baltimore, so far as to prevent the judgments from operating as liens, even if a judgment in one county [**15]  is a lien on land in another, where the judgment has not been transferred.

 [*366]  A decree will be signed in accordance with this opinion.
Order affirmed, with costs to appellee.
MASON, J., dissented.
Upon the appeal by the bank, as against Freeland and Hall, and Welsh, the same judge delivered the following opinion of the court, MASON, J., dissenting also in this case:
The same question which, at this term, was decided in the case between these appellants and Benjamin M. Heighe, is here presented; and the circumstances, in principle, being the same, we must affirm the order on which this appeal was taken, with costs to the appellees. A decree to that effect will be signed.
Order affirmed, with costs to appellees. 

162 of 187 DOCUMENTS 

HENRY WHITE against ANDREW FLANNIGAIN and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 Md. 525; 1852 Md. LEXIS 1 

JUNE, 1852, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the equity side of the Superior Court of Baltimore city.

This cause was argued on bill and answers.

The original bill in this case was filed to obtain the opening of a forty-five foot street in the city of Baltimore, which was obstructed by the defendant below, Flannigain, by his co-defendants, the Trimbles, and by their tenant Taylor. The amended bill made other persons defendants, who obstructed the same street in other parts of it, but as these other persons, viz: Kirbys and West, assent to the decree asked for, it is not necessary to further notice this part of the case here.

The accompanying diagram will illustrate the location of the property.

The original bill of Mr. White avers, that in dividing the real estate of Thomas McElderry, deceased, a number of streets were laid out by the commissioners through the property to be divided, among which was a forty-five foot street running along the west side of Union Dock from Wilk street, extended to a twenty-two foot street, also laid out in the same division; that the heirs took possession of and held their lots as binding on said streets, and not only held them, but sold them as so binding; that lot [**2]  No. 128, which is at the corner of the forty-five foot street and the twenty-two foot street, and fronts on the forty-five foot street, and is separated from a wharf property of the complainant White by the twenty-two foot street, was sold to Robert Oliver, and was described in the conveyance thereof made to him by one of the heirs in 1830, as binding on the forty-five foot street, and is now held by White under a conveyance from Oliver's heirs; that the four lots on the forty-five foot street, immediately north of the complainant's lot No. 128, viz: 129, 130, 131 and 132, are owned by the defendants, Andrew Flannigain, and the heirs of Samuel Trimble, as tenants in common, and were conveyed to the said Flannigain and Trimble in November 1839, by a deed which described them as bounding on the said forty-five foot street; and that Flannigain, notwithstanding the terms of his deed and his repeated recognition of said street, maintains, and for some time has maintained, on behalf of himself and his co-tenants in common, fences running across the said forty-five foot street, extending from their front to the edge of the dock, and enclosing the greatest part of the bed of the said street,  [**3]  and occupies more or less the whole of the bed of the street so enclosed with lumber and other things, so that all passage along the said forty-five foot street, to and from the complainant's lot No. 128, and to and from his wharf, is thereby wholly prevented.

[SEE DRAWING IN ORIGINAL]

The bill prays, that the fences so running across said forty-five foot street may be taken down and abated, and all obstructions to passing along the bed of said street within said fences be removed, and the erection of other fences and obstructions perpetually enjoined, and also prays general relief, and in the meantime asks a temporary injunction, directing the defendants to forbear erecting any new fences across the forty-five foot street in front of their lots, or placing any new obstructions on the bed of the said street.

The answer of Flannigain admits White's possession of the wharf to the south of the twenty-two foot street, but not his his ownership, and that lot No. 128 was conveyed to Oliver, but does not admit that it now belongs to White; that about 1823, Thomas McElderry's estate was divided among his heirs, by commissioners appointed by Baltimore county court, and that [**4]  said division calls for the supposed streets mentioned in the bill, but denies that the commissioners laid them out as streets; that under said division said heirs took possession, but never recognized said forty-five foot street except by the terms of the conveyances mentioned in the bill; that lot No. 128 was conveyed to Robert Oliver by one of the heirs by the deed referred to and filed with the bill, which describes it as binding on the supposed forty-five foot street, and that lots Nos. 129, 130, 131 and 132, are held by him and the heirs of Samuel Trimble, under the deed of 1839, mentioned in the bill; that the complainant never has had access to lot No. 128 or to his wharf by the forty-five foot street, and never has used the same as a street, nor has any one else, but he and those under whom he claims have only had access thereto by a way about twenty foot wide, through lots Nos. 129, 130, 131 and 132, by the permission of the defendants, who have never interrupted him in it; and that he was using it at the time the bill was filed; that the said twenty foot way ran through the property of West till June 1850, when West blocked it up with a fence and began building, which was [**5]  the first interruption of said way for more than forty years. When this interruption took place, he, (Flannigain,) gave the complainant a right of ingress and egress over his own lots, in the manner shewn by the plat filed with his answer.

Flannigain's answer also admits, that he maintains, and has always maintained fences, and occupies, and has always occupied the said forty-five foot street, as mentioned in the bill; and alleges that he has always occupied the street as his private property, and that it was so used and occupied by his grantors, so as to render a passage over it impracticable; and that he, and those under whom he claims, have been in the uninterrupted, exclusive, notorious, and adversary possession of the same, for more than twenty years prior to the filing of the bill, and that the whole of the forty-five foot street, from one end to the other, has been regarded and used, by all the proprietors on it, (including the complainant,) as private property, and that the complainant uses the twenty-two foot street in the same way.

Flannigain's answer then pleads limitations, and that the jurisdiction to open streets, is exclusively in the Mayor and City Council [**6]  of Baltimore, and that this court, for that reason, has no jurisdiction, and concludes by alleging, that the obstructions in case of decree, may be removed in two or three days, and that the injunction is a serious injury to the tenant, Taylor.

The answer of Taylor, the tenant of Flannigain and Trimble, takes the same grounds with those above mentioned, only at greater length, and urges, in addition, that the remedy is at law. Another bill was filed by complainant, alleging, that Flannigain was about to apply to the Mayor and City Council, to have opened the forty-five foot street, down to water's edge, and prayed for an injunction to injoin him, which was granted.

The injunctions granted on the bills, were dissolved upon the coming in of the answers, and the present appeals are prosecuted to revise the orders of dissolution.  

DISPOSITION:
Case remanded.  

HEADNOTES:

Where a person sells property lying within the limits of a city, and in the conveyance bounds such property by streets, designated as such in the conveyance, or on a map made by the city, or by the owner of the property, such sale implies necessarily a covenant, that the purchaser shall have the use of such streets.

The complainant in this case is entitled, under an implied covenant, to a particular right of way; any obstruction which denies the exercise of this right, works irreparable mischief to the street, as a street. He is entitled to the use of the street, as a street, and his title is clear, and equity may give him relief by injunction.

Cases of this description in which courts of equity will interfere.

The nature of the right sought to be protected, must be constantly kept in view; a street in a populous city, is a very different thing from a road in the country.

Our acts of Assembly, relative to the opening of streets in Baltimore, do not any of them give to the complainant, as matter of right, the redress to which he is entitled. It cannot therefore be said, that because of these acts of Assembly, the complainant is not remediless, except in a court of equity.

Of the plea of limitations, though insisted upon in the answer, the defendant cannot avail himself, upon a motion to dissolve an injunction.

A bill of this description, in order to entitle the complainant to an injunction, must show that the obstruction complained of, works to his great injury, and in manifest violation of the obligations of the party, whose conduct is complained of, and the facts stated in the bill must show the truth of this.  

COUNSEL:
By Campbell and Johnson for the appellant, and Gill and Schley for the appellees.

Campbell for the appellant, after stating the case and accounting for the issuing of a second injunction, to restrain Flannigain from going on with proceedings in the city council, while the subject matter thereof was pending in court, insisted:  [**7]  

1st. That the division, made by Baltimore county court, of Thomas McElderry's real estate, calling, as it did, for certain streets, and dividing the property with reference to, and as bounding on such streets, was, of itself, a dedication of said streets to public use, and a fortiori, was it such when followed by sales made by the heirs of their lots, as so binding. United States vs. Chicago, 7 Howard, 196. 2 Wendell, 472. 8 Wendell, 99. 11 Wendell, 498. 4 Paige, 513.

2nd. That as it does not appear, by the bill or answers, that the forty-five foot street, mentioned in said division, was laid down on the plan of the city of Baltimore, the intervention of the Mayor and City Council to open said streets, cannot be presumed to have been in the contemplation of the parties, but that they looked only to streets, the opening of which, depended exclusively on themselves; streets of that description, in the city of Baltimore, being well known and recognised by law. 1832, ch. 57.

3rd. That even if this court shall take notice, for the purposes of this argument, of the fact alleged in the supplemental bill, and admitted by Flannigain, that the forty-five foot street is laid down [**8]  on the city plan, yet that it cannot be supposed that the parties dedicating the street to public use, looked to the intervention of the municipal authorities to open the street, and meant only to dedicate in the event of the city's action on the subject, because, at the time this decision was made (1823,) the only power of the city to open streets, was conferred by the act of 1817, ch. 148, sec. 16, which confined the city authorities to opening such streets as were applied for by the proprietors of not less than two-thirds of the property to be taken for the bed of the street, and the necessary consequence would have been, that a purchaser of a lot would have had no power of himself to procure the action of the corporate authorities in regard to the street, for the use of which, he had paid in the value of his lot. 11 Wendell, 496.

4th. That even if the subsequent grant of power to the city, by the act of 1833, ch. 182, to open, by ordinance, without condemnation, any streets on the city plan, which were made the basis of a division of real estate, could be regarded as incorporating a new element in dedications made anterior to its passage, (which is, on principle, inadmissible,  [**9]  ) yet, that the power of the corporation is limited, by that act, to cases in which the bed of the streets, proposed to be so opened, is unenclosed and unimproved, and that the corporation cannot, consequently, intervene in this case, because of the act of Flannigain, himself, in enclosing the bed of the street.

5th. That there is no law giving jurisdiction to the city council in cases of dedications of streets, but the one just referred to, (1833, ch. 182,) and that the only remedy, therefore, is in the courts, and that the only courts cognizant to entertain a case of a dedication made by agreement, and not actually carried out by an opening of the street, (which would vest the right at law,) is a court of equity, and the appropriate remedy, an injunction. One result of the action of the court, will be to enable the city to proceed under the law of 1833, ch. 182. Barclay and Howell, 6 Peters, 507. 4 Paige, 513. 8 Wendell, 99. Sanford's Chancery Rep., 507, 508. 2 Story's Equity, sec. 927. Eden on Injunctions, 221, 222. 2 Humphrey's, 169. 6 Hammond, 298. 7 Hammond, 217. 8 Barbour's Sup. C. Rep., 580. 6 Eng. Cond. Ch. Rep., 8. 15 Simon's, 378. 10 Connecticut, 250. 3 Gill, 162.

6th.  [**10]  The objection of want of parties, (since remedied,) cannot avail on the motion to dissolve. 12 Gill and John., 16.

7th. The answers rely on twenty years' adverse possession of the bed of the street, which is only a plea of limitations, and unavailable on this motion. 5 Gill, 186. 12 Gill and John., 157.

But the objection fails in fact, because the deed under which Flannigain and the Trimbles claim, was executed in November 1839, and its terms describing their lots as bounding on the forty-five foot street, are an admission by them of the existence of the street at that time, which was not twelve years before the filing of this bill. 17 Mass., 415. 10 Pickering, 316. And the knowledge of Flannigain, the landlord, is the knowledge of Taylor, the tenant. 47 Law Library, 116.

The second injunction was granted on a supplemental bill, which alleged, that Flannigain had applied to the city council since the original bill was filed, and asked it to open, by condemnation, (under the act of 1838, ch. 226,) a street forty-five feet wide, on the west side of Union dock, from Wilk street to the basin, which street so applied for by him, was from Wilk street to the twenty-two foot [**11]  street, the same with the street proposed to be opened by the present proceedings. The supplemental bill prayed an injunction to restrain Flannigain from going on with the proceedings before the city council, while the subject matter thereof was pending in court, and the court granted the injunction, but on the coming in of the answer admitting the facts, dissolved the injunction. The supplemental bill, and answer to it, shew, that the forty-five foot street is laid out on the city plan.

On the part of White, it will be contended, as regards the second injunction, that it ought not to have been dissolved: Because it is within the jurisdiction of chancery to prevent an application, by a party, either to court or legislature, in a proper case. 22 Cond. Eng. Ch. Rep., 666.

And this was such a case, for while the very matter before the court, raised by Flannigain's answer, was, whether the jurisdiction belonged to equity, or the municipal corporation of Baltimore? it was plainly necessary, to the ends of justice, that the party making the question of jurisdiction, should wait its decision, and not be at liberty to decide it for himself, in advance of the court.

Gill for [**12]  the appellee.

The bill, itself, presents no case for an injunction. It does not state the effect or character of the division; nor does it state that the street was laid out, or that it was used by the complainant.

Answer states, that for forty years it has been used as it now is. He referred to 9 G. & J., 468.

His positions were:

1st. That an injunction was not the proper remedy in this case. The fences and obstructions complained of, had existed for many years, without complaint from complainant, or those under whom he claimed; and that even if he ever had a right to the summary redress of injunction, he had lost it by lapse of time, and neglect to enforce his rights at an earlier period.

And that complainant had failed to exhibit, in this case, such irreparable mischief, as would entitle him to the redress by injunction; and that he had failed to establish a case, showing that he had himself done that, which he sought to force the defendants to do, and was not, therefore, entitled to the redress asked for by him.

2nd. That the division of the real estate of Thomas McElderry, and call or recognition of the streets therein set forth, was not, of itself,  [**13]  sufficient to dedicate the same to the public; and in this case, under the circumstances, did not dedicate the same, nor give any right of use or of way over the same.

3rd. That even if the division of the estate, as shown, did amount to such a dedication, as could have given a right of way or use, over the same, to the heirs of Thomas McElderry, or those claiming under them, still, the facts as alleged in the answer, that no such right was used or claimed, but by common consent the said streets were used as private property by those owning the lots fronting on the same, from the year eighteen hundred and twenty-three, the time of the said division, to the year eighteen hundred and fifty, a period of twenty-seven years, is conclusive against the claim now set up, and estops the complainant from making the same, and is tantamount to a release thereof.

4th. That the commissioners who divided the estate, did not, in fact, open the said streets. They left the title of the bed of the streets in the heirs of Thomas McElderry, jointly, so that when they came to be opened in due course of law, none of these heirs, or those claiming under them, could claim the payment of any but nominal [**14]  damages for said opening. The commissioners neither opened the said streets, nor did they give any right of way through them. They are neither public streets nor private streets; all the commissioners did, and all they had a right to do, was to leave the title to the streets in the heirs, jointly, and so far as these streets were concerned, to make no division at all. The commissioners had no right or power to go farther than they did go. These streets are not to be regarded as either public or private streets, but are merely inchoate streets, liable to be opened in due course of law, whenever the proper time, in the opinion of the proper authorities, which, in this matter, are the Mayor and City Council of Baltimore, shall have arrived, and that without the allowance of damages.

5th. That the division of the estate of the late Thomas McElderry, is to be regarded as a whole and specific performance, can be enforced only by a bill, properly framed and against proper parties, and neither of which requisites have been complied with in this case.

6th. That the complainant has full, complete, and adequate redress for the grievances complained of, by making application to the Mayor [**15]  and City Council of Baltimore, to open the streets: or any of them, laid off or called for in the division of the said real estate. That so far from pursuing this course, he has applied, and in the first instance obtained, an injunction, prohibiting Andrew Flannigain, one of the defendants in this case, from applying to the Mayor and City Council of Baltimore, to open the forty-five foot street.

7th. That the true question in issue in this cause, is as to the proper tribunal to carry into effect the division of the estate of Thomas McElderry, so far as relates to the said streets: the complainant insisting upon the mode adopted by him, the defendants insisting that the Mayor and City Council of Baltimore are the proper and legitimate tribunal, which is clothed with full and adequate power and authority, to carry into effect the true object and intention of the division of the said estate, and to make the said streets what they were designed to be; that is to say, public streets, with all the privileges and advantages belonging to public streets, and not private streets, or mere rights of passage or way, as sought to be made by complainant.

8th. That the second injunction [**16]  which was granted in this case, by which Andrew Flannigain was prohibited from applying to the Mayor and City Council to open the forty-five feet street, from Wilk street to the termination of Union dock, on the south, was properly dissolved; that the only mode by which the division of the estate of Thomas McElderry could be properly consummated, was by such application: any other mode would be partial and incomplete, and fail to produce the desired object, and to carry out the true intent and meaning of the division of the said estate. That the second injunction was erroneously granted, and was properly dissolved; and that the first injunction having been dissolved, the second, which was a mere incident of it, must necessarily fail.

9th. That the complainant as owner of lot No. 128, had no right or claim to the bed of the street forty-five feet wide, opposite to lots of defendants; that the lot No. 128, was in no respect to be regarded as a superior lot; and even if it were to be so regarded, still the complainant was bound first to open and free from obstructions the bed of the said street, opposite his lot, before he could claim the injunction as asked for by him in this case.  [**17]  

10th. The streets laid down in the division of the estate of Thomas McElderry, are the same streets which were laid out by the town commissioners, under the act of 1817. In dividing the said estate, the commissioners did nothing more than lay off the same streets as had been laid off by the town commissioners, and, like them, intended that these streets should be opened only when the proper time, in the opinion of the public authorities, had arrived, and consequently the only effect of the division was to leave the bed of the streets in the heirs jointly of Thomas McElderry, so that when the streets or any of them came to be opened, no damages, except nominal, could be claimed for such opening.

11th. That the bill in this case was not properly framed, had not the proper averments, and has not made the proper parties, to entitle complainant to the relief prayed for.

In support of the foregoing points, he cited the following authorities: Mayor and City Council of Baltimore vs. White, 2 Gill, 444. Underwood vs. Stuyvesant, 19 Johnson, 186. Clapp vs. McNeal, 4 Mass., 589. Howard vs. Rogers, 4 H. & J., 270. Schroeder vs. Creed, 16 Eng. Ch. Rep., 29. Amelung vs. Seekamp, 9 [**18]  Gill and Johnson, 468. 4 Law Lib., 47. 2 Bland, 99. 2 Bland, 461. 3 Bland, 125, 72 Law Lib., 86. 22 Me. Rep., 211. 6 Pickering, 326. Acts of 1817, ch. 168. 1833, ch. 182. 1838, ch. 226. 3 Daniels' Chan. Prac., 1751 to 1761. 2 Story, 921 to 929. 5 Me., 292, 3 Green's Reports, 234.

Schley on the same side.

With respect to the second injunction, it presents the question, shall a man be hindered from pursuing his legal remedies? Such a power could not reside in any court of justice. The application by Flannigain, of which the complainant complains in his bill for a second injunction, was to accomplish the contract upon which the complainant insists.

With respect to first injunction, he observed, that the defendant grounds his right entirely on the division of McElderry's estate, yet does not say, when or how it was made; he does not state the streets to be public streets, or even that they were opened. Instead of charging any injury irreparable, he does not state any injury at all. He wishes Flannigain not to use his lumber yard, (which he has been using for a long time,) until the right is tried.

An easement must be by grant.

If in point of fact upon the case [**19]  made by bill and answer, the complainant is not entitled to relief, the injunction ought not to be continued. Even if at the final hearing the party may be entitled to relief, yet it is a question, whether he can have relief before a final hearing.

This is an injunction, at the instance of an individual, for a nuisance. 8 G. & J., 479. 2nd Green Ch. Rep., 136. 11 Mees. and Welsby, 827.

There was no enjoyment or user of the road. 2 Green Ch., 234. 5 Maine, 291.

Equity never interferes after long acquiescence. This right it is said has existed for thirty years. 18 Con. Ch. Rep., 186, (margin). 22 Maine Rep., 211.

He must show that he has used it. 4 Law Lib., 41, (49). 6 Pick., 326, 400, 401, 403, 405. Story, secs. 921, 929. 9 G. & J., 468. 4 Gill, 364.

It is not necessary to come into equity, even if equity had jurisdiction. City authorities have ample powers to act in such cases. He referred to the acts of Assembly and ordinances.

Chancery has no power in such cases; cannot abridge or extend a street.

He cited 19 John. Rep., 186. 16 Eng. Ch. Rep., 29.

Johnson. 1st. What is the right of the appellee as made either by the bill or answer? 2nd. Whether [**20]  he has the right by any laches of his own, or by adversary possession? 3rd. If he has the right, is he not entitled to the protection which the injunction grants him?

Under the act of 1817, the commissioners located the streets. The persons appointed to divide the estate of Thomas McElderry among his children, divided it into the five lots, 128, 129, 130, 131, 132. Lot 128 was conveyed by one of the heirs to Oliver, and the lots of Mrs. Gill were conveyed to Flannigain. All of these lots are to run with, and to be bounded by forty-five foot street. This was never used as a street, but the complainant, in order to go up to the city, went into another street or way, which run through the lots, and if established as a right of way, would have destroyed the lots.

If an owner lays out lots, and then sells and conveys them, the purchaser has a right of way. The description of them as streets or alleys binding on lots, gives them an additional value. Even if the deed conveys only the land included within the boundaries, he has a right to the use of the street. Grantor is estopped from saying that there is no street there. 17 Mass., 415.

Complainant had a right to the use of [**21]  the forty-five feet street, and there is no right without a remedy. It is said that the city authorities have all necessary power. But if chancery had jurisdiction, it has not been taken away by any of the acts of Assembly, and therefore still exists.

It may be to the interest of the complainant, as it is his right, to keep this a private way; but if he applies to the corporation, it must be to make it a public street.

Is not the complainant entitled to an injunction? The authorities relied on by the defendants, (9 G. & J., 472, and 4 Gill, 34,) are misapprehended. The plaintiff is entitled to the use of the forty-five feet street, as a street, a right to pass up and down the street. Flannigain, when he got his deed in 1839, had notice that the owner of lot No. 128 would have the use of that street.

9 Gill and Johnson, is different. In that case, the right was doubtful, The remedy at law as adequate as that in chancery. The case of a mere trespass, not destructive to inheritance, and when complete damages may be obtained at law, does not, it is true, furnish a case for relief in chancery. But if the character of the act is such that it destroys the property as property,  [**22]  the street as a street, then an injunction will be granted. If a man works a mine, going into his neighbor's land, an injunction will be granted, because the tendency is to destroy the plaintiff's mine as a mine. A diversion of water from a mill, goes to the destruction of a mill as a mill.

7 Johnson Ch. Rep., 330. All the cases are referred to. "Adequate relief," that is, if he can get at law all that he is entitled to, in the character in which he has a right to use it, in which it belongs to the owner.

Nobody will buy the lot, unless he can get the use of the lot: gets nothing but a right to sue every day for being deprived of the use of it.

The title in this case depends entirely upon the title papers, and the question is, do they give the complainant a right to the use of the street? Such title is an equitable title, the locus in quo belongs to McElderry's heirs. It is an implied covenant, that the owner of 128, may have the use of the street.

Story's Eq. Jurisprudence, sec. 927, the cases which authorise an immediate interposition. See also 4 Paige, 513.

Flannigain took his deed in 1839. He is estopped from saying that there was then any use of the street,  [**23]  adversary to the rights of complainant, it there appearing that the owner of No. 128 was entitled to forty-five feet street.

As to any defects in the averments of the bill, it is apprehended that the bill sets out the case sufficiently, and if it does not, the answer supplies its defects.  

JUDGES:
This case was argued before LE GRAND, C. J., and ECCLESTON and TUCK, J.  

OPINIONBY:
LE GRAND; ECCLESTON 

OPINION:

 [*539]  LE GRAND, C. J., delivered the opinion of the court.
The order which we pass in this cause, makes it our duty, 

 [*540]  under the act of 1832, ch. 302, to dispose of all the questions which may arise out of the record.
Several objections have been urged to the equity set up in the bill of complaint. These are as follows:
1st. That the street in question, is not such a street as gives to the complainant any right to its use.
2nd. That if it be such a street, yet the complainant has mistaken his remedy, which, it is claimed, is at law, and not in equity.
3rd. That the averments in the bill, are insufficient.
We propose briefly to examine these points of objection in the order in which we have stated them.
It is alleged in the bill, and admitted in the answer, that the [**24]  locus in question, and also the neighboring possessions of complainant and defendants, were originally the property of the late Thomas McElderry, and that it was divided, laid off, and sold to the present owners, as bounding on and calling for the streets delineated on the plot which accompanies, and is, in fact, a part of the pleadings in the cause.
The question, then, is: what is the effect of such division and sale?
We hold, that where a party sells property lying within the limits of a city, and in the conveyance, bounds such property by streets designated as such, in the conveyance, or on a map made by the city, or by the owner of the property, such sale implies, necessarily, a covenant that the purchaser shall have the use of such streets. The value of property within a city, is, as is well known, much enhanced by the number of its feet which may bound on streets, either private or public, and the fact is notorious, that proprietors of land, with the view of increasing the value of it, very frequently divide it so as to establish streets at points where there are none, under the authority of the corporation. When a sale, therefore, is made in conformity with such plan,  [**25]  it seems to be but plain justice to insist that the vendor, and all claiming under him, should be held bound by the lines and designations by which the property has been sold. This doctrine is fully established by a 

 [*541]  number of adjudications, but a few of which, however, we deem it necessary to notice.
In the matter of the application of the mayor, &c., in relation to the extension of Lewis street, in the city of New York, 2 Wendell's Reps., 475, the court say, they "are, therefore, of opinion, that when a building lot is sold, bounded on a street in the city of New York, designated as such upon the map of the city, or on a map made by the owner of lands, in reference to which sales are made, although the street remains at the time unopened, under the authority of the corporation, a covenant may well be implied, that the purchaser shall have an easement or right of way in the street, to the full extent of its dimensions."
According to this authority, the sale made by the heirs of Thomas McElderry, gave to the purchasers, by virtue of an implied covenant, an easement or right of way to the forty-five feet street, designated on the plat to the full extent [**26]  of its dimensions; a right in no way affected by the circumstance, that at the time of sale, the particular street was unopened.
The same doctrine is recognised and established in Parker, et al., vs. Smith, et al., 17 Mass. 413. The court there say: "The principal question in this case, arises upon the construction of the deed of Joseph Russell to Benjamin Taber, in which he conveys a piece of land in what is now the town of New Bedford, bounding southwardly and westwardly on a way or street. By this description, the grantor and his heirs are estopped from denying that there is a street or way to the extent of the land on those two sides. We consider this to be not merely a description, but an implied covenant that there are such streets."
The defendants in the case now before the court, admit the sale, according to the pretensions of the complainant, and deduce their own titles from the same source, exhibiting, by the conveyances under which they hold, a recognition of the existence of the forty-five feet street. If, then, the case in 17 Mass., be law, and we regard it as such, the defendants, in the absence of all title but that derived from McElderry,  [**27]  are estopped 

 [*542]  from denying there is such a street as that over which the complainant claims a right of way. The principle of Parker vs. Smith, is re-affirmed in Emerson vs. Wiley, 27 Mass. 310, 10 Pick. 310, in which it was held, that such a call for a street, is not mere matter of description, but an implied covenant that there is such a street.
But, it is said, these views are in conflict with the doctrine laid down in Underwood vs. Stuyvesant, 19 John. Reps. 186. We think not. That case was decided on the ground, that the streets therein referred to, were laid out on the contingency that they would be adopted by the local authorities.  Wyman vs. Mayor of N. Y., 11 Wend. 500.
It is supposed, however, that the case of Howard vs. Rogers, 4 Harr. and John., 278, is an authority conclusive against the appellant upon this question. On a careful examination of the record in that case, we find it is different, in an essential particular, from the statement in the printed report. The object of Col. Howard, was to lay off a public square for the use of the State, in the event of the removal of the seat of government  [**28]   from Annapolis to Baltimore; and the record shews such to have been the public square contemplated by him, and not that it was, in any event, to be dedicated to the public use of the city of Baltimore. The case appears to us to be within the principle of the one in 19 John. Reps., where the lot was sold as binding on a street, and which the purchaser took subject to the contingency of its being adopted as a public street by the authorities of New York. If the seat of government had been removed to Baltimore, and that lot had been selected for the public buildings, Col. Howard could not have resisted a claim to have it so dedicated. The lot sold to Rogers, called for German street, which street bounds on the square intended for public uses. If German street had been then, for the first time, laid off on the plot mentioned in the record, Col. Howard could not have rightfully closed, or refused to have opened it; his vendee having purchased under an implied agreement, that he should have that right of way along the front of his lot. And if, as we presume was the case, 

 [*543]  German street was then a public street, the reference to it must be taken as merely [**29]  descriptive of the location of Rogers' lot.
The next question presented for our consideration is: whether equity will interpose, by injunction, to protect the right of way of the complainant?
It is contended, on the part of the defendants, that even if the complainant be entitled to use the street in passing to and fro from his lot and wharf, yet he has mistaken his remedy in invoking the extraordinary forms of a court of equity, and that he would have sought redress, if entitled to any, at law, which is capable of giving him complete and adequate relief. In support of this view, the case of Amelung vs. Seekamp, 9 Gill and Johnson, 468, and the case of Hamilton vs. Ely, 4 Gill 34, are relied on. We do not concur in the construction which has been placed on these cases by the court below, and by the counsel for defendants.
We understand the case in 4 Gill, as merely affirming the principle previously laid down in the case in 9 Gill and John., which we take to be this: that a court of equity will not, as a general rule, interfere by injunction, to restrain a mere trespass, pending litigation at law, to try the title to land; but that it will [**30]  so interfere under certain circumstances, which are, as enumerated by the Court of Appeals, under its late organisation:--
1st. To prevent irreparable mischief or ruin.
2nd. To prevent a multiplicity of suits.
3rd. Where it is required by some peculiar circumstances.
In the case of Amelung vs. Seekamp, the court adopted the views of Chancellor Kent, in Jerome vs. Ross, 7 John. Ch. R., and also the views of Justice Story, in his work on Equity Jurisprudence.
In the case of Jerome vs. Ross, Chancellor Kent very fully reviews the course of decisions in England, and in the State of New York, and, as we understand his opinion, recognises the following principles:
1st. That an injunction will not be granted to restrain a trespasser, merely because he is a trespasser.

 [*544]  2nd. But that an injunction will issue where the injury is irreparable; or, where full and adequate relief cannot be granted at law; or, where the trespass goes to the destruction of the property as it had been held and enjoyed; or, where it is necessary to prevent multiplicity of suits in cases where the right is controverted by numerous persons, each standing on his own [**31]  pretensions.
In the case before us it appears, that the wharf of the complainant, as laid down on the plot, has no outlet over the land, except by means of the thirty feet street; the twenty feet way and the locus in dispute. To the twenty feet way the complainant has no right, except such as grows out of the permission of the defendant Flannigain, which may be withdrawn by him, from all we can see, whenever it may suit his pleasure. There is nothing in the case to show the present condition of the thirty feet street; it may be wholly closed up by buildings or otherwise. The bill avers, that the complainant cannot have access to his lot and wharf along the forty-five feet street, except over the obstructions which have been placed on said street; and the defendant Flannigain admits, this street is closed up by obstructions placed there by himself, and points out the twenty feet way as the only one by which the complainant can approach his lot and wharf. Considering this case, therefore, as presented by the bill and answer, we must regard the twenty feet way as the only one open to the complainant, and even that, as wholly dependent on the pleasure of the defendant Flannigain.  [**32]  
In such a case as this, is it necessary that a suit should be instituted and prosecuted, to a successful termination at law, before a court of equity can interpose by injunction? A majority of the judges who sat in this case think not.
Chancellor Kent, in his collocation of cases in Jerome vs. Ross, when speaking of the application of the remedy by injunction, says: "The practice has been introduced, and justly and reasonably applied to special cases, where irreparable ruin would have followed the refusal to injoin the trespass. It was allowed by Lord Thurlow, in Fleming's case, (cited, 6 Vezey 147,) 

 [*545]  where the defendant had worked from his own land into the coal mine of the plaintiff; and that case was followed by Lord Eldon, (6 Vezey 147, 7 Vezey 307,) on the principle, that irreparable mischief and ruin of the property, as a mine, would be the consequence, if the party was not stopped. On the same ground, the injunction is granted against diverting a water course from a mill, (1 Bro. 538); against the destruction of timber, (10 Vezey 290); against the taking of stones of a peculiar value, (17 Vezey 128). But all these are cases of [**33]  great and irremediable mischief, which damages could not compensate, because the mischief reaches to the very substance and value of the estate, and goes to the destruction of it in the character in which it is enjoyed."
Now the principle on which the court interfered in these cases is, that the trespass produced a mischief which reached to the very substance and value of the estate, and went to the destruction of it in the character in which it is enjoyed. In the cases reported in 6 Vezey 147, and 7 Vezey 307, relief was granted on the principle, that irreparable mischief and ruin of the property as a mine, would be the consequence of the trespass. The case now before the court falls directly within the principle. We have seen that the complainant is entitled under an implied covenant to a right of way over the forty-five feet street. Any obstruction which denies the exercise and use of this right, works irreparable mischief to the street, as a street. The thing ruined by the obstructions is a street, and, as in the case of the mine, the complainant, on the principle there recognised, has a right to the aid of a court of equity. What he [**34]  complains of is, the destruction of the street. He is entitled to the enjoyment of it as a street. His title is clear, and, as we have already observed, cannot be denied by any one claiming under the heirs of McElderry. In the case of Hughes vs. The Trustees of Weston College, (1 Vezey 188,) the commissioners of a turnpike company entered, took possession of, and were destroying, by digging for gravel, large garden grounds of the plaintiff, who was a gardner by trade. The turnpike act had specially excepted 

 [*546]  gardens, as well as orchards, planted walks, &c.; Lord Hardwicke thought it a clear case of trespass, and of such a nature, that the plaintiff was entitled to seek his remedy by injunction, though he had his remedy at law. The interposition in that case, was clearly on the ground, that the orchard and garden, as such, were being destroyed. On such a case, although the party could have gone to law and had damages for the injury done him, yet, as these damages could not restore the thing, to wit, the garden, the court of equity gave him the relief sought.
In judging of the application of the remedy by injunction, reference must [**35]  always be had to the nature and character of the thing to be protected. In the case of the mine, to which we have referred, the thing was the coal; in the case before us, it is the street. By throwing obstructions over the street, so as to prevent a passage along its bed, it is just as much destroyed as if it were covered by a house; in the language of the authorities, it is irreparable mischief, because it destroys it as a street.
Justice Story says, (2 Equity, J. P. sec. 926,) "That where a party builds so near the house of another party, as to darken his windows, against the clear rights of the latter, either by contract, or by ancient possession, courts of equity will interfere by injunction, to prevent the nuisance, as well as to remedy it, if already done, although an action for damages would lie at law: for the latter can, in no just sense, be deemed an adequate relief, in such a case. The injury is material, and operates daily, to destroy or diminish the comfort and use of the neighboring house; and the remedy, by a multiplicity of actions, for the continuance of it, would furnish no material compensation." And in section 927, he observes, "cases of a nature, calling [**36]  for the like remedial interposition of courts of equity are, the obstruction of watercourses, the diversion of streams from mills, the back-flowage on mills, and the pulling down of the banks of rivers, and thereby exposing adjacent lands to inundation, or adjacent mills to destruction. So where easements or servitudes are 

 [*547]  annexed by grant or covenant, or otherwise, to private estates." And there are cases in which courts will interfere to prevent multiplicity of suits and vexatious litgation. 2 Story's Eq. Jur., 930. Lucas vs. McBlair, 12 Gill and Johnson, 1.
We do not understand the case of Amelung vs. Seekamp, as in any degree conflicting with these well established principles, so far from it, we regard it as distinctly recognizing and confirming them.
What was that case? It was a case in which the complainant asked the interposition of a court of equity, on the ground, that a right of way over the land of the defendants, had been obstructed by them; alleging that he had instituted his suit at law, to recover damages for the trespass. He claims the easement, on the ground of user, for more than twenty years, and alleged, that by the obstruction [**37]  complained of, "great and irremediable damage will accrue to him, his mills aforesaid, being thus wholly cut off from their ancient and accustomed outlet.
Now we do not understand the court as saying, that that would not have been a proper case for an injunction, had the complainant shown by the averments and facts, stated in his bill, that the obstructions of which he complained, would work irreparable mischief to him. So far from it, we understand the court as asserting directly the reverse. After alluding to the statement in the bill, that great and irremediable damage would accrue to him, the court proceed to say, "but the reasons are not given, the facts not stated, which shew to the court, that this great and irremediable damage, would result by the continuance of the obstruction." And, say the court: It is not charged, that he has no other reasonably convenient outlet from his mills, that by this obstruction, a valuable portion of the customers of his mills, will be driven from them. The mere allegation of a complainant, that irremediable damage, or irreparable mischief will ensue, is not sufficient. To satisfy the conscience of the court, the facts must be stated, to show [**38]  that the apprehension of injury, is well founded. Without such a statement of facts, no injunction 

 [*548]  should have issued." And again, "so far," says the court, "from its exhibiting a case, where the continuance of the outrage complained of, would work great and irremediable damage, it shews one which warrants the inference, that the loss or injury would be trivial," &c.
The plain inference from all this, is, that if Seekamp had set out in his bill, a case of irreparable mischief, the injunction ought to have issued. And the court intimate, what would have made out such a case, to wit: that he had no other reasonably convenient outlet from his mills, and that by the obstruction, a valuable portion of the customers of his mills, would be driven from them.
We have already said, that in treating of a question like that involved in this case, it is important, the nature of the right sought to be protected, should be constantly kept in view; and it is no less so, that the place where the property is located, should be considered as an element of consequence. The dictates of common sense require this. A street in a populous city, is a very different thing from a road [**39]  in an agricultural region. In the latter case, it may be of comparatively slight consequence, whether the road be in one place or another; an approximation to the reasonable convenience of the neighborhood and customary travel, is all that is generally desirable; but with the thronged thoroughfares of trade in a populous commercial city, a square may be of the greatest importance. In fact, property in a city derives its principal value from its location; its eligibility for business purposes, and in estimating this, facility of access is always deemed a circumstance enhancing the value; and therefore it is, the inhabitants of a city readily submit to the heavy burden of taxation necessary to the proper location of streets. In this view, therefore, we should not hold the same fullness of averment in a bill necessary, where the obstruction complained of, is a street. A road that would be reasonably convenient in the country, would render property, similarly situated in regard to streets in a city, comparatively, if not wholly valueless for business purposes.

 [*549]  It was urged in argument, that the municipal authorities of the city of Baltimore are competent to grant the relief [**40]  which the complainant asks, and that he should have made his application to the mayor and city council to have opened the street. An examination of the several acts of Assembly on this subject has brought us to a different conclusion.
By the 16th section of the act of 1817, ch. 168, the city is only authorised to open, widen, extend or straighten any street or alley, on the application in writing of the proprietors of two-thirds of the property intended to be taken.
By the act of 1832, ch. 57, the mayor and city council of Baltimore are authorised, in their discretion, upon the application of the proprietors of a majority of the feet, in front or length, on any private wharf, dock, street, lane or alley in said city, to cause the same to be paved, cleaned out, mended, or otherwise repaired or kept in good condition.
By the act of 1833, ch. 182, the local authorities are authorised, on the application of one or more persons interested in the ground to be taken, provided the same be unenclosed and unimproved, to sanction any streets which may be laid out by heirs, joint tenants, or tenants in common, in any division of real estate which may be made by them.
And [**41]  by the act of 1838, ch. 226, the mayor and city council have conferred upon them full authority to provide for the laying out, opening, extending, widening, &c., any street, &c., which, in their opinion, the public welfare or convenience may require.
Neither of these acts are adapted to the case of the complainant. By the act of 1817, ch. 168, the power of the city cannot be exercised, unless two-thirds of the proprietors of the property intended to be taken, should ask it. Under this act, the complainant of himself could ask nothing of the municipal authorities, as his right, unless the requisite number of property holders should unite with him in the request. The act of 1832, ch. 57, submits the whole matter to the discretion of the mayor and city council, provided the proprietors of a majority of the feet in front, &c., shall authorize 

 [*550]  its exercise. Under this act they have no power to act, unless the requisite number of proprietors grant it, and when the power is conferred, they are under no obligation to exert it. The act of 1833, ch. 182, confers no power over ground which is enclosed or improved. In the case before the court, the bed of the street [**42]  was enclosed, and was, therefore, not within the statute. And under the act of 1838, ch. 226, the power to open is only to be exercised whenever the mayor and council shall be of the opinion that the public welfare and convenience require it. The individual welfare and convenience of the complainant is not sufficient to call for the exercise of the opinion of the mayor and council, and if they were, the opinion which might be formed of them by the mayor and council, possibly might be in direct opposition, not only to his own judgment, but to his rights as guaranteed to him by his contract.
From this brief analysis of these acts of Assembly, it will be seen that the complainant could not ask, as matter of right, that the particular street should be opened by the direction of the corporate authorities.
The plea of limitations relied on in the answer is not available on a motion to dissolve an injunction. Hutchins vs. Hope, 12 Gill and John., 257.
From this view it is apparent, a majority of the court are of opinion that the complainant would be entitled to relief by an injunction, provided he has made the proper averments in his bill. The next question then for our [**43]  examination, is, whether the averments are sufficient? By the act of 1832, ch. 302, this court is precluded from noticing any objection to the sufficiency of the averments of the bill, unless the exception was taken below.
One of the exceptions below, was, that it is not shown by the bill, that the injury complained of, is of that "material and intolerable character which calls for the extraordinary preventive remedy of an injunction."
We do not understand the court either in the case of Amelung vs. Seekamp, or in the case of Hamilton vs. Ely, as saying, 

 [*551]  it is necessary, in words, to aver the injury to be irreparable, but that facts showing it to be so must be stated in the bill. In the case before us the averment is, that the obstruction complained of, works to his "great injury and in manifest violation of the obligations of the said Flannigain." This we consider a sufficient averment, if the facts stated in the bill show the truth of it, but this we are of opinion they do not. It is nowhere alleged in the bill, that the complainant has ever used his lot No. 128, or his wharf; nor, that such use has been interfered with. This, we think, essential to [**44]  the relief asked.
We do not deem it necessary to expend too many words in regard to the dissolution of the second injunction. The dissolution of the first, necessarily carries with it the dissolution of the last. But independently of this, we are of opinion, that Flannigain had the right to apply to the city council, as he did, not having bound himself by any contract not to do so, and that the court of equity possessed no power to enjoin him from the exercise of a right, which, belonged to him in common with all other owners of property in the city of Baltimore.
The sixth section of the act of 1832, ch. 302, authorises the Court of Appeals to remand the case, where the "purposes of justice will be advanced by permitting further proceedings, or the introduction of further evidence or otherwise;" and following the precedent set in the case of Brawner and wife vs.  Franklin, 4 Gill 472, this court will sign a decree affirming the decision of the superior court, and remanding the case to said court, that such further proceedings may be had therein, by way of amendment or otherwise, as may be deemed proper.  

CONCURBY:
ECCLESTON 

CONCUR:

ECCLESTON, J., delivered the following opinion:  [**45]  
I concur with the court in affirming the orders dissolving both injunctions in this case. But I do not assent to all the views expressed by them, in their opinion, in regard to the 

 [*552]  right of a party to invoke the aid of the extraordinary power of a court of equity, by injunction.
Conceding that the partition of the McElderry estate and the subsequent deeds for different parcels thereof, are to be considered as implied covenants, giving to the grantees under the deeds a private right of way, over the forty-five feet street, yet, if that street never was used as such, and the complainant stood by and saw the obstructions, of which he complains, existing for many years, I do not think he has a right to relief by way of preliminary injunction. Notwithstanding the industry and ability for which the counsel of the complainant are distinguished, no case, under similar circumstances, has been produced, in which such an exercise of the power of a court of equity has been successfully invoked.
In Amelung, et al. vs. Seekamp, 9 G. & J. 475, after showing that the complainant had not set forth in his bill, such facts as established a case of irreparable injury,  [**46]  the court say: "But if it were otherwise, the default of the appellee in standing by and permitting the appellant, Amelung, to enclose the land affected by the way in question, and to cultivate and improve the same for four years, would interpose a strong, if not an insuperable barrier to any interference in his behalf by way of preliminary injunction." That case was decided as late as the year 1838, by a full court, and without a dissenting voice.
BY THE COURT:
Order dissolving injunctions affirmed and case remanded under the act of 1832, for further proceedings.
Case remanded. 

163 of 187 DOCUMENTS 

STEWART against THE STATE OF MARYLAND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 Md. 129; 1851 Md. LEXIS 15 

DECEMBER, 1851, Decided 

PRIOR HISTORY:
 [**1]  IN error to the court of Howard District of Anne Arundel county.

Indictment was found in Baltimore city court. The defendant being arraigned, pleaded "not guilty, and then made the suggestion, that he could not have a fair and impartial trial in that court, and asked that the record be transmitted to an adjoining county court. The city court, by its order of 26th May 1851, directed the record of the proceedings, to be transmitted to "Howard District court," to be held at Ellicotts Mills, on the third Monday of September next, and the clerk certified to the record, removed to the above term of Howard county court. The case was tried at September term 1851, in the court of Howard District of Anne Arundel county, and the defendant was convicted of murder in the second degree. Thereupon he moved in arrest of judgment, and assigned the following reasons:

1st. Because that court had no jurisdiction to try the case, the order of Baltimore city court directs the record of the proceedings, in said case, to be transmitted to Howard District court, and not to "the court of Howard District of Anne Arundel county," for trial.

2nd. Because the record of proceedings are ordered to be [**2]  transmitted to Howard District court, and not to "the judges of the court of Howard District of Anne Arundel county."

3rd. Because the proceedings are not transmitted to an adjoining county court.

In consequence of an equal division of the court, the motion in arrest of judgment was overruled, and the defendant was sentenced to the penitentiary.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

It is no objection that an order to transmit a criminal case from Baltimore city court, to Howard District, says to Howard District court, instead of the court of Howard District of Anne Arundel county.  

COUNSEL:
This case was argued before a full court, by W. H. G. Dorsey and Pitts for plaintiff in error, and Brent in behalf of the State.

On the behalf of the plaintiff, it was said, that the act of 1842, ch. 72, makes it unnecessary to say, in indictments, all that part of Anne Arundel county, included in Howard District, of said county, and makes it sufficient to say, Howard District. The act however, authorises this only in indictments. So the act of 1846, ch. 159, permits the substitution of Howard District, for the words formerly necessary on other occasions, but does not authorise the use of them, in the order of the court, directing the record of the proceedings to be transmitted.

There must be a strict compliance with the terms of the law.

He referred to act of 1804, ch. 55, sec. 3. 1838, ch.  [**3]  22, sec. 4, this being a case before the adoption of the new constitution. 14 Vermont, 64. 3 Yerger, 281. 3 Dana, 224. 5 H. & J., 61.

As to the time, when this objection ought to have been made: It will be insisted that the objection was made too late, he had submitted to the jurisdiction of the court, by pleading not guilty. This plea, however, was relied on in Baltimore city court, and he was not again arraigned, after the record had been transmitted to the court of Howard District. He referred to Archbold's Criminal Pleading, 98, (in another edition, 193,) sec. 6. Russel and Ryan, 58, 1 T. R., 316.

Howard District, is not adjoining the city. Baltimore county and city are separate in several respects. 1842, ch. 246, provides for different sheriffs, they have different delegates, and are separated and in different districts in the election of the Governor. Howard District, in no part of it, adjoins the city of Baltimore.

Brent for the State.

The acts of Assembly often speak of Howard District, eo nomino, and if the first reason be ruled good, many of them would be a nullity. See 1846, ch. 159. 1849, ch. 365.

It is a question of intention, and there can be [**4]  no doubt about the intention here. There can be but one answer to the question, to what court, was it intended to transmit this case? To Howard District court, would certainly, in common parlance, be understood to mean: "The court of Howard District in Anne Arundel county," and why are not the same words sufficiently clear in an order of removal?

There is further evidence, in the order, to show what court was intended. The order says, "to Howard District, to be held at Ellicotts Mills, on the third Monday in September." Can any rational mind doubt the meaning of this order, especially where there is but one Howard District in Maryland, and that is Howard District of Anne Arundel county?

There may be a grant to a corporation by a wrong name; strictly speaking, the order of removal is no part of the record. If there was none in the record, the court to which it was sent ought to receive it. The record is the act of the officer, and ought to be presumed to be correct.

Jury is to come from a distinct county. Howard District in Anne Arundel county, the latter adjoins Baltimore county, of which the city of Baltimore is a part. See act of 1838, ch. 22, sec. 4.

The second [**5]  reason in arrest of judgment was abandoned, the decision of this court, in Price against the State, not yet reported, having settled it.  

JUDGES:
LE GRAND, C. J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*132]  LE GRAND, C. J., delivered the opinion of the court.
This case comes before us on a writ of error. It appears from the record, that George Stewart was indicted by the grand jurors for Baltimore city, at January term 1851, of Baltimore city court, for the murder of Thomas Moody. At May term 1851, he suggested to the court that he could not have a fair and impartial trial in said court, whereupon the court passed the following order: "Ordered and adjudged by the court here, that the record of proceeding of the said cause against the said George Stewart, be transmitted to Howard District court, to be held at Ellicotts Mills on the third Monday of September next, that the said court may then and there proceed to the trial thereof, and to do therein as to justice may appertain, &c."
At the September term 1851, of the court held for Howard District, George Stewart was tried, and by the verdict of a jury, found guilty of murder in the second degree. A motion was filed in arrest of judgment, which was overruled [**6]  by an equal division of the court. The prisoner was sentenced to five years and six months confinement in the penitentiary.
Upon this state of the case, a writ of error was sued out by the prisoner. The following are assigned as error in the proceedings:
1st. Because the court which tried him had no jurisdiction to try said case, because the order of Baltimore city court directs the record of proceedings in said case to be transmitted to Howard District court, and not to the court of Howard District of Anne Arundel county, for trial.
2nd. Because the record of proceedings are ordered to be 

 [*133]  transmitted to Howard District court, and not to the judges of the court of Howard District of Anne Arundel county.
3rd. Because the proceedings were not transmitted to an adjoining county.
By the act of 1838, ch. 22, and the act of the succeeding session, (1839, ch. 49,) the constitution and form of government were so altered as to erect Howard District out of a part of Anne Arundel county. By the 4th section of the act of 1838, a court is established to be styled "The court of Howard District of Anne Arundel county." The record of proceedings in this case [**7]  was ordered to be transmitted to "Howard District court." The first cause of error assigned, consists in the fact that the style of the court as given in the act of 1838, ch. 22, was not strictly followed in the order of Baltimore city court, directing the transmission of the record of proceedings.
It must be observed that, the order of Baltimore city court did not simply designate the court to which the record was to be transmitted, as Howard District court, but to such court "to be held at Ellicotts Mills on the third Monday of September," &c. Here is not only a designation of a court by name and style, but by the place and time, when and where it was to be held. By the 34th section of the act of 1839, ch. 98, the time for holding the court for Howard District is fixed as the third Monday of September in each and every year, and the record before us shows that it did hold a session at Ellicotts Mills on the third Monday of September, in the year 1851. If, therefore, there be any force in the objection, it must rest entirely on the fact, that the order of Baltimore city court did not strictly pursue the language of the act of 1838, in giving the style of the court to [**8]  which the record of proceedings was to be removed.
We do not think the objection tenable. Apart from the fact that there was no other Howard District in the State, at the time of the removal, the court authorized to be holden within its limits, has been on several occasions designated by acts of Assembly as "Howard District court." One of them 

 [*134]  has special reference to the removal of cases. The first section of the act of 1846, ch. 159, provides, "that from and after the passage of this act, that no cause, civil or criminal, removed from any of the counties of this State, or the city of Baltimore, to the "court of Howard District," shall be taken up for trial, until all the business originating in said district, ready for trial, and which shall require the intervention of a jury, shall be tried, &c., and in the second section of the same act, the court is styled as in the order of Baltimore city court, "Howard District court." We think the designation sufficiently definite, conforming not only to the time and place where the court was to be held, but, using the language which the Legislature has thought proper to employ when speaking of the jurisdiction of the [**9]  court.
The second and third objections are settled by the decision of the Court of Appeals, in their opinion, at December term 1849, pronounced in the case of John Price vs. The State. In that case the transcript of the record had been removed to Anne Arundel county court, and not to the judges thereof; but the court held that it was sufficiently definite, and also that cases could be removed from Baltimore city. Whatever question there may be under the present constitution of the State, whether Baltimore city is now a part of Baltimore county, there could be none at the time the case under consideration was removed. But in addition to this, the 4th section of the act of 1838, ch. 22, provides, that cases may be removed to and from the court of Howard District, "in the same manner as if it were one of the county courts of this State;" and the first section of the act of 1846, ch. 159, expressly recognizes the right of removal, both in civil and criminal cases, from Baltimore city to Howard District.
We discover no error in the judgment we have been called upon to inspect and revise, and accordingly affirm the judgment pronounced in this case by the court of Howard [**10]  District of Anne Arundel county.
Judgment affirmed. 

164 of 187 DOCUMENTS 

STATE OF MARYLAND vs. JAMES MANLY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 Md. 135; 1851 Md. LEXIS 16 

DECEMBER, 1851, Decided 

PRIOR HISTORY:
 [**1]  A WRIT of error to the judges of the third judicial district.

At May term 1851, the grand inquest for the body of the city of Baltimore, presented the defendant, and he appearing, an indictment charging him with an assault, with an intent to murder one George Konig, was found a true bill at the same term. On the 10th day of July 1851, the defendant having made affidavit that he could not have a fair and impartial trial in that court, it was ordered, that the record of the proceedings in the said cause be transmitted to Howard county court, to be held at Ellicotts Mills, on the third Monday of September, and the defendant being required, forthwith entered into recognizance with two securities, in the usual form, and requiring him to appear before "Howard county" court, to be held at Ellicotts Mills, on the third Monday of September.

The record being found defective, a writ of diminution was issued, and a correct record was returned during the same term.

On the third Monday of September in 1851, the State appeared and moved the court, (sitting at Ellicotts Mills,) that the defendant be called to come forth into court and answer the charge, or that his recognizance aforesaid [**2]  be forfeited; and to cause the securities to bring forthwith into court the body of Manly, (the defendant,) to answer the charge, or the recognizance be forfeited. These motions the court overruled, and ordered and adjudged, that the parties should not be called, and that the recognizance should not be forfeited, by reason of the non-appearance of Manly; and further, that the said record and proceedings should be returned by the clerk of this court to Baltimore city court, for want of jurisdiction in this court further to proceed in the premises. Thereupon the State, by its attorney, sued out a writ of error. The record, in its commencement, stated that at "a county court" of the third judicial district of Maryland, begun and held, &c.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

By the new constitution, (8th art. and 1st sec.) the civil and municipal officers of Howard District are to continue in office, as such, until the election or appointment of officers under the new constitution.

The style or title of the old courts has not been changed, while the judges under the old constitution continued in office.

The court, in September 1851, was held as the court of Howard District of Anne Arundel county, and there never was such court as Howard county court.

There being no such court in existence, the order of Baltimore city court, to remove this case to "Howard county court," and the recognizance taken for the appearance of the party before "Howard county court" were null and void, and, notwithstanding the order of removal, the case still remains in "Baltimore city court." 

COUNSEL:
Robert J. Brent for the State.

W. H. G. Dorsey for defendant.

Brent. The record says, that at a county court held at Ellicotts Mills. The order of Baltimore city court is to remove the case to Howard county court, and the recognizance requires the defendant to appear at the same court. The final order of the court to which the case was removed, and which styled itself Howard District court, is, that the recognizance [**3]  shall not be forfeited, that the court in which the case then was, had no jurisdiction; and because of this, the said court "ordered and adjudged, that the said record and proceedings should be returned by the clerk of this court to Baltimore city court, for the want of jurisdiction in this court further to proceed in the premises."

From such an order as this, will a writ of error lie? To prove that it will, he cited 1 H. & J., 268. 2 H. & G., 378. 12 G. & J., 332. 7 Clark and Fin., 52, note. 3 Bin., 276. 1 Bin., 644. 5 How., 214. 12 Wend., 327. 2 Paige, 487. 5 Serg. and R., 146.

Whenever the inferior court, by its judgment, ends the case in that court, a writ of error may be issued out.

Admitting the case to be properly before this court on the writ of error, then the next enquiry is, had not the court jurisdiction, and ought it not to have called and forfeited the recognizance? There was certainly no other court to which the record could be sent, or be designed to be sent. The act of 1838, ch. 22, sec. 8, which formed Howard District, gives to it the title of "Howard District," part of Anne Arundel county; and such undoubtedly was the title or name of that portion [**4]  of territory, until it was changed by the new constitution.

The order of the Baltimore city court was dated the 10th of July, after the constitution was adopted, in the manner prescribed therein, and went into operation on the 4th day of July, six days previously to the order for the removal was passed.

It is contended that the true title of the court to which the case was removed, is by the act of 1838, ch. 62, Howard District of Anne Arundel county: no doubt of this, and such continued to be its true title, until the constitution which gave it that title was abrogated. It is not its true title now; when did that cease to be its title? That is to be determined by the constitution which was adopted in July 1851; certainly that constitution does not give to it that title, or allow it to remain any longer a territory. Its original name is to be taken from it, and the territory once called Howard District of Anne Arundel county, is to be formed into a county with the title of Howard county, so soon as the provisions of the constitution, in relation to Howard county, go into operation. I contend that it ceased to be Howard District of Anne Arundel county, and became Howard county,  [**5]  on the fourth of July last, and this writ of error, being issued as after that date, could not be directed to the judges of Howard District of Anne Arundel county, that district no longer having legal existence. The territory, originally Howard District of Anne Arundel county, had become Howard county; the court was the court of Howard county. Who were the judges of it? Those who at the time the territory ceased to be Howard District of Anne Arundel county, were the judges of the court of that territory.

This is simply a question of interpretation, and not like the caption of an indictment, a question of special pleading? What court did the judge of Baltimore city court mean when he directed the record to be transmitted by his officer to another court? Was there in existence any other court, which could be intended? Is it not certain to a common intent?

Dorsey for defendant in error.

The case in 10 G. & J., 365, as well as the case cited already from 12 G., 332, seems to authorise the issuing of this writ of error; upon the objection that the writ of error could not properly be issued in the case before the court, he did not insist.

The real question is, was the [**6]  court below right in refusing to have the recognizance forfeited? Was the court, the correctness of whose order is impeached, Howard county court?

The constitution creates no county court in the State. If the whole State is to be divided into eight circuits, judges to be called circuit judges. But one judge in each circuit, instead of three, who were formerly appointed for each district. If the district court of Howard District was destroyed by the court on the 4th July, then every county court in the State was destroyed at the same time. By what authority did Judge Nesbitt, as judge of Baltimore city court, send the record to any court? If the court which met, in what had been Howard District, was Howard circuit court, then the city court of Baltimore was, after the 4th July, no longer Baltimore city court, but was thereafter to be known by the name given to the court of criminal jurisdiction in that city.

If no such court as Howard county court was then in existence, the party could not appear in compliance with his recognizance. 5 H. & J., Morgan vs. Blackistone.

3 Yerger's Reports, 281. The recognizance was to appear on a certain day, and the court in which he was [**7]  required to appear, did not meet on that day. Recognizance could not be forfeited. In the case before us, the court mentioned in the recognizance, was not on that day in existence. See also 3 Danas Reports, 224. 16 Vermont Reports, 64.

This is no question of intention. The court is to judge from the record. The record must not say in its recognizances and orders for the removal of a case, the county court of Howard, if the intention is, to send it to a court already in existence, and which must cease to exist, before the county court of Howard can have legal existence.

While Howard District, yet a part of Anne Arundel county, existed, cases could be removed to it from the city of Baltimore, because the one was, according to the division of our courts, adjoining the other, but Howard county being no part of Anne Arundel county, it will be difficult to remove cases to Howard county from any criminal court of Baltimore city, unless it can be shown that the one adjoins the other.

Mr. Dorsey gave the following as a list of the acts relating to removals. 1804, ch. 55, sec. 3. 1805, ch. 65, sec. 49. 1809, ch. 138, sec. 20. 1821, ch. 204, which in the case of State vs. Dashiel,  [**8]  6 H. & J., 268, was declared to be unconstitutional.  

JUDGES:
This case was argued before ECCLESTON, TUCK and MASON, J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*139]  ECCLESTON J. delivered the opinion of the court.
The 1st sec. of the 8th article of the new constitution, makes Howard District a county, calling it Howard county; and declares that the inhabitants thereof, shall have and enjoy all such rights and privileges as are held and enjoyed by the inhabitants of the other counties in this State; and that is, civil and municipal officers, at the time of the ratification of the constitution, shall continue in office until their successors shall have been elected or appointed, and shall have qualified as such. The meaning of which surely is, that the civil and municipal officers of Howard District, shall continue in office as such, until the election or appointment of officers under the new constitution. And that portion of the same article 

 [*140]  which declares, that all rights, powers and obligations, incident to Howard District of Anne Arundel county, shall attach to Howard county, is gratified, so far as relates to the officers, by deciding the new county, to be entitled to their services,  [**9]  although continued in office, as the officers of Howard District, until the election of their successors.
Such a construction would make this article harmonize with the 8th sec. of the 10th article, which provides that officers holding commissions, under the State, shall continue to hold and exercise their offices, according to their existing tenure, until they should be superseded. This has been construed to give the judges power to hold the county courts, through the State, and the Baltimore city court, until the election of new judges. But it has not been supposed that the style of either of the courts was changed, whilst the judges under the old constitution continued in office. In the proceedings before us, the court from whence they were removed, or intended to be removed, is called "Baltimore city court," as late as September 1851. And yet, there would seem to be quite as much propriety, in calling the courts for the counties, circuit courts, and Baltimore city court, the criminal court of Baltimore, in consequence of the names given to the courts, under the new constitution, as to call the court of "Howard District of Anne Arundel county," Howard county court. The style [**10]  of the court for that portion of Anne Arundel county, is prescribed in the act of 1838, ch. 22, sec. 4, and there is no change made in it by the new constitution, other than what relates to the courts in other parts of the State.
The expression, "all civil and military officers holding commissions under this State, shall continue to hold and exercise their offices, according to their present tenure, until they shall be superseded," can only be gratified to any practical, useful extent, by giving it the construction, that they had all the powers which were given to them, by the old constitution and the laws under it, to be exercised in the same manner, unless altered by some clear and manifest provision in the new constitution.

 [*141]  If the act of 1838, ch. 22, had never been passed, and there never had been a separate court for Howard District, although the convention should have converted that district into a new county, with its present name, still the court of Anne Arundel county would have continued to exercise jurisdiction over the new county, under the new constitution, until the election of judges; but it must have done so, as the court of Anne Arundel county, and not [**11]  of Howard county.
Under this view of the subject, the court in September 1851, in Howard county, was held as the court of Howard District of Anne Arundel county. There was not then, and indeed there never has been, in this State, such a court as Howard county court. The order of Baltimore city court was to remove the case to "Howard county court," and the recognizance taken was, for the appearance of the party before "Howard county court." There being no such court in existence, the order of removal and the recognizance were null and void. And consequently the case was not removed from Baltimore city court, but remained in that court as if there had been no order of removal. We therefore think the court were right in refusing to forfeit the recognizance.
It was contended in behalf of the State, and admitted by the counsel for the defendant, that this is a case in which a writ of error will lie. The correctness of this position, is sustained by the decision in 10 Gill and John., 365. State vs. Murphy and Thompson.
Judgment affirmed. 

165 of 187 DOCUMENTS 

A. W. BRADFORD against JONES, Trustee, FOLEY and WOODSIDE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 Md. 351; 1851 Md. LEXIS 31 

DECEMBER, 1851, Decided 

PRIOR HISTORY:
 [**1]  THE statement of this case, prepared by the counsel for the appellant, is so full and correct, as to render any addition or alteration unnecessary.

The questions presented by this appeal arose upon the following case:

James Jones was an applicant for the benefit of the insolvent laws of Maryland, at four several periods, to wit: in 1836, 1846, 1848, and in 1850. And there having been no appointment by the commissioners, of a permanent trustee, under any of these applications, T. M. Lanahan, Esq., was, by Baltimore county court duly appointed the permanent trustee of said Jones under the first of said applications, that of 1836, and duly qualified as such. On the 17th November 1851, the said trustee, Lanahan, made his report to Baltimore county court, and in which he reports, that on or about the 1st March 1850, the said insolvent became entitled, under the will of his brother, to the sum of $ 1,051.61, which he, the trustee, says he has received and has in hand for distribution, but does not state the period of its receipt.

Of that report there was a confirmation nisi by Baltimore county court on the 17th November 1851; and on 16th December 1851, the proceedings in the [**2]  application to which said report related, were, at the instance of T. P. Scott, Esq., as attorney of some of the creditors, and on the application of the clerk of the court of common pleas, transmitted by the clerk of the superior court of Baltimore city to the court of common pleas for said city, in which latter court the said report was finally ratified. And thereupon, the auditor of insolvent estates in said court made his report, with the accompanying accounts. In one of these accounts, account A, he has charged the estate in the hands of the trustee "with the State tax of 1 per cent. on the amount in hands of the trustee, payable to A. W. Bradford, former clerk of Baltimore county court, act of 1841, chap. 271:" and to this account the exceptions were taken as to Bradford's claims, by said T. P. Scott, Esq., as attorney of certain creditors of said insolvent. These exceptions are, "that the said claim of A. W. Bradford, as stated and allowed in account A, ought not to have been allowed, but ought to have been rejected. 1st. Because the acts of Assembly, under which said claim is supposed to arise, were and are unconstitutional and void, so far forth as said claim is concerned.  [**3]  2nd. Because if the said acts of Assembly ever had any legal force or validity, yet the time for which they were limited has expired.

The court gave the following opinion:

In the matter of the estate of James Jones, an insolvent debtor. Court of common pleas.

The exceptions taken on behalf of Foley and Woodside, against the claim stated and allowed in favor of A. W. Bradford, involves questions of such importance and delicacy, that I have thought it due to myself to state my reasons briefly in writing. I am not of opinion that the laws upon which this claim rests, have expired by their own limitations. I shall not trace this system of legislation through its intricacies, in order to show that they should not be considered mere temporary laws. The act of 1849, ch. 354, I think is conclusive upon this question. The act of 1837, ch. 235, continues this system of laws, so far as they were in force, until 1850. The act of 1849, ch. 354, passed March 7th, 1850, continues all public acts that would expire with the then session of the assembly, until the last Monday of December 1851, and till the end of the session of the assembly then to ensue. It is needless to go into a philological [**4]  inquiry as to the meaning of the word "with." Like all those particles in our language, its discriminating shades of meaning are very nice. I think it may fairly be considered as properly used in the law, as coincident in meaning with the word "during," used in its caption. Considering these laws then as not having expired at the time and in the manner supposed in the exception, and putting aside for the present the constitutional objections to their legal force at any time, I shall inquire whether the claim of Mr. Bradford could be sustained by a just construction of these laws under existing circumstances. The law particularly in question here, is that of 1841, ch. 271. The claim under discussion is the tax imposed by that law. The object of this tax and of the kindred taxes imposed by the system of laws under review, was first, to provide a fund, out of which to pay the increased salary allowed the judges of the sixth judicial district by the law of 1828, ch. 127, and then to increase the compensation of those judges by the surplus in the hands of the clerk, whose duty it was to collect the tax. The courts composing the sixth judicial district, were dissolved on the 1st of December [**5]  1851. From that time, of course, so far forth as this question is concerned, the judges of those courts became private citizens. It has not been suggested in this cause, that the full salaries allowed by law have not been paid to those gentlemen, up to the period of their retiring from office, nor is it alleged that any surplus, actually in the hands of the claimant after the payment of those salaries, is here involved. The surplus of all taxes thus collected, up to the 1st of December last, has no doubt been paid into the hands of the judges, agreeably to the provisions of these laws. The question here is simply, shall this tax continue to be collected? The courts have ceased to exist, which the tax was intended to support, and the judges are private citizens, for whose compensation this tax was designed. There can be but one reason now which can justify the further collection of this tax. It is, that upon a just and fair construction of the law imposing it, the judges acquired a private individual right to one per cent. of all insolvent estates, at the moment of their being converted into money in the hands of the trustees. I do not think the laws will admit of this construction.  [**6]  I think, on the contrary, that the judges could have no individual rights in the proceeds of this tax, nor any claim upon the estates subjected to it, until the moment and under the circumstances when it became due and payable to them under the rules and practice of the court, and by the literal provisions of the law; this was a tax to defray the expenses of the judiciary; it was a public fund therefore, and every individual claim upon it must be strictly construed. The proceeds of the tax now claimed must be distributed, either under the act of 1837, ch. 72, sec. 2, or the act of 1835, ch. 235. The act of 1837, ch. 72, provides, that the clerk shall, after paying to the treasurer, quarterly, the one-fourth of $ 2,400, on account of the salaries of the judges provided for by this law, pay to the judges the surplus, or excess or excesses, that shall accrue quarterly, yearly, or at any time when such excess shall accrue. It is argued, that this tax must be deemed to have accrued from the moment the fund out of which it was to be paid should become liable to taxation. I think not; there is a wide distinction between the laying and the collecting of a tax, and surely it is in the power [**7]  of a people, at all times, to arrest by law the collection of a tax they may have imposed for public purposes. This tax was, therefore, I think, merely authorised and entirely the subject of legislative control, until the regular administration of justice under the practice of the court; it should be paid to the clerk, and he should have ascertained, by deducting the quarterly payment to the treasurer from the amount in hand, that he held a surplus or excess. The language of the law is not that the tax should have accrued, but the excess should have accrued after the payment to the treasurer. How can a claim thus situated be sustained? An individual, no longer a clerk, claims that a heavy tax shall continue to be collected and paid to him, that he may hand over to the treasurer the salaries of judges of a court which has ceased to exist, and pay over to the gentlemen, who were judges, a large surplus after they have become private citizens. I think this cannot be allowed; nor, in my opinion, does the act of 1835, ch. 235, make the claim under discussion any better in law; that act provides for the payment by the clerk of all his receipts to the treasurer, but still the purpose of the [**8]  tax, of the clerk's receipts of it, and the payment into the treasury, is to pay the salary referred to, and to enhance the emoluments of the judges of Baltimore county court. This is but the interposition of an additional agent, for conveying into the hands of the late judges a sum of money now, which they would, undoubtedly, have been entitled to receive, had it accrued to the clerk in the regular course of judicial administration, before the court ceased to exist. It is argued, that the failure of the purpose does not avoid the tax. It does not under all circumstances certainly. But I think a court of justice would not be authorised to direct the continued collection of a tax upon funds under its control, claimed in the manner and for the purposes herein set forth.

A failure of the purpose may, and sometimes must, avoid the tax, else why should a tax for an illegal or unconstitutional purpose be void? and I presume there is no doubt that a law imposing a tax specifically for an unconstitutional purpose, would be unconstitutional and void. The second objection to this claim is, that the law imposing the tax claimed was unconstitutional and void. If I am right in the principles [**9]  I have endeavored to express in reference to this claim already, it is of no practical importance what may be thought of the unconstitutionality of these laws. These laws have been long acquiesced in under the former constitution of the State, and it would seem a gratuitous criticism upon past legislative action to express an opinion upon its constitutionality under such circumstances; except that the construction of the present constitution is equally involved in the issue with that which has just been superseded. The 30th section of the former bill of rights, directed that liberal salaries should be secured to the judges, and that no judge should receive fees or perquisites of any kind. The 9th section of the 4th article of the new constitution, declares that no judge of any court in this State shall receive any perquisites, fee, commission or reward, in addition to his salary, for the performance of any judicial duty. These provisions are substantially the same, and it is important and proper at an early period, under the new constitution, that the courts should determine by construction of this instrument, whether the compensation of the judges under it, may be increased by the [**10]  imposition of heavy special taxes, applicable to the payment of their salaries, and in the event of an excess, to the enlargement of their receipts. I think such a system of contingent reward cannot be adopted under our present constitution, and of course, I am of opinion, that so far forth as the surplus or excess of these taxes beyond the additional salary of eight hundred dollars, is in question, the provisions of these laws were violative of the old constitution, and are incompatible with the existing one. I have no doubt that the existing constitution controls the present question, and that in virtue of the 8th section of its 10th article, Baltimore county court was from the 4th of July to the 1st of December 1851, temporarily, but absolutely, a part of the system established by the recent convention of the State. I shall therefore sustain the exception to this claim. 1st. Because the tax was imposed for a specific local purpose; that purpose is made impossible by law, and the agent or trustees can have no right to the fund. 2nd. I think the purpose was unconstitutional, and that the law therefore was void, even whilst the object had such an existence as to admit of a possible [**11]  execution of the law.

Whereupon the said Augustus W. Bradford, late clerk as aforesaid, prays an appeal from so much of the said order as allows the exceptions to, and overrules the claim of him, the said Augustus W. Bradford, as audited.

From that decision the present appeal was taken.  

DISPOSITION:
Cause remanded.  

HEADNOTES:

There is nothing in the act of 1841, chapter 271, repugnant either to the old or the new Constitution. The funds contemplated by that act, may certainly be taxed for general purposes. A fund thus raised by taxation, can be as well applied by the legislature to the payment of the salary of a judge, as to defray any other expense of government. The act of 1841, aforesaid, is but the exercise of a power vested in the legislature by the old Constitution, of regulating and increasing the salaries of the judges, and providing the means of paying them.

This act of Assembly is warranted by very many laws, passed at different times, commencing many years ago, and making a similar provision for the chancellor, judges of the general court, of the Court of Appeals, and the county courts. This long and uniform interpretation, ought to remove any doubt which might be entertained, in regard to the constitutionality of this act of Assembly.

The new Constitution provides that the judges then in office, should continue in office, until their successors shall qualify. The effect of this provision was to continue the salaries of the then judges, so long as the State received their services. The salaries allowed by the new Constitution, are payable to the judges appointed under it, and not to the old judges.

The act of 1849, chapter 354, revived the act of 1841, if it expired 1st January 1850.

The title of an act of Assembly is no part of it, but may be resorted to, in order to show the intention of the legislature.

The act of 1841, imposes a tax of one per cent. upon all moneys thereafter deposited in Baltimore county court, or coming into the hands of trustees or other officers of said court, for distribution under its orders or authority, which is to be paid over to the clerk of said court. This sum, thus collected, went to the judges of Baltimore county court, as part of their compensation. When this tax accrued the services had been rendered, and the claim to it had become a vested right; this was a "legislative levy" upon the fund, fixed and determined upon before the judges went out of office, and a delay in stating the account by the auditor or in the payment of the money over to the clerk, cannot affect their right to the tax.

The clerk of the court is but a ministerial officer, under this law, and has not, like the judges, a vested right, to render the service imposed on him. He has no "inchoate" right to commissions for collecting this tax. The clerks of the new court are now to perform the duties of the clerk of Baltimore county court in regard to the collection and disbursement of the fund arising from this tax. The allowance, therefore, to the clerk of the late county court, the court of common pleas was right in rejecting.

The design of the law of 1849, ch. 88, sec. 4, which confines the Court of Appeals, in cases of insolvency, to the points raised in the court below.  

COUNSEL:
By McMahon and Alexander for appellant, and Scott for the appellee.

On the part of the appellant, the following points were submitted and insisted upon:

1st Point. That the said act of 1841, chap. 271, as well as the acts of 1835, chap. 235, and 1836, chap. 133, whose provisions were in part repealed and superseded by those of said act of 1841, and the act of 1830, chap. 159, are, on their face, and by the terms and character of their enactments, permanent acts. That being thus permanent on its face, and by the nature of its enactments, the said act of 1841 was not rendered a temporary act, merely because it is, by its title, supplementary to a temporary act, and especially not, when its provisions are not so connected with, or dependent on those of the act to which it is styled supplementary, as to render the existence and operation of the latter essential [**12]  to those of the former; nor as a permanent act, could the mere continuance of it to a given period by another statute operate as a repeal of it after that period; that the connection of several statutes, by their relation on the same subject matter, is more intimate and influential than their connection by title merely; and that even where there is such a connection by subject matter between several statutes, the expiration or repeal of one of them does not, of itself, determine the existence of the other, which are permanent or unrepealed, unless in cases where the provisions of the latter cannot be enforced, without the enactments of the expired or repealed statute; and lastly, that even if said act of 1841, were admitted to have been thus made a temporary act, it was continued and was in force, by virtue of the act of 1849, chap. 354. 9 Bacon's Abridgment, (Bouvier's edition,) 223. Ex parte Gallilee, 7 Durnford and East., 673. Dwarris', 9 Law Lib., 28. 1 Har. and John., 550. 7 Gill and John., 274, and 12 Gill and John., 17, 18. 9 Bacon's Abridg., 227. And for the continuing acts of 1828, chap. 161: See acts of 1834, chap. 88; 1837, chap. 235, and 1849, chap. 354. 4 Gill and John.  [**13]  , 152, and the authorities there collected.

2nd Point. The second point, relates to the constitutionality of the said act of 1841, chap. 271, as tested by the constitution of Maryland, as it existed at the period of the passage of said act, and until superseded by the present constitution.

The objects of the legislation, of which this act of 1841 was a part, were to increase the salaries of the judges of Baltimore county court, and to create a fund, for the payment of such increased salary, by a State tax, on process of, or proceedings in the court, or on funds passing through the court. For this purpose, the acts of 1835, chap. 235, and 1836, chap. 233, imposed a tax of two per cent., to be paid by the trustees of insolvent debtors on all sums on which they received their commissions: but these provisions were superceded by those of the said act of 1841, which enacts, that in lieu of it, "there shall be, and is hereby imposed, on all moneys, thereafter to be deposited in Baltimore county court, or coming into the hands of trustees, or other officers of said court, or persons, for distribution, under its order or authority, one per cent., to be paid to the clerk of said court,  [**14]  and to be by him, accounted for and paid over," &c. And the constitutional objection to this act, under the old constitution, if rightly apprehended, is, that it violates the provisions of the 30th article of the bill of rights, which, after declaring "that the independence and uprightness of judges, are essential to the impartial administration of justice, and a great security to the rights and liberties of the people," secures their continuance in office during good behavior, directs the legislature, as to the salaries to be received, and then provides, "that no chancellor or judge, ought to hold any office, civil or military, or receive fees or perquisites of any kind." And it is assumed, that this act of 1841, does violate that article, either because it increases their salaries, or does it by the allowance of fees or perquisites.

Affirming the constitutionality of this act of 1841, the counsel for the appellant will maintain:

1st. That nothing but a clear and manifest repugnancy, between said act and the constitution, which leaves no well-founded or rational doubt, as to the unconstitutionality of the act, will be decisive against its validity. 12 G. & J., 438. 4 Dallas,  [**15]  18 and 19. 6 Cranch, 138. 12 Wheaton, 270, 294. 9 Gill and John., 383. 16 Pick., 95.

2nd. That the only power, exerted by the said act of 1841, was to provide a fund, for the increase of the salaries of the judges of Baltimore county court, by a tax on funds in court, or coming into the hands of its officers, in order to distribution under its order: and, that if even such a tax, for such a purpose, could be regarded as giving to the judges of said court, fees or perquisites, within the meaning of the said 30th article, still it would not fall, within the inhibitions of that article. That the injunction of said article, "that no judge should receive fees or perquisites of any kind," was not intended as a restriction upon the legislature, or to preclude it from increasing or providing for the salary of the judge, but to preserve the uprightness of the judge, by prohibiting him from receiving any fees or perquisites, but such as the law allowed, and that this, its true construction, is made manifest not only by the preamble of the article itself, but still more clearly by the oath correspondent to this obligation, which the judge is required to take under the 52nd article of the [**16]  constitution: "That he will not, directly or indirectly, receive any fee or reward for doing his office of judge, but what is or shall be allowed by law."

3d. That a tax thus imposed, attaching to the fund as soon as it is deposited in court, or comes into the hands of the trustee, in nowise dependent upon the action of the judge in the premises, and collected and paid over as directed by the act, is not a fee or perquisite within the meaning of that article.

4th. That if there ever had been any room for doubt as to the constitutional right of the legislature, under the old constitution, to exercise such a power as was exerted in the passage of the said act of 1841, there is enough in the aids to the construction of that constitution furnished by the legislation of the State, during its continuance, to put such doubts to rest. This act of 1841, does but exert the power of increasing the salaries of the judges, and of providing a fund for that purpose, by a tax imposed by the law on the funds brought into, or under the control of the court: and the fact that the same, or similar powers, were repeatedly exercised by the legislature under the old constitution, by acts of legislation,  [**17]  beginning immediately or shortly after its adoption, continued for long periods, and never questioned, but always acquiesced in without objection, affords a contemporaneous and practical exposition of the constitution, entitled to the highest consideration, and decisive in cases of doubt or ambiguity. 1 Bland, 679, for the legislation as to judicial salaries, and especially before 1785. Acts of 1785, chap. 27; 1792, chap. 76; 1797, chap. 71, and 1798, chap. 86, as to the chancellor's salary. General court, 1 Bland, 679; 1785, chap. 27, and 1797, chap. 50. Court of Appeals, 1 Bland, 679; 1785, chap. 27; 1797, chap. 79; 1799, chap. 52, and especially as to the county courts, acts of 1790, chap. 33, sections 19th to 22nd; 1796, chap. 43, secs. 28th to 30th, and 1801, chap. 74, secs. 18th to 21st. Act of 1834, chap. 220. 1 Gill and John., 248, 385. 2 Gill, 19, 497. 1 Cranch, 309. 12 Peters, 318. 5 Mass. R., 535, '36. 3 Pick., 518.

5th. That the new constitution itself, by a contrast of its provisions, and especially its new and additional provisions in relation to the salaries or compensation of the judges to be elected under it, with those of the 30th article of the bill of rights [**18]  in the old constitution, affords further and conclusive evidence, if more were wanted, that the said 30th article was not intended as a restriction upon legislative power, and especially did not inhibit such legislation as is embodied in the said act of 1841. New constitution. Bill of rights, article 30th; and constitution, article 4th, sections 4th and 9th, and especially the 9th.

3rd Point. The 3rd point relates to the effect of the new constitution upon the said act of 1841, assuming that act to be constitutional and in force at the period of the adoption of said constitution.

And under this point, it will be maintained, that the new constitution, in its several provisions as to the salaries or compensation of the judges, &c., had relation only to the judges to be elected under it, and did not, and was not intended to affect, regulate, or take away, any part of the salaries or compensation of the judges of Baltimore county court, who were to be superseded by the judges elected under it: that from the very nature and objects of the instrument, as well as its provisions, continuing these judges in office, until their successors were elected and qualified, it was not intended [**19]  to affect their salaries or compensation, as regulated by the constitution and laws, under which they accepted and held office at the period of its adoption: that it could not accomplish that end, in their cases, except by an implied repeal of the said act of 1841, which is disfavored, and never allowed, except in cases of plain and unavoidable repugnancy: and is not necessary, in this case, to avoid such repugnancy, or to give effect to the provisions of said new constitution, as to judicial salaries or compensation.

And lastly, it will be maintained, that the only provision in that constitution, which, it is alleged, accomplishes this repeal, and renders the payment of the tax unconstitutional, is shewn by its terms and context not to have relation to the said judges of Baltimore county court: that provision is found in the 9th section of the 4th article of the constitution, which relates to the judges of the circuit court thereby established: and which, speaking of them, enacts, "and the said judges shall each receive a salary of $ 2,000 a year; and the same shall not be increased or diminished during their continuance in office; and no judge of any court in this State shall [**20]  receive any perquisite, fee, commission, or reward, in addition thereto, for the performance of any judicial duty. And this clause it will be maintained, manifestly has reference by the words, "in addition thereto," only to the circuit judges and their salaries of $ 2,000, previously established, or at all events, has no relation to any judges but those whose salaries are established by that instrument; and also that the tax in this case does not fall within the provision, even if it were applicable.

4th Point. This point relates to the supposed expiration or cesser of the purposes for which the tax was imposed by the said act of 1841, and the right of the court, for that cause, to reject the appellant's claim to the tax.

If the act of 1841 was unconstitutional, or has been impliedly repealed by the new constitution, then the enquiry under this point is immaterial. But assuming that the said act was not unconstitutional and has not been repealed, the enquiry then arises as to the right of the court to refuse the enforcement of it, merely because the tax, when paid to the clerk, as a State tax, under the express injunction of a State law, is to be by him paid over, under the [**21]  authority of that law, for purposes and objects declared by the law, which, it is assumed, can no longer be carried out, because the officers are no longer in existence for whose ultimate benefit the tax was collected.

And under this point it will also be maintained, that the mere inability of the State, after it had received the tax, to carry out the purposes for which it was imposed, even if conceded, could not operate as an implied repeal of the said act, or warrant the court in refusing the enforcement of it; and that even if it were so, there was nothing in the case to justify the assumption, that the purposes of the act had been entirely accomplished, as far as their accomplishment was practicable.

And it will also be maintained, that the said act of 1841 operated as a legislative levy of the tax of one per cent. upon the fund in the hands of the trustee as soon as it came into his hands; that it was from that period a vested right of the clerk, intended for the ultimate benefit of the judges of Baltimore county then in office, which bound the trust in the hands of the trustee, and required no further action of the law or of the court to create or vest the right; and [**22]  that being thus vested, the mere delay in the distribution of the fund, until the said clerk or judges had gone out of office, could not take away or impair that right; and, as in this case, the funds were not only received by the trustee before the said clerk and judges went out of office, but were actually reported as on hand, by said trustee to the said judges of Baltimore county court, and the report by them provisionally confirmed whilst they were still in office, the appellant's title to the tax was then consummate, and the court below erred in refusing the allowance of it.

And lastly, that the exceptions to the account present no such question, but only those relative to unconstitutionality or expiration of the said act of 1841. State vs. Mayhew, 2 Gill, 497 and '98.

T. P. Scott for the appellee, submitted the following points and authorities:

1st Point. That the act of 1841, ch. 271, and the system of which it is a part, are unconstitutional, so far as the proposed tax therein mentioned, is concerned.

Under this point the appellees will reply to the second and third points of the appellant.

The declaration of rights, 1776, sec. 30, declares, that "salaries"  [**23]  ought to be "secured" to the judges, and that no judge ought to receive "fees or perquisites of any kind;" and the amendment of 1804, ch. 55, sec. 1, declares that the "salaries of the said judges shall not be diminished," &c.

Thus a distinction is drawn between "salaries," and "fees or perquisites;" and the "salaries" are not to be contingent or dependent; and upon an examination of the various laws referred to in the fourth part of the appellant's second point, we will find, that these distinctions are constantly kept in view. The new constitution, art. 4, sec. 9, and declaration of rights, sec. 30, preserves the provisions and distinctions of the old constitution.

The system of acts of Assembly now under review, commenced with the act of 1828, ch. 161, sec. 8. Additional fees or taxes were afterwards levied by other acts, but we shall here refer only to the acts of 1835, ch. 235, sec. 2, and 1836, ch. 133, and finally, the act of 1841, ch. 271. Under all of these acts, fees or taxes were levied as perquisites, for the use of the judges of Baltimore county court; at first, a part only of the amount that might be raised, was to be paid them, 1828, ch. 127; and afterwards [**24]  the whole amount raised was to be paid them, 1837, ch. 72; but it was contingent and uncertain in amount, depending on the extent of litigation, and in certain cases, on the event of the suit, as in bills to avoid preferences given by insolvents, and bills for a sale of estates held by parcenors, on the ground that partition could not be made in kind. Shall a judge decide when he is interested in the event of the suit?

Thus we dispose of the third part of the appellant's second point.

In reply to the fifth part of the appellant's second point, and to his third point, we say, that although the old judges, were to hold over and exercise their duties according to their "old tenure," art. 10, sec. 8, yet after the adoption of the new constitution, "no judge of any court in this State, shall receive any perquisite, fee," &c., art. 4, sec. 9. This article does not mention the judges of the superior court, the common pleas, or the criminal court of Baltimore, yet if they are not embraced in the general terms of this article, they may receive fees, &c., prohibited to all other judges. Such could not have been the intention of the convention.

We contend that the acts of the legislature [**25]  under review, although they assume "the garb of law," 1 G. & J., 472, are clearly and manifestly in violation of the constitution, and therefore should "be pronounced nullities by the courts of justice," and that this court is not "at liberty to regard the devious course" heretofore pursued by the legislature in the matter. 2 G. & J., 278.

We do not think there is any force in the second part of the appellant's second point. If the intention of the constitution was to preserve the uprightness of the judges, as we concede, they should not be authorised to increase their fees in the manner indicated.

Appellee's second point: The acts of Assembly under review were temporary, and expired before the said claim is supposed to have accrued. Under this point, we shall reply to the appellant's first point.

1. The act of 1828, ch. 161, sec. 8, which first imposed these taxes, as fees or perquisites for the judges, was temporary, sec. 13, and was continued until February 1840, five years, and to the end of the next session by 1834, ch. 88, and ch. 211, sec. 13, and 1837, ch. 72, sec. 3; and was further continued, "until the year 1850," by 1837, ch. 235, when it expired by limitation,  [**26]  unless made permanent by 1830, ch. 159, or by 1841, ch. 271, or further continued by 1849, ch. 354. The act of 1828, ch. 127, is part of the system: it was originally dependent upon 1828, ch. 161, for the length of its existence, and it was afterwards continued expressly by the continuing acts of 1834 and 1837 above mentioned.

2. Now the act of 1830, ch. 159, is expressly a supplement to 1828, ch. 161, not only in its title, but also in sections 1 and 2; and it has been so considered by the legislature in 1834, ch. 88 and ch. 211, sec. 4.

A supplement is part of the original act, and when the original is temporary, the supplement expires with it. 2 T. R., 609, Crosby vs. Arkwright. 4 T. R., 450, Duck vs. Addington. 5 T. R., 417, Ex parte Dryden. 9 Bac. Ab., Bouvier's Edition, 223, Title Stat. D.

And although the title of an act cannot control the express words of the enacting clause, yet it is to be considered by the court; and all statutes in pari materia are to be construed as one act. 4 G. & J., 90, 91, 128, Canal vs. Railroad. 12 G. & J., 431, State use Washington Co. vs. R. R.

3. And the same argument will apply to the act of 1841, ch. 271; in addition to which [**27]  the one per cent. there imposed is "in lieu" of the two per cent. imposed by 1835, ch. 235, and 1836, ch. 133, which two per cent. was imposed "for the purpose of providing the amount of compensation," &c.

4. And we also say that these acts were not embraced within the act of 1849, ch. 354, because this act does not revive what had expired, but only continues what then existed; the acts of 1828, and their supplements, were to last until the year 1850;" that is they expired with the year 1849, and the act of 1849, did not pass until 7th March 1850.

5. As to the anticipated mischief, &c., this is not for the court to consider, but for the legislature.

Appellee's third point. The object for which the tax was intended having ceased to exist, and the office of the officer appointed to collect having expired, the tax ceased, and cannot now be collected.

Under this point we will reply to the appellant's fourth point.

The court is at an end, there are no such judges, and there is no such clerk, as the said acts of Assembly speak of. New constitution, art. 10, secs. 3 and 8. It was intended as compensation for acts to be performed, and no such right vested, as is referred [**28]  to in section 7. The clerk's bond would not be liable for what he might do, or omit to do, after the expiration of his term of office.

Suppose that during the existence of the late court, one of the three judges had died, after a sale had been reported by a trustee and ratified nisi, but before final ratification, would it be considered that his administrator had a vested right to a part of the fees, because the case was in progress when he died?

In reply to the objection that this point was not made by exception below, we say, that it is necessarily involved and included, in the second part of first exception, at page 6 of the record; and was discussed and decided in the court below, as appears on the face of the record, pages 8, 9 and 10.

2 G. & J., 467, Wells vs. Beall. 8 G. & J., 37, Miller vs. Allison.

Further in reply to the appellant's fourth point, we say, that the case of the State vs. Mayhew, 2 Gill, 497, is not applicable: there the object of the tax, and the person to collect it were in existence.

We ask for an affirmance of the judgment.  

JUDGES:
The case was argued before ECCLESTON, TUCK and MASON, J.  

OPINIONBY:
MASON 

OPINION:

 [*368]  MASON, J., delivered [**29]  the opinion of the court.
The Court of Appeals find no difficulty in disposing of the two constitutional questions presented by the record in this case. There is nothing in the act of 1841, ch. 271, repugnant either to the old or new constitution. The old constitution reposed in the legislature, the power of fixing and providing for the salaries of all judicial officers, while the new constitution determines, by its own terms, the compensation to be allowed to the judges, and provides that "the same shall not be increased or diminished, during the time of their continuance in office." In this respect those two instruments are wholly dissimilar. In pursuance of the powers thus vested in the legislature, under the old constitution, that body, from time to time, has passed laws imposing taxes, for the purpose of paying the salaries of the judges. No question has been raised, as to the right of the legislature to subject the fund contemplated by the act of 1841, to taxation for general purposes. The power is too clear to be disputed. But the question pressed upon us is, that when this tax is levied and collected, it cannot be applied to the increase of the salaries of the judges,  [**30]  because it would be granting them "fees and perquisites," in contravention of the 30th article of the bill of rights. That inhibition was designed to preserve the purity and uprightness of our judicial officers, by preventing them from receiving special compensation or gratuities, for particular services rendered, and which were more or less 

 [*369]  to depend and be contingent upon those services. In the present case the tax having been imposed upon a legitimate subject of taxation, and it being in nowise dependent upon the action of the judge, and not to be increased or diminished, or in any way affected, by any thing he can do, it cannot be supposed to influence by possibility his judicial independence or purity, and therefore is not to be regarded as a perquisite or fee in contemplation of the constitution. A fund thus raised by taxation, can be as well applied by the legislature to the payment of the salary of a judge, as it could be to the defrayment of any other expense of government.
But in addition, it is expressly provided in the 52nd article of the old constitution, that no judge shall receive "any fee or reward but what is or shall be allowed by law." If this [**31]  fund is not appropriated to the judges "by law," we are at a loss to discover how else it can be claimed. This court therefore regards the act of 1841, as but an exercise of the power vested in the legislature, of increasing and regulating the salaries of the judges, and of providing the means of paying them.
In addition to the views already expressed on this point, it may be remarked that the constitution early underwent legislative interpretation on this subject, and we accordingly find a series of acts passed, authorising judicial officers to receive fees by way of compensation. They cover a period of nearly seventy years, and relate to the chancellor, judges of the general court, of the Court of Appeals, and of the county courts; and in fact, a portion of the judiciary, the magistracy for example, never received any thing but fees by way of compensation. Had we any doubt of the constitutionality of the act of 1841, this constant, long and uniform interpretation ought, certainly, to remove it.
By the new constitution it is provided, that the judges holding office under the old constitution, should continue to act in their judicial capacities until their successors should qualify.  [**32]  The effect of this provision was to continue their salaries, inasmuch as it continued their labors; and the State was, in the mean time, to receive the benefits of their services. 

 [*370]  The act of 1841 was designed, in part, to provide for those salaries, and was therefore not impaired by the new constitution, any more than any other of the revenue laws. The salaries provided for by the new constitution, were intended to relate to the judges chosen under that system, and not to the old officers, whose term of service expired with the qualification of their successors. They continued "to hold and exercise their offices, according to their present tenure," which clearly embraced their present salaries. If, therefore, one part of their compensation, the fruits of the act of 1841, be taken away from them by the new constitution, their entire salary would share the same fate; and they would thus be required to labor from the 4th July to 1st December, without remuneration. Such a construction cannot be given to the new constitution.
We adopt the views of the court of common pleas in regard to the effect of the act of 1849, chap. 354. This will render any consideration of the question [**33]  touching the permanency of the act of 1841, chap. 271, unimportant. Admitting that act to have expired, as is contended by the appellees, on the 1st January 1850, it is the opinion of this court, that it was revived, or re-enacted, by the act of 1849, chap. 354. The title of the last named act clearly indicates a purpose to continue in force the acts to which the act of 1841 was supplemental, because it purports to be "an act to continue in force such acts as would expire during the present session." Although the title of an act is not a part of the enacting portion of the law, yet, by an established rule of construction, it is always to be resorted to, as throwing light, as to the intention of the legislature, upon doubtful and uncertain language used in the body of the law. There is nothing in the enacting part of this law repugnant to the language in the title, and it may therefore be taken, as explaining the meaning of the law which, without such explanation, might be ambiguous. We may then safely give to the term "with," which in some connections, is rather an indefinite expression, the same meaning which belongs to the word "during," used in the title; and 

 [*371]   [**34]  as the act of 1841 expired during that session, it was clearly embraced within the purview of the reviving statute. The law not only "continues in force" previous expiring acts, but actually "re-enacts" them, which is certainly broad enough to embrace the law in question. The act of 1841 provides, "that there shall be, and is hereby imposed on all moneys thereafter to be deposited in Baltimore county court, or coming into the hands of trustees, or other officers of said court, or persons, for distribution, under its orders and authority, the sum of one per centum, and to be paid over to the clerk of said court," &c. Under previous enactments, the sums thus to be collected goes to the judges of Baltimore county court, as part of their compensation. At the time the tax contemplated by the act of 1841 accrued, the services of the judges had been rendered which it was designed to remunerate, and therefore the claim to it had become a vested right. In the language of this court, in the case of the State vs. Mayhew, 2 Gill 487, this was a "legislative levy" upon the fund in question--fixed and determined beyond all contingency, before the judges went out of office;  [**35]  and the mere delay to have an account stated by the auditor, or to pay the amount over to the clerk, cannot in any way impair their right to the tax.
The seventh section of the tenth article of the new constitution, provides, that "all rights vested, and all liabilities incurred, shall remain as if this constitution had not been adopted." Apart from this, the same question, in principle, has been decided by the Supreme Court of the United States, in the case of Shore vs. Jones, 1 Brockenborough 298, and 1 Wheat. 474. In that case the question was presented, whether the representative of the person who was surveyor of that port at the time of the seizure, under the embargo act of Congress, was entitled to a portion of the money resulting from the condemnation, or, whether it was to go to his successor in office, at the time of the condemnation? The court held, "that the right of the collector to forfeiture in rem, attaches on seizure, and to personal penalties on suits brought; and in each case it is 

 [*372]  ascertained and consummated by the judgment, and it is wholly immaterial whether the collector die before or after judgment. And they are further of opinion,  [**36]  that the case of the surveyor is not in this respect distinguishable, in any manner, from that of the collector. We are therefore of opinion, that the representatives of the deceased collector and surveyor, and not the present incumbents in office, are entitled to the distributive shares of the moiety." The present case is analagous to the cases of forfeiture alluded to. By the common law, if a party be entitled to a share of a thing forfeited, his right relates back to the time of the seizure. In the present case the services had been rendered, and the fund out of which those services were to be compensated, was fixed and ascertained, and had thereby become liable to taxation under the law. What more could be necessary to consummate the right of the party who had been designated as the recipient of it?
We do not think the objection of the appellant's counsel well taken, that the point we have last been considering is not properly before this court, because it was not embraced in the appellee's exceptions, nor certified by the court below, as one of the points raised in that court, as required by the 4th section of the act of 1849, chap. 88. We think in all cases where points are [**37]  raised by exceptions, and by means of an opinion of the court filed in the case, it would be a sufficient statement of the points in contemplation of the act of 1849. The manifest design of that law was to require the inferior court to present distinctly those questions only which were considered below, and to confine the appellate court, in the revision of the cases, to those points. It would seem to us that no better mode of presenting those questions could be suggested, than by means of an opinion; and when thus presented, there could be no possible necessity of repeating them after the appeal had been taken.
The same views apply to the question, whether any right vested in the clerk of Baltimore county court under the act of 1841, chap. 271, to collect the fund in controversy? The consideration of this particular point was involved in the views 

 [*373]  expressed by the court below, and we therefore feel ourselves called upon to dispose of the questions on the appeal now before us. Although it is a question which concludes the present case, it is nevertheless one which does not materially affect the merits of the more important matters of controversy growing out of the construction [**38]  of the act of 1841.
The case of the clerk is unlike that of the judges, as respects the tax in question. The judges are to be regarded as having rendered the services for which the tax was designed to compensate, at the time it accrued; and as soon as the tax did accrue, the right of the judges to the same attached. But not so with the clerk. Under the law, he is but a ministerial officer of the government, designated to collect and disburse a particular fund. No officer can be said to have a vested right to perform any particular service, so as to secure the compensation for that service; but he may well claim, as a vested right, the compensation after the service has been rendered, or after the obligation or liability to perform it has become fixed. What is the service to be rendered by the clerk under this act? It is, to collect and disburse the tax which it imposes. This service was clearly not rendered, because the tax was never collected. The next question to be considered is, had the obligation of the clerk to collect this tax, become so fixed at the time he went out of office, as to render his bond liable for an omission to do so? We think not. At what moment of time could [**39]  the clerk legally have demanded the payment of this tax from the trustee? It has been argued, that his right to collect this tax, accrued as soon as the right of the judges to the same, became fixed and vested. We are of a different opinion. This fund, it will readily be admitted, might have been either diminished or increased by the subsequent proceedings of the court, after the nisi affirmance of the auditor's report. It might be shown that the property claimed and reported as the insolvent's, was not in fact his; while on the other hand, creditors might show that more was really due the estate, than had been reported by the trustee. In either event it would be impossible to fix, 

 [*374]  with certainty, the tax due the clerk, previous to the final ratification of the auditor's report. Not till then could the clerk demand, nor would the trustee be warranted, in paying over the fund. Previous to the final ratification of the auditor's account, if the trustee pays out money in his hands, he would do so at his own risk; after the ratification, he would be protected in doing so. Before the final ratification in the present case, the official existence of the appellant had expired. [**40]  
The principles established in Jones vs. Shore, 14 U.S. 462, 1 Wheat. 462, 4 L. Ed. 136, do not apply to the claim of the clerk in this case. While it is true, that as soon as the tax accrued by analogy to a case of forfeiture, the right of the judges to the same, became fixed by the final ratification of the auditor's report, and related back to the time of the accruing of the tax, it nevertheless does not follow, that the right of the clerk to collect it, was also established at that time. In Jones vs. Shore, the court base the right of the collector and surveyor to the forfeiture, upon the ground that the seizure had been made, and the risks and responsibilities incurred by those officers, although the penalty may not have been determined, but was uncertain and contingent. It was notwithstanding, the court say, an inchoate right acquired by the seizure, which is consummated by the decree of condemnation, and when so consummated relates back to the time of the seizure. Now what has the clerk done, to give him an inchoate right to commissions for collecting this tax? Nothing, that we can see or imagine.
We are strengthened in the views we have expressed,  [**41]  by the provisions of the new constitution, which we think clearly points out the officer upon whom this duty devolves. By the sixteenth section of the fourth article of the constitution it is provided, that "the clerks of the court of common pleas, the superior court and the criminal court of Baltimore city, shall perform all the duties heretofore vested in the clerks of Baltimore county court, and Baltimore city court respectively, and be entitled to all the fees now allowed by law; and all laws relating to the clerks of Baltimore county and city courts, shall 

 [*375]  be applicable to the clerks, respectively, of the court of common pleas, the superior court, and the criminal court of Baltimore city." Under the new constitution, the cases formerly in Baltimore county court, out of which this tax and others of like kind accrued, are distributed between, and have passed to, the circuit court of the county, the superior court and the court of common pleas of Baltimore city; and by the section of the constitution just cited, the clerks of the new courts are bound to perform the duties of the late clerk of Baltimore county court, in regard to the collection and disbursement of such [**42]  taxes. In the case before us, the clerk of the court of common pleas is the appropriate officer for that purpose.
The official character of the clerk of Baltimore county court having ceased at the time the audit was made in this case, we think the court below were right in rejecting the allowance made to him by the auditor. With the view, however, of enabling the auditor to restate the account, and to charge this tax in favor of the clerk of the court of common pleas, we will remand the cause, but without affirming or reversing the order, or judgment of the court below, and we will pass an order accordingly.
Cause remanded under the act of 1849, ch. 88, with costs in this court to be paid by the appellant.
Cause remanded.
Some days after the decision of the case, the appellee made an application for a rehearing.
The appellees in this case, pray the court to open the judgment pronounced at the present term, and re-hear the case:
1st. Because the views of the appellees were not fully presented to this court, or understood by their honors, the judges, at the former trial.
2nd. Because this court has not in its opinion filed, ruled and determined the whole case and matter in [**43]  controversy, as shown by the whole record.
3rd. And because particularly this court has not determined, when the right to the tax referred to, did vest in the judges.

 [*376]  Mr. Scott, in behalf of the applicants.
The court does not say when the right vested. Proceedings commenced in 1836, when judges Archer and Magruder were on the bench. Both of them are since dead, and others supply their places. It is important to have this settled.
Thereupon the court, by MASON J., expressed the following opinion, overruling the motion.
The only matter presented to the court for adjudication in this cause, was, whether the estate of Jones, the insolvent, was to be reduced, by the imposition of the tax, provided for under the act of 1841, chap. 271?
We expressly decided that question, and have directed that the auditor, under the control of the court, shall allow the tax, in the name of the clerk of the court of common pleas. This done, the present controversy is ended, and all control of the court over the subject matter ceases.
The points involved in the present controversy, as presented by the record, have been fully argued, considered and decided, and need not be again opened [**44]  for the purpose of letting in new matters of dispute, not raised by the present record.
As a reason why this case should be re-opened and argued anew, it has been alleged, that in order to determine who were entitled to the fund, as between the judges, who were in office, at the time the new constitution went into operation, and the representatives of those who preceded them, it was necessary, that the court should have fixed the time when the tax in question vested. The reasons thus assigned, why we should fix the time, constitutes the best ground, in our judgment, why we should not do so. If we were to settle this question, we would be virtually deciding upon the rights and interests of parties not before the court. The late judges of Baltimore county court, are in no way parties to this proceeding. If there should be any conflict between them, as to their right to this fund, they ought to be before the court, and heard, before any action upon their interests could be taken.
Motion overruled. 

166 of 187 DOCUMENTS 

NICHOLAS BAYLIES AND JAMES E. TYSON, vs. PHILIP T. ELLICOTT.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 Gill 452; 1851 Md. LEXIS 47 

June, 1851, Decided 

PRIOR HISTORY:
 [**1]   Appeal from Howard District court.

On the 2nd of July, 1850, the appellee presented his petition to McLane Brown, a justice of the orphans court of Howard district, for the benefit of the insolvent laws. The justice granted him a personal discharge, appointed him to appear before Howard district court, to answer all allegations made against him, and directed him to give notice to his creditors, by inserting a copy of the order of the justice in the Howard Gazette, once a week, for three consecutive months before said day, to appear in said court on that day, and show cause, &c. The proceedings were, on the same day, filed with the clerk of Howard district. On the day appointed, the appellants, creditors of the petitioner, appeared, and moved the court to dismiss the petition, which motion the court overruled, and the appellants appealed. The grounds on which the motion was made, and all the facts of the case, are fully stated in the opinion of this court. The appellee made a motion to dismiss the appeal.  

DISPOSITION:
CASE REMANDED.  

HEADNOTES:

It is the policy of the insolvent laws of this State to require nothing more from insolvent debtors than an honest and full surrender of their estates for the benefit of their creditors, to entitle them to a personal discharge from their debts.

A debtor applied, on the 2nd of July, 1850, to a justice of the orphans court of Howard district, for the benefit of the insolvent laws. He had resided in Howard district for twelve months immediately preceding his application, but for the residue of the two years had resided in Baltimore city. He presented with his petition a certificate of the clerk of Howard district, that he had not, within two years, applied for the benefit of the insolvent laws of the State, but did not present a similar certificate from the clerk of Baltimore county. He received his personal discharge, and failing to give notice to his creditors, as required by the order of the justice, on the 20th of December, 1850, Howard district court, before whom said order required him to appear, ordered the time of publication to be extended. HELD:

That the defects, if any, in these proceedings, are cured by the 2nd sections of the act of 1844, ch. 304, and of the act of 1836, ch. 293.

The act of 1849, ch. 88, granting appeals to this court, in cases of insolvent proceedings, applies to Howard district court, as well as to the county courts. This act is a remedial law, and is to be liberally construed.

The law creating Howard district court, invested it with all the powers and jurisdiction of the county courts, and in all acts of Assembly passed since, touching the powers and jurisdiction of county courts, this court is to be regarded as included, unless excluded in terms.  

COUNSEL:
By ALEXANDER and NELSON for the appellants, and

J. T. B. DORSEY and R. JOHNSON for the appellee.  

JUDGES:
The cause was argued before SPENCE, MARTIN and [**2]  FRICK, J.  

OPINIONBY:
SPENCE 

OPINION:

 [*453]  SPENCE, J., delivered the opinion of this court.
This is an application by the appellee for the benefit of the insolvent law of the State of Maryland. The appeal is taken from an order of Howard district court, overruling a motion on the part of appellants to dismiss the petition, for the following reasons:--"1st. That it does not appear that notice has been given to the creditors, &c., as directed by the order which was passed on the application." "2nd. That the petitioner did not present with his application a certificate from the clerk of the county wherein he resided for the space of two years next before his said application; that he had not applied for the benefit of the act for the relief of sundry insolvent debtors, and its supplements, within two years next before the date of his application." "3rd. That the petitioner resided in the city of Baltimore within two years next before the date of this application, and did not present to the justice of the orphans court a certificate of the clerk of Baltimore county; that he had not applied for the benefit of the act for the relief of sundry insolvent debtors, and its supplements,  [**3]  within two years next before the date of his application."
On the part of the petitioner it was shown, "1st. That Howard district court was in session on the 30th December, 1850."
2nd. That on the same day the following paper was filed with the clerk of the court; "Samuel Ellicott and Philip T. 

 [*454]  Ellicott, insolvent petitioners. Mr. Worthington enlarge the time of publication of notice to creditors, Thomas B. Dorsey."
And that the following docket entry was thereupon made: "Time of publication extended to September term, 1851, order filed."
It was admitted by the parties, that the petitioner, at the date of his application, and for twelve months next before that date, had resided in Howard district, and for twelve months next before that term, he had resided in the city of Baltimore.
The record shows, that the petitioner at the time he made his application to the justice of the orphans court, for his personal discharge, presented the certificate of the clerk of Howard district court, that he had not, within two years next preceding his application, applied for the benefit of the insolvent laws of Maryland.
The counsel for the appellants,  [**4]  in their argument, assume the following positions:--"1st. That as the petitioner, during part of the two years next preceding his application, resided in the city of Baltimore, he ought, at the time of his application, and as parcel thereof, to have presented to the justice of the orphans court, a certificate from the clerk of Baltimore county court, that he had not, within two years next preceding the date of his present application, made a similar application within the city of Baltimore." "2nd. That the failure of the petitioner to give notice to his creditors, as directed by the justice, forfeited his right to a discharge. That Howard district court, in December, 1850, had no authority to extend the time for appearance, or giving notice to creditors; and if it possessed any such authority, did not validly exercise the same."
It is the policy of the insolvent law of Maryland, as clearly shown by the provisions of her statutes, to require nothing more from insolvent debtors, than an honest and full surrender of their estates for the benefit of their creditors, to entitle them to a personal discharge from their debts.
We should, in this case, be greatly at fault,  [**5]  satisfactorily to 

 [*455]  answer the able and ingenious argument of the appellants' counsel, on the objections made by them to the ruling of the court in this case, were it not that we consider the acts of Assembly of 1844, ch. 304, and of 1836, ch. 293, furnish a full and conclusive answer to their objections.
It is difficult to imagine what language the legislature could have employed to cure defects in proceedings of this description, broader or more unmeasured than they have employed in the second section of the act of 1844, ch. 304. "That all defects in any proceedings now pending, or hereafter to be instituted," "may be cured at any time before the final action of the county courts," "as if the whole subject be taken up de novo, so as to enable the applicant to comply fully with the several requisitions of the act to which this is a supplement, and its various supplements."
The act of 1836, ch. 293, sec. 2, makes as ample provision, by investing the courts with full power in their discretion, "in all cases" to extend the time of publication of notice to creditors.
The motion to dismiss the appeal in this case, is upon the ground, that the act of 1849, ch. 88, restricts [**6]  appeals to cases of insolvent proceedings pending in the county courts, to the exclusion of Howard district court. Would it be just to impute to the legislature the intention to exclude the people of Howard district from the important right of appeal in this class of cases, which they had secured to all the other citizens of the State? The law which creates this District constitutes the judges of the third judicial district the judges of that court, and invests them with all the jurisdiction of the county courts of the State.
In the acts of Assembly, since the origin of this District, touching the powers and jurisdiction of the county courts of the State, it is sometimes included in terms, sometimes omitted. But that this court was to have all the powers and jurisdiction of the county courts, unless excluded in terms, cannot be questioned. If this be not the true construction, whence the jurisdiction of this court to entertain appeals from judgments rendered by justices of the peace? How do insolvent cases come 

 [*456]  within their jurisdiction, as the law directs their applications to be sent by a judge of the orphans court to the county court? The petitioner is to present [**7]  the certificate of the clerk of the county court, when literally speaking, there is no such official. The act of 1849, is a remedial law, and to give it the partial construction contended for, would be a violation of all the rules usually resorted to in the interpretation of such statutes.
We concur in the opinion of the court below, overruling the motion to dismiss the petition, and the case is remanded for further proceedings.
CASE REMANDED.  

167 of 187 DOCUMENTS 

JOHN H. OWINGS vs. ELIZA BATES.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 Gill 463; 1851 Md. LEXIS 50 

June, 1851, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the Orphans court of Howard District.

This appeal was taken from an order of the Orphans court revoking letters of administration granted to the appellant, upon the estate of Mrs. Ann M. Miller, who died intestate leaving three sisters and one brother. The appellee is the oldest sister, being also older than her brother, and the appellant is the husband of one of the younger sisters.

The nature of the controversy fully appears from the petition of the appellee asking a revocation of the letters granted to the appellant, and the answer thereto. This petition was filed on the 29th of January 1850, stating, among other things, that petitioner was a resident of Baltimore city, that she was the eldest sister and one of the heirs of the intestate, that one of the younger sisters was the wife of the appellant; that after the intestate's death, a meeting of the heirs was held at the house of the appellant, when it was agreed by the heirs and by the appellant on the part of his wife, that the appellee should assume the administration of the deceased sister's estate; that in accordance with this arrangement, the appellee was put in possession of the papers and personal [**2]  effects of the intestate; but that when, after a short absence, she came to apply for letters of administration, she discovered that the appellant, taking advantage of her absence, had, in violation of the agreement entered into by the heirs, and against their wishes and consent, applied for and obtained administration upon the intestate's estate. She further represented, that the appellant had no legal right to administer to her exclusion; and moreover, that there was great impropriety in his so doing, from the fact, that he was largely indebted to the estate, which consisted principally, if not wholly, of a large sum of money, then, and for a long time previous in the hands of the appellant; and that there were considerable matters of account between him and the estate, the settlement of which, in any legal or equitable manner, would be impracticable, so long as the appellant was clothed with the character of administrator. She therefore prayed that the appellant's letters of administration might be revoked.

The appellant, by his answers denied that at the time of his obtaining letters of administration, the appellee's residence was in the city of Baltimore, and alleged that [**3]  for some years previous, and at the time of filing his answer, she had resided, and did then reside, out of the State of Maryland, and that she was therefore not entitled to be regarded in the granting of letters of administration, unless she had actually applied for them.

He denied the alleged agreement among the heirs, and asserted that no binding obligation was entered into on his part; that he refused to administer, owing to his indignation at the course that had been pursued, and well knowing that if the appellee were to remain in the State, she might at any time present her prior claim; that by declining to accept the administration, he never intended to waive any right he might have with regard to it; nor did he believe, had he assented to administer, that the appellee would have given her consent. He admitted that the appellee had possession of the personal effects of the intestate, but alleged that she came improperly by them. He further denied his indebtedness to the estate, but insisted that the estate was indebted to him, and prayed that the appellee might be dismissed with costs.

Testimony was then taken the purport of which will be found in the opinion of this [**4]  court. The orphans court ordered the letters to be revoked and from this order the appellant appealed.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

An intestate died leaving a brother and three sisters. The eldest sister, who was also older than the brother, was unmarried. The other sisters were married. HELD: That the eldest sister was entitled to administration upon the estate, and could only be excluded upon the representation or impression of an indefinite absence from the State.

The husband of one of the unmarried sisters has no right to supersede the eldest sister in her rightful claim to the administration, without the consent, or without notice, to the other parties.

Where a distributee stands in the relation both of debtor and creditor to the estate, and there are other parties who are entitled to administer, it would be derogatory to sound principles of justice to commit the administration of the estate to him.

It was agreed at an interview between all the distributees, that the eldest sister, the one entitled to administration, should administer the estate, the husband of one of the younger sisters being at the time present, and disclaiming all right or intention to apply for the administration. On the 26th of December, the eldest sister left the State on a temporary sojourn in the District of Columbia, with the intention expressed and understood of returning within the ensuing month, to apply for the administration. On the 6th of January following, the said husband of the younger sister, without notice to, or consent, of the other parties, applied for and obtained the administration. HELD: That under these circumstances the grant of letters to him was premature and improvident, and should be revoked. 

COUNSEL:
By R. J. BRENT, for the appellant, and

By R. JOHNSON, JR., and WALLIS, for the appellee.  

JUDGES:
The cause was argued before DORSEY, C. J., CHAMBERS, SPENCE, MARTIN and FRICK, J.  

OPINIONBY:
FRICK 

OPINION:

 [*465]  FRICK, J., delivered the opinion of this court.
The controversy here between the parties involves the right to the administration of an intestate's estate. The deceased left three sisters and one brother. The sisters, all except the appellee, were married, one of them being the wife of the appellant. The record shows, that it was agreed at an interview between all the parties, that the appellee, as the eldest distributee, should administer the estate, the appellant being at the time present and disclaiming all right or intention to apply for the administration. The whole estate of the intestate 

 [*466]  is comprized in a promissory note for $ 1636, drawn by the appellant himself in favor of the intestate. The note having some years to mature, and there being no urgent necessity to hasten the administration, the appellee left the State upon a temporary [**5]  sojourn in the District of Columbia. Her purpose to return and apply for the administration was expressed and understood before she departed on the 26th of December, and was reiterated by her letter of the 28th of the same month, to the appellant's wife, in which she affirms the intention of returning with that view in the course of the ensuing month. But upon the 6th of January following, the appellant applied to the Orphans court of Howard District of Anne Arundel county, and without any knowledge of the agreement, or of the claim of the other party, the court upon his application granted the letters of administration to the appellant.
Upon this state of facts, upon petition of the appellee representing the violation by the appellant of the agreement entered into by the heirs, and the action of this appellant in the matter against the consent and wishes of the parties, (which is signified by their protest in the proceedings,) and insisting upon the incompatibility of confiding to the only debtor of the estate, the administration of the assets, the orphans court revoked the letters sued out by the appellant, and the administration was committed to the appellee. From this [**6]  order thus revoking his administration, the appeal is taken to this court.
It is true, that the appellant in his answer insists that the estate is indebted to him. But when the record discloses that his claim is for the board of the deceased from the year 1828 to the period of her death, and that his note for a large sum of money in her favor is but of recent date, (the 15th of November 1848,) the case presents an aspect, which in the attitude both of debtor and creditor to the estate, renders it highly derogatory to sound principles of justice, that the adjustment should be committed to the party who stands in that relation to the other parties interested in the assets.
We must assume that, with a knowledge of this state of things, the orphans court would have declined to confide this 

 [*467]  administration to the appellant, independent of the agreement to which he was at least a witness, if not a party, by his disclaimer. But without any such agreement the appellee was the party entitled to this administration, and could only have been excluded, upon the representation or impression of an indefinite absence from the State. Such however was not the fact, as is indicated by her [**7]  immediate return in the same month of January; and under all these circumstances the grant of letters to the appellant was premature and improvident. Without the consent or without notice to the other parties, the application ought not to have been made, for without this the appellant was not entitled to supersede the appellee in her rightful claim to the administration. And when with a full exposition of all the facts, the orphans court have afterwards deliberately revoked their original grant of these letters and placed the administration in the hands of the party legally entitled in preference to the appellant, we do not feel authorised or disposed to disturb their decree, which is therefore affirmed.
DECREE AFFIRMED.  

168 of 187 DOCUMENTS 

E. L. ADAMS, SURVIVOR OF BURCKMEYER AND ADAMS, vs. DAVID WHITEFORD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 Gill 501; 1851 Md. LEXIS 55 

June, 1851, Decided 

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

This case arises out of a bill filed by the appellee on the 1st of February, 1849, to obtain discovery from Burckmeyer and Adams, with a view to his defence in an action of law then pending in their names, against him, in Baltimore county court, and for an injunction restraining proceedings upon the suit at law, until such discovery be made. The suit at law has been twice before this court, and all the facts of the case will be found in the reports of those appeals in 1 Gill, 127, and 6 Gill, 1. The injunction was granted as prayed, and upon the coming in of the answer, a motion was made for a dissolution, and from the order of the court refusing to dissolve the injunction, this appeal is taken. The allegations of the bill and answer are fully set out in the following opinion of the court below, delivered by (FRICK, C. J., and LE GRAND, A. J.,) upon their order overruling the motion to dissolve, passed on the 30th of October, 1849.

"The bill states that suit was brought on the law side of this court, against the complainant by the defendants, alleging themselves to be the owners or possessors [**2]  of the draft in question, upon which the complainant is endorser. The complainant charges that the said plaintiffs at law, are not now, and were not when this suit was brought, the owners or possessors of said draft, but that it was discounted at the Western Bank of Baltimore, and was in the possession of the bank when this suit was brought, by the direction of said bank, in the name of Burckmeyer and Adams. That these facts are a necessary defence to Whiteford, and he has used every means aliunde, to obtain the proof, and now claims that the defendants here shall discover upon oath, if they ever were the owners of said draft, or ever paid any value for it; whether at the time the suit was brought, they had possession of the same, or had returned it to the bank, and whether since the suit they ever had the possession? An injunction is prayed to restrain the trial of the action at law, until their answer in the premises.

The answer of Adams, (the surviving partner,) states that they never had any dealings with complainant. That in regard to their being the owners or possessors of the draft in question, it was sent to them for collection from the bank as its property. That it was [**3]  protested for non-acceptance, and notice sent on to that effect to the bank, but the draft was retained by them until maturity, and being mislaid, was not presented to the drawees when due, for payment. That no notice of protest was therefore sent to any party of non-payment, nor did these defendants give any value for the same. That it was after maturity returned to the bank, who again returned it to defendants. That they again sent it enclosed to the bank, by letter of the 7th of October, 1840, a copy of which is filed with the answer (See 1 Gill, 133.) That they also wrote the letter of the 5th of November, 1840, to T. Phenix, cashier of the bank, a copy of which is filed, (See 6 Gill, 9,) and sent the same by due course of mail. That this is the only information in the power of respondent to give by way of discovery, and of his own knowledge he knows nothing of the possession of the draft at the time of suit, nor whether the facts stated in the answer constituted the legal ownership in them of said draft.

To this answer exceptions are filed: That the answer is evasive, and is no sufficient disclosure to the question, whether they were in possession [**4]  of the bill at the time that the suit was instituted, or since? And that it does not expressly admit or traverse the allegation of the bill in relation to the possession of the draft, &c. The cause was set down for hearing upon bill and answer, by an order of this court of the 13th of February, for the 20th of February, 1849, and between these two periods the exceptions referred to were filed. After argument and hearing on this state of the case before this court, and while the subject was under advisement of the court, leave was granted, upon petition, to the defendants, to file a supplemental answer. In this answer, Adams states that he knows nothing of the matters of fact stated in the bill of complainant, but what appears on the face of the bill of exchange in suit, and what may be further found in the correspondence of defendants, with T. Phenix, cashier, which was several years ago sent to Robert J. Brent and O. Horsey, attorneys in Baltimore city, (See 1 Gill, 132, 133. 6 Gill, 2, 3, 7, 8, 9, 10, 11;) that in regard to claiming title, they claim no other title or right than is claimed in the above correspondence, nor did they give any authority to sue [**5]  other than such is there found, although they were aware that such suit had been brought in their names, and they have made no objections thereto. The case is now upon the motion to dissolve, presented de novo, to this court for its decision, and upon the prayer of the complainant that the supplemental answer may first be taken off the files of the court, and the order allowing it, to be revoked.

The effect of withdrawing from the files this supplemental answer, is to leave the defendants upon their original answer, which being, as is contended, defective and insufficient, must constitute the injunction perpetual; because it is further insisted by the complainant, that the respondents are bound to abide by their original answer, which admits of no supplement or amendment, but upon the ground of mistake, or the occurrence of new matter since the answer, suggested upon motion and affidavit to the court; all which it urged is not averred in the case before us. Without stopping to question or deny this doctrine thus laid down upon authorities produced, how would this dispose of the exceptions to the answer which the complainant has himself interposed? He denies the sufficiency of [**6]  the answer for the purpose he has in view, to discover whether the plaintiffs at law, are the holders or possessors of the draft in question, or have such an interest in it as entitles them to use upon it. The exceptions assume of course that the complainant requires a more distinct and explicit answer. And the respondents yielding to the force of these objections to the original, upon leave granted by the court, assume in a supplemental answer, to supply the defects and insufficiencies of which the exceptions complain. This is not the case of a defendant coming in to correct a mistake, or to alter the character of his original answer, seeking of his own motion or accord to make a better case than he had before. But he is invoked to this course, as it were, at the instance of complainant, not to correct the old, but supply new and additional matter; to be more explicit in his statements on the points suggested by the complainant, as being insufficient before. Whether he has done so or not, is the true question before us, conceiving as we do, that the supplemental answer is rightfully in, and that we are called upon to decide upon the whole case as now presented.

To this purpose [**7]  we have given to these answers a candid and full examination, and cannot satisfy ourselves that they meet the allegations and the object of the bill. The open and avowed object is, to obtain from the plaintiffs discovery whether they have ever had any interest in the suit at law brought in their names against Whiteford? The possession of the draft at the time of directing or instituting the suit, would be sufficient prima facie evidence to sue upon it. If we construe that answer properly, it negatives the possession in them, particularly if added to the admission the they paid no value for it. Their connection with this draft, they say, is disclosed by the letters between them and the bank, and thus, whether they have any interest in this draft or in this suit, they refer to the legal construction of their correspondence with Phenix. Surely there must exist better ground for standing in the attitude of a plaintiff, than the doubtful, unascertained position which they assume here. Even under all the circumstances, they must have some impression, if not conviction of their own upon the subject, and even this impression of their rights, as plaintiffs, they hesitate to express. In any [**8]  view of these answers, they have either not fully met the disclosure sought by the complainant, or as far as they have disclosed, have shown no interest or possession in the draft, so far as to constitute them legal plaintiffs in the action at law, and the motion to dissolve is therefore overruled." 

DISPOSITION:
INJUNCTION DISSOLVED, AND CASE REMANDED.  

HEADNOTES:

Upon a bill for a discovery as to the ownership of a certain draft, upon which suit had been instituted in the name of the defendant against the complainant, the answer disclosed all the facts within the knowledge of defendants, and leaves the consequences of these facts, as far as they affect the ownership of the draft, to the court. HELD: That this answer was sufficient to entitle the defendant to a dissolution of the injunction granted upon the bill.  

COUNSEL:
By ROBT. J. BRENT, for the appellants, and

By WALLIS for the appellee.  

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

OPINIONBY:
CHAMBERS 

OPINION:

 [*505]  CHAMBERS, J., delivered the opinion of this court.
The bill of complainant does not deny the obligation of complainant to pay the amount of the note or draft. It is not denied that the money is due either to the appellants or to the Western Bank.
It is manifest from the whole case that the suit was instituted by the immediate actual order of the bank in the name of the appellants, and that after the suit was instituted in the name of the appellants, they acquiesced in it.
The appellant, Adams, fairly answers all the facts within his knowledge, and properly, in such a case as this, leaves the legal consequences of these facts to the court. What did [**9]  or did not constitute in law the possession or ownership of the draft has been a subject of earnest litigation for years past, and one which the appellants were not required to decide, and were probably not competent to decide. Without saying whether the injunction was properly issued, we are of opinion that the 

 [*506]  answer was sufficient to entitle the appellant to a dissolution. As the matter disclosed in the answer may be used in evidence by the appellee on any future trial at law, we remand the case to the county court.
INJUNCTION DISSOLVED, AND CASE REMANDED.  

169 of 187 DOCUMENTS 

REBECCA WOOLLEN AND WILLIAM ROGERS, EXC'RS OF ZACHARIAH WOOLLEN AND MARY KURTZ, vs. SOLOMON HILLEN, EXC'R OF THOMAS HILLEN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 Gill 185; 1850 Md. LEXIS 25 

December, 1850, Decided 

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

This appeal was taken by the appellants from two orders of the court below, the one, of the 2d of March, 1849, directing the auditor of that court to state an account, allowing priority to a mortgage held by the testator of the appellee, in the distribution of the funds arising from the sale of certain mortgaged real estate, sold under a decree obtained upon a bill filed by the executor of Woollen, one of the appellants; the other dated 29th of March, 1849, ratifying the account, stated in conformity with the preceding order.

The facts of the case are fully stated in the opinion of this court, and in the following opinion of the county court, delivered by Le Grand, J., accompanying the first of the above orders.

"The facts of this case are as follows: on the 27th July, 1826, Tschudy, executed a mortgage to the defendants, Thomas Hillen and one Brice, as therein stated, to secure the payment of certain sums of money. This mortgage only covered a portion of the land belonging to Tschudy, in Baltimore county. On the 2nd June, 1827, he executed another mortgage to Mary Kurtz, to secure the payment of $ 1000. This mortgage [**2]  included not only the whole ninety acres lying in Baltimore county, but also, certain lots of ground belonging to the wife of Tschudy, lying within the limits of the city; on the 2nd June, 1827, a similar mortgage was executed to House, Woollen & Co., on the same property. On the 20th of August, 1829, Hillen & Brice released their mortgage, which had been executed, on the 27th July, 1826, and on the same day Hillen took another mortgage on the same property, to secure the payment of the sum of $ 3000, being the same sum which the mortgage of 1826 was designed to secure the payment of to him. In 1830 the mortgagees, Kurtz, and Woollen, and others, released the town lots embraced in their mortgages. The fund which is now in court for distribution, has been brought here as the proceeds of sale made under a decree, passed in this case, which originated in a bill filed by the executors of Woollen. Under this state of facts, the question is, which of the mortgagees are entitled, first to be paid out of the fund arising from the sale of that portion of the land lying in Baltimore county, covered by the mortgage to Hillen? To enable the court to understand the matter, the testimony of Mr.  [**3]  McCulloh, the gentleman who drafted the release from Hillen and Brice, and the mortgage to Hillen in 1829, has been taken, and read, subject to all legal exception. He states that the inducements and considerations for the execution of the release, and of the mortgage, were to free the lands, &c., therein described, from the lien given thereon, by the mortgage to Hillen and Brice, to the heirs of Nicholas Carroll, and to give to Thomas Hillen, as was done simultaneously by the execution of the mortgage of 1829, (expressly under the act of 1826, chapter 192,) power to enforce the punctual payment, semi-annually, of interest, &c., and that the principal sum of $ 3000, mentioned in the original mortgage, was not paid at the time of the execution of the release by Hillen. There have been several questions discussed by the counsel, which, in the view taken by the court, it is unnecessary to decide. It may not however be out of place to say, that none of those urged on behalf of Hillen, accord with the opinions of the court, except the one on which this case must be decided, and that is the the equity of Hillen, growing out of the original mortgage, which was released in 1829.

The first [**4]  object of courts is to do justice, and this, when it can be accomplished in conformity with the rules which have been prescribed for their government, is an indispensable duty. Now what is the real state of this case? It is this: Kurtz and Woollen, with full knowledge of the existence of the mortgage to Hillen and Brice, take the mortgages to them, embracing not only the land included in that mortgage, but also additional land in the county, and certain lots in Baltimore city, clearly shew they took subject to the prior legal estate of Hillen, and subordinate to the equities it created. Had there never been any release executed by Hillen, there could have been no doubt of his priority. The question then is, does that release change the aspect of the affair? I think not. The case in, 5 Rawle, 51, does not, in my judgment, touch the real question here involved. It was there decided, that as between creditor and debtor, it was competent for the holder of a judgment binding real estate, to discharge by covenant or release a portion of the estate from the lien, preserving it in force against the rest, and that this lien on the residue would not be destroyed, because of the [**5]  release, if the holder of the judgment had not knowledge of a subsequent mortgage, and that he was not bound to know of the existence of subsequent incumbrances. This may be all true, and yet does not meet the facts in this case. The question here is, has the equity growing out of a prior incumbrance been discharged? To answer this question reference must be had, not to a portion only, but to all the facts. The mortgagees, Kurtz and Woollen, knew of the mortgage of 1826, and took subsequently, and of course subject to it. The release of that mortgage and the execution of the one bearing date in 1829, were simultaneous acts. They were placed on the records of the county at the same time, and were also executed at the same time. This being so they must be regarded as part of the same transaction. Kurtz and Woollen, could by the release acquire, in the absence of fraud or injury, no right, other than those which Tschudy acquired. There cannot be a question as between him and Hillen, that he took subject to all the equities growing out of the simultaneous execution of the release and new mortgage. In such a case no court of equity would allow of dower in such an estate as against the mortgagee.  [**6]  If this be so, and the decisions of our Court of Appeals, in my apprehension, go to this extent, how is it that those mortgagees who advanced their money, with a full knowledge that there was a prior incumbrance, can be in any other position than that of Tschudy himself? They could get nothing except through him, and if he was not by these simultaneous transactions vested with the legal estate to the prejudice of Hillen, they cannot be, unless the acts of Hillen have been such as to work a fraud, or do them an injury. There is no pretence of fraud, and all the injury which has been, or can be to Kurtz and Woollen, grows out of their partial releases. It is said they were not bound to ascertain the existence of the second mortgage.

This might be so if this mortgage stood alone, and the case in 5 Rawle doubtless goes to this extent. But the facts of the case show it did not. There is no affirmative evidence that they had no knowledge of the second mortgage, or the inducements and considerations which moved to the execution of the release and mortgage. In the absence of any such proof, it is not unreasonable to suppose, that before the execution of the partial releases by Kurtz and [**7]  Woollen, they had the records examined. There is certainly sufficient evidence to authorize such a finding by a jury, on issues submitting such a question, and if such examination took place, then there was such notice to them as will subject them to all the equities growing out of the simultaneous execution of the release by Hillen, and the execution of the mortgage to him. The acts of Hillen, at the time they were done, did no injury to the other incumbrancers, whilst their acts, if the views of their counsel be adopted, worked, practically, a total destruction of the lien of Hillen. No court of equity will deprive a man of his lien, in favor of another holding a lien of no higher dignity, unless compelled to do so by the circumstances of the particular case. In this case the mortgagees, Kurtz and Woollen, get what they contracted for. Any loss they may sustain is to be attributed entirely to their own acts. Had they retained the security which was given them when they advanced their money, they would now be fully protected. Equity requires they should suffer the consequences of their own indiscretion. This case being before the court, by consent of counsel, with the view that all [**8]  its equities may be ascertained, it is not necessary that the particular motions, &c., heretofore made, should be particularly noticed, because the direction of the court to the auditor will cover the whole ground. The same reason applies to the exceptions filed, The testimony of McCulloh is admitted, simply for the purpose of showing that no money passed at the execution of the release. For such a purpose our Court of Appeals have decided that parol evidence is admissible." 

DISPOSITION:
ORDERS REVERSED AND CASE REMANDED.  

HEADNOTES:

There are many decisions both at law and in equity, which decide that receipts in deeds are only prima facie evidence of payment, and that parol evidence is admissible to contradict such receipts, but where fraud is out of the question, there is no decision which goes so far as to decide that parol evidence is admissible, to vary, contradict and render utterly void a solemn deed.

A release, of a mortgage recited that the mortgagor had fully paid and satisfied the debt to the mortgagees. On the same day the mortgagor executed a new mortgage to one of the same mortgagees. HELD: That this release could not be explained by parol proof, and that by it the mortgagee lost his lien under the first mortgage, and the second mortgage must be postponed to those prior to it in date, though junior to the first mortgage.

It is well settled, that where there are two mortgagees under separate and distinct mortgages from the same mortgagor, and the prior mortgagee has a lien on two distinct funds, and the second on one of them only, equity will, for the protection of the subsequent incumbrancer, compel the prior incumbrancer to resort to that fund on which the second has no lien.

But this rule does not apply to a case where the prior mortgagee has a lien on two distinct estates of two separate and distinct mortgagors, and the subsequent mortgagee holds a lien on one only of these estates, encumbered by the prior mortgage. 

COUNSEL:
WILLIAM F. FRICK, and THOS. S. ALEXANDER, for the appellants contended,

1st. That Hillen is not entitled to priority of payment out of the fund in court, by virtue of his mortgage of 1826, because that has been released; nor by virtue of his mortgage of 1829, because that is posterior in date to those of the appellants.

2nd. That all the evidence in the cause offered by Hillen to contradict or explain the averment of payment, contained in his release of 1829, with a view to set up a still subsisting claim under his mortgage of 1826, and so to prejudice the claims and equities of the appellants, is entirely inadmissable.

3rd. That the release by Hillen to [**9]  Tschudy, of the mortgage of 1826, even if the debt secured thereby be still unpaid, enured to the benefit of the appellants; and gave them the prior title, both legal and equitable, to the mortgaged property.

4th. That Hillen had no equity to be substituted, in any event, to the appellants' lien upon the city lots; inasmuch as said lots, when mortgaged to the appellants, were not the property of Tschudy, but of his wife; and Hillen had therefore no right to object to the release of said lots, by the appellants, or to claim any advantage from such release, under any circumstances.

5th. That if Hillen had an equity to be substituted to the appellants' lien upon the city lots, by reason of their having two securities, and he but one, the appellants had still a valid right, under the circumstances of this case, to release those lots without any responsibility to Hillen for the act. That the recording of Hillen's mortgage of 1829, (which was posterior to those of the appellants,) did not operate as a constructive notice to them of its existence; that they had no actual notice of its existence, nor notice of any kind from Hillen, imposing on them an equity to retain those lots,  [**10]  for his ultimate security. And that he has therefore no right or equity to complain of the release of said lots by the appellants, or to claim any advantage or priority over them, by reason of the same.

6th. That Hillen, by the release of his prior mortgage in 1829, gave to Tschudy the means of rightfully demanding from the appellants a release of the city lots; because the appellants could not reasonably withhold such a release from Tschudy, when he made it lawfully appear to them, that the prior liens upon the county lands, (by reason of which they had originally demanded a mortgage of the city lots, as additional security for their claims,) had all been discharged. That the said releases were executed by the appellants, only because of the record admission by Hillen, and in the belief thereby induced, that his prior mortgage had been paid: and it is therefore contrary to equity, that Hillen should be permitted to deprive the appellants of their prior lien upon the county lands, when, by his own acts, he has caused them to release the other ample security which they held in the city lots.

T. P. SCOTT, contended for the appellee:

1st. That his lien being in fact the [**11]  oldest, and the appellants having taken their liens with knowledge of, and subject to, his lien, he was entitled to payment, in preference over them, out of the proceeds of the sale of the mortgaged property.

2nd. That he did not lose his priority by the arrangement of the 20th August, 1829, because it is in proof by the documentary evidence, viz: the deed of 27th July, 1826, and the two deeds of 20th August, 1829, as well as by the testimony of McCulloh, that the debt due to the appellee mentioned in the mortgage of 20th August, 1829, is the same debt mentioned in the mortgage of 27th July, 1826; and because the arrangement of 20th August, 1829, was neither designed or liable to prejudice or mislead the appellants.

3rd. That the deeds referred to in the second point, and the deposition of McCulloh, are admissible and competent evidence to prove the identity of the debt due the appellee, mentioned in the mortgage of 20th August, 1829, with the debt mentioned in the mortgage of the 27th July, 1826.

4th. That if the court should consider that the appellee lost his priority by the arrangement of the 20th August, 1829, yet he is still entitled to priority of payment out [**12]  of the sales of the mill seat, over the appellants, because the appellants had two securities or sources of payment to look to, viz: the mill seat and the city lots, whereas the appellee could only look to the mill seat for payment of his claim.

5th. That the city lots embraced in the mortgage to Woollen and to Kurtz, were sufficient in value to have paid each of their claims; and that the deposition of Brown is admissible and competent to prove the fact, and that the appellants having voluntarily and without the assent of the appellee, given up their security on the city lots, cannot thereby be permitted to prejudice the equity of the appellee, as contended for in the fourth point.  

JUDGES:
The cause was argued before SPENCE, MAGRUDER, MARTIN and FRICK, J.  

OPINIONBY:
SPENCE 

OPINION:

 [*192]  SPENCE, J., delivered the opinion of this court.
The prominent facts in this case, and those upon which it must be decided, are as follows.
On the 27th day of July, 1826, Tschudy executed a mortgage to Hillen and Brice to secure the payment of certain sums of money. This mortgage to Hillen and Brice, included only a part of the land owned by Tschudy in Baltimore county.  [**13]  On the 2nd of June 1827, Tschudy and wife executed a mortgage to Mary Kurtz, to secure the payment of $ 1000. This mortgage included the ninety acres of land in Baltimore county, and certain lots of ground in Baltimore city, which 

 [*193]  belonged to the wife of Tschudy. On the 17th day of June 1828, a similar mortgage was executed by Tschudy, on the same real estate to House, Woollen, & Co.
On the 20th day of August 1829, Hillen and Brice, by their deed, regularly executed and acknowledged, released their mortgage of the 27th July 1826, and on the same day the deed of release was executed by Hillen and Brice to Tschudy, Tschudy executed to Hillen, a mortgage of the same land which had been thus released to him by Hillen and Brice.
In the year 1830, the mortgagees Kurtz and Woollen and others, executed a deed of release of the city lots which had been included in their mortgages.
The land included in Hillen's mortgage lying in Baltimore county, has been sold under a decree passed in this case, on a bill filed by the executors of Woollen, and the question is, which of the mortgagees are entitled to [**14]  priority, or to be first paid out of the fund?
This question necessarily brings up for consideration and decision, the effect and operation of the deed of release of the 20th day of August 1829 of the mortgage of the 27th July 1826, from Hillen and Brice to Tschudy. On the part of the appellants it is insisted, that this deed was an entire and absolute release on the part of Hillen and Brice, of their lien under the mortgage of 1826, and consequently deprived them of any priority. This conclusion is denied on the part of the appellees, and they insist that the deed of release of 1829, when taken in connection with the parol testimony of McCulloh, cannot in equity have the operation and effect to deprive Hillen of his priority upon the fund in question.
McCulloh's testimony out of the case, and there could be no question as to the operation and effect of Hillen's and Brice's deed of release.
It may be conceded, that there are many decisions in which courts both of law and equity have determined, that receipts in deeds are only prima facie evidence of payment, and that parol evidence is admissible to contradict such receipts, but we have [**15]  never yet seen the decision, fraud out of the question, 

 [*194]  which went so far as to decide that parol evidence was admissible, to vary, contradict and render utterly void a solemn deed.
On what other imaginable ground, can it be insisted in this case, that Hillen is the prior incumbrancer? If he had never secured any lien before the mortgage of 1829, it could not be said, that his lien was prior to Kurtz' mortgage of 1827, and if the release of 1829 released his lien of 1826, his lien arises under the mortgage of 1829, more than two years subsequent to Kurtz' deed of 1827.
But the appellee's solicitor insisted in the argument, that the deed of release and the mortgage of 1829, having been executed simultaneously, Hillen did not thereby lose his priority as incumbrancer, and cases of dower, in which courts have adjudged that in cases of instantaneous seizin, where the husband had or took no beneficial interest, the widow was not dowable, were referred to. We think such cases are clearly distinguishable from the one under consideration. In the former cases, there never was any such estate in the husband, upon which the widow's right of dower could attach; in [**16]  this case there was a lien under the mortgage to Kurtz of 1827, subject to be defeated only by Hillen's prior mortgage of 1826, and if the lien of Hillen's mortgage of 1826, was released by his deed of 1829, we can see no ground upon which Kurtz' priority can be defeated.
It is insisted by the appellee's solicitor, that if the court should consider, that the appellee lost his priority, by the arrangement of the 20th August 1829, yet he is still entitled to priority of payment out of the sales of the mill seat over the appellants, "because the appellants had two securities or sources of payment to look to, viz: the mill seat and the city lots, whereas the appellee could only look to the mill seat for payment of his claim."
It must be borne in mind that the city lots were the property of Tschudy's wife, and that Hillen was not a creditor of Mrs. Tschudy, and had no claim upon them as a creditor. The doctrine seems to be well settled in courts of equity, that where there are two mortgagees under separate and distinct mortgages, and one and the same mortgagor and the prior mortgagee, 

 [*195]  have a lien on two distinct funds or estates, and the second [**17]  have a lien on one only of these funds or estates, that courts of equity will coerce the prior incumbrancer to resort to that fund, for the satisfaction of his lien, on which the subsequent mortgagee has no lien, and this for the protection of the subsequent incumbrancer.
This case now under consideration differs in an essential particular from the one supposed. In this case the prior mortgagee, Kurtz, had a lien on two separate and distinct estates, of two separate and distinct mortgagors, and the subsequent mortgagee, held in lien on one only of the estates incumbered by the prior mortgagee, and the estate released by the prior mortgagee, was the estate on which the subsequent mortgagee had no lien, it being the estate of Tschudy's wife. If the prior mortgagee, Kurtz, foreclose his mortgage on the estate of Mrs. Tschudy by sale, a court of equity considering her as a security of her husband, would substitute her to Kurtz' equities on the estate of her husband, and thereby exclude the subsequent mortgagee. Vide 2 Story's Eq., sec. 1373.
The orders of the court in this case, of the 2nd March 1849, and the 29th of March 1849, are reversed with costs to [**18]  the appellants, and the case remanded.
ORDERS REVERSED AND CASE REMANDED.  

170 of 187 DOCUMENTS 

ELIJAH BOOFTER vs. ISAAC ROGERS, ADM'R OF JOSEPH M. ROGERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 Gill 44; 1850 Md. LEXIS 5 

June, 1850, Decided 

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

The appellant filed a petition in the orphans court for Baltimore county, on the 29th of April 1848, stating that administration on the estate of Joseph M. Rogers, late of said county, deceased, was granted to Isaac Rogers, the appellee, on the 5th of October, 1848, but petitioner is informed, and believes that said Joseph left a will, by which a legacy is given to him, and he prays that a citation may be issued to said Isaac, and that he be required to produce said will if in his possession, and if not, to answer whether he has any knowledge thereof, or of any paper purporting to be a will of said Joseph.

The appellee answered this petition on the 10th of May following, and states that said Joseph M. Rogers died intestate, never having executed any will. He, however, filed as a part of his answer, a paper marked "JR," which respondent received from Walton Gray, Esq., of Baltimore, a short time after the decease of said Joseph, he cannot say whether said paper is, or is not in the hand writing of said Joseph, it being in some respects similar to, and in other particulars dissimilar from his handwriting; that he did not, at the time of [**2]  receiving it, nor has he any time since regarded said paper as the will of said Joseph.

The following is the paper referred to as JR:

"My sister Mary Ann Magraw, the inst. of five thousand dollars, to be invested in some good stock, such as my father, Isaac Rogers, Harford county, shall approve of, who I wish to take charge of it, I, if I should dye before him; if she dyes without issue, I wish the money to go back, or revert back to my sister, Martha K. Hartshorn, wife of Joshua Hartshorn, Harrisburg, Pennsylvania, and my brother E. S. Rogers, Harford, equally, or their heirs.

"My sister M. K. Hartshorn, one thousand dollars.

"My brother Evans S. Rogers, Harf., one thousand dollars.

"Elijah Bufter, Baltimore city, five thousand dollars.

"Elijah Bufter's son, Joseph Rogers Bufter, two thousand dollars, the int. to be applied towards his education, untill he arrives at 21 ys., my father to take charge of it untill this time. The firm of Rogers & Magraw, to be settled immediately. The firm of H. Abbott & Rogers; one year from my death to be settled. My watch and jewelry to my sister Mary Anny Magraw.

"The balance of my property to my father, to dispose [**3]  of among my sisters and brother as he may deem best. My father to be my Exetor."

Afterwards, upon application of the appellant, the following issues were sent to Baltimore county court for trial.

1st. Did the said Joseph M. Rogers die intestate?

2nd. Did the said Joseph M. Rogers, in his life time, make a will, and if so, was such will unrevoked at the time of his death, and what were the contents of such will?

At the trial, the plaintiff proved by Walton Gray, that some time in 1847, Joseph M. Rogers delivered said paper marked "JR," to witness, with instructions to prepare him a will; with the same dispositions of his property as contained therein, said paper is in the handwriting of the deceased, except the portions in italics, which were interlined by witness, in the presence, and with the assent of deceased; that about two weeks afterwards, deceased, in company with Mr. Abbott, his partner, went to witness office to execute the will, when Gray said it was not ready, and told him to call again; whereupon Gray prepared a will in conformity with the disposition of his property contained in said paper, and called at the counting house of deceased, in Baltimore,  [**4]  on two occasions, for the purpose of getting it executed. The deceased was not there on either occasion, and Gray never saw deceased at any time, when he had the will so prepared, with him. In about two weeks from the time of last calling at Gray's office, deceased called again with Mr. Abbott, to execute the will, when Gray remarked, "I have prepared the will and left it at my house." About two weeks thereafter, deceased called again, with Mr. Abbott, upon Mr. Gray, and said, "is the will ready?" when Gray said, "I have not been able to find it yet." Deceased then requested Gray to prepare a new one. The day before deceased left for Bedford Springs, in July, he again called and said, "Is the paper yet ready?" Gray said it was not, and inquired of deceased, if he had changed his mind in any way in regard to the disposal of his property? Deceased replied, he had not, he was going to Bedford Springs, and it would be time enough when he got back, that said paper remained in the possession of Gray, until three or four weeks after deceased's death, when defendant called and demanded it, and Gray then delivered the paper to him.

The plaintiff further proved by Mr. Abbott, a partner [**5]  in business with deceased, that in May or June 1847, witness went into the counting house and found deceased sitting at a desk writing. Deceased said to deponent, "I am writing my will, do you wish any arrangement to be made in my will in regard to the business of the firm?" Deponent said, "I would like to have twelve months to settle it up." Deceased continued writing for almost an hour, and then handed witness a paper to read, and then asked witness to go with him to Gray's office, as he was going to have Gray prepare his will, which he asked deponent to witness and keep for him. They went to Gray's office together, and deceased gave Gray a paper, and instructed him to draw therefrom a will. The paper was written on half a sheet, and was like the paper "JR." Witness further testifies, that subsequently on three or four occasions, at deceased's request, he went to Gray's office with him, for the express purpose of witnessing his will. The plaintiff further proved, that the deceased was very much attached to the plaintiff, and that between them there existed the closest intimacy, and that sometime about the 20th of June 1847, deceased said to Mr. Selvage, "Elijah always takes care [**6]  of me, and I've left him snug"--or,--"I've made him snug." By Mr. Sutton, that on the 18th of July 1847, deceased and witness left Baltimore for Bedford Springs; that on the road, deceased said to him on one occasion, "Boofter has been a friend to me, has been with me from the commencement of my forge in Harford county, has saved me a great deal of money, and I intend he shall be paid for it, and I have made provision for him and his family, if I never get back." After about two weeks, they started on their return to Baltimore. On the 2d of August, when near Hancock, Mr. Rogers was attacked with illness. It was found impossible to proceed, they stopped at Hancock, and the night of their arrival, Rogers became delirious, and knew no person except for a moment at a time, afterwards. He died on the 13th of August, and during his illness, on the second or third day after he was taken, Boofter came up from Baltimore, bringing Dr. Gibson with him, nursed the deceased constantly, until the day of his death, slept by his bedside, and came down afterwards with his remains to Baltimore.

The plaintiff also offered in evidence the inventory of the deceased's estate, and the first administration [**7]  account showing a balance due the estate of $ 12,815.54.

And proved that deceased died without issue and unmarried, leaving one sister of the whole blood, Mary Ann Magraw, and one sister, and brother of the half blood, Martha K. Hartshorn and Evans Rogers, the persons mentioned in the paper "JR." And further proved by a number of witnesses, the great attachment of deceased to the plaintiff, that they were constantly together, that deceased often said "Boofter would do any thing for him, would act in any menial capacity to serve him."

The plaintiff further proved by a number of witnesses, and among others, by Mr. Abbott, his partner, that deceased was of perfectly sound mind up to the time of his leaving Balti. more for Bedford Springs, that though his mind had become impaired by intoxication, it was entirely fit for the transaction of business when sober; that they did business with him, and that they would have had no hesitation in taking a deed from him; that in the spring of 1847, he went to Philadelphia and New York, for the purpose of making contracts and purchases for the firm.

The defendant then offered evidence by a number of witnesses, that deceased had been [**8]  of unsound mind for six months or longer preceding his death; that his mind had become greatly impaired by the long use of intoxicating drinks, and that for six months preceding his death he was incapable of attending to business; and proved by Dr. Thomas, that he attended deceased during a spell of sickness in September 1846, that he then considered him, through feebleness of intellect, incapable of executing a valid deed or contract; that his mind seemed greatly impaired from hard drinking; that in the judgment of witness, his mind could not recover its strength if the same habits were continued. The defendant then offered evidence by a number of witnesses, that deceased continued his intemperate habits, from the time of his recovery from said spell of sickness until his last illness, and that he became more and more intemperate, and that during the last six months of said period he was incapable of executing a valid deed or contract; and proved by William Wetherall, a book-keeper in the firm of Rogers and Magraw, that in the spring of 1847, Gray the witness on the part of plaintiff, came to the counting house of said firm, that deceased seeing Gray approaching remarked to witness,  [**9]  "I know what that man wants, I will not do it;" deceased then went out of the counting room and conversed with Gray within sight, but out of the hearing of witness; and returned in a few moments much excited, and said to witness, "some people must take me for a fool, but they will find themselves mistaken, I wish you to take notice, that I will not sign that paper, I want my father to have the disposal of all my property when I die, he will know best what to do with it." that some weeks after the death of said Rogers, witness and a Mr. Hartshorne went with defendant to the office of Gray, who on request delivered to defendant the paper "JR," and stated, that he had gone to the store of deceased with a will prepared from the paper, but that the deceased refused to sign it." And proved by Mrs. Hemphill, that deceased was very warmly attached to his father, the defendant, and to his sister, Mary Ann Magraw; that deceased on several occasions, within a year before his death, had declared to witness, his aunt, that he intended to make a will, leaving all his property to his sister Mary, his father to take care of it for her. And further proved by Mr. Van Horne, the innkeeper at Hancock,  [**10]  where deceased died, that Mr. Sutton said to deceased, "hadn't you better make a will," and he replied, "its not necessary, all I have will go to my sister Mary." Mrs. Van Horne the innkeeper's wife and Dr. Wilson the attending physician, both corroborate the last witness as to the use of this expression by deceased, at that time and place, and that when this declaration was made, the mind of the deceased was more composed than at any other time during his last illness, having been calmed for the time by medicines.

Whereupon the plaintiff prayed the court to instruct the jury: 1st. If they believe from the evidence that Rogers placed in the possession of Gray, the paper "JR," with directions to draw therefrom his will, and that said paper contained his wishes with regard to the disposition of his property, and remained in Gray's possession, and that Rogers called on one or more occasions to execute a will drawn in conformity with his said directions, and that from any failure on the part of Gray, to prepare or furnish the paper, it was not executed, then the jury are bound to find as to personal estate, for petitioner upon both issues, unless they shall believe that subsequent [**11]  to the time of placing said paper in Gray's possession, Rogers changed his intention, and did not design at the time of his death that his will should be in conformity with the instructions contained in said paper.

2nd. If they find that Rogers fully meant and intended to execute a will of the same tenor with said paper, and was prevented from carrying that intention into effect by the act of God, or by any contingency not imputable to any change of intention on his part, then the jury are bound to find for petitioner.

3rd. If they find that Rogers desired and instructed Gray to prepare his will, and that his wishes as to the disposition of his property were contained in said paper, and that Rogers died without any change of intention on his part, but adhered to his wishes as contained in said paper, then said paper is his will, and the jury are bound to find for petitioner.

4th. If they find that Rogers handed said paper to Gray, and directed him to draw a will in conformity thereto, and that it remained in the possession of Gray until after the death of Rogers, and that the instructions therein contained were unobjected to by Rogers, then it is his will, and the jury [**12]  are bound to find for petitioner.

5th. If they find that Rogers designed to execute a will of the same tenor as said paper, and then, or afterwards, designed that said paper should have effect as his will, even if not formally executed, said paper is his will, and there is no evidence of the revocation thereof, and the jury are bound to find for petitioner.

6th. If the jury find that said paper was handed by Rogers to Gray, with instructions to draw therefrom a paper, which he proposed to execute as his will, and that said last mentioned paper was so prepared, then his intentions remaining unchanged, said paper so prepared was his will, and the bequests therein contained are valid as to personal estate.

7th. If they find the facts stated by Gray, and that from the mere neglect or delay of Gray to prepare or furnish the same, a more formal paper never was signed, and that Rogers continuously desired and wished to execute a paper carrying out his wishes, as contained in "JR," without any change or deviation, and the day before he left for the springs, he called upon Gray, for the purpose of signing the more formal paper, which was not produced from having been lost or [**13]  mislaid, and that he then announced that "JR," contained his entire wishes as to the disposition of his property, and that he would sign the more formal paper upon his return, and if the jury shall further find, that within three or four weeks thereafter, he died, adhering to the said disposition of his property, as manifested by the paper "JR," then they are bound to find for the petitioners.

8th. If they find that the deceased fully meant and intended to execute a will, of the same tenor with "JR," and was only prevented from carrying that intention into effect, by extrinsic circumstances, such as he himself had no control over, and such as are not justly imputable to any change of intention on his part, then the jury are bound to find for the petitioners.

And the defendant also prayed the court to instruct the jury:

1st. Although the paper "JR," was prepared and delivered as stated by Gray, yet it is not the last will and testament of deceased, unless the jury shall further find that it was intended by deceased to operate as his will in its then state and condition.

2nd. That to authorize the jury to find that said paper is the last will and testament of deceased,  [**14]  they must be satisfied by the evidence that it was written by Rogers, animo testandi, and intended, as it stood, to be his last will and testament, without looking to any thing further to be done in order to be perfected.

3rd. That if the jury find that Rogers in his last illness, and after his several interviews with Gray, was requested, solicited, or advised, to make a will, and that he declined to do so, and declared that it was unnecessary, and that he designed that all the property he might die possessed of, should go to his sister, Mary Magraw, and that at the time of so declaring and declining, said Rogers understood what he was saying, their verdict must be for defendant, upon both issues.

4th. That "JR," is not the will and testament of Rogers, even though the jury shall find the facts detailed by Gray and the other witnesses of the plaintiff, provided they believe from the evidence that said paper was placed by Rogers in the hands of Gray, as instructions to prepare a will to be thereafter executed by Rogers.

The court (FRICK C. J.,) granted all the defendant's prayers, and refused the plaintiff's, who excepted, and the verdict being against him, appealed to [**15]  this court.  

DISPOSITION:
CAUSE REMANDED.  

HEADNOTES:

In order to make a paper the last will and testament of a deceased person at the time it is written, it must appear that such person possessed the animum testandi at that time.

A paper, though not a last will and testament at the time it is written, may be made such afterwards by adoption.

A paper, though intended merely as instructions or a memorandum, to enable the scriviner to prepare the will, will be admitted to probate, if the more formal will be left unfinished by reason of any act which the law pronounces to be the act of God.

There must, however, be a continuance of the intention of the deceased, down to the time when the act of God intervened and prevented the execution of the formal instrument.

An immediate or sudden death is not required, if according to the proof, the jury are satisfied that there was no change of intention in regard to the provisions of the will.

An instruction given to a jury is not necessarily correct, because it is given in the very words which the court of last resort used in a case where they acted both as judge and jury.

An instruction which takes from the jury the inquiry whether the deceased, at the time of preparing the paper, sought to be established as his last will and testament, was of sound and disposing mind and memory, and capable of making a valid contract, is erroneous, where testimony has been offered, going to question his sanity.

If there is proof going to show that a paper, not originally intended as a will, was afterwards made such by adoption, or because without any change of purpose, the party was prevented by death from executing a more formal instrument, it is error to grant a prayer which excludes this question from the consideration of the jury.  

COUNSEL:
By WM. B. PERINE and RICHARDSON, Attorney General for appellant, and

By NELSON and YELLOTT, for the appellee.

The prayers made by the respective parties in the county court, indicate the points urged in argument in this court.  

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

OPINIONBY:
MAGRUDER 

OPINION:

 [*53]  MAGRUDER, J., delivered the opinion of this court.
The issues in this case certainly are not those which are usually sent from the orphans court, for trial by jury, in cases of this description; and are so framed, that a verdict in favor of the petitioner, which was sometimes asked, would have been of no advantage to the appellants. They do not, indeed, refer to the paper, JR. No other paper, however, was produced; no attempt was made to prove that any other, which could be regarded as the last will and testament of the deceased, was in existence.
In order to make a paper the last will and testament of a deceased person, at the time it is written, it must appear that such person possessed the animum testandi, at that time.
A paper, although not a last will and testament at the time it is written, may be made [**16]  such afterwards, by adoption.
A paper, though intended merely as instructions, or a memorandum to enable the scriviner to prepare a will, if the more formal act be left unfinished, may be made a will, by any act which the law pronounces to be the act of God. 2 Eccl. R. 144. 6 Eccl. R. 19. 2 Addams 490. 5 Eccl. 188. There must, however, be a continuance of the intention of the deceased, down to the time when the act of God prevented the execution of the formal instrument. An immediate, sudden death, is not required, if according to the proof, the jury are satisfied, that there was no change of intention, in regard to the provisions of the will.

 [*54]  In the case of Tilghman vs. Steuart, 4 H. & J. 156; and Brown vs. Tilden, 5 H. & J. 371, the court had not the aid of a jury, and was to settle the facts as well as the law. In pronouncing their judgment they necessarily decided questions, the decision of which, in the trial of issues by a jury, belongs exclusively to the latter. An instruction given to a jury, is not necessarily correct, because it is given in the very words which the court of last resort used in a case wherein they [**17]  acted both as judge and jury.
With this understanding of the law, we proceed to notice the prayers of the appellant, in the course of the trial of these issues.
The court was correct in refusing to give the instructions asked by him, because all of these instructions take from the jury the inquiry, whether the deceased, at the time of preparing the paper, or at any other time, to which the prayers refer, was of sound and disposing mind and memory, and capable of making a valid contract? There certainly was testimony going to question his sanity, and of the weight to be given to that testimony, the jury were to be the judges. So if the design of any of the prayers was to obtain an instruction, that the paper, though not originally intended as a will, was afterwards made so by adoption, or because without any change of purpose, he was prevented by death from executing a more formal instrument, the prayer ought to have been so framed as to inform the jury of what the evidence must satisfy them, in order to warrant a verdict, establishing JR, or any other paper, as the will of the deceased. It does not appear that in this case any attempt was made to satisfy the jury, that it was obtained [**18]  by fraud, or the exercise of undue influence.
It appears to the court, that a similar objection is to be made to the prayers of the appellee. If it be a question, made so by the proof, whether the paper JR, became, by adoption afterwards, the will of the deceased, or whether it became his will by the act of God, as before stated, the instruction should have informed the jury, what they were to find from the testimony, in regard to it, in order to obtain a verdict, that such paper was 

 [*55]  not what the petitioner alleged it to be. If, from the proof, the jury could find, that it became at any time such last will and testament, there are defects in the prayers of the appellee, because of which the instructions of the court must be decided to be erroneous. A paper, though intended merely as instructions, or a memorandum to enable the scriviner to prepare the will, is to be admitted to probate, if the more formal will be left unfinished, by reason of any act which the law pronounces to be the act of God. 2 Hag. 211. 6 Eccl. R. 330.
There must, however, be a continuance of the intention, down to the time when the act of God intervened, and prevented the deceased from executing [**19]  his purpose. When there is testimony to authorise a belief that there was no change of his intention, this question should be left to the jury.
To the first prayer it is a fatal objection, that according to it, the paper JR, could not be pronounced by the jury to be the will of the deceased, although the deceased never changed his purpose of so disposing of his property, and was prevented from executing a more formal instrument by his death.
The second declares that it is not to be considered his will, unless it was written by said Rogers, animo testandi, and intended, as it stood, to be his last will and testament, which, for reasons already given, is erroneous.
The third would take from the jury the power of deciding, quo animo, the declarations were made. They might have been intended to escape from importunity.
According to the fourth, the appellee would have been entitled to a verdict, if the testimony satisfied them, that the paper, "JR," was placed by said Rogers in the hands of Gray, as instructions to prepare a will, to be thereafter executed; and although he afterwards adopted it as his will, or was prevented by the act of God from executing a will,  [**20]  in all its provisions the same as the paper of instructions.
The court, therefore, agree with the court below, that the instructions asked by the appellant, ought not to be given; but says there is error in granting the instructions asked by the appellee. The cause is remanded for further proceedings, and a new trial.
CAUSE REMANDED 

171 of 187 DOCUMENTS 

ELIZABETH MILLER AND OTHERS, vs. THE BOARD OF COMMISSIONERS OF PUBLIC SCHOOLS OF THE CITY OF BALTIMORE, AND DAVID STEWART, ADM'R OF HENRY MILLER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Gill 128; 1849 Md. LEXIS 17 

December, 1849, Decided 

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

The appeal in this case was taken by the appellants, from an order of said orphans court of the 5th of April, 1849, directing the administrator of Henry Miller, deceased, a bastard, to pay over to the Board of Commissioners of Public Schools of the City of Baltimore, the balance due the estate of said deceased, under the act of 1845, ch. 120. The facts of the case are fully stated in the opinion of this court.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

An illegitimate child, whose parents never married, died intestate and without issue. HELD: that neither his mother nor her legitimate children, had any claim to his estate, under the act of 1825, ch. 156.

By the common law, bastards, having no inheritable blood, are incapable of taking as heir to the putative father, mother, or any one else.

The 7th section of the act of 1820, ch. 191, legitimates only where the parents subsequently marry, and recognise such child.

The act of 1825, ch. 156, only enables an illegitimate to inherit from the mother, and from illegitimate brothers and sisters.

Illegitimates cannot take from the legitimate, neither can the legitimate inherit from them.

Acts in derogation of the common law, must receive a strict construction. 

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

By WM. F. FRICK, for the appellees.  

JUDGES:
The cause was argued before DORSEY, C. J., SPENCE, MARTIN, and FRICK, J.  

OPINIONBY:
FRICK 

OPINION:

 [*129]  FRICK, J., delivered the opinion of this court.
Henry Miller, who was an illegitimate child, died unmarried and without issue, in the year 1844, leaving his mother, two sisters and a brother, who claimed to be the representatives and distributees of his estate. The sisters and the brother are the legitimate children of the mother by her deceased husband, who was not, however, the father of said Henry Miller.
Letters of administration upon his estate were granted to David Stewart, executor, one of the [**2]  appellants, from the orphans court of Baltimore county, and the balance in hand was by him submitted for distribution under the order of said court.
The act of Assembly of 1845, ch. 120, requires that the justices of the orphans court of Baltimore county shall direct the funds arising from the personal estates of persons of the city of Baltimore, who have died or may die intestate, and have not or may not leave legal representatives, to be paid to the board of commissioners of the public schools of the city of Baltimore, to the use and support of said schools. Under this act of Assembly, the commissioners of the public schools of Baltimore city filed their petition in the orphans court, claiming to be paid the funds in the hands of the administrator. On the other hand, the appellants resist this application, and claim as the legal representatives of the deceased, under the terms of the act of 1825, ch. 156. 1st. They all claim, the mother, sisters and brother, as distributees in equal proportions; or, 2nd. If the mother should be excluded by the terms of the act, then in equal parts between the sisters and brother.

 [*130]  The act of 1825, ch. 156. declares: [**3]  "that the illegitimate child or children of any female, and the issue of such illegitimate child or children, be and are hereby declared to be capable, in law, to take and inherit both real and personal estate from their mother, or from each other, or from the descendants of each other, as the case may be; provided nothing herein contained shall be construed to alter or change the law respecting illegitimate persons whose parents marry after the birth of such persons, and who are by them acknowledged, agreeably to the 7th section of the act of 1820, ch. 191."
This section of the act of 1820, is but a reiteration of the same section, in the same words, of the act of 1786, ch. 45: "And be it enacted, that if any man shall have a child or children by any woman whom he shall afterwards marry, such child or children, if acknowledged by the man, shall, in virtue of such marriage and acknowledgment, be hereby legitimated, and capable, in law, to inherit and transmit inheritance, as if born in wedlock."
The decree of the orphans court being in favor of the commissioners of the public schools, from that decision the present appeal is taken to this court.
By the common law, bastards, having [**4]  no inheritable blood, are incapable of taking as heir either to the putative father, mother, or any one else. In every well digested scheme of social and civil polity, it has always been a prominent object to prevent the mischiefs of illicit intercourse; and the fruit of such intercourse has been invariably blended and branded with the guilt of the parent. The infamy of the transgression descended to the child, while the estate of the parent passed over to the more distant kindred, or escheated to the State. Such was the policy of the common law, and so it remains in this State, with only such relaxation as the Legislature has engrafted upon it by the preceding act of Assembly. The bastard is still nullius filius. The sin of the parent still attaches to the child in this respect; but so far as the Legislature could justly temper the severity of the sentence, and regard the unoffending character of the offspring, they have done so. The act of 1786, 

 [*131]  further confirmed in 1820, reserves to the guilty parents the locus penitentiae. By marriage and subsequent adoption of the child, the sin is atoned for, and the penalty of the law remitted. The policy of the law is thus [**5]  gratified, and the child to all intents and purposes, is here legitimated. So far, and on these conditions, the rule of the common law is repealed, that punishes the offspring for the guilt of the parent. Beyond this the Legislature refused to go, in 1820, or to alter one word of the act of 1786, upon the subject, while reducing into one system the acts relating to descents. Only where the atonement was public, by a marriage and subsequent recognition of the child, was the taint of blood and civil disability remitted. To remove this stigma, was no part of the design of the act of 1825. It does not propose to legitimate the offspring. So to construe it, would be a virtual repeal of the provision of the act of 1820. It would restore the disabilities of bastards, without either marriage of the parties, or open recognition of the offspring. It could not intend to make the illegitimate the legitimate child of the mother, for all purposes de jure et de facto. It is expressly directed to the children of parents, where marriage is supposed impracticable, and endows the child only with inheritable privileges from the mother. It recognises no father, and establishes, of course, no relation [**6]  of brother and sister. And to preclude such possible construction, the proviso is added, retaining in full force the position of the 7th section of the act of 1820, that no such consequence shall result, but from subsequent marriage and adoption of the children.
The disqualification is, therefore, only so far removed as to enable an illegitimate to inherit from the mother, and from illegitimate brothers and sisters. If, from any cause, the parents never marry, the children remain illegitimate.
Henry Miller, then, being illegitimate born, and his parents never having married, the mother can have no claim under our statutes of distribution. It was manifestly the policy of the common law that she should not; for the sin there denounced, still attaches to her. To permit her to share in the distribution, unless it be within the express terms of the act, would be to 

 [*132]  sanction, not discourage illicit connections. Such sanction is not to be found in the act. It simply declares, that the children being illegitimate, may inherit from her, and from each other, "as if born in wedlock." The favour bestowed, the relaxation made, is in behalf of the children, and to their benefit [**7]  the act is restricted. They may not take from the legitimate, neither can the legitimate inherit from them. There is no reciprocity intended, and between these, the act recognises no such relation as brother and sister. The illegitimate is still, in contemplation of this act, nullius filius. Without a recognition of both father and mother, there can be no recognised brothers and sisters in law. The remedy for this is to be found in the act of 1820, where the parents are free to make retribution to society, and wipe from their offspring the stain and dishonor of their illegitimate birth.
The act before us, is both humane and politic in its object. The illegitimate offspring is sufficiently degraded by the crime of the parents, and the stigma of the world, without being deprived of the only reparation that the circumstances may justify. The law may not restore the taint of blood but upon the conditions referred to. Still, while the relation of the mother to the child can always be rendered certain, no reason exists why the children should be left destitute of such relief as may be derived from the mother, or among themselves. So far the Legislature designed to abate the rigor of [**8]  the common law, to relieve the innocent offspring from a portion of the penalty incurred by the sin of the mother. In this view the terms of the statute are plain and unambiguous, and all further inquiry into the intention of the Legislature, and the equity of the statute, is shut out. The words expressly restrict it to the relation there stated among the illegitimates, excluding the legitimates from any participation. The provisions of the act are in derogation of the common law, and for that reason, they must receive a strict construction. Neither of the parties, appellants here, can claim under it. The mother is incompetent, unless the disqualification has been removed by marriage, and the child legitimated for all purposes; and the brother and sisters, born in 

 [*133]  wedlock and legitimate, have no claim to fraternity with the illegitimate, to whom the terms of the act exclusively refer. That the illegitimate cannot claim, under this act, to take the estate of a legitimate brother, has been heretofore decided in this court, in the case of Medcalf vs. Daley and Jones, (1845, manuscript,) and the converse of the proposition being equally true under the act, the decree of [**9]  the orphans court of Baltimore county is affirmed.
DECREE AFFIRMED.  

172 of 187 DOCUMENTS 

JOHN PRICE vs. STATE OF MARYLAND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Gill 295; 1849 Md. LEXIS 38 

December, 1849, Decided 

PRIOR HISTORY:
 [**1]   Error to Anne Arundel county court.

The record in this case states, that on the 22nd of October, 1849, Baltimore city court caused to be transmitted to Anne Arundel county court, for trial therein, a transcript of their proceedings in the case of the State of Maryland against John Price, lately depending in said city court, which said transcript is in the words, &c.

This transcript sets out a presentment by the grand jury of the city of Baltimore, against said Price, for the murder of George Washington Campbell, in the usual form, except the omission to state that said grand jury were duly impannelled and sworn.

Then follows the indictment, charging, in the usual form, said John Price with the wilful and felonious murder of "George Washington Campbell;" and then proceeds to state the arraignment of the prisoner in the usual form, his plea of not guilty, his putting himself upon his country for trial, and the joining issue on the plea by the attorney general, in behalf of the State. After stating this arraignment, plea and issue, the transcript proceeds as follows:

Wherefore let a jury thereon appear before the court here, immediately, by whom, and so forth, and [**2]  ten of which said jury being called, come, that is to say, (naming said ten;) who are severally elected, tried and sworn to say the truth of and upon the premises aforesaid. And afterwards, and before the completion of the said jury, the attorney general filed a suggestion, in writing, that the State cannot have a fair and impartial trial of said case in said court, and praying that the record of their proceedings in such prosecution be transmitted to the judges of some adjoining county court for trial, to be heard and determined by such county court, as if originally instituted therein. And the court accordingly ordered the record of proceedings of said cause to be transmitted to Anne Arundel county court, and then ordered the jurors, sworn as aforesaid, to be finally discharged, which was accordingly done.

Attached to this transcript is the certificate of the clerk of Baltimore city court, attested by the seal of said city court, that the foregoing "transcript" is a full and true record of the proceedings, &c.

The cause thus removed came on for trial in Anne Arundel county court, at its October term, 1849, when the prisoner, by his counsel, moved the court to discharge [**3]  him without day, because it is manifest, from the record in this court filed, that he was, at September term, 1849, of Baltimore city court, put upon his trial, which trial was proceeded in until ten lawful men were called, selected, and sworn as jurors, to try the issue joined between him and the State; and that afterwards, said city court, against his consent, discharged the jurors so sworn without authority of law, so that he cannot again be put upon trial for the offence charged in the indictment set forth in said record. And he further alleged, in support of the above motion, that after the ten jurors were so sworn, said city court discharged them against his consent, and without authority of law; and without his consent, ordered and directed the record of proceedings of said city court, in said cause, to be transmitted to this court. So that this court hath no jurisdiction in this case, because the record of proceedings in said prosecution has not been transmitted thereto agreeably to the acts of Assembly in such case made and provided.

Which motion the court (DORSEY, C. J., and BREWER, A. J.,) overruled.

The prisoner, by his attorneys, then filed an affidavit, stating [**4]  that the transcript of the record of proceedings from said city court was incomplete and diminished in this: that at the May term, 1849, of said city court, a presentment was made against him, charging him with the felonious homicide of George Campbell; and that, thereupon, the attorney general filed an indictment, charging him with the murder of said George Campbell, which the grand jury endorsed, "true bill;" that upon said indictment, he was arraigned, and plead not guilty, &c.; and that upon his application, the said indictment was continued to the next term of said city court, to wit: the September term of 1849. At which said last term, the grand jury made another presentment, charging him with the murder of George W. Campbell, and upon that presentment, the attorney general filed another indictment, charging him with the murder of the said George W. Campbell, which the grand jury also returned, endorsed "true bill." Upon said last indictment, he was also arraigned, and pleaded not guilty, &c., and the State joined issue, which a jury was called to try; that he was put to his challenges, and that the regular pannel being exhausted, tales were ordered, and summoned, and returned;  [**5]  and he further saith, that these two indictments were for one and the same homicide, and that the first is still on file in said city court, undisposed of, and that there is no mention made of the first indictment in said transcript, nor any mention that any tales were summoned, or any challenges made by him, or the State, and allowed by the said court. But the court refused to grant a writ of diminution.

The prisoner then filed a suggestion and affidavit that a fair and impartial trial cannot be had in this court, where the said prosecution, as if originally instituted, is now depending, and prayed the court to direct the record of their proceedings to be transmitted to the judges of any adjoining county court, for trial, there to be heard and determined in the same manner as if the said prosecution had been originally instituted therein. Which the court refused to do.

The record then proceeds: And the said John Price, (in the custody of the sheriff of Anne Arundel county, as aforesaid,) who had been heretofore, as aforesaid, placed at the bar of Baltimore city court, as aforesaid, and had then and there been, as aforesaid, asked, how he, of the premises aforesaid, above [**6]  against him, in form aforesaid imposed, as aforesaid, will acquit himself? had said, that he is not guilty thereof, and thereof, for good and evil, put himself upon the country, as aforesaid. And George R. Richardson, attorney general, as aforesaid, who prosecuted, as aforesaid, for the said State here, as aforesaid, in this behalf in like manner, and so forth, as aforesaid; therefore let a jury thereon appear, &c.

A jury was then sworn, and rendered a verdict "guilty of murder in the second degree." The traverser then moved in arrest of judgment, and assigned the following reasons:

1st. Because the transcript of the record filed in this court, is not a record of the proceedings in said prosecution, according to the act of Assembly.

2nd. Because said transcript is diminished, imperfect, repugnant and vicious.

3rd. Because he was not arraigned upon the indictment upon which he has been tried in this court, nor has he, in this court, plead to the said indictment, or joined issue thereon with the State.

4th. Because said proceedings have not been heard and determined in this court, as if such prosecution had been originally instituted therein.

5th. Because [**7]  the court refused to order or grant the writ of diminution referred to in his affidavit.

6th. Because this court refused, upon his suggestion that he could not have a fair and impartial trial in said court, to direct the record of their proceedings to be transmitted to the judges of any adjoining county court for trial.

7th. Because this court had no jurisdiction to try said cause, said Baltimore city court having no authority to transmit the record of proceedings of said prosecution to the court here, for trial.

But the court overruled this motion, and passed sentence of confinement in the penitentiary, for fourteen years and six months, upon the traverser, who thereupon sued out the present writ of error.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

Where a criminal case is removed to an adjoining county for trial, under the act of 1804, ch. 55, it is sufficient to send a transcript of the record to the court to which the cause is removed. The original papers on file in the court, ordering the removal, need not be transmitted with the record, or as the record of proceedings.

The words of the record, "whereupon, let a jury thereon appear before the court, immediately by whom, and so forth," state the venire for the the petit jury, and the expression, "ten of which said jurors being called come, and so forth," refers to the impannelling, electing, and trying of the individual jurors, and not to the venire.

The proceedings in relation to the petit jury, being gone over in the court to which the cause is removed, any irregularity in such proceedings in the court ordering the removal, would not be fatal, and no mention need be made of them in the transcript sent to the former court, except for the purpose of showing at what precise stage of the cause the removal was ordered.

The object to be effected by a removal is to secure a fair and impartial trial, and if the accused has been arraigned in the court where the cause originated, he need not be again arraigned in the court to which it is removed, the arraignment constituting no part of the trial.

The issue made by the accused putting himself upon the country for trial, does not contemplate any particular twelve individuals as the jury, as is manifest from the fact that the arraignment always takes place before the jury is sworn, and often at a previous term.

At common law, as a general rule, a jury must be returned from the county where the offence is committed, but our statute intercepts this rule in case of removals, and directs the issue to be tried by a jury from another county.

There are cases under the English statutes, in which, for the trial of offenders, a jury may be taken from a different county, but there is no difference in such cases in the mode of arraignment.

In removals from the King's bench, the venire in the indictment remains the same; the place of trial alone is changed.

The appeal to the accused "how will you be tried?" and his answer, "by my country," is a form handed down from the period when the party had the privilege of selecting a trial by jury, or by battle, and to put himself upon the country, was the formal mode of selecting a trial by jury.

In the removal of civil causes, it is not necessary to re-frame the issues in the county where they are removed.

The court to which a cause is removed, has no power to order a writ of diminution to correct the transcript of the record sent to it. Where diminution is suggested, the process should be applied for.

After the right of removal has been once exercised by either party, there can be no second removal. By the express terms of the act of 1805, ch. 65, sec. 49, and of 1809, ch. 138, sec. 20, the removal must be made by the court in which the indictment is found, and none other.

The city court of Baltimore is vested with all the powers, jurisdiction and authority formerly held and exercised by the court of oyer and terminer for Baltimore county, and has authority to remove a cause to an adjoining county for trial.

The court of oyer and terminer possessed, in respect to criminal jurisdiction within the city of Baltimore, all the general powers and authority which the several county courts possessed within their respective territorial jurisdictions, and remained unchanged by the amendment to the constitution of 1804, '5.

The county courts in this State, being the only courts of record with general common law jurisdiction, can rightfully exercise all the powers exercised by the court of King's bench in England, so far as those powers are derived from rules and principles of the common law, and are suited to the change in our political institutions, and not modified by our constitutional or statutory enactments.

The power of removal, both of criminal and civil cases, is an acknowledged part of the ordinary common law jurisdiction of the courts of King's bench.

The privilege of removal was first made an object of constitutional security by the act of 1805, which left to the legislature no longer the power to deprive a party of its exercise, but only the power of extending it, or prescribing the mode of its exercise.

The practice of removing criminal cases from Baltimore city court has been continued since the act of 1805, and has been twice sustained by the Court of Appeals.

The same considerations must govern, and the same result is to be attained by a removal, both in regard to the State and the accused. There is no canon of interpretation which can be applied to the one, which will not apply with equal force to the other.

The object of the removal being to secure a fair and impartial trial, the case must be removed before the trial, or any part of it, is had in the court ordering the removal.

The trial can only be said to commence, within the contemplation of the law regulating removals, when the panel of twelve jurors is completed by being duly sworn.

Where a new trial is granted, or where the jury, unable to agree, are discharged, it then becoming necessary to try the case again, de novo, the second trial is as much a trial, within the contemplation of law, as the first was, before the party was put to the bar.  

COUNSEL:
By PRESTON and PITTS, for the plaintiff in error, and,

By GEORGE R. RICHARDSON, attorney general, for the State.

After argument, the attorney general filed a suggestion, in writing, stating that the transcript of the record sent from Anne Arundel county court to this court, is diminished in this, that in reciting the proceedings in Baltimore city court, the words "who being impannelled, sworn and charged to enquire for the State [**8]  of Maryland, for the body of the city of Baltimore," are omitted in that part of the record which states the withdrawal of the grand jury to make the presentment, and that these words so omitted are contained in the transcript referred to in the record, as sent from Baltimore city court. He, therefore, prays for a writ of diminution to correct the record in this particular. This motion was submitted upon the statement by the attorney general, that the error was discovered after the argument of the cause at bar, and was not known when such argument was had. The court ordered the writ of diminution to issue, and the record was accordingly amended.  

JUDGES:
The cause was argued before CHAMBERS, SPENCE, MAGRUDER, MARTIN, and FRICK, J.  

OPINIONBY:
CHAMBERS 

OPINION:

 [*302]  CHAMBERS, J., delivered the opinion of this court.
This case comes before us by a writ of error, prosecuted to bring into review the proceedings, which have ended in the conviction of the appellant of the crime of murder in the second degree, for which crime he has been sentenced to confinement in the penitentiary for fourteen years and six months. As the party is now in confinement pursuant to his sentence, we have used the very [**9]  first moment after the case was fully submitted to us by his counsel, to examine into and confer upon the questions of law which his counsel have raised, and with great ability urged in argument. We have now to announce the result of our deliberations.
The offence is charged to have been committed in the city of Baltimore, within the jurisdiction of the "city court." In that court the indictment was found and proceedings thereon were had, as set forth in the record, when an application was made by the attorney general, on the part of the State, to remove the cause for trial to an adjoining county court. The cause was removed to Anne Arundel county court, where a conviction and sentence were had.
Various objections were urged against the proceedings, both in the city court and the county court, all of which were overruled in the county court, and it is our duty to decide whether there be error in the opinions so expressed. We will consider them in the order in which they are stated on the record.
The first is, that the transcript of the record filed in the county court, is not a record of the proceedings, according to the act of Assembly of 1804, ch. 55.
It has been [**10]  suggested by the counsel, that a strict regard was had in our acts of Assembly to the distinction between civil and criminal cases in this respect, using the term "transcript" whenever the proceedings in a civil case were directed to be removed, and the term "record" where a criminal case was spoken of. This, however, upon a minute examination, does not appear to be the case. The constitutional right of a party charged to remove his case for trial, was first secured by the act of 1804, ch. 55, confirmed by the act of 1805, ch. 16.

 [*303]  The third section of the act of 1804, contains the particular language relied on. It enacts, that upon suggestion in writing by the party, to the county court in which the prosecution is depending, "it shall and may be lawful for the said court, to order and direct the record of their proceedings in the said prosecution to be transmitted to the judges of an adjoining county court for trial," &c.
Now it is to be observed, that the second section of the same act, in reference to civil actions depending in any county court, provides, that upon suggestion made, as therein stated, "the judges thereof shall and may order and direct the record [**11]  of their proceedings in such suit or action, to be transmitted to the judges of any county court within the district for trial, and the judges of such county court to whom such record shall be transmitted," &c.
It is thus apparent, that in reference to this question the language is precisely the same in each section, and it is, of course, not possible to infer that the legislature intended to give to the terms used in the second section, a meaning and effect quite contrary to the meaning and effect of the very same terms in the section immediately following, when, as must be conceded, there is no other expression in the whole act to indicate any such intention. Assuming then, as we feel bound to do, that the language in both sections is to be interpreted as of the same import, we have the uniform and unquestioned practical construction of these terms from the confirmation of the act to the present period. In regard to civil causes, it is matter of no unfrequent occurrence in every district of the State, to transmit such a record of their proceedings as we have in this case. It is confidently asserted, that in no one instance have the original papers on file in the court, from [**12]  which the cause has been removed, been transmitted with the record or as the record; nor has an objection ever been taken by any member of the court or bar to the established practice. Most of the subsequent acts of Assembly adopt the same construction, by using the words "transcript of record," as synonymous with or, at least, equivalent to the word "record," in the sense of the act of 1804.

 [*304]  The usage also and practical interpretation of the third section, has been equally uniform and as equally without objection, as far as we can learn, except only in the case of the State vs. Dashiell, 6 H. & J. 268, in which, as would appear by the report, the counsel suggested this question, but the court, in the opinion given, did not allude to it.
Without meaning to intimate that we should have come to a different conclusion, in the absence of such cotemporaneous, consistent, and uniform judicial interpretation, we certainly feel bound not now to disturb it.
The second objection is to the insufficiency of the record transmitted from the city court, which, it is said, is "diminished, imperfect and vicious."
The defect chiefly relied on to sustain this objection,  [**13]  consisted in the omission to show that the grand jury was duly impanelled, sworn and charged. The amended record shows, that this defect is not in the record as such from the city court, but an error of the copy, made in the office of the clerk of Anne Arundel county court, and now remedied by the accurate copy, sent to us in obedience to the process of this court. One of the counsel also urged as an objection, that the venire for the petit jurors should be distinctly stated. How far the peculiar mode prescribed by our acts of Assembly, for the purpose of obtaining a jury, should distinguish the form of entry in this respect from the formula proper, in a case where a venire issues for the particular cause, it is not necessary here to consider. The venire is, in express terms, set out in these words: "wherefore let a jury thereon appear before the court immediately, by whom," &c. And the expressions, "ten of which said jurors being called, come," do not refer to the venire as it was urged, but to the impanelling, electing and trying ten individuals from the jury ordered to appear. It is certainly not very fully or very technically expressed, but is incapable,  [**14]  we think, of any construction but that here given. Upon this point, however, we have further to remark, that according to the view we have taken of another part of this case, the irregularity would not be fatal, because it could not produce, by 

 [*305]  possibility, the slightest injury to the accused. If the cause was properly removed, the proceeding as to the petit jury, however irregular, produced no influence or effect upon the case, so far as that irregularity was committed in the city court, because the whole proceeding in relation to the petit jury was gone over in the court in Anne Arundel, precisely as if nothing had been, in that respect, done in the city court. In a word, the whole proceeding was abandoned, and any mention of it might have been omitted in the record as regards any practical consequences arising from it, except in so far as it goes to ascertain the precise stage of the proceeding in the city court when the removal was ordered, and on which is based the question respecting the right of removal after part of the jury was sworn.
The third objection is, that the prisoner was not "arraigned" in Anne Arundel county, which it is urged was necessary by [**15]  the terms of the third and fourth sections of the act of 1804, ch. 55. The language used in each of these sections is, that the judges of the court to whom the record is transmitted, "shall hear and determine the same, in the same manner as if such prosecution had been originally instituted therein."
It cannot escape observation, that these words are, in each section, immediately preceded by words emphatically expressive of the purpose for which this authority is given; for the trial of the accused. The privilege secured to the party charged or the State, is to have a fair and impartial trial. In such trial, the court to which the record is sent is to proceed, in all respects, as the court from which it came would have proceeded in the trial, in hearing and determining the trial of the cause. It cannot be said nor has it been contended, that the arraignment is a part of the trial, but it has been urged, that the party accused, by "putting himself upon his country for trial," in effect selects the jury then attending, or, at all events, a jury of the county in which he pleads, is equivalent in short to a proposal to try his case before a jury then attending [**16]  the court, or, at least, a jury of the county.
Now, that such an issue does not contemplate any particular 

 [*306]  twelve individuals, is perfectly manifest, from the fact that the arraignment always takes place before the jury are sworn, and often at a previous term, and there is no means of ascertaining which of the attending jurors will constitute the panel, or, indeed, whether it may not be composed of talesmen, until the process of challenging, trying and swearing the jury has been gone through.
By the common law, as a general rule, a jury must be returned for the trial of the general issue from the county in which the offence is charged to have been committed. When, therefore, a party pleads not guilty and puts himself upon the country, the authorities tell us a jury is to be returned from the county in which the act was committed. But our local law intercepts this rule in a case of removal, and directs the issue to be tried by a jury from another county.
There are cases under the English statutes, vide 2nd Hawk. Pl. Cr., 559, in which, for the trial of offenders, a jury may be taken from a different county, but we have no intimation of a different form [**17]  of entry in this respect, or of a difference in any respect in the mode of arraignment.
The language of this appeal to the party, "how will you be tried?" and his answer, "by my country," is a form handed down from the period, when a party accused had the privilege of selecting a trial by jury or, by "ordeal," the "corsned," or by "battle." When asked how he would be tried, his reply determined which of these modes he selected, and to put himself upon his country was the formal mode of selecting a trial by jury. If he selected the trial by battle, he pleaded "not guilty, and that he was ready to defend the same by his body;" and, in fact, besides the plea of not guilty, the party was "arraigned" under the old process of trial by "battle," where there is no trial by jury. Vide numerous authorities cited in 2 Hawk. P.C. 231, sec. 30, and 587, sec. 3. And in reference to removals from the King's Bench, 1 Chit. Cr. Law 201, it is expressly said, "in these cases the venue in the indictment remains the same, and the place of trial alone is changed." Again, we have an illustration from the same provision 

 [*307]  in regard to civil causes. When [**18]  an issue is tendered, the party "puts himself upon the country," and the acceptance of the issue is in similar terms; yet, so far is it from being necessary to reframe an issue in the county to which a civil cause is sent for trial, that it is actually provided in the second section, which immediately precedes that directing the removal of a criminal prosecution, that the civil cause shall be removed at or during the term at which the issues are made up. These remarks also fully answer the fourth objection.
The fifth objection, that the court in Anne Arundel refused to issue a writ of diminution, was properly abandoned, as well because there is no power in the county court to issue such a writ in a criminal case, as because in fact, though diminution was suggested, there was no application made for such process.
The sixth objection, that a second removal was not ordered by Anne Arundel county court, is not tenable. The words of the constitution are, that "a party presented or indicted in any of the county courts, may apply to the court before whom the indictment may be depending," and have his case removed. There is nothing to indicate a purpose to authorise a second removal. [**19]  The policy of the law is to have the cause tried in an "adjoining county." This object may be defeated to the almost infinite delay of justice, and the great oppression of witnesses by adopting the argument of the counsel. If a second removal may be had, why not a third, a fourth, and as many removals as there are counties in the State, until, ultimately, the cause, if tried at all, is to be tried at some place the most remote and inconvenient to all who are witnesses or otherwise connected with it, and after a period of time in which the material testimony in the cause had been lost? The law seems to contemplate a condition of excitement in the immediate community, which has been the witness of an imputed crime, productive of feeling, either of prejudice or partiality, which might hazard a fair and impartial trial; but it has not assumed that such excitement will exist in all the adjacent counties, and reliance is, of necessity, had in the integrity and discretion of the court to select such an adjacent county, as is least likely 

 [*308]  to be influenced by any considerations of an extraneous character. Here, again, we have an analogy from the corresponding provisions of the same [**20]  instrument in relation to civil cases. All the argument that has been urged in reference to the design to remove the trial to a place not infected with prejudice, and the insufficiency of the remedy, if not allowed to one party after it has been exercised by the other, will apply with equal force to civil causes, and yet the interpretation of the law was settled contrary to the claim now made, and it is confirmed by express legislative provisions, assuming the construction we now give to this enactment to be the proper one. Vide act of 1838, ch. 245. That a further provision in regard to removals in criminal cases would be a very proper one, may be conceded, but it must originate with the legislature, and, if adopted, will doubtless be guarded by limitations, which will prevent its abuse. But we consider this question conclusively settled by the express terms of the acts of 1805, ch. 65, sec. 49, and 1809, ch. 138, sec. 20, in both of which it is expressly required, that the suggestion shall state that a fair and impartial trial cannot be had in the court in which the indictment is found, and provision thereupon is made for the removal by the said court--the court in which [**21]  the indictment was found--and by none other.
The next objection urged upon us, is, that the city court of Baltimore had no power to remove this cause. In the first place, this power is denied under any circumstances, and in the next, because, if it exist at all, it was not exercised in time.
In the consideration of this question, we do not think the argument should be confined, as it seems to have been, by the appellant's counsel, to a discussion of the constitutional provisions on this subject. It is very proper to regard the condition and authority of the courts in this State, in reference to this subject, prior to, and independent of the amendment adopted in 1804, '5.
The present system by which the city court of Baltimore exercises its jurisdiction, was brought into being by the act of 1816, ch. 193, which, in the broadest terms, gave to it "all 

 [*309]  the powers, jurisdiction and authority" then held and exercised by the court of oyer and terminer for Baltimore county.
The court of oyer and terminer, thus superseded, was established by the act of 1793, ch. 57.
By the second section of that act, "all causes and proceedings relative to the trial of felonies [**22]  and other crimes depending in Baltimore county criminal court, shall be tried and determined before the justices" to be appointed pursuant to the first section. Its jurisdiction was almost entirely confined to criminal cases. The subsequent sections create new felonies, alter the mode of punishment previously inflicted for most crimes, and in many respects create a new code of criminal law for the State. A very peculiar feature in that act, and one which evinces the prominent position occupied by the new court, in the view of the legislature, is, that this criminal code is embodied in various clauses which are worded as if designed solely for the cognizance of that particular court, until, in the twenty-eighth section, the same power and authority are given to the general court, and the several county courts, within their respective jurisdictions, with the exception carefully made of Baltimore county court, whose criminal jurisdiction was entirely taken away, and vested in the newly erected tribunal. Thus the justices of the court of oyer and terminer were not only vested with full and ample jurisdiction of all crimes committed in the city of Baltimore, but their authority [**23]  was, by this act, made a sort of standard by which to measure the extent of the criminal jurisdiction of the other courts of the State.
There are other acts of Assembly relating to this court, but they produce no change in its character or jurisdiction, so far as the question now before us is concerned. It so continued at the time of the amendment of the constitution reorganising the judicial system, and for some years after, until, in 1816, it was superseded by the present city court.
Thus it will appear, that when, by the confirmatory act of 1805, the provisions of the act of 1804 became part of the constitution, and the present county courts were substituted for 

 [*310]  the general court, which was thereby abolished, the criminal jurisdiction of the State was exercised by the judges of the county courts, except, only, within the limits of the city of Baltimore, where it was completely abolished, and in regard to all crimes vested in the justices of the court of oyer and terminer. The new organisation effected by the act of 1805, made it necessary to provide, in detail, for the administration of the new system, and at the same session, ch. 65, this duty was performed with [**24]  precise minuteness, both in respect to criminal and civil cases. The twenty-fifth section of that act recognised the court of oyer and terminer, and disclaimed any purpose to alter or change its powers and jurisdiction, or to give criminal jurisdiction to Baltimore county court. The forty-ninth section, which speaks of the removal by an accused party, requires the suggestion to be made "in the court where the indictment is found," and "the said court" is to direct the removal; and yet, elsewhere, the county court is described by its appropriate title in every instance in which the county court alone, was exclusively the object of the provision.
It would thus appear, that at the very session when the present judicial system for the State was adopted, those by whom it was introduced, regarded and treated the court of oyer and terminer as possessed, in respect to criminal jurisdiction within the city of Baltimore, of all the general powers and authority which the several county courts possessed within their respective territorial jurisdictions. Such has been the opinion, we believe, uniformly acted upon from the time of its first existence, now more than half a century,  [**25]  and it is not, and cannot be doubted, that the present city court has all the jurisdiction which the court of oyer and terminer previously possessed.
It has been always held, that the county courts in this State, being the only courts of record with original common law jurisdiction, can rightfully exercise all the powers exercised in England, by the court of King's bench, so far as these powers are derived from rules and principles of the common law, and so far as the same are suited to the change in our political institutions, 

 [*311]  and are not modified by our constitutional or statutory enactments.
That the court of King's bench has rightfully exercised this power of removal as an acknowledged, if not an essential part of its ordinary common law jurisdiction, both in respect to criminal and civil cases, does not seem to have been doubted in any of the cases in which its exercise is reported to us, of which several may be found referred to in 1st Chitty's Cr. Law, 201. It is there said, that "at common law, the court has the power of directing the trial to take place in the next adjoining county, when justice requires it." Why not exercise this power as well as  [**26]  certiorari or other common law process, which is of daily occurrence? During the existence of the general court, the process of certiorari answered every necessary purpose, and was, in consequence, the familiar practice; but when that court was abolished, and it was considered, as doubtless it must have been, that the courts being of co-ordinate grade, and each equally supreme within its territorial limits, some mode was proper to be adopted as a substitute for the certiorari or other common law process, to continue the enjoyment of this privilege. That it was not the intention of those who amended the constitution, to destroy this right, is not a debateable question. They not only express a contrary design, but they make the privilege, for the first time, an object of constitutional security, leaving to the legislature no longer the power to deprive a party of its exercise, but only the power of extending it, or prescribing the mode of its exercise.
The argument of the appellant's counsel can only be sustained upon the hypothesis that, by this attempt to place this highly prized privilege upon a more sure and certain foundation, the authors of the amended constitution [**27]  have singled out the citizens of a certain district of the State, to whom they have denied this privilege of a fair and impartial jury, which they have not hesitated to say should be secured to all others, by an immutable law. The case now before us is, to be sure, the case of the State, but it must be remembered, that the same considerations must govern, and the same result be obtained, in 

 [*312]  regard to the State and the party. There is no canon of interpretation which can be applied to the one, which will not apply with equal force to the other. The apparent inconsistency of attributing to the amendment of 1805, a purpose directly at variance with its avowed object, has led the courts of the State to adopt what we suppose a just interpretation of the law. The practice of sending criminal causes from the city court, has never ceased. The subject has been twice before this court, and on each occasion, the right of removal has been sustained.
The first case, of State vs. Davis, 3 H. & J. 154, was during the existence of the court of oyer and terminer. The grounds of that decision have been powerfully assailed in the argument. How far they are tenable, it is [**28]  not necessary to express an opinion. We concur in the conclusion, so far as the present question is affected.
The case of State vs. Dashiell, 6 H. & J. 268, was after the establishment of the city court, and the language of the court seems to be only consistent with the views we have expressed. It is there said: "The constitution directs the removal to another county, to avoid the prejudices which may exist in the county where the presentment is found;" and "the act of 1821 declares, the court shall not be bound to remove it to another county." Now it is clear, if the constitution had no reference to criminal cases in the city court, the act of 1821 could not be affected by its prohibition. As before said, the legislature had power to add to, or take from its jurisdiction, in this respect, as much as in any other, and this limitation, if to be found in the amendment, could only be in consequence of its being included within the spirit of the particular clause, relating to removals.
The legislative department of the government have also given this exposition in various enactments. The act of 1805, ch. 65, passed at the same session, seems to assume it. The [**29]  act of 1809, ch. 138, clearly indicates it. The act of 1821, ch. 161, though declared unconstitutional in another respect, directly asserts it. And the act of 1823, ch. 67, and other subsequent 

 [*313]  laws, make provision for costs incurred in such removals; to say nothing of the act of 1840, ch. 211, passed solely for the purpose of prescribing the terms on which it is to be exercised. With such a mass of authority so long and so uniformly acquiesced in, for very nearly half a century, we cannot now feel justified in opposing the first instance of resistance.
But it is urged, that the authority to remove, if possessed by the city court, was not executed in proper time. This brings into review the second branch of this objection, to wit: that the application for removal was too late after a part of the petit jury was sworn.
As before remarked, the object of the removal is to secure a fair and impartial "trial." If the cause is to be removed for trial, it must be removed before the trial, or any part of the trial is had in the court ordering the removal. The trial, and all the trial, must be had in the court to which the cause is transmitted. It is manifest, therefore, that [**30]  the solution of the question depends upon what is to be considered the trial--the commencement of the trial. Of course it is not intended to have reference here to the case of a new trial granted after verdict, or the case in which a jury having had the testimony submitted to them, have been discharged by the court, in consequence either of their inability, after a long time, to agree upon a verdict, or of the illness of any member, or of any other cause which will justify the court in discharging the jury. In these cases, as it is necessary to try the case de novo, the second trial is as much a trial, then, within the contemplation of law, as the first was, before the party was put to the bar.
The question here is, had the trial commenced when the motion to remove was preferred by the attorney general? My brethren all concur in the opinion, that the trial could only be said to commence, within the contemplation of the law regulating removals, when the panel of twelve jurors was completed, by being duly sworn.
In this opinion I cannot unite. According to my view, the trial commenced when the jury was called, and the prisoner put to his challenge. The respect due to my brothers,  [**31]  must 

 [*314]  restrain me from offering an argument, or giving authorities to sustain my own view, and delicacy must prevent any attempt to assign the grounds of the opinion which they have authorised me to express for them. This branch of the objection is, therefore, also overruled.
JUDGMENT AFFIRMED.  

173 of 187 DOCUMENTS 

ROBERT H. CARTER AND WIFE, AND MARY M. SMITH, vs. MARCUS DENNISON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Gill 157; 1848 Md. LEXIS 29 

December, 1848, Decided 

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

On the 20th of October 1846, John Spear Smith applied to the commissioners of insolvent debtors of the city and county of Baltimore, for the benefit of the insolvent laws. He was granted a final discharge in March 1847, having reported among his creditors. "Marcus Dennison for $ 15,000, secured by mortgage, part, if not all, in dispute," and Margaret and Mary Smith, $ 20,000. John Glenn was appointed his permanent trustee, and gave an approved bond on the 20th of October 1846. On the 3rd of November, the trustee was directed by Baltimore county court, to which the proceedings in insolvency had been transmitted, by the commissioners aforesaid, to sell the real estate of the insolvent. The sales made in pursuance of this order, and which were duly ratified by the court, amounted to $ 33,874.95. The trustee, in his report of the 7th of May 1847, states, that "the whole of the real estate is incumbered by mortgages and judgments, to more than its value," and prays that "special notice may be given to the several mortgagees to file their claims." With this report the several liens are filed as exhibits, among which, the first in date, and designated [**2]  by the auditor in his account B, as claim No. 1, is a mortgage from Margaret Smith and her trustee, of the first and second part, to Marcus Dennison of the third part, dated the 15th of December 1840. This mortgage recites, that "whereas at the instance and request of the party hereto of the first part, the party of the third part has this day lent to her the sum of $ 16,000; for the term of ten years, at an interest of six per cent. per annum, payable quarterly, for which said sum of $ 16,000, there has been passed and delivered to the party of the third part a promissory note, of even date, herewith drawn by John Spear Smith, (son of said Margaret,) to, and in favor of, the said Marcus Dennison, or order, payable at ten years after date, and for legal interest on said sum, there have been passed and delivered to the said Marcus forty promissory notes, dated and drawn as aforesaid, for $ 240 each, payable quarterly in succession." For securing these notes, the mortgage conveys certain property situated in Baltimore city to said Dennison, which, by the will of said Margaret, was devised to the said John Spear Smith, and upon her death, in 1843, come into his possession. Upon the back [**3]  of this mortgage is the affidavit of Dennison, that the amount due on the 5th of December 1846, was $ 15,614.25, and also the following agreement:

"It is agreed, that in settlement of Marcus Dennison's mortgage, on the estate of John Spear Smith, that the amount due to him is adjusted at $ 11,495, with interest from 15th day of December 1840, till the day of sale.

JOHN GLENN, Permanent Trustee.

DAVID STEWART,

Solicitor for M. Dennison.

BALTIMORE, Nov. 12th, 1846."

After several intervening incumbrances, there is a mortgage, (designated as claim No. 6,) from John Spear Smith to Margaret Carter, wife of Robert Hill Carter, and Mary M. Smith, dated the 19th of January 1846. This mortgage recites, that "whereas the said John Spear Smith is, and stands justly indebted to the parties of the second part in the sum of $ 20,000, being a portion of the proceeds arising from the disposition of certain ware-houses on Spear's wharf, belonging to the parties of the second part, and appropriated to the use of the said John Spear Smith," and, to secure the payment of this sum, conveys to them the property previously mortgaged to Dennison.

The cause was then referred [**4]  by the court to the auditor in insolvency, who was directed to give notice to the creditors of the insolvent to file their claims, and to state accounts between the trustee and the creditors of the insolvent. The auditor reported by account B, as due the appellee, $ 15,614.05, and Margaret Carter and Mary M. Smith each $ 31.33; and by account C, stated at the instance of the counsel for the appellants, and rejecting the claim of the appellee entirely, the sum of $ 15,676.71 was allotted to said Margaret Carter and Mary Smith. On the 27th of May 1847, the court, by agreement of parties, ratified account B, except as to claim No. 1, and directed the appellee to file further proof in support thereof. After the filing of this additional proof, the appellants, on the 21st of June, filed separate pleas, in which they allege, that the claim of the appellee is on the note for the principal sum of $ 16,000, filed with his said claim, and the notes for the interest on said principal sum; and that said notes, and the mortgage given to secure the same, were made and delivered to the appellee, upon an usurious and unlawful contract, entered into after the 3rd day of October 1704, and they severally [**5]  plead the act of 1704, ch. 69, in bar of said claim and every part thereof. They also set forth in their said pleas, that while said notes and mortgage, to secure the sum of $ 16,000 and the interest thereof, were given to the appellee, only the sum of $ 11,495.05 was in fact loaned by him to the insolvent, in consideration of said notes and mortgage, and that but for the usury of said transaction, only the last named sum, with interest from the 15th of December 1846, would be due to the appellee. And the appellants, at the same time, severally excepted to the appellee's claim, No 1, in account B of the auditor, as being void on the ground of usury, and in their exceptions, again specially plead the usury thereof, in opposition thereto.

To these pleas the general replication was filed. And, by agreement, the testimony taken before the auditor in reference to the claim of the appellee, No. 1, was agreed to be read at the hearing of the auditor's report by either party, as if taken after, and in reference to the pleas and exceptions of the appellants. This testimony clearly establishes the fact, that the claim of the appellee was founded upon an usurious and unlawful loan, made [**6]  by him to the insolvent.

Upon this agreement and testimony, the claim of the appellee, with the pleas and exceptions of the appellants thereto, and the replications of the appellee, were submitted by the solicitors of the respective parties, and, on the 24th of June 1847, the court adjudged and ordered, that the exceptions and pleas of the appellants should be overruled, and the claim of the appellee, as stated in account B, should be finally ratified and confirmed, and that account C should be rejected. From which decree the appellants appealed.  

DISPOSITION:
APPEAL DISMISSED WITH COSTS.  

HEADNOTES:

On the 20th of October 1846, J S applied for relief under the insolvent laws, to the commissioners of insolvent debtors for the city and county of Baltimore, who granted him a final discharge, appointed his permanent trustee, and transmitted the proceedings to Baltimore county court. His real estate was then sold by order of said court, and the proceeds brought in for distribution. The cause was then referred to the auditor in insolvency, with directions to give notice to the mortgage and lien creditors to file their claims before a certain day, and to state accounts appropriating the funds to their payment. The auditor, in account B, applied a large sum to D's mortgage, filed in pursuance of said notice, being first in priority, dated in 1840, and purporting to secure the sum of $ 16,000, loaned for the term of ten years; but, by an adjustment made between D and the trustee, on the ground of alleged usury, the sum actually loaned was computed at $ 11,495, with interest from 1840. By this application, the fund was exhausted before reaching the mortgage of the appellants who thereupon filed the plea of usury against D's claim, which in account C was excluded. These two accounts being submitted, Baltimore county court ratified the first, allowing the claim of D, as adjusted, and rejected the second. Upon the motion to dismiss the appeal from this order, it was HELD:

That the order from which this appeal was taken, being one from the county court, in the exercise of its special jurisdiction over the estates of insolvent debtors, from which no appeal will lie, the motion must prevail.

By the act of 1805, ch. 110, and its supplements, the whole administration of the property of the insolvent, beginning with the sale and ending in distribution, is devolved upon the county court through their trustee, and their judgment in all matters appertaining to it is conclusive; because these are the exclusive subjects of the special jurisdiction conferred by that act.

The institution of a court of commissioners of insolvent debtors, by the act of 1816, ch. 221, and its supplements, was only designed to relieve the county court from the pressure of its increasing business, imposed by this extensive class of cases. It was but an ancillary tribunal, bound to report and return all its proceedings, and still subject, to Baltimore county court.

The object of the act of 1835, ch. 235, was to authorise Baltimore county court, ex officio, to require from the trustees of insolvents, who should "thereafter apply for the benefit of the insolvent laws," an annual report of the funds belonging to their trust, with a view "to cause distribution to be made among the creditors."

The 1st sec. of the act of 1836, ch. 133, extended this power to cases "pending in said court," in which the trustees had not distributed the fund, giving to such trustees, in "cases then pending," and limited to such, the right to apply "to said court, or some court of equity," for an audit, and directions to distribute or invest the funds.

The true construction of the provision in the 2nd sec. of this latter act, "that the power of the court to appoint an auditor "in insolvent cases, "shall be concurrent with that of the court of equity," is, that Baltimore county court shall have the power to appoint an auditor, in the investigation of insolvent cases, to the same intent that courts of equity appoint an auditor in the course of their equity jurisdiction.

But when the same section further confers, powers "concurrent with the courts of equity in the distribution of the funds of insolvent debtors," it assumes a power to exist which is not within the scope of chancery jurisdiction, and confers nothing, therefore, the provision is a nullity.

From a special limited jurisdiction, no appeal lies to any other tribunal, and this rule applies to the insolvent courts of this State, as courts of limited jurisdiction.

Upon the merits, it was HELD, that under the statute of this State against usury, there can be no recovery upon an usurious contract, in any proceeding instituted by the usurious creditor, either at law or in equity. If he becomes the actor and originator of the proceedings, he must fail as plaintiff; because there is no forum wherein he may enforce an agreement, declared by the law to be tainted and forbidden.

But where the debtor himself seeks relief, and brings his usurious creditor, with his contract, into a court of conscience, relief will only be extended to him, on his paying, or offering to pay, the principal and legal interest of the sum due; upon the principle, that he who seeks equity, to obtain relief, must do equity.

In this case, where the creditor was compelled by the court, to file his mortgage before it was due, and was placed in his present position by the act of the law, he cannot be regarded as the actor; but the subsequent mortgagees, who interpose the plea of usury and demand relief against him on this ground, are the actors, and their case is fully within the spirit, if not the letter, of the rule, that requires equity first from them.

It is the duty of a court of equity, in a case like this, to look at all the circumstances, and if the status of the party before them is involuntary, to assign him an equitable position in court, in relation to all the other parties, and not to make him the actor, to his own prejudice, where his standing in court will bear any other more favorable construction.  

COUNSEL:
On motion to dismiss the appeal and on the merits.

BROWN and BRUNE for the appellants, contended:

1st. That an appeal lies from the decree of Baltimore county court, of the 24th of June 1847.

2nd. That said decree should be reversed; because the appellee's claim being founded on an usurious and unlawful contract of loan, made between him and the insolvent, was, by such usury, rendered null and void, and the appellee was thereby debarred from setting up said claim against the insolvent, and also from recovering his said claim, or any part thereof, out of the proceeds of the property mortgaged [**7]  to secure the said loan.

Under the second point, they argued:

1st. That the note and mortgage, filed by the appellee as the evidence of his claim, were given upon an usurious and illegal contract, by reason of which he would be prevented from recovering on said note and mortgage, independently of the provisions of the act of 1845, ch. 352.

2nd. That the objection and defence of usury to the appellee's claim have been properly taken and pleaded, according to the requisitions of the law previous to the act of 1845, as well as under that act, even if its provisions should be held to extend to this case.

3rd. The appellants being subsequent mortgagees of the property affected by the usurious mortgage, may plead the usury affecting the mortgage of the appellee, so as to bar him from asserting his claim to, or lien upon the proceeds of the mortgaged property.

4th. The principle of courts of equity requiring a party, who seeks in them to be relieved from an usurious contract, to pay or tender the amount actually loaned by the usurious lender, does not apply to this case, so as to make valid the claim of the appellee in whole or in part.

5th. That the provisions [**8]  of the act of 1845, do not apply and were not intended to extend to a case like this.

6th. That if it should be held that the act of 1845, was intended to extend to a case like this, yet as the appellants, for a valuable and legal consideration, acquired their lien on the mortgaged property of the insolvent before the passage of that act, and when, by reason of the usury in the appellee's contract with the insolvent, the mortgage previously given to the appellee had no validity in law to give the appellee a lien on the property mentioned in said mortgage, or its proceeds, but, on the contrary, was declared by the law to be utterly null and void, the said act, under these circumstances, should be held to have no operation to make valid the security of the appellee, and invalidate the security of the appellants; because, in so operating, it would not only divest or impair legal and vested rights, but, at the same time, destroy the security and violate the obligation of the contract between the appellants and the insolvent, and would therefore be repugnant to the fundamental principles of right and justice, unconstitutional and void.

C. J. M. GWINN and DAVID STEWART for the [**9]  appellee, contended:

1st. That under the circumstances of this case, the appellee is entitled to be reimbursed and paid out of the fund, the actual amount of his advances to the insolvent.

2nd. That the decision of Baltimore county court, acting upon the distribution of the estates of insolvent debtors, is final and conclusive, and that no appeal lies therefrom to any other tribunal.  

JUDGES:
The cause was argued before SPENCE, MARTIN, MAGRUDER and FRICK, J. MAGRUDER, J., dissenting in part.  

OPINIONBY:
FRICK 

OPINION:

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FRICK J., delivered the opinion of this court.
The present appeal is from an order of Baltimore county court, passed in certain proceedings had before that court, in the case of John Spear Smith, an insolvent debtor, in relation to the distribution of the funds arising from the sale of the real estate belonging to the insolvent, among the various lien and mortgage creditors of the said insolvent.
The first mortgage in priority, dated in 1840, is from Margaret  [**10]   Smith, the mother, (who at that time was the owner of the property,) to the appellee, and purports to be for the sum of $ 16,000, lent and advanced to her for the term of ten years, at an interest of six per cent. per annum, payable quarterly; for which sum the said John S. Smith gave his promissory note to the appellee, together with forty other notes, covering the interest at the respective periods at which it should become due and payable.
John Spear Smith, subsequently acquired the property by devise from his mother, and mortgaged the same to various other creditors; and among these, last in order, to the appellants, Mary Carter, wife of Robert Hill Carter, and Mary M. Smith, his daughters, for $ 20,000, "a portion of the proceeds of certain property belonging to the appellants, and appropriated to the use of the said John Spear Smith:"--as appears by the mortgage, filed as part of the record in this cause.
On the 20th of October 1846, Smith applied for the benefit of the insolvent laws; and John Glenn, regularly and duly appointed his trustee, having made sale of the real estate, so 

 [*169]  belonging to said Smith at the time of his [**11]  application, brought the proceeds into Baltimore county court for distribution.
In the reports of the sales so made, the trustee states to the court, that the whole of the real estate of the insolvent is encumbered with liens and mortgages to more than its value; and prayed a special notice to such lien creditors to file their claims, for the purpose of having their liens settled and paid. The court passed an order, referring the reports to the auditor; and requiring him to give notice by advertisement, to the mortgage and lien creditors, to file their claims before a certain day; directing him, also, to prepare an account, appropriating the fund in the hands of the trustee, to the payment of the mortgage and lien creditors.
The several mortgages and liens being filed with the auditor, in compliance with this order, he proceeded to state the account, applying the fund, in the first place, and in the order of priority, to the payment of the claim of the appellee; and then, in succession, to the other mortgages, in the order of their date, so that on reaching the claim of the appellants, the fund was exhausted, and they were excluded from all participation.
The appellants hereupon [**12]  filed against the appellee's claim, the plea of usury, in due form; claiming, on that ground, another audit and account, to have the appellee excluded from the distribution, and themselves allowed to come upon the proportion of the fund, which would result from his exclusion. This account was accordingly stated, shewing, upon the rejection of the appellee's claim, a balance applicable to appellants' claim, of $ 15,676.
Before the statement of the first account, and prior to the sale of the property, on the ground of this alleged usury, an adjustment had taken place between the trustee and the appellee; and by agreement, the sum actually paid and advanced was computed at $ 11,495, with interest from 1840, and conceded to be fairly due by the trustee.
On the part of the appellants, testimony was taken to establish the usury; and thereupon, the two accounts being submitted, the court below ratified the first account, allowing the appellee his claim, as adjusted by the agreement with the trustee, 

 [*170]  and rejecting the second account. From this order the appellants appeal, and contend: "That the claim being founded on an usurious and unlawful contract of loan, between the appellee [**13]  and the insolvent, was thus rendered null and void; and that, thereby, the appellee was debarred from setting up any claim against the insolvent, or from recovering any part thereof out of the proceeds of the property mortgaged to secure said loan."
The appellee, on the contrary, maintains, that he is entitled under the circumstances of the case, to be reimbursed and paid out of the fund, the actual amount of his advances to the insolvent; and that the decision of Baltimore county court, acting upon the distribution of the estates of insolvent debtors, is final; and thereupon has moved that the appeal taken by the appellants be dismissed.
The majority of this court are of opinion that this motion must prevail, because the decision of Baltimore county court in the premises, is final and conclusive.
It arises out of a proceeding, originating and progressing entirely on the insolvent debtors' side of that court, under the special jurisdiction given in such cases by the act of 1805, ch. 110, and its supplements; and, in the course of distribution of the estate of an insolvent, under that act. By its provisions, the application of the party is to be made to the county court,  [**14]  and upon complying with its requirements, the court is to grant him a discharge. He is required to execute to a trustee appointed by the court, a deed of conveyance of all his property; and under their direction, the trustee is to make the sale thereof, and the distribution of the proceeds among his creditors. The whole administration of the property of the insolvent, devolves upon the court, through their trustee. He is authorized to to make sale of it, clear of all incumbrances; and out of the proceeds, is directed by the law, to satisfy all mortgages, judgments and liens, according to their priority. Under the 12th section, the court exercises the control over this distribution, by notice to all parties, to bring in and declare their claims, for that purpose. So that, beginning with the sale and ending in distribution, having the entire jurisdiction over the 

 [*171]  estate of the insolvent, their judgment in all matters appertaining to it is conclusive; because they are the exclusive subjects of the special jurisdiction conferred by that act. The court is therein restricted, to the specially delegated objects to which it refers;--the case of insolvent debtors. All the subsequent [**15]  changes, (and they are numerous, as regards Baltimore county court,) leave this jurisdiction over sales and distribution, precisely where it rested under the act of 1805. The institution of a court of commissioners of insolvent debtors, by the act of 1816, ch. 221, and the supplements to that act, were only designed to relieve the county court, under the pressure of its increasing business, from the additional labor imposed by this extensive class of cases in that court. It was but an ancillary tribunal, bound to report and return all its proceedings, and still subject, to Baltimore county court. And although the aid of these commissioners was required to carry the insolvent application through its several stages to a discharge, the county court still retained the whole control over the acts of the trustee.
The act of 1836, ch. 133, "For the despatch of business in Baltimore county court," is supposed to have produced the change on which this right of appeal is founded, by engrafting upon this special jurisdiction, equity powers; and upon the subject matter here in question, giving to the court concurrent powers with the court of chancery.
That act was only auxiliary [**16]  to the act of 1835, ch. 235; the object of which was to authorize Baltimore county court, ex officio, to require from trustees of insolvents, "who shall hereafter apply for the benefit of the insolvent laws," an annual report of the funds belonging to their trust, with a view "to cause distribution to be made among the creditors." Before this act, it was the practice of some trustees, to distribute the fund at their leisure; and occasionally, to omit it altogether. With this explanation, the propriety of the provision is manifest. It defined the extent and power of that court over their trustees, to bring them annually before the court to account. Now, the 1st section of the act of 1836, extended this power to cases "pending in said court," in which the trustees of 

 [*172]  such debtors had not yet distributed the fund; giving to such trustees, "in cases then pending," and limited to such, the right to apply "to said court, or some court of equity," for an audit and directions to distribute or invest the funds. The provision in the second section, "that the power of the court to appoint an auditor," in insolvent cases, "shall be concurrent with that of the courts  [**17]   of equity," if construed to have reference to insolvent cases in those courts, is not susceptible of any practical application; because the courts of equity, properly speaking have no jurisdiction in insolvent cases. If, however, it is interpreted to mean, that Baltimore county court shall have the power to appoint an auditor, in the investigation of the insolvent causes brought before them, to the same intent that courts of equity appoint an auditor, in the course of the exercise of their equity jurisdiction, the clause is then intelligible, and susceptible of practical operation. It comports with the title of the act: "To facilitate the dispatch of business in that court:" and being consistent with the reasonable intention of the legislature, such must be deemed the true construction. But when the same section further confers powers, concurrent with the courts of equity in the distribution of the funds of insolvent debtors, it assumes a power to exist, which is not within the scope of chancery jurisdiction, and confers nothing. All the power and jurisdiction in cases of insolvent debtors, had been before delegated to the county courts and orphans courts of the State; and the [**18]  courts of equity have no action or control over this branch of jurisdiction. Therefore, no such power existed, to which the grant of the act of 1836 could be made to apply; and the provision is a nullity.
In addition to this, it may be remarked, that in the distribution of insolvents' estates, the county courts always proceed according to equity principles. It was the duty and practice of those courts, before the passage of the act of 1836; (1 H. & G. 96, McCulloh vs. Dashiell,) and it is not improbable that the framers of this provision, at the time, overlooked this principle, to which all the county courts in the State, exercising jurisdiction in insolvent cases, must conform. The whole being one entire system, resting on the same principles, this enactment, 

 [*173]  in the design apparent on its face, prescribes nothing which Baltimore county court was not bound to perform, and which was not attained before it was enacted.
That from a special limited jurisdiction, no appeal lies to any other tribunal, (see 8 G. & J. 443, 448, Wilmington Rail Road vs. Condon; and Savage Manf. Company vs. Owings, 3 Gill 497.) And in its particular [**19]  application to the insolvent courts, as courts of limited jurisdiction, (see 5 Gill 88, Williams vs. Williams,) where the appeal of the trustee from an order of the county court, in the case of an insolvent debtor, was rejected by this court; while in the case of Ellicott vs. Ellicott, in 6 G. & J. 35, it had previously been decided, that a trustee, appointed by a court of chancery, in his character as trustee, may, for the benefit of the creditors, appeal to this court against an order in chancery.
The order on which the present appeal is taken, being one from the county court, in the exercise of its special jurisdiction over the estates of insolvent debtors, from which an appeal will not lie, this appeal is therefore dismissed.
The case, however, having been fully and ably discussed, as well upon the merits as upon this preliminary motion, (and the court, not entirely unanimous in their decision upon the motion,) we proceed to state the opinion formed upon the merits, in which they all concur, and from which it will result, that the appellants have sustained no prejudice, by this summary disposition of their case, upon the motion to dismiss [**20]  it.
There is no doubt in the mind of the court, that the note and the mortgage filed by the appellee as the evidence of his claim, was founded upon an usurious and unlawful loan, made by him to the insolvent; and that under our statute against usury, he would be debarred from a recovery on his contract, in any proceeding instituted by him for that purpose, either in law or in equity. "Where all usurious contracts are declared by law to be null and void, there can be no recovery, either at law or in equity, in a suit infected with usury, if the defence of usury be pleaded." Trumbo vs. Blizzard, 6 G. & J. 18.
Thus, then, if Dennison is seeking to enforce his lien upon the mortgage premises in a court of chancery, the plea of usury 

 [*174]  is a full defence to his application. He is met at the threshold, with the objection that his contract is void, and he is dismissed, even without redress, to the extent of the amount actually and bona fide due to him. He has made his contract with reference to the law, and is presumed to know, as one of its consequences, that no court of law or equity will lend its aid to sustain an infected contract. The door of justice [**21]  is barred against his application for relief, upon an agreement made in violation of the letter and the policy of the law. Whatever moral obligation may subsist between him and his debtor, the law creates and defines the legal operation of his contract, and denies any interposition, at his own instance, to enforce it. He is thus doomed to a passive position, and the certain loss of his debt, unless the way to relief is opened by the debtor himself, or in some other form. This the debtor may do by his own act, and give vitality to the obligation otherwise inert and void. If he seeks relief from his creditor on the ground of usury, claiming the legal dispensation from his contract; if the circumstances compel him to address a court of equity, to relieve his property from the incumbrance of the creditor's lien; if he brings this usurious creditor, with his contract, into a court of conscience; he is at once warned, that he must do equity himself before he can ask it of others. He is required to pay or tender the actual amount of money advanced, as a preliminary to any action on the part of the court. For "there is a recognized distinction between that and the case of a mortgagor,  [**22]  who goes into chancery seeking relief against the mortgage on the ground of usury; which will only be extended to him on his paying, or offering to pay, the principal and legal interest of the sum due, and this upon the principle, that he who seeks equity, to obtain relief, must do equity." 6 G. & J. 18, 24, Trumbo vs. Blizzard.
In such a case the debtor becomes the complainant, and is properly subject to this just and universal principle of equity; while, if he waits for the action of his creditor, it is otherwise. When he becomes the actor and the originator of the proceeding, he must fail as a plaintiff, either in a court of law or equity, and he must lose his debt; because there is no forum, 

 [*175]  wherein he may enforce an agreement, declared by the law to be tainted and forbidden.
Now, what is the attitude of Dennison here? Is he the actor as is contended by the appellants? Let it be remembered, that the term for which his loan was made has not yet expired; and, by the condition of his mortgage, the debt from the insolvent is not due to him until 1850. He has no claim in law or equity founded upon his contract, nor can he place himself, of [**23]  his own will and motion, in the position of plaintiff against his debtor. He is called then into his present predicament by the order of the court; in other words by the act of the law. In the administration of its policy in regard to insolvent debtors, the law has superseded the action of the creditors, and invested its trustee with the control and disposal of the insolvent's property. By the action of the trustee, the property is converted into a fund, which is brought into court for distribution, according to the respective equities of the creditors. If he stands aloof and declines to come in, his debt is forever gone. He has then no alternative. His security is withdrawn from his grasp by the act of the law, and he is warned to come in upon the fund, or be forever precluded from any claim, either upon the property or upon the fund. But for this interposition of the court, he might have stood off from any participation in the proceeding. He must have remained passive from necessity, for his mortgage debt was not yet due, and he was in no condition to act. And, even if due, anticipating the consequence of any movement on his part, he would, for his own interest, have awaited the [**24]  attack, which would place him on equitable grounds, and secure him his debt.
What then is his relation to the appellants, who are seeking to make him the actor in these proceedings? They are the alienees of the mortgagor, and stand in his place. They cannot claim to stand in a better position. Dennison has instituted no proceeding against them or the property. We have seen that he could not. He comes therefore into court upon the same terms and under the same authority with the appellants, and when he presents his claim, as required by the order of the court, which leaves him no option, the appellants interpose 

 [*176]  the plea and exceptions by which they attack and impeach it. Surely, by every sound analogy and reason in law, they are the actors. They demand to be relieved as against him, and thus bring their case fully within the spirit, if not up to the strict letter and meaning of the rule, that requires equity first from them. "Where the plaintiff has the assistance of a court of equity, to set aside an usurious contract, it must be on the terms of paying what was really advanced, with legal interest." 2 Brown Ch. 640, Scott vs. Nesbit. See, also,  [**25]  West vs. Beanes, 3 H. & J. 568.
We must bear in mind, that Dennison's security is the property mortgaged to him. Upon Smith's application for the benefit of the insolvent laws, the property is, by law, placed under the control of the trustee, and without the consent of the lien holders, converted into money. This fund brought into court is substituted for, and there represents the property. The legislature, by conferring on the trustee the whole estate and authority to sell it, never designed to divest the lien holders of their pre-existing rights, or to place them in a worse position than they sustained before his appointment. And when the trustee sells, and the money is brought into court, it is as if the property itself was there under the former existing priorities. Whatever preference the creditor had upon the property, he has upon the fund; and when a subsequent mortgagee comes in upon the fund, impeaching a preceding lien, when he proposes to make his own security available, by attacking the prior lien of another creditor, equity, in every view of such a case, must regard him as the complainant and actor, and before he receives equity, he is bound [**26]  to concede it to others.
To consider Dennison the especial actor in this proceeding, by selecting him among all the creditors, would be straining the law to a point, which the circumstances will not justify. He asserts no right to the rigorous exaction of his contract. The law has undertaken to abridge its terms, by making it solvendum in praesenti, when its limitation was extended, by express covenant, to the year 1850. And to call him into court before the expiration of his time, and before he himself claims, or can claim, of his own motion, the strict letter of his 

 [*177]  bond, entitles him, by every fair consideration, to the equitable abatement of the severity of the law.
This purports to be an appeal from equity. The assets of insolvents are always administered upon equitable principles. 1 H. & G. 96, McCulloh vs. Dashiel, (ante.) And yet it is claimed by the appellants here, to enforce the utmost rigor of the law. To do so, would be to violate every principle of equity; first, to coerce his appearance in court, and then strip him of every dollar of his immatured claim: Summum jus, summa injuria.
To allow him the full amount of his actual [**27]  advances, as the court below has done, is no novel application of chancery principles. It is a result reached upon the known pathways of equity. It is the duty and the proper province of a court of equity in a case like this, to look at all the circumstances, and if the status of the party before them is involuntary, and not of his own seeking, to assign him an equitable position in court, in relation to all the other parties; not to make him the actor in the proceeding, to his own prejudice, where he has not selected it himself, and his standing in court, will bear any other, and a more favorable construction. Upon these grounds, but for the previous disposition of the case on the preliminary motion, we should have sustained the judgment of Baltimore county court in the premises.
APPEAL DISMISSED WITH COSTS.  

DISSENTBY:
MAGRUDER (In Part) 

DISSENT:

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MAGRUDER, J., dissented in part, and delivered the following opinion:
Until the passage of the act of 1804, for the relief of insolvent [**28]  debtors, all applications were required to be made, by persons of that description, to the chancellor, and he alone was authorised to act upon such applications, and to grant the relief which was sought. The proceedings, preparatory to to the discharge, were very much as now, except that the chancellor only could order or sanction them.
These annual insolvent acts, created an insolvent's court, of which the chancellor was the judge, as he was of the land office, received compensation for his services therein, distinct from the salary paid to him as chancellor and judge of the land office, and had power to do some acts ex officio, and to frame issues for the trial of facts, when he thought them necessary. These were powers conferred upon him by act of Assembly, and a grant of them would have been unnecessary, if, in acting upon the application of an insolvent, he was acting as chancellor, and exercising any branch of chancery jurisdiction.
The necessary consequence of any application to him and discharge of the insolvent, was, that the estate given up by the insolvent, created a trust fund in the hands of his trustee, who possessed the same powers, had to perform the same duties, [**29]  and was responsible in the same way, that any other trustee for the benefit of creditors is. To the creditors the trustee was responsible, and, in the chancery court, might be made to render an account and complete his trust, and this without any additional powers conferred, by the insolvent or other laws, upon that court. To compel trustees, (no matter whether appointed by the chancellor, in consequence of an application by a debtor for his discharge under the insolvent law, or by the debtor himself, by deed, conveying property in trust for the benefit of his creditors,) to discharge their trust, was, and always had been, an acknowledged branch of chancery jurisdiction.

 [*165]  The regular course of proceeding when a cestui que trust, or any person interested in the trust fund, wished the trust to be completed, was, to file a bill, and this would be the commencement of a regular chancery suit, to be conducted as such, and, in the course of time, to be ended in a decree, by the chancellor distributing the trust fund. From this decree, any party who thought himself aggrieved, no doubt had a right to appeal, as well as from any other decree.
If, then, the chancellor was still [**30]  the person to receive insolvent's applications, and grant discharges, and the application in this case had been made to him, and he had passed the order now appealed from, there can, it is believed, be no doubt that an appeal would lie from that order.
The insolvent jurisdiction has been taken from the chancellor, though without taking from him any portion of his jurisdiction in cases of trusts, and to that court the parties interested in this trust fund, must have applied for relief, if no such power to grant them relief had been conferred upon any other tribunal. It would not, of necessity, belong to the tribunal which granted relief to the insolvent.
The county courts might have been invested with the power to appoint a trustee, take his bond, and grant a final discharge, without any power to call that trustee to account, and had certainly no such power in 1804. A law conferring upon them that power, would be an enlargement of their equity jurisdiction. This power, no doubt, has been conferred by a later act of Assembly, (1814, ch. 94,) giving to the county court, very extensive equity powers indeed.
It is alleged, that the power to distribute the trust fund among the creditors,  [**31]  as well as the power to grant the discharge, is in the county courts, and it seems to be thought by some, that in these acts, they are sitting as a court of common law. This can scarcely be true, nor is it true, as thought by some, that this is a common law court, possessing some chancery powers. It is one court, possessed of common law and chancery jurisdiction, but it would be as correct to say, that it is a court of equity, possessed of some of the powers of a court of common law, as to call it a court of law, exercising occasionally equity 

 [*166]  powers, when "sitting as a court of equity." These courts are not exercising common law jurisdiction, when settling an account between the trustee of an insolvent and the creditors, or ordering the trustees to render an account of the trust fund, and a common law court would find some difficulty in exercising such powers, even if the law directed them, in the discharge of these duties, to act as a common law tribunal. In 1st Bland, 67, it is said: "If the legislature directs any thing to be done, it either provides the means to be pursued to effect its object, or it is partially or wholly silent as to the manner of proceeding.  [**32]  If the prescribed means are such, as can only be exercised at common law or in equity, then the one or the other of those tribunals must be clothed with exclusive jurisdiction accordingly, or the enactment may be such, as to allow them to have concurrent jurisdiction. But, if its nature be such, that the prescribed mode can be executed by neither, or the right given be such, that, according to their several limited and settled modes of proceeding, neither of them can grant proper redress, they cannot, in any way, supply the deficiency; because, even upon English authority, a court of justice cannot be permitted, in any case, to legislate; and because, by the constitution of our republic, the three departments having been directed to be kept forever separate, the judiciary has been expressly excluded from every species of legislation, and is precluded from supplying any omissions of the legislature, however obvious and necessary it may be for attaining the object in view." Lord Eldon, in 2nd Jacob & Walker, p. 371, remarks: "If the powers of both, (equity and common law,) taken together, can give the king's subjects nothing but an action for damages, it is a defect which,  [**33]  whether it proceeds from mistake on the part of the legislature, or, if I may presume to say so, from negligent inattention, no court can supply. The legislature has not entrusted that authority to courts of justice. It is not said, that they can legislate, but that the act is to be carried into execution by the known rules of law and equity. What the legislature has directed to be done, or may have prohibited, the courts, as far as their known rules and principles will permit, will endeavor to enforce; but if their 

 [*167]  known rules and principles will not supply a remedy, if the legislature has mistaken its way, no court of justice can supply the deficiency."
The act of 1785, chap. 33, enables land-holders to have their lands marked and bounded. That law "provides the means to be pursued, to effect the object." If, however, this had not been done, if the law had merely authorised an application to the county courts, and had directed the courts, when such applications were made to them, to proceed to have the land marked and bounded, "the rules of the courts of common law or of equity, would have been insufficient to assure to the citizen any right which it was intended that [**34]  he should derive from that law:" the law would have been a dead letter, until the General Assembly made provision for carrying it into effect; yet such law, perhaps, would not have been more defective, than an act of Assembly to direct a court, without equity jurisdiction, to settle up insolvent estates. A court of common law, perhaps, might, by the old action of account, afford a partial, but it would have been a very inadequate remedy. The mode to be pursued, in order to a settlement of the estate of an insolvent applicant, is precisely the same, as it would be if the debtor, instead of applying for a discharge under the insolvent laws, had made an arrangement with his creditors, and had conveyed his property, or a portion of it, to an individual, in trust, to sell the same, and appropriate the proceeds of sale to the payment of his debts. In such a case, any party aggrieved may appeal, and I can perceive no reason for denying to a party, who supposes himself to be aggrieved, in the settlement of an insolvent's estate, the same right of appeal.
In the case of bankruptcy in England, this right of appeal may be denied, but our ancestors were not very partial to the bankrupt system [**35]  of England, and are not understood to have adopted any provision peculiar to it. The reasons which exist in England for denying in any such cases a right of appeal, do not exist here; and here, the right of appeal as given by law, cannot be abridged by provisions to be found in the bankrupt law of England, or in that which has existed in the United States.

 [*168]  My opinion then, is, that the legislature possesses the power, and may at any time exercise it, to take the right of appeal from all parties interested in cases like this; but, until denied by the legislature, the right exists, and I can discover no law which excepts cases of this description, from the remedy by appeal given to parties aggrieved, by the decisions of the county courts, sitting in those cases, not as courts of common law, but as courts of equity. I am therefore for entertaining the appeal.
My warrant for affirming the decree of the court below in this case, I find in Scott vs. Nesbit, 2 Brown Ch. 640. 

174 of 187 DOCUMENTS 

WILLIAM PATTERSON vs. JOHN CROOKSHANKS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Gill 211; 1848 Md. LEXIS 33 

December, 1848, Decided 

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

On the 24th of October 1848, the appellee filed a petition in the Orphans court of Washington county, stating, that in 1832, a certain Joseph R. Ford, of Baltimore county, sold to petitioner a servant, named William, for a term of years, to commence on the day of sale, and end on the 1st day of January 1844. That petitioner had said William in his possession until the 12th of September 1838, when he absconded, and has been gone since, whereby he has lost his services for the time intervening between the said 12th of September and the 1st of January, 1844. That said William was recently arrested as an absconding servant, and he now brings him into court to be dealt with according to law. That he is advised, your honors can extend the term of said William, so as to indemnify your petitioner for said loss of service.

The defendant, William Patterson, by his answer, denied the matters charged in the petition, and prayed the court to examine into the said charges, and that he might be dismissed with costs, &c.

In support of the petition, a bill of sale from Joseph R. Ford, of Baltimore county, conveying to John Crookshanks,  [**2]  of Baltimore county, for the sum of $ 200, a negro boy named William, aged about eighteen years, to serve until the 1st of January 1844, which also contains this covenant, "and the said John Crookshanks, for himself, his executors," &c., does hereby covenant, &c., to and with the said Joseph R. Ford, that from and after the said 1st of January 1844, the said negro boy William shall be liberated, manumitted and set free, and forever discharged from any and all kinds of slavery whatsoever. This bill of sale was dated 10th of February 1832, signed and sealed by said Ford and Crookshanks, and acknowledged before Matthew Murray, a justice of the peace for Baltimore city, but was not recorded. There is also exhibited a power of attorney from "John Crookshanks, of Baltimore city," "authorising his son, 'William F. Crookshanks, of said city,' to file said application, and to sell said William for such term as the said Orphans court should direct," &c. This power of attorney was also acknowledged before a justice of the peace for said city.

Testimony was then taken establishing the identity of the boy, William Patterson, the ownership of the appellee, and the fact of his leaving his said [**3]  master on the 12th of September 1838, the value of his services, the kind treatment of his master, &c.; whereupon the said Orphans court, on the 31st of October 1848, acting under the acts of 1833, ch. 224, and 1845, ch. 105, "ordered, that the term of service of said William Patterson, (negro,) be extended for eight years from this date, and that the said John Crookshanks have the right of selling the said William Patterson, (negro,) in or out of the State of Maryland." From this order the defendant appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

The act of 1833, ch. 224, authorising the county courts to extend the term of service of slaves for a term of years, in certain cases, and its supplement, the act of 1845, ch. 105, conferring the same power upon the several orphans courts of the State, give no jurisdiction, either to the county courts or the orphans courts, unless the master, mistress, or agent, resides in the county where the application is made.

The object of these acts, which are to be construed together, was to give to each of these courts concurrent jurisdiction over the subject matter, when the parties claiming, or their agents, reside within the limits of the county. Any other construction would conflict with the whole judicial system of the State.

The appellee applied to the orphans court of Washington county, under the act of 1845, to extend the term of service of the appellant, who, he alleged, was sold to him as a slave for a term of years, to expire on the 1st of January 1844, and, in support of his title, offered a bill of sale for such term, manumitting the appellant thereafter, which was not recorded. HELD:

That the appellee having treated the appellant as a freeman in the court below, he could not, upon an appeal to this court, turn round and impeach the instrument of his own title, on the ground of its defective execution and want of record, and thereby make the appellant a slave, in order to deprive him of a legal standing in the appellate court.  

COUNSEL:
By JOHN THOMPSON MASON for the appellant, and

By BOYLE for the appellee.  

JUDGES:
The cause was argued before SPENCE, MARTIN and FRICK, J.  

OPINIONBY:
FRICK 

OPINION:

 [*213]  FRICK, J., delivered the opinion of this court.
In the petition filed in this cause, before the orphans court of Washington county, by Crookshanks, the appellee, it is alleged, that the negro William Patterson, the appellant, being bound by bill of sale to serve said Crookshanks for a term of years, before the expiration of said term, absconded from him, by which for a long space of time he lost the services of said negro; and that having recently arrested [**4]  and recovered him, he had brought him before the orphans court of the county, that under the provisions of the act of 1845, ch. 108, he might have the term of service of said negro extended, so as to indemnify him for the loss sustained by his absconding.
The said negro Patterson appears by attorney in said court, and by his answer, denies the matters charged in the petition.
To prove the title to the service of the appellant, a bill of sale from Joseph Ford to John Crookshanks, both of Baltimore county, dated the 10th of February 1832, is produced, by which the said negro William Patterson, is sold to the said Crookshanks, for a term of years, to expire on the 1st of January 1844. And between them, it is further covenanted in the bill of sale, that at the expiration of that time, the said negro is to be liberated, manumitted and forever set free.
This bill of sale is acknowledged before Matthew Murray, a justice of the peace of the city of Baltimore; and as appears by the record, has never been recorded.
If further appears by a power of attorney, filed as part of the record, that the appellee constituted a certain William Crookshanks his agent [**5]  and attorney, to file the petition in this cause; and both the appellee and his agent are therein described as residents of the city of Baltimore.
On the hearing of this petition and answer before the orphans court of Washington county, that court ordered the term of service of said negro to be extended for eight years ensuing, with discretion to the appellee to sell him for that period, in or out of the State of Maryland. And from this order, the said negro Patterson,, has appealed to this court.

 [*214]  The principal ground of appeal, and one which is, of itself, decisive of this case, is the objection, that the orphans court of Washington county, had no jurisdiction in the cause. By the act of 1845, ch. 105, the several orphans courts in the State are authorized, "upon application of any owners of any slaves, for a term of years, on proof that the slave is in the habit of running away, to extend the term of service of such slave, and give the owner a right to sell him in or out of the State, as effectually, and in the same manner, as the county courts now have, under the act, to which this is a supplement." The act of 1833, ch. 224, to which the above act [**6]  is the supplement, in the 4th section declares, that "upon application of any master or mistress, or other person legally authorized by such master or mistress, to the county court of the county, where such master, mistress or their agent may reside, it shall be lawful for such court to grant an order for the sale," &c.
Construing the supplement in connection with the original act, it is apparent, that no jurisdiction is given, either to the county courts or the orphans courts, unless the master, mistress or agent resides in the county. The supplement standing alone is inoperative. The power there given is limited, and can only be used in reference to the original act. It is to be used in the same manner, and of course, only to the same extent, as it is applied in the county courts. As "effectually," and to the extent, that the county courts may use this power; to that limit, it is permitted to the orphans courts. This limitation is written on the face of the acts, which have for their object, to give to each of these courts, a concurrent jurisdiction over the subject matter, where the parties claiming, or their agent, reside within the limits of the county. Any other construction [**7]  would conflict with the whole judicial system of the State; and in a class of cases of frequent occurrence, would give to every orphans court, an expansion of jurisdiction, only limited by the boundaries of the State. This cannot be intended or assumed, as the interpretation of these acts. The master, mistress, or agent, must reside in the county where the application is made; and the residence of neither master or agent, as this record indicates, being within Washington 

 [*215]  county, the orphans court there, had no jurisdiction over the subject matter of this appeal, and therefore erred in assuming it.
But it is said this appeal is coram non judice; that the bill of sale from Ford to Crookshanks, providing for the freedom of the negro after January 1844, if intended to operate as a deed of manumission, is void, because it was not recorded according to law; and besides, was not acknowledged before a justice of the peace of the county, where the parties resided; they being described as of Baltimore county, while the magistrate purports to act in and for Baltimore city.
The instrument thus, for the purposes of this manumission, being a nullity, the negro [**8]  remains a slave, and in that character, it is contended, he has no status in court.
But how does this allegation consist with the conduct and course of the appellee, in this proceeding? He first arraigns him before the court as a freeman, and then to drive him from his rights and his defence as such, he invokes the instrument of his title, and its defective execution, to convert him into a slave. In the court below, he attains the object of his petition by representing him to be free, and procures a sentence of prolonged servitude against him. In this court, where the negro resorts to the remedy open to him, alike with every freeman, his appeal is to be estopped by the alleged taint of slavery, and his consequent exclusion from a legal status in court. If a slave, the whole proceeding against him under this act of Assembly in Washington county court, or any other court, is illegal and a nullity. It is a solecism to say, that as a slave, his term of service can be prolonged or extended. The law, in its express terms, and from its professed object can have no reference to a slave. The orphans court of Washington county, did not profess to deal with Patterson in that [**9]  character, and the very sentence imposed by them, denies it, by adding to the previous limited term of his servitude.
In any aspect of the case as presented to us, we do not feel at liberty to leave out of it, the prominent fact stated in the petition, that the negro was only bound to serve until January 1844; for, without this fact of limited bondage, the appellee had 

 [*216]  no case under the act of Assembly. It does not then comport with that allegation to insist now, that he is a slave, and as such must be turned out of court. The appellee brought him before the court, admitting the expiration of his term of service, but claiming indemnity for the portion of that service lost by his absconding. Upon this allegation, and the traverse of it in his answer, in the orphans court below, he is tried. Before that court, the appellee gave him the standing he now maintains here, and it is no part of our duty to disturb it. From the view before expressed on the first branch of the case, we are not called upon to pronounce upon any other point discussed in the cause. The forum selected by the appellee has no jurisdiction in the case, and their decision must be reversed.
JUDGMENT [**10]  REVERSED.  

175 of 187 DOCUMENTS 

REVERDY JOHNSON vs. EDWARD H. DORSEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Gill 269; 1848 Md. LEXIS 41 

December, 1848, Decided 

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

Upon a bill filed by the Neptune Insurance Company, of Baltimore, the chancellor, on the 18th of May 1843, with the consent of parties, passed a decree for the sale of certain real estate of one Rebecca Dorsey, situated in Baltimore county, for payment of a mortgage debt due the complainants. David Stewart and Charles F. Mayer, Esqs., were appointed trustees to effect this sale, and the decree directed them to "proceed to make sale of the mortgaged property, having first given at least three weeks previous notice, inserted in some newspaper or papers, and such other notice as they may think proper, of the time, place, manner and terms of sale, which terms shall be," &c.; prescribing the usual terms, one-fourth cash, and the balance in equal instalments, at six, nine and twelve months.

This decree was afterwards entered for the use of the Baltimore Life Insurance Company.

On the 21st of April 1847, the trustees filed their report of sale, in which they state, that after due notice by advertisement in daily newspapers of the city of Baltimore, they offered the property for sale on the 15th of April 1847. That Reverdy Johnson, by the [**2]  bid of John S. Gittings, became the purchaser, at the price of $ 40 per acre, making for the whole purchase money the sum of $ 12,422.25. That they had twice before advertised the said real estate for sale, and, on both occasions, the sales, on or shortly before the days appointed, were, at request of Edward H. Dorsey, interested in the estate in place of said Rebecca Dorsey, deferred; the sale last stopped being one appointed for the 15th of October 1846. The usual oath of the trustees was annexed, that the sale was fairly and bona fide made.

With this report was filed, as exhibits, an advertisement of sale, describing the property, &c., proved to have been published once a week for three weeks, prior to the sale and on the day of sale, in two daily newspapers of the city of Baltimore.

Also two letters, dated the 15th of October 1846, directed to the trustees, the one from Edward H. Dorsey, in which he says, "the sale advertised by you, as trustee, being postponed from this day, at my request, the commissions and expenses are to be paid, as in case of a sale;" the other from John J. Donaldson, the president of the Baltimore Life Insurance Company, for whose use the decree [**3]  had been entered, requesting a postponement of the sale until further notice.

On the same day, (21st of April 1847,) the usual order of ratification nisi was passed by the chancellor; and on the 21st of June following, being the day on which the sale stood for final confirmation, objections were filed to its ratification by Edward H. Dorsey, who alleged himself to be the owner of the equity of redemption in the property sold under the decree: 1st. Because the price for which the same was sold is grossly inadequate, said property being fully worth $ 20,000. 2nd. Because proper and reasonable notice of said sale was not given. 3rd. Because there was no attendance of bidders at said sale, and no competition, in consequence of which said property sold far below its value, as stated in the first exception. 4th. Because various persons, who were anxious to purchase said property, and would have given, and would now give, a much larger price for the same, (one of whom, J. McHenry Boyd, Esq., a responsible person, would have given, and would now give, from $ 18,000 to $ 20,000,) were prevented from attending said sale by some mistake or misunderstanding in relation thereto, by reason [**4]  whereof said property was sold far beneath its value.

On the 24th of the same month, his honor, Nicholas Brewer, an associate judge of the third judicial district, to whom the proceedings had been certified by the chancellor, (Johnson,) passed an order finally ratifying and confirming the sale, after stating that the paper filed by Edward H. Dorsey, objecting to the sale, was signed by him, but that there was no affidavit by him or any other person, of any of the facts therein stated, nor any order asked for to take testimony to prove them.

On the 3rd of July following, a petition in due form was filed by said Dorsey, re-asserting substantially the same objections to the sale, and more at large, alleging, "that from want of proper and sufficient notice by advertisement, and from the impression getting abroad that said land was not to be sold, persons were prevented from attending or from bidding at said sale, who would have given from $ 18,000 to $ 20,000 for said land. That said trustees only advertised said sale once a week for three weeks, and once on the day of sale, in two daily newspapers in the city of Baltimore. That James McHenry Boyd, Esq., a gentleman of large [**5]  fortune, was desirous to become the purchaser, and would have given more than $ 18,000 for said property, but he had heard that the same would not be sold, and to satisfy himself of the fact, looked at one of the numbers of the paper in which the sale was advertised, and not finding the advertisement, supposed the same was withdrawn, and that the sale would not take place, and therefore did not attend the same. That Stephen Thompson, Esq., of Baltimore city, was present at the sale for the purpose of bidding, but believing that there was but one person bidding, and that said land was being bid in for the benefit of your petitioner, did not bid for the same, but has declared said land ought to have brought, at least, from $ 60 to $ 75 per acre, and he would have given a much larger price than that for which it actually sold. That there were not more than five or six persons at said sale, and that there were no bidders. To show the gross inadequacy of price at which said land was sold, your petitioner states, that he has been informed and believes, that the person who attended said sale and bid for Reverdy Johnson, Esq., the purchaser, was authorised to give over $ 18,000 for the land,  [**6]  and that soon after the sale, the purchaser was offered an advance of $ 8000 for said farm. That if an opportunity were offered, he could furnish proof of all the facts stated in this petition, and of the objections previously taken to the sale; and could also show, that he is the sole person interested in said land, except the mortgagee, for whose benefit it was sold The petition then prays, that the order of ratification may be opened, and an opportunity afforded for producing proof, and the trustees be required to answer said exceptions, and said sale set aside and a new one ordered, and for general relief.

This petition was verified in due form and accompanied by the affidavits of seven deponents, who resided in the neighborhood of the property, were well acquainted with it, and who severally state that it sold for much less than its actual value. The estimates of its value by these deponents vary from $ 60 to $ 75 per acre.

Upon this petition an order was passed rescinding the order of ratification, setting down the objections for hearing, with leave to the parties to take testimony before a justice of the peace, upon the usual notice, and ordering the trustees to file [**7]  their answers on or before a day certain.

The answer of David Stewart, one of the trustees, states: That he was prevented by sickness from attending the sale, but under the circumstances, would have acted as his associate trustee did, in making said sale, even at the very low price at which it was made; no discretion being allowed to the trustees, by any assent of the mortgage creditor, who was urging the sale, and it having been within respondent's particular knowledge, that the postponement of the sale, on the 15th of October 1846, had been assented to by the creditor, upon the undertaking of Dorsey, that no further delay should be asked for than that then agreed to be given, which was until the 15th of April 1847, and that in his view, therefore, the trustees had no right to afford any further delay, except with the consent of the creditor; and under the circumstances, respondent regarded the sale, appointed for the 15th of April 1847, as a peremptory sale.

Respondent further says, that in his opinion the property was then worth at least $ 20,000, and is now worth that amount; and this opinion is formed, in part from the price which respondent and his associate trustee [**8]  obtained, for a portion of the same property, sold at private sale, to Charles H. McBlair, at the rate of $ 75 per acre. This portion consisted of 80 acres, and was unimproved by buildings. He believes sufficient notice was given of the sale, by public advertisement, but he believes also, that there was a general impression among persons who otherwise might have been disposed to attend the sale, that some arrangement would be made, and that the sale would not proceed, how this impression originated, respondent cannot say, but it seemed to be a prevailing and accredited impression.

Charles F. Mayer the other trustee, separately answering, states, that the sickness of his co-trustee, devolved upon him the duty of conducting the sale alone. That said sale was appointed positively to take place, (after at least one postponement, and considerable delay on the creditor's part;) that respondent found on the day of sale, that the creditor, the cestui que use of the decree, was peremptorily resolved upon having a sale made, and in consequence, respondent felt himself under a peculiarly strict obligation to effect a sale, even at a price materially beneath respondent's estimate of the worth [**9]  of the property. With this persuasion of his duty, and under pressure of such a requirement, however painful the position, or the act, respondent allowed the estate to be struck off at the price of $ 40 per acre, as the highest bid, although if left to his own discretion, and to conform to what he deemed the reasonable valuation of the property, he would not, he believes, have allowed it to be sold at a less price than $ 60 per acre, that even, being less than respondent deemed it actually worth. In illustration of its value, respondent refers to the sale adverted to by his co-trustee, in his answer, which with other reasons, tended to impress upon respondent the worth of said property. He cannot say how many bids there were, but believes there were not many, he knowing of only two bidders, although from the manner of conducting auctions, there might have been more, without respondent's knowing the fact. The persons attending the sale, did not number more than ten or twelve; the two bidders referred to being John Patterson and John S. Gittings, the latter, the highest bidder, and the former making only one bid, at the beginning of the auction. He further states, that notice of sale [**10]  was given by advertisement in Baltimore, once a week, for three weeks, and on the day of sale, in two newspapers of that city, and as respondent believes in no more. Respondent believes, that at the time of said sale, said estate was fairly worth from $ 65 to $ 70 per acre, and that it is now worth that much.

The following is a brief summary of the testimony taken under the above order.

On the part of the exceptant, it was proved, by James McHenry Boyd, that witness knows the property in question, by reputation; he intended to attend the sale, and bid for the property, but was prevented, by being informed that the sale would be postponed. Deponent saw the advertisement; but after first seeing it, had been absent from town for some time, and had forgotten the precise day fixed for the sale. On his return, he enquired of one of his cousins, whether the day of sale were not at hand, who answered to the effect, that she had learned from the family of Dr. Waters, a neighbor of Mr. Dorsey, that the sale was postponed for a month, and witness then dismissed the subject from his mind. After receiving this information, he did not examine the paper with reference to the advertisement.  [**11]  He did occasionally look over the paper, but did not observe it. His reliance on his cousin's statement, coming directly from the friends of Mr. Dorsey, was such as to prevent him from making any further inquiry as to the time of sale, and to induce him to dismiss the matter from his mind. If deponent had attended the sale, he would have given $ 60 per acre for the property. He has no hesitation in stating, that if circumstances were such, that he was now free to be a bidder, he would now give that amount for the property. If the property were to day in the market, and could not be bought for less, he would give that amount for it. Deponent believes the market value of the property to be at least $ 60 per acre. His opinion is formed from what he knows of it, and from the opinions which he has heard others express, on whose judgment he relies.

William E. Thomas, is acquainted with the property, and has been repeatedly on it. Its value at a low estimate is $ 60 per acre. Deponent thinks this would be a low price at which to purchase the property at public sale. His opinion is derived from his knowledge of the place, it being good farming land. He does not consider the land in a [**12]  good state of improvement. If the land were well farmed, and the improvements in a good condition, the property would be worth $ 100 per acre. He estimates the value of the place at $ 60 per acre, in its present condition.

Daniel Warfield, knows the property by reputation. Did not attend the sale, because there was always so much contention about it, that he did not suppose the property would be sold. It has been in the market several years, and frequently withdrawn, and he supposed that Mr. Dorsey would not suffer it to be sold, if he could avoid it; would not have bid for the property, unless he could have been assured that Mr. Dorsey would have given peaceable possession, and there would have been no contest about it. Cannot say what is its value, but from representations he too had of it, he would give $ 50 per acre, could he have been assured Mr. Dorsey would have given peaceable possession. Deponent offered Mr. Gittings $ 50 per acre for the property, a short time after the sale.

Stephen J. Thompson, knows the property, has several times gone around the place, and examined it, with a view of acquiring information as to its value, with the view of purchasing it. Attending [**13]  the sale, but did not bid, because he was of opinion, as he believes some others were, that the property would not be sold; was strengthened in this opinion from having at various times attended, when the same property had been frequently advertised for sale; on one occasion, neither trustee or auctioneer appeared, and on others, the property had been withdrawn. From the small number, in attendance on the day of sale, deponent came to the conclusion, that the property would not be sold, but had no right to doubt the sale was a real one, after Mr. Gittings was called on by the auctioneer to sign. His previous impressions were, that it was bought in for Mr. Dorsey. These impressions did not arise from any thing which had been said by Mr. Gittings, the trustee, or the auctioneer, but from what had taken place on former occasions, when the same property had been advertised; from the small number in attendance, and from the low price which the property brought. During the offering, Mr. Dorsey passed through the exchange, but did not remain; he did not appear concerned about the sale, and did not remain until it was closed. The property was started by Mr. Patterson, at $ 10,000. Deponent [**14]  does not recollect of hearing any bid after that, until Mr. Gittings bid. The auctioneer stated, that the property would not be sold at less than $ 40 per acre, he having prior to that statement, called the property at $ 39.50 per acre, but deponent did not believe there was any bid, as he did not hear one. His impression was, that the $ 39.50 bid, was that of the auctioneer.

From all the circumstances attending the sale, his impression was, that the property was bought in for Mr. Dorsey. Had it not been for that impression, he would have bid for the property, as he went to the sale for that purpose. He would have advanced on $ 40, the price at which the property was knocked down. Deponent thinks that at a fair sale, the property should have brought $ 60 per acre. He knows of a sale of property in the same neighborhood, made since the sale in this case, on which there was a very inferior dwelling house, with good out-houses, the soil naturally inferior to Mr. Dorsey's, but more highly cultivated, at $ 61 per acre, at public sale. Mr. McBlair bought 80 acres of the original tract, of an inferior quality to Mr. Dorsey's, without any improvements, at $ 75 per acre. This purchase [**15]  was made by Mr. McBlair for a county residence, and one inducement was on account of the location, its fine prospect. The prospect from Mr. Dorsey's is superior to that from Mr. McBlair's. It is one of the most beautiful in Baltimore county.

John Swan, is familiarly acquainted with the property, lives on the adjoining farm, knows the quality of the soil, and its present state of cultivation, considers it land of excellent quality. It has been recently neglected, but with proper management and cultivation, would be easily restored to its original value. The situation is a very fine one. The property in its present condition, is fully worth $ 25,000. Deponent was at the sale, thinks Mr. Patterson started the sale at $ 10,000, heard and saw no more bidding. The auctioneer called out various sums, until he reached $ 34, Mr. Gittings then offered an advance of fifty cents. The auctioneer then remarked, that he had omitted to state at the beginning, what he ought to have done, that the property would not be sold under $ 40 per acre. At this moment, Mr. Dorsey called deponent out, to intercede with Mr. Donaldson, stating, that until within half an hour of the sale, he had confidently [**16]  expected to procure the money; before deponent returned, the sale was closed. Mr. Dorsey did not continue at the sale, he was alternately in and out, endeavoring to obtain some intercourse with Mr. Donaldson.

George Myers, owns a place on which he resides, nearly adjacent, and is familiar with Mr. Dorsey's property; has known it for forty years; thinks, in its present state, it is worth $ 80 per acre. If deponent were desirous of purchasing, he would willingly give that amount for the property.

Henry H. Williams, a few years ago, bought from Mr. Dorsey a portion of the original tract. Thinks the property ought to bring $ 25,000. In 1840 or 1841, deponent, who had the authority to sell it, was offered $ 25,000 for it, but Mr. Dorsey was not willing it should be sold at that price, stating that he could obtain a better price. In 1841 deponent sold a part of the original tract, at $ 62 per acre, on which there were no improvements or fencing.

James Powers, is a farmer, resides in the neighborhood of the property; has known it ever since he can remember; it has been one of the best farms in Baltimore county. The dwelling house is a fine one, in good order. There is a choice [**17]  supply of spring water of good quality on the place. In its present state the property ought to bring, at least, $ 75 per acre.

John Moke, is a farmer, resides about four miles from Mr. Dorsey's; has been a property agent in Baltimore county for some time; has known the property for upwards of forty years; it is considered one of the best farms in that section of the county. As it stands, deponent cannot put the value of the property at less than $ 75 dollars per acre: he thinks it ought to bring that price at public or private sale.

Peter W. Gibbons, is a farmer, lives about six miles from Mr. Dorsey; has known the property for twenty years; would suppose that, at a fair sale, any day, it ought to bring from $ 70 to $ 75 per acre.

Charles H. McBlair, resides on the place adjoining Mr. Dorsey's, being part of the original tract. Deponent has eighty acres, which he purchased of Mr. Dorsey in 1843. He gave $ 75 per acre for it. This property, at that time, had no buildings or improvements on it, and the fences were in a bad condition. Thinks Mr. Dorsey's farm, in its present condition, is worth from $ 18,000 to $ 20,000.

John S. Gittings, attended the sale on behalf [**18]  of Mr. Johnson, by whom he was authorised to bid as high as $ 60 per acre. After the sale, he was called upon by some individual, with whom he was not personally acquainted, who said, that if the title was clear, he would give an advance of $ 2000 on the purchase. Mr. Warfield offered deponent, if the title were clear, an advance of some small sum on the purchase. Mr. Johnson informed deponent that he expected to get the property for $ 40 per acre, but had made up his mind to give $ 60 per acre.

John Patterson, was the owner of a mortgage on the property; was present at the sale; went merely to cover his claim; made a bid of $ 20 per acre for that purpose. John H. Ormdorff designed purchasing the property, but did not suppose it would be sold, as he had spoken to several persons about it and had been informed it would not probably be sold, as Mr. Dorsey would make arrangements to pay off the mortgage. Thinks he saw the advertisement in the American. Would have given much more than the property sold for; would have given $ 20,000 for it, but relying on the information he had received, he did not think it necessary to go to the sale or examine the property.

Henry W. Bool, Jr.  [**19]  , was the auctioneer who made the sale. Thinks there were other bids, besides the starting bid by Mr. Patterson, and that made by Mr. Gittings. Thinks so from the price at which the property sold. After the sale, a gentleman told deponent, that if he had been at the sale he would have given about the amount the property sold for. Thinks he called the property at $ 39 per acre. He then called Mr. Mayer to the stand, and after consultation with him, announced, that if he could obtain $ 40 per acre, the property would be sold. Mr. Gittings bid that price and the property was knocked down to him. Prior to the sale, deponent had a conversation with Mr. Mayer, in which he stated to deponent, that the property ought to bring $ 40 per acre at least. Deponent thinks he made a bid on behalf of the trustees, near the amount of $ 39.

Messrs. Gittings, Patterson, Swann, and, including them, from thirty to forty persons were present at the sale. The sale was a fair one. Deponent did his endeavors to get the most he could for the property, he hung longer on Mr. Gittings' bid than he ought to have done. The company in attendance was the usual number. There never is a larger attendance at sales [**20]  at the Exchange, except on extraordinary occasions.

On the part of the purchaser, it was proved by John J. Donaldson, (whose testimony was objected to by the exceptant,) that he is the president of the Baltimore Life Insurance Company, the assignee of the claim for which the property was sold. He attended the sale. The property was offered in the presence and by the direction of deponent. As the sale was about to commence, Mr. Dorsey made application to deponent to suspend the sale, for the purpose of giving him time, which deponent refused, as the sale had been previously postponed. Deponent required the trustee to go on with the sale. The property had been advertised, at deponent's instance, in the autumn of 1846. At the instance of Mr. Glenn and Mr. Dorsey, who promised that the matter should be settled up in six months, the sale was postponed, and time was given to Mr. Dorsey to sell at private sale, which he stated was his object. Deponent then told him, that the property would be sold at the end of that time if the matter were not settled. Deponent did not see Mr. Dorsey from that time to the last day of sale.

Hugh Gelston, on the 31st of October last, purchased a part [**21]  of the same tract of land, consisting of thirty acres, at $ 36.50 per acre. There are no improvements on it, not even a fence. The soil is of a very good quality. It is on a point difficult of access. Separate from the consideration of great beauty of situation, and speaking in reference only to agriculture, and the expenses of putting the farm in order, deponent would consider many farms that have been sold within the last two years as good bargains as this one purchased by Mr. Johnson; deponent is not, however, taking into consideration in the above estimate of the value of the land, its advantages of location, for beauty of building sites, and nearness to the city; these things greatly enhance the market value of property. Taking these qualities into consideration, deponent thinks the land ought to bring much more than it sold for.

John S. Gittings, recalled for the purchaser, states, that he has, within a few days, made a purchase of about two hundred acres of land, at $ 45 per acre. This land is about a mile further from the city than Mr. Dorsey's, both lying west of the city. The soil perhaps is not so good, but it is heavily timbered. It is red land. There is a considerable [**22]  quantity of stone, fit for paving, on it, which was one inducement for deponent to purchase it. There are no buildings or improvements on this property. Deponent thinks if the place purchased by him were fairly brought into the market, it would bring as much per acre as that of Mr. Dorsey's. As a country residence, Mr. Dorsey's place is one of the most beautiful situations in the neighborhood of Baltimore. Deponent did not expect to give more for the property than about $ 40 per acre. During the sale, there were about thirty persons present in the rotunda of the Exchange. There was a small number about the stand, near the auctioneer, who appeared to be taking an interest in the proceedings. Deponent supposed that the bids for the property were real, until it had reached the bid of $ 37 per acre. He bid $ 36, and the auctioneer bid $ 37, which deponent thought a bid of the auctioneer.

A deed was also filed in the cause from Rebecca Dorsey, conveying to the exceptant the equity of redemption in the land, dated the 15th of February 1844.

On the 29th of July 1847, the following order was passed by his honor, Judge Brewer, acting as chancellor:

Objections were filed in this [**23]  case to the sale made on the 15th of April 1847, but the sale was ratified, because the objections were entirely of matters in pais, not signed by counsel, and not vouched by the affidavit of the persons objecting, or of any other person, and being filed in that manner, and on the day before the time for final ratification, the whole proceeding had the appearance of a mere design to delay the ratification. On a proper application, the order was rescinded, the trustees directed to answer the petition, and testimony directed to be taken, which was taken and returned, the trustee's answers filed, and the case heard. The 2nd objection, "because proper and reasonable notice of the sale was not given," is of no moment, as the notice which the decree required was given, and there is no evidence, that it was the custom to give any further notice in the case of sales in Baltimore, or in advertisements in the Baltimore daily papers.

The 1st objection is, gross inadequacy of price.

3rd. No competition at the sale.

4th. That persons who would have given a much larger sum for the property, were prevented from attending the sale by some mistake or misapprehension in relation thereto.  [**24]  The property sold for $ 12,000. The proof of its value varies from $ 50 to $ 80 per acre, and, on a fair average of the proof, it is worth nearly about $ 70.

The sale appears to have been conducted in the ordinary manner, without the least appearance of unfairness, which, indeed, the petitioner does not pretend to charge, and the property bought by an agent for the actual purchaser, and at auction at the Exchange, where such property is frequently, if not generally, sold. The practice of opening biddings has never prevailed in this State, and has not been contended for in this case. The principles which are to govern in its decision, seem to be well settled by abjudications of our own courts. In the case of Lawson vs. The State, 2 Bl. Ch. Rep., 639, Chan. Hanson says: "That he will never, knowingly, ratify an unreasonable sale." In page 644, he says, "with respect to sales under the authority of this court, the chancellor thinks himself bound to act as if the property was his own, or held by him in trust;" that is to say, he thinks that reasons that would induce him, as proprietor or trustee, to set aside a sale made by his agent, should determine him, as chancellor, to refuse [**25]  his approbation to a sale made by a trustee. Again, he says: "It is, undoubtedly, one object of each decree for a sale, to obtain the best price that can be obtained, consulting, at the same time, justice to all persons concerned, and attending to their wishes, as far as may be consistent with justice." In the case of Goodwin vs. Scott, Bl. Chan. Rep., page 647, Chan. Kilty says: "In this State it has been repeatedly declared, that in sales under a decree of this court, which are made subject to the chancellor's approbation and ratification, any circumstances showing that such sales are injurious to the complainants, or that better sales might reasonably and probably have been made, are sufficient to set them aside. This principle, to be just, should be reciprocal and mutual."

Chan. Bland, in the case of Andrews vs. Scott, page 644, 2nd vol., adopts these opinions, and says further: "That in this State, as well as in England, if there should be made to appear, either before or after the sale has been ratified, that there was any injurious mistake, the reported sale may be rejected; and again, "If, in any case, the trustee reports that there was an error, mistake, misunderstanding,  [**26]  and as to the terms or manner of the sale, it may be rejected at once." In the case of Glenn vs. Clapp, 11 G. & J., 9, this subject came before the Court of Appeals. In that case the property sold for $ 490, and was alleged to be worth $ 900, but the only evidence of value was the answer of the trustee. He says that the property was worth more than $ 490, but not $ 900; but supposing that to be the real value, the inequality in that case and this is nearly about the same. The property in both cases sold for rather more than half its value.

The court say, in their opinion, that they will not set aside a sale for inadequacy of price merely, unless the sum reported by the trustee is so grossly inadequate, as to indicate a want of reasonable judgment and discretion in the trustee; what proportion of the real value would be that gross inadequacy, or indicate that want of reasonable judgment and discretion, the court do not say, but seem to intimate, that it does not seem to exist in the case before them, and only admit it as a reduced price, to be viewed in connexion with some other just cause, to doubt the propriety of the sale. In cases of purchase and sale by and from [**27]  individuals, where applications have been made to set aside sales for inadequacy of price, the proportion of the real value has not been definitely fixed, though in one case the rule of the civil law is said to have been adopted, by which no consideration was deemed inadequate, that exceeded half the real value of the estate, Sugden on Vendors, 249; and the principle was held in another, not to apply to cases of sales by auction, which the Court of Appeals seem to intimate in the case of Magruder vs. Peter, 11 G. & J., 244. In those cases the inadequate consideration was considered an evidence of fraud. In cases like the present, it is only treated as an indication of want of reasonable judgment and discretion in the trustee, and perhaps would not therefore require so gross an inadequacy. It is not easy to determine how far the trustee should extend his discretion, but it may be considered a good general rule, not to sell the property at a great sacrifice; more especially on the first effort to sell, but to report the circumstances to the court for directions. In this case, the low price did not indicate that want of reasonable judgment and discretion as to the value,  [**28]  for the answer of one of the trustees shows, that he was well aware that he was selling too low, but thought himself bound to sell, as he was required to do so by the complainant; and it is of this that the petitioner's counsel complained in the argument, as a dereliction of duty or want of consideration in the trustee, contending that he had no right to consult the complainant at all, but should insist on getting what the property was worth. This, however, is going too far; the trustee did fix a limit below which he would not sell, although it should be required by complainant, and in fixing that limit, no doubt considered that his estimate of the value though much higher, might not agree with the estimate of others. There certainly is no impropriety in consulting the parties interested in the sale, or any of them, but the trustee ought to exercise a reasonable discretion and not be governed by either party. There are other circumstances in this case, which, viewed in connexion with the low price for which the property sold, and the fact of the trustee selling against his own opinion, at the instance of the complainant, disclose sufficient grounds for doubting the propriety of the [**29]  sale, and for setting it aside. First, there was no competition whatever, as is clearly proved, and secondly, there was evidently a mistake as to the sale taking place, which prevented a bidder from attending who wished to attend, and who would have given a much higher price for the property. It is contended for the purchaser, that this mistake was designed and caused by the petitioner himself, who spread the report that the property would not be sold, but this does not accord with the proof; the information was derived from a neighbor or friend of the petitioner, who did not profess to have received the information from the petitioner; and it was further proved, that this person who proposed to purchase, did not see the advertisement in the paper, and was informed it was not there; and it is also stated by one of the trustees in his answer, that he believes there was a general impression among persons, who otherwise might have been disposed to attend the sale, that some arrangement would be made. The purchaser, however, who is not in fault in any respect, is entitled to his costs.

It is thereupon, this 29th day of July 1847, adjudged and ordered, that the sale made on the 15th [**30]  day of April 1847, be and the same is hereby set aside and annulled, and the petitioner is ordered to pay to the purchaser his costs, to be taxed by the register.

From this order the purchaser appealed to this court.  

DISPOSITION:
ORDER REVERSED.  

HEADNOTES:

Where a decree required the trustees to give "at least three weeks previous notice, inserted in some newspaper or papers, and such other notice as they might think proper, of the time, place, manner and terms of sale:" HELD, that an advertisement of this sale, inserted once a week for three weeks, and once on the day of sale, in two daily newspapers, was sufficient notice, and that the trustees were not bound to advertise the property daily for three weeks previous to the sale.

A sale regularly conducted, and fairly made under the authority of a court of chancery, where a third party, a stranger to the proceedings, becomes the purchaser, cannot be disturbed on the ground of mistake, unless such mistake has been caused by the conduct of the purchaser, or can be traced to the creditor, for whose use the property was sold, or to the trustee.

Where there was a general impression in the community that the sale would be postponed, and this was known to the exceptant, it was his duty to communicate the fact to the trustees, and his failure to do so, would present an insuperable obstacle to the interposition of a court of equity, in his favor, to set aside the sale.

The English practice of opening biddings, as a matter of course, before the ratification of the master's report, has not been adopted in Maryland, and it is not expedient to introduce it.

The land in this case sold for $ 12,422.25. HELD, that the court would not be authorised to vacate the sale upon the single ground of inadequacy of price, even assuming the property to be worth $ 20,000; the estimate placed upon it by the exceptant.

Inadequacy of price, standing by itself, is not sufficient to vacate a sale, unless it be so gross and inordinate, as to indicate some mistake or unfairness in the sale, for which the purchaser is responsible, or misconduct or fraud in the trustee.  

COUNSEL:
By ALEXANDER and MCMAHON for the appellant, and

By FARNANDIS and NELSON for the appellee.  

JUDGES:
The cause was argued before DORSEY, C. J., SPENCE, MARTIN, MAGRUDER and FRICK, J.  

OPINIONBY:
MARTIN 

OPINION:

 [*285]  MARTIN, J., delivered the opinion of this court.
This case comes before the court, upon an appeal from an order of an associate judge, of the third judicial district, sitting for the chancellor, vacating a sale made to the appellant, on the 21st of April 1847, under a decree of the chancery court.
It appears from the record, that objections to the ratification of this sale, were interposed by the appellee, prior to its confirmation. But they were not sustained by the affidavit of the exceptant, or verified by that of any other person, and in this predicament, they were disregarded by the judge, to whom the application was preferred, and the sale ratified on the 24th of June 1847.

 [*286]  This order was, however, subsequently rescinded,  [**31]  and in considering therefore, the questions presented on this appeal, they are to be treated as uninfluenced by a final order of ratification.
The objections to the validity of this sale, as filed below, and relied upon in the argument of the cause, before this court, are in substance, as follows:
1. Because notice of the sale was not given, as required by the terms of the decree.
2. That in consequence of some mistake or misunderstanding, prevailing in the community, that the sale would not take place, various persons, who were desirous of purchasing the estate in question, were prevented from bidding for the same, and that in this way it was sacrificed.
3. That in consequence of this mistake, or misunderstanding, there was in fact, no competition at the sale.
4. That the price at which the property sold, was grossly inadequate.
There is no force in the first objection. By the terms of the decree, the trustees were required to give, "at least three week's previous notice, inserted in some newspaper or papers, and such other notice as they might think proper, of the time, place, manner and terms of sale," and the appellee has, in is petition admitted, that the trustees advertised [**32]  this sale once a week for three weeks, and once on the day of sale, in two daily newspapers in the city of Baltimore This certainly was legal notice of the sale. It is a misconception of the character of the decree, to suppose, that it imposed upon the trustees the obligation to advertise the property daily, for three weeks previous to the sale. The language of the decree does not warrant such a conclusion. And we should be indisposed to countenance a construction, which would operate most severely and injuriously upon the interests of a debtor, already embarrassed, by subjecting him to an onerous and useless expense.
The second objection is equally untenable. The appellant is a stranger to the controversy in which this proceeding originated. His position is that of a party, who having purchased 

 [*287]  in good faith, an estate, at public sale, regularly conducted and fairly made, under the authority and supervision of the court of chancery, now claims to have his contract ratified, as obligatory on both parties. And in a case thus situated, it is perfectly clear, that the sale cannot be disturbed upon the ground of mistake, unless the mistake has been generated by [**33]  the conduct of the purchaser, or can be traced to the creditor, at whose instance, and for whose use, the property was sold, or to the trustee to whom the control and management of the sale was confided.
The American cases are full and conclusive on this point; and the proposition is sustained by the most eminent of the English Chancellors, whose opinions are to be received as illustrative of the law upon this subject, when expressed with respect to applications for opening sales, after their absolute confirmation.
It will be found by consulting the authorities, that this principle is firmly established, not only as a rule of public policy and convenience, but one in which the debtor himself is directly and deeply concerned, as a means of rendering these sales productive, by imparting to them the character of permanence and security.
The principle is thus correctly and clearly stated by the vice chancellor, in the case of Woodhull vs. Osborne, 2 Edward 616.
"Where a stranger or third person becomes the purchaser in good faith, something more than a mere offer of a higher price must appear, to induce a re-sale: Such as fraud or misconduct of the master, or other [**34]  person, having the control of the sale, or surprise upon the party interested, or his having been misled as to the time and place of sale. Where circumstances of the latter description are relied upon, the party must show they proceeded from or were caused by the purchaser, or some person connected with or having the management of the sale. If he be of full age and under no disability, he cannot be permitted to allege his own negligence or inattention, as the cause of his surprise or mistake."

 [*288]  In Collier vs. Whipple, 13 Wend. 226, Mr. Justice Nelson, after citing, with approbation, the cases of Morrice vs. Bishop of Durham, 11 Ves. 57, and White vs. Wilson, 14 Ves. 151, says:
"These cases, without going further, sufficiently shew that fraud or misconduct in the purchaser, or fraudulent negligence in any other person connected with the sale, as the agent of the mortgagor, or of persons interested as judgment creditors, and also surprise created by the conduct of the purchaser, will induce the court to open the biddings." And at page 228 of the opinion, he distinctly expands the rule so as to embrace the master;--correctly [**35]  maintaining, "that surprise created by him on his conduct, is as injurious and as available in an application of this kind, as if caused by a purchaser; which all the cases concede is sufficient."
In Gardiner vs. Schermerhorn, 1 Clarke's Rep. 103, the language held by the vice chancellor, is equally strong.
And in the case of Williamson vs. Dale, 3 Johns. Ch. 292, the chancellor, in setting aside a sale, on the ground that the defendants were misled, though unintentionally, by the language of the plaintiff and his solicitor, said: "That he was not influenced by the alleged inadequacy of the auction price, and that in disturbing the sale, he pushed the doctrine to the utmost verge of an admissible interference."
In Morrice vs. the Bishop of Durham, 11 Ves. 57, Lord Eldon, after animadverting upon the decision of Lord Commissioner Ashhurst, in Watson vs. Birch, 2 Ves. Jr. 51, said:
"That the only case in which the biddings can be opened, after confirmation of the report, is, where there is some fraud or misconduct in the purchaser, or fraudulent negligence in another person, as the agent, of which it is against [**36]  conscience that the purchaser should take advantage." White vs. Wilson, 14 Ves. 151.
It cannot be pretended in this case, that the mistake, of which the appellee complains, is to be attributed to the conduct of the creditor, the trustees, the vendee, or their agents, and upon the doctrine enunciated in the cases to which we 

 [*289]  have referred, the purchaser is not to be treated as accountable for the consequences of the alleged mistake, however injuriously it may have operated upon the sale.
But what is the nature and origin of this alleged mistake? Mr. Stewart in his answer to the petition of the appellee, states:
"That he believes sufficient notice was given of the sale, which was by public advertisement, but he believes also, that there was a general impression among persons who might otherwise have been disposed to attend the sale, that some arrangement would be made, and that the sale would not proceed. How this impression originated he cannot say, but it seemed to be a prevailing and accredited impression."
How the impression to which the trustee refers, arose, or by whom it was propagated, is not distinctly disclosed by the testimony in the cause.  [**37]  But when it is recollected, that the exceptant, at the time he solicited the intercession of Mr. Swann with the creditor, for the purpose of arresting the progress of the sale, stated, "that until within half an hour of the sale, he had confidently expected to procure the money," the inference is legitimate, that the impression, mentioned by the trustee, "that some arrangement would be made, and that the sale would not proceed," was generated by the debtor himself, under the hope, sincerely and honestly entertained, that he would be able before the sale to raise a sum, sufficient for the payment of the mortgaged debt, and that in this way the sale would be arrested.
At all events it is difficult to believe under the circumstances of the case, that this impression in the community to which Mr. Stewart refers, was not known to the exceptant. If so, it was his plain and imperative duty to have communicated its existence to the trustees, that they might have guarded the sale against its influence, and an act of such remissness and negligence on the part of the debtor, would be regarded, irrespective of other considerations, as presenting an insuperable obstacle, to the interposition [**38]  of a court of equity.
It was indeed contended by the counsel for the appellee, that the knowledge of this impression was in the possession of 

 [*290]  one of the trustees, prior to the day of sale, and that he was obnoxious to the charge of a gross dereliction of official duty, by not adopting in connection with his co-trustee, such means as might be necessary to disabuse the public mind of this error, before the property was exhibited at public auction. But there is no foundation for this imputation. It is perfectly apparent on a fair construction of the answer of Mr. Stewart, that the information referred to, was not acquired by him until after the sale.
The third objection is in the following words: "Because there was no attendance of bidders at the said sale, and no competition, in consequence of which the said property was sold far below its value." This exception literally interpreted is of course in conflict with the undisputed facts in the cause, but the point of the objection is, that in consequence of the impression before referred to, with respect to the arrangement of this debt, and the arrestation of the sale, the sale was depressed, and competition prevented.  [**39]  
We have already seen, that the appellant is not to be considered as responsible for any injurious consequences, which may have resulted from the prevalence of this mistake.
But is it true, as maintained by the counsel for the appellee, that competition was hindered, and that persons disposed to become the purchasers of this property, were discouraged from bidding by a mistaken impression, that the sale would not proceed?
We think not. Mr. Boyd, certainly, was not detained from the sale, from any misapprehension of this kind. Notwithstanding he was informed by notice in the newspapers, that the sale was appointed for the 21st of April, he declined to attend, upon information derived entirely from those who lived in the vicinity of the appellee, that the sale would be postponed for one month. And upon this intelligence he acted, without seeking to be correctly informed upon the subject, by reference either to the debtor, or to the trustees. It is scarcely necessary to say, that to disturb a fair sale upon a ground like this, would be without precedent, and of the most mischievous tendency. 

 [*291]  The absence of this gentleman from the sale, was obviously the result of his [**40]  own remissness.
It appears from the testimony in the cause, that among the persons assembled at this sale, there was at least one of those gentlemen designated by the exceptant as disposed to become the purchaser of the property, at a larger price than that which was obtained for it.
Why, then, were there not more bidders?
The auctioneer after consulting with the trustee, announced his determination not to sell the property, unless forty dollars an acre was offered for it. This communication was calculated to stimulate competition. It was an annunciation that the sale was not formal,--that it would proceed,--and apprised those interested in the purchase, that it would be sold at forty dollars an acre, unless more was bid for it. The auctioneer states, that he paused upon the bid of Mr. Gittings, "longer than he ought to have done, under the hope of getting an advance." And yet there was no proposition of an advance upon that bid.
Under such circumstances, it is difficult to resist the inference, either that the property was not considered as intrinsically worth more than the sum offered for it by the agent of the appellant, or that there was an invincible repugnance to purchase [**41]  this estate, in opposition to the wishes of the debtor. The testimony of one of the witnesses on this point, is exceedingly significant. He says, "that he does not know the property, but if there had been no contention, and he could have obtained peaceable possession, he would have given for it fifty dollars per acre."
The last objection raises the question with respect to the alleged inadequacy of the auction price, at which this property was sold.
The testimony on the question of value, in this case, is chiefly composed of the opinions of witnesses, familiar with the property. But nothing can be more precarious and uncertain as a standard of value, than that created by these diversified and speculative opinions. Each opinion is constituted of different elements, depending upon the taste, habits, pursuits, and feelings of the witness.

 [*292]  The English practice of opening the biddings as a matter of course, before the ratification of the master's, report has not been adopted in Maryland. We have said in a former case, that it is not expedient to introduce it here. But if the biddings are to be opened, there is wisdom in the English rule, acted upon in [**42]  the chancery courts of New York, which provides, that a resale shall not be ordered, unless there is an actual advance upon the original bid.
The true test of value in these applications is to be found in the inquiry, with respect to the sum which the property would produce in the market upon a resale, and on this subject we have no reliable information, as there has been no proposition of an advance on the sum bid for this estate by Mr. Gittings.
It is however not necessary to pursue this inquiry. We are perfectly satisfied, that according to the doctrine now settled by an unbroken series of adjudged cases, that assuming this property to be worth the sum of twenty thousand dollars, the estimate placed on it by the exceptant, but to which we do not accede, the court would not be authorised to vacate the sale, upon the single ground that the consideration was inadequate.
In the case of Duncan against Dodd, 2 Paige Ch. 99, the property sold at a master's sale for half its value. A resale was ordered on the condition that the petitioner gave sufficient surety to the master, that the premises should produce an advance of fifty per cent. And in this strong [**43]  case the chancellor placed his decree upon the ground, that the property was the only dependance of two infant children, and that it was sacrificed through the misapprehension, or negligence, of their mother, or step-father.
After stating, that in such sales, it is essential to the interests of those whose property is sold, that purchasers should continue to retain full confidence in the safety of such purchases, and that they will not, as matter of course, be disturbed merely because a good bargain has not been obtained:--The chancellor said:
"If the defendants were adults, and the property had been sacrificed by their own negligence or inattention, I should not disturb the sale."

 [*293]  In the case of the American Insurance Company vs. Oakley, 9 Paige Ch. 259, the property, consisting of two lots, was sold together, for the sum of $ 21,000, when, as the affidavits in support of the application stated, "the premises were worth, and would have brought, $ 10,000 more, if the same had been sold in parcels."
On this ground the sale was rescinded. But the chancellor said:
"If the premises had been put up and sold in parcels, I think it is not a case in which [**44]  the court ought to have interfered with the sale, although the property was only sold for about two-thirds of its supposed value. **** If the property is duly advertised and fairly sold by the master, in the usual manner, to a stranger to the suit, mere inadequacy of price is not a sufficient ground for depriving the vendee of the benefit of his purchase, unless the inadequacy is so great as to be evidence of fraud or unfairness in the sale."
In Williamson vs. Dale, 3 Johns. Ch. 290, the mortgaged premises were bid off at $ 2700, subject to a prior mortgage for the same amount; and the petitioners for a resale, stated the value of the property to be more than $ 12,000.
This sale was vacated on the ground of surprise. And Chancellor Kent, in pronouncing his decree, said:
"I wish to be distinctly understood, that I interfere on the ground of surprise, and that I do not lay any stress upon the alleged inadequacy of the auction price. Such a ground, unattended with other circumstances, is insufficient."
In the case of Cohen against Wagner, (6 Gill 97,) decided by the Court of Appeals, at the December term 1847, the property was purchased for [**45]  $ 13,000; and the exceptant, in his application for a resale, averred, that the property was worth $ 20,000. The application was rejected by the court, and on the question of the alleged inadequacy of the auction price, they said:
"Under the third exception a third ground is relied on, for withholding the ratification of the sale, for $ 13,000, of property alleged to be well worth fifteen or twenty thousand dollars, or more. From the views entertained of the effect which would 

 [*294]  result from the asserted inadequacy of price, if it, in truth, existed, it is deemed unnecessary to inquire, whether the assertion be sustained by proof? The practice of opening the biddings in chancery sales, upon the mere offering of an advance upon the purchaser's bid, has not been adopted in Maryland; and its non-adoption is founded on cogent reasons of justice and policy. The doctrine, that mere inadequacy of price in a chancery sale, where the sale has been made conformably to the powers and directions specified in the decree, is not of itself sufficient ground for vacating the sale, has been so frequently announced by the judicial tribunals of this State, that a special reference to authorities,  [**46]  to sustain it, is deemed unnecessary. A sale thus made will not be set aside, or its ratification refused, unless the court believe that such inadequacy was the result of fraud, surprise, mistake or unfairness in the sale." And in the concluding paragraph of the opinion, the court announce the principle, that to set aside a sale, upon the ground of mere inadequacy of price:
"It must be so gross and inordinate, as to furnish evidence of misconduct or fraud in the trustee."
This, unquestionably, is the sound and correct doctrine upon this subject. It is certainly true, that inadequacy of price is to be regarded as a strong auxiliary argument, in combination with circumstances calculated to cast doubt or suspicion upon the correctness of a sale. But standing alone, as it does in this case, it is insufficient to authorise an interference with the sale, unless, in the language of the court, in Cohen against Wagner, it is so inordinate, as to indicate some mistake or unfairness in the sale, for which the purchaser is responsible, or misconduct or fraud in the trustee, to whom the management of the sale has been committed.
In the answer of Mr. Mayer, one of the trustees, to the [**47]  petition of the exceptant, he states: "That the sale was appointed positively to take place, after at least one postponement, and considerable delay on the creditor's part, and that he found on the day of the sale, that the creditor was peremptorily resolved on having a sale made, and he felt himself under a peculiarly strict obligation to effect a sale, even at a price materially beneath 

 [*295]  his estimate of the worth of the property. With this persuasion of his duty, and under the pressure of such a requirement, however painful the position, or the act, he allowed the estate to be struck off at the price of forty dollars per acre, as the highest bid, although, if left to his own discretion, and to conform to what he deemed the reasonable valuation of the property, he would not, he believes, have allowed it to be sold for a less price than sixty dollars per acre, that even being less than he deemed it actually worth."
And this paper has been relied on by the counsel for the appellee as evidence, that in prescribing the terms upon which this sale was to be made, the trustee permitted his own judgment and discretion to be controlled by the creditor. It was exhibited in strong [**48]  language to the court, as a written confession of indiscretion and misconduct in the trustee, which, if not mitigated by the consideration, that he acted under a gross misconception of his duty, would be regarded as amounting almost to official turpitude.
But we do not think that the conduct of the trustee is susceptible of this construction.
It appears that this debt was of long standing. That the property had been before twice advertised for sale, the last time on the 15th of October 1846. It is in proof, that on the last occasion the sale was postponed by the creditor, at the solicitation of the appellee, and upon his promise that the debt should be paid in six months, and under an assurance from Mr. Donaldson, that if the matter was not then settled, the property would be sold. And we are informed by one of the trustees, that it was within his particular knowledge, that the postponement of the sale advertised to take place, of Thursday, the 15th of October 1846, was assented to by the creditor, upon the undertaking of the petitioner, that no further delay should be asked.
The right of the creditor, under such circumstances, to demand that the property should be offered for [**49]  sale at public auction, cannot be questioned. A refusal on the part of the trustee to comply with so reasonable a request, would have subjected him to detrusion from his office by the court who appointed him.

 [*296]  But in yielding to the requirements of the creditor, he reserved to himself the privilege, which he undoubtedly possessed, of guarding this property from sacrifice, by fixing a limit below which it was not to be sold. And it is a mistake to suppose, that the trustee, in limiting his minimum price at forty dollars an acre, submitted himself to the rule and will of the creditor. His answer does not justify such a conclusion, and in this act we can perceive no manifestation of either misconduct or unfairness. It would be an extraordinary proposition to maintain, that on a sale like this, it was the duty of the to have designated a sum equal to the maximum value of the property, as the lowest price at which it should be sold. In Cohen vs. Wagner, where the sale was upheld, the minimum price fixed by the trustee was $ 12,500, in relation to property asserted to be worth $ 20,000.
It follows from the views thus expressed, that we think the judge below erred [**50]  in setting aside this sale, and his order is therefore reversed.
ORDER REVERSED.  

176 of 187 DOCUMENTS 

WILLIAM W. WILLIAMS vs. GEORGE H. WILLIAMS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Gill 302; 1848 Md. LEXIS 43 

December, 1848, Decided 

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

The appellant executed a mortgage to the appellee, dated the 18th of March 1846, of certain real estate in the city of Baltimore, to secure the sum of $ 150, upon certain terms therein mentioned, and further reciting, that "to secure the punctual payment of said sum of money, according to the terms of the loan thereof, the said William W. Williams hereby consents and agrees, that at any time after the execution of these presents, a decree may be entered up for the sale of said lots of ground, and premises, hereby mortgaged or any part thereof, by the high court of chancery of Maryland, or by Baltimore county court, sitting as a court of equity, in compliance with the act of the General Assembly of Maryland, passed at December session 1833, entitled, An act relating to mortgages and the supplements thereto."

On the 13th of October 1847, the mortgagee filed a petition in the court of chancery, setting forth this mortgage, and praying for a decree for the sale of the mortgaged premises, under the act of 1833, ch. 181, and on the 21st of the same month, the chancellor passed a decree for a sale in the usual form; appointing a trustee, prescribing [**2]  the terms of sale, &c, from which the appellant, the mortgagor, appealed.  

DISPOSITION:
MOTION OVERRULED.  

HEADNOTES:

An appeal will lie from a decree of the court of chancery, upon a mortgage executed in conformity with the provisions of the act of 1833, ch. 181, relating to mortgages in Baltimore city.

Any interference with the right of appeal, wherever it exists, must be upon strong grounds, and a clear manifestation on the part of the legislature, that they designed to withdraw it.

In providing a summary mode of obtaining a decree, the legislature did not intend, by the act of 1833, ch. 181, to limit the general jurisdiction of the court of chancery, (from whose decrees, at all times, the right of appeal exists,) in cases of mortgages.

An appeal will not lie from a decree, which, upon its face, appears to have been made by consent of parties; but such an objection must be taken upon the final hearing, and not upon motion to dismiss.

The agreement for a decree in a mortgage, executed under the act of 1833, is to be regarded only as a consent, to dispense with the intermediate proceedings of subpoena and answer, in order to facilitate a decree, and not that the decree shall be binding at all hazards.

An appeal will not lie from a special and limited jurisdiction, unless, by the act creating such peculiar jurisdiction, the right is expressly given.  

COUNSEL:
On motion to dismiss the appeal.

By     for appellant, and

By JAMES MALCOLM, for the appellee.  

JUDGES:
The cause was argued before DORSEY, C. J., SPENCE, MARTIN and FRICK, J.  

OPINIONBY:
FRICK 

OPINION:

 [*303]  FRICK, J., delivered the opinion of this court.
This is an appeal from a decree obtained in the court of chancery, upon proceedings under a mortgage, had in conformity with the provisions of the act of 1833, ch. 181, relating to mortgages.
A motion is made to dismiss the appeal, upon the proposition argued before this court, that under the true construction of the act, the decree is to be considered a decree by consent, from which no appeal will lie.
The court can find nothing in the act of Assembly, impugning the ordinary right of the party, to appeal from a final decree in chancery; or to justify the construction contended for by the counsel for the appellee.
The 2nd section of the act recites, "(in order to the facilitating the enforcement of mortgages of real estate in the city of Baltimore,) that in all cases of conveyances, by way of mortgage of lands or chattels [**3]  real, in the city of Baltimore, and where in such conveyances the mortgagor shall declare his assent to the passing of a decree, as hereinafter mentioned, it shall and may be lawful for the mortgagees, or their assigns, at any time after filing the same to be recorded, to submit to the chancellor, or to Baltimore county court or any judge 

 [*304]  hereof, the said conveyances, or copies under seal of said county court thereof and the said chancellor, or court, or judge thereof, may thereupon forthwith decree, that the mortgaged premises shall be sold at any one of the periods limited in said conveyances, for the forfeiture of said mortgages, or limited for a default of the mortgagors, and on such terms of sale, as to the chancellor, court or judge, shall seem proper; and shall appoint by said decree a trustee or trustees for making such sale, with requisition of bond and surety, for performing of the trust as is now usual in cases of sales of mortgaged property."
The third and fourth sections of the act provide, in substance, that after the arrival of the period limited for said sale, the mortgagees, their executors, administrators or assigns, before such sale, shall make [**4]  and file a statement of the amount of the mortgage claim remaining due, verified upon oath; and that such sale shall have the same effect if finally ratified, as if it had been made under decrees between the proper parties, and in the usual course of said courts; and upon report of such sale for its consideration, any allegations may be made, and proofs exhibited, to shew that the sales aforesaid ought not to have been made, and the court may reject, and set aside said sale.
Very sound reasons should be required to induce the court to refuse a party the benefit of an appeal; and any interference with the right, wherever it exists, must be upon strong grounds and a clear manifestation on the part of the legislature, that they designed to withdraw it.
Surely it could not have been the intention of the legislature by this act, to limit the general jurisdiction of the courts of chancery in cases of mortgage; more especially in one particular section and locality of the State. The subject is one of appropriate jurisdiction in that court, from whose decrees, at all times, the right of appeal is secured to either party. And by this act of Assembly pointing out a summary mode of proceeding,  [**5]  by which the mortgagee may arrive at a decree, by stipulating for it in his mortgage, it cannot be assumed to limit the general jurisdiction over that large class of cases, upon which this court, as an appellate court, has hitherto exercised its corrective influence.

 [*305]  The proposition is: that in passing decrees under this act the court of chancery exercises only "a special and limited jurisdiction," which in such cases excludes the right of appeal unless expressly given by the act that creates the peculiar jurisdiction; as in the cases cited in 8 G. & J. 443, Wilmington Rail Road Co. vs. Condon, and in 5 Gill 88, Williams vs. Williams. But in those cases the jurisdiction given to the county courts, as in many other similar cases, is manifestly limited and final; and not part of a general jurisdiction, which the act of Assembly leaves as it found it. It simply provides a summary mode of reaching the decree, by dispensing with the subpoena and answer, where the mortgagor shall, in his mortgage declare his assent, upon the terms therein stated. And such is the plan devised by the act. "to facilitate the enforcement of mortgages in the city [**6]  of Baltimore" as expressed by way of preamble and inducement to the act. In every other respect the instrument retains the character of a mortgage, open to all legal objections; not excluding any that may be properly made to the proceedings themselves under the mortgage, as not within the meaning of the act, and which may be a fit and proper subject for litigation and appeal.
But it is confidently urged that the party is here precluded from appeal; the decree when entered being a decree by consent. If this were objected to the decree upon a final hearing, and not upon a motion to dismiss, the objection might well be entertained. Still the court here, regard the agreement only as a consent to dispense with the intermediate proceedings, in order to facilitate a decree;--not that the decree shall be binding at all hazards. For such a purpose, and to estop the party from all objections, the court conceive, that the consent, as is usual, should be part of the decree itself, or endorsed upon it. And this view is supported by the authorities cited on the part of the appellee himself, in 1 Cow. 709.
The court say, "the decree purports to be made by consent. We must take [**7]  the fact as stated in the decree, and from a decree by consent, no appeal or rehearing lies." In Ambler, 229, Bradish vs. Gee, it is said "where a decree is made by consent of counsel, there lies no appeal or rehearing." And 

 [*306]  in the cases further cited in Dick., 38, 1 P. Wms. 734; 3 Gilb. Equ. Rep., 185, the decree itself was pleaded; shewing the evidence of consent was on the face of the decree. Such decrees are common in the Maryland practice, and of course, upon final hearing, such appeal is not entertained, where the assent and decree are one connected act. But here, in the case presented by the act of Assembly, the chancellor enters up a decree prospectively with reference to the possible default of the mortgagor, when in fact no such default may ever happen. So far the party has assented to be bound, by a decree, covering the terms and conditions of the mortgage; and has the party assenting to such decree no right to see that the terms are complied with? Upon such a doctrine the mortgagor would be precluded from shewing, that no decree ought to pass, upon a case made by the petition and mortgage, however defective the allegations [**8]  and the case may be stated. It is certainly his privilege to see, that the decree adopts the terms of the mortgage. And if it does not, can it be contended, that there is no appeal? It may be a question, how far the consent was given; or when given, whether the proceeding and the case was a proper subject for a decree; and finally, as before said, how far the decree corresponds with the terms of consent. If these terms are disregarded in the decree, can it be said to be by his assent?
It cannot be assumed, that the legislature thus constructively intended to abridge a right, so fully recognized within the general chancery jurisdiction, and, as to the subject under consideration, convert that court into one of special and limited powers; thus repealing the old and time-sanctioned provision in favor of justice and right, that "any person aggrieved by a decree in chancery shall have his appeal, 1721, ch. 14, sec. 3. The motion is overruled.
MOTION OVERRULED.  

177 of 187 DOCUMENTS 

ADAM BODE vs. THE STATE OF MARYLAND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Gill 326; 1848 Md. LEXIS 46 

December, 1848, Decided 

PRIOR HISTORY:
 [**1]   ERROR to Baltimore city court.

The plaintiff in error, (the traverser below,) was indicted under the act of 1847, ch. 193, for selling spirituous liquors on the Sabbath day, in the form following, to wit:

"State of MARYLAND--City of Baltimore to wit: The jurors of the State of Maryland, for the body of the city of Baltimore, do, on their oaths, present, that Adam Bode, late of said city, yeoman, on the tenth day of September, in the year of our Lord eighteen hundred and forty-eight, the same day in the year aforesaid being the Sabbath day, commonly called Sunday, with force and arms at the city aforesaid, unlawfully did sell spirituous liquors to a person to the jurors aforesaid unknown, contrary to the form of the act of Assembly, in such case made and provided, and against the peace, government and dignity of the State. And the jurors aforesaid upon their oaths aforesaid, do further present, that the said Adam Bode, on the said tenth day of September, in the year of our Lord eighteen hundred and forty-eight, the same day in the year aforesaid being the Sabbath day, commonly called Sunday, with force and arms, at the city of Baltimore aforesaid, unlawfully did dispose of [**2]  spirituous liquor to a person to the jurors aforesaid unknown, contrary to the form of the act of Assembly in such case made and provided, and against the peace, government and dignity of the State."

The traverser demurred to this indictment, but the court overruled his demurrer, convicted him of the offence, and adjudged and imposed a fine of $ 20 and costs. To review this judgment, the writ of error in this case was sued out by the traverser.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

The act of 1847, ch. 193, prohibiting the sale of spirituous liquors on the Sabbath day, was intended to embrace only the licensed tavern keepers, and the licensed retailers of the liquors and cordials therein designated.

This act has no application to the importer, who is authorised to sell spirituous liquors in the form in which they were imported, without obtaining a license from the State of Maryland, by force of the constitution of the United States, as expounded in the case of Brown vs. The State of Maryland, 12 Wheat., 419.

The right of the State to impose the limitations and prohibitions contained in the act of 1847, upon the class of persons intended to be embraced by it, cannot be doubted.

An indictment founded upon this act will be defective, unless it describe the party accused, as a licensed tavern keeper or a licensed retailer of spirituous liquors, they being the class of persons, upon whom alone, the provisions of the act were designed to operate.

To carry into effect the intention of the legislature in framing this statute, and to enable the courts of criminal jurisdiction to execute its provisions, it is necessary to incorporate into it, by interpretation, the terms, "licensed tavern keepers, and licensed retailers."

Where a statute contains an exception, so incorporated with its enacting clause that the one cannot be read without the other, the rule of pleading is, that the indictment must negative the exception; but where, after general words of prohibition, an exception is created in a subsequent clause or section, it must be interposed by the accused as a matter of defence.

But this rule has no application to an indictment under the act of 1847. That act, by its true construction, being confined and limited, in its character and prohibitions, to a designated class, there are no exceptions to be negatived, or to be pleaded by the accused, as a matter of defence.

The provisions of this act, with respect to the forfeiture of the license of the party convicted a second time for the same offence, clearly establishes the necessity of incorporating into the indictment a description of the party charged. 

COUNSEL:
By JOHN NELSON and REVERDY JOHNSON, for the plaintiff in error, and

By GEORGE R. RICHARDSON, Attorney General, for the defendant in error.  

JUDGES:
The cause was argued before DORSEY, C. J., SPENCE, MARTIN, and FRICK, J.  

OPINIONBY:
MARTIN 

OPINION:

 [*328]  MARTIN, J., delivered the opinion of this court.
This is a writ of error directed to the city court of Baltimore, and brings before us the judgment of that court rendered against the plaintiff in error, upon an indictment, for violating the act of the legislature of Maryland, of 1847, ch. 193.
By the first section of this act, it is declared:
"That it shall not be lawful for any person or persons within this State, to sell, dispose of, or barter any spirituous [**3]  or fermented liquors or cordials of any kind, or in any quantity whatever, on the Sabbath day, usually called Sunday, and any person or persons violating the provisions of this act shall be liable to indictment in any court of this State, having criminal jurisdiction; and upon conviction thereof shall be fined a sum not less than twenty dollars, nor more than one hundred dollars, at the discretion of the court, for the first offence, and if convicted a second time for a like offence the license of the person or persons so offending, shall be declared null and void by the judge of said court."

 [*329]  And by the second section, it is provided;
"That it shall be the duty of the treasurer of the State, or such other person, whose duty it is to have the tavern licenses prepared, to have inserted in said licenses a clause, specially excepting the Sabbath day from the operation of said licenses."
It is perceived from an examination of this statute, that by the terms of the first section the judge, before whom the case is tried, is required, upon a conviction for a second offence, to forfeit the license of the party offending; and by the second section, it is made necessary [**4]  to incorporate into a tavern license a clause excepting from its operations, the Sabbath day; and it is perfectly apparent, from the character of these provisions, that the act only intended to embrace the licensed tavern keepor, and the licensed retailer of the liquors and cordials therein designated.
The act upon which this indictment was founded has no application to the importer, who is authorized to sell spirituous liquors in the form in which they were imported, without obtaining a license from the State of Maryland, by force of the constitution of the United States, as expounded in the case of Brown against the State of Maryland, 12, Wheat., 419. And the point raised in the argument of the cause, with respect to the right of the State in the exercise of its police power, to restrain the importer from a desecration of the Sabbath, by an exhibition of his merchandize for sale on that day, has therefore become a mere abstract and speculative question, upon which it does not become this court to express an opinion. The probability is, that a question of this character will never be presented for the adjudication of the judicial tribunals of the country.
The [**5]  right of the State to impose the limitations and prohibitions contained in the act of 1847, upon the class of persons intended to be embraced by it, cannot be doubted; and the only question to be decided by the court, is that which relates to the sufficiency of the indictment, in point of form, to authorise the judgment rendered by the court below, against the plaintiff in error.
The indictment contains two counts. The first, charges that the defendant unlawfully sold spirituous liquors on Sunday, 

 [*330]  contrary to the form of the act of Assembly; and the allegation in the second is, that the traverser, unlawfully disposed of spiritous liquors on the Sabbath day, to persons unknown, &c. But in neither count, is there to be found an averment, that the plaintiff in error was at the time of the sale of the liquors in question, a tavern keeper or licensed retailer, and his counsel have insisted, that the indictment is in this respect defective, because it should have appeared on its face, that the party accused, belonged to that class of persons, upon whom alone, the provisions of the act were designed to operate.
The indictment is, we think, open to this objection. The point [**6]  indeed has already been determined by the construction we have placed upon the act, under which this defendant was indicted. We have said, that according to the correct exposition of that act, it must be regarded as embracing only licensed tavern keepers and licensed retailers, and assuming this to be its true interpretation, it is perfectly clear upon the settled principles of pleading in criminal cases, that it was incumbent on the State, to bring the party charged within the purview of the statute, by a positive averment that he belonged to that class of persons, who only were restrained from selling upon the Sabbath, and against whom alone the penalties and forfeitures provided by the act, in case of its violation, were intended to be denounced. To carry into effect the intention of the legislature in framing this statute, and to enable the courts of criminal jurisdiction to execute its provisions, it is necessary to incorporate into it, by interpretation, the terms "licensed tavern keepers and licensed retailers." The act is therefore to be read as if the words were, "that it shall not be lawful for any person within this State, being a licensed tavern keeper or licensed  [**7]   retailer, to sell," &c.; and treating this to be the true exposition and reading of the act, the proposition is, we think, incontrovertible that the indictment should have contained on its face a distinct allegation, that the traverser was within the class of persons thus described.
In the case of Spiers vs. Parker, 1 Term. R. 141, it was held, "that in an action for a penalty on a statute, the plaintiff must aver a case which brings the defendant within the act."

 [*331]  The rule of pleading in cases, where, after general words of prohibition, exceptions are created in the enacting clause of a statute, or in a subsequent clause or section, is stated with characteristic precision by Lord Mansfield, in Spiers vs. Parker, already adverted to. He said:
"There is a settled distinction between a proviso in the description of the offence, and a subsequent exemption from the penalty under certain circumstances."
And Ashhurst, J., in the same case, said:
"The rule is, that a man who will bring an action for a penalty on an act of parliament, must shew himself entitled under the enacting clause; but if there be a subsequent exemption, that is a matter [**8]  of defence."
The same doctrine is announced in the case of Steel vs. Smith, cited by the counsel for the defendant in error, 1 Bar. & Ald. 38.
Bayly, J., remarked:--
"I cannot say that the proviso is a part of the same sentence, for if it had been omitted, the preceding sentence would have been entire. I admit that where there is an exception so incorporated with the enacting clause, that the one cannot be read without the other, there the exception must be negatived."
Lord Ellenborough held, that it was not necessary for the plaintiff to notice the exception in his declaration.
He said:--
"The sense of the enacting clause is perfectly complete, and the proviso is so distinct, that several sections might have been interposed between that and the enacting clause, without any prejudice to the sense. That there were no words of reference or of virtual incorporation, but this is a distinct and substantive proviso."
The principle enunciated by the cases to which we have been referred, is admitted, but it has no application, we think, to question of pleading raised on this indictment.
You certainly look to the language of the second section of the act, and to the [**9]  concluding words of the first section, as demonstrative of the intention of the legislature to include within 

 [*332]  its provisions only a designated class. But it is not a case where, after general prohibitory words, exemptions are carved out of the statute, either in its enacting clause or in its subsequent clauses.
This act is to be considered on its true construction, as limited in its character and prohibitions. Confined to a prescribed class. There were no exceptions to be negatived by the indictment; and it was not a case of exemption, to be interposed by the accused, as a matter of defence.
If, however, the case could be treated as an exception in favor of a particular class of individuals, and analogized to the adjudications on the game laws, and similar statutes, the indictment must have negatived the exception, because the exception would necessarily be incorporated into the enacting clause, as descriptive of the persons who could alone be guilty of violating the law.
The counsel for the defendant in error has contended, that the indictment is to be held sufficient, because the offence is charged in the language of the act. This is the doctrine as announced by [**10]  the Court of Appeals, in the case of The State vs. Cassel, 2 H. & G. 407, and in The State vs. Dent, 3 G. & J. 8. As a general principle, it is unquestionably correct.
But what is the offence created by this statute, as correctly expounded? It is not the sale of spirituous liquors upon the Sabbath. It is the sale of such liquors on that day, by persons who have been licensed to deal in the sale of liquors of this description, in conformity with the laws of the State. The character and qualification of the party charged, is a necessary element in the description of the offence. It is conceded that the offence is properly charged so far as regards the act done; the factum of the sale, as the words of the statute, have been pursued. But the objection of the counsel for the plaintiff in error to the indictment, is, that the offender has not been described. The distinction is manifest. The court is not informed from an inspection of this indictment, that Adam Bode is a licensed tavern keeper, or a licensed retailer of spirituous liquors. And the fatal defect is, that the party charged was 

 [*333]  not described as a person within the [**11]  purview of the statute, and capable of perpetrating the prohibited offence.
The necessity of incorporating into the indictment a description of the party charged, is illustrated by the provisions of the act, with respect to the punishment inflicted for this offence.
For the first offence the party is subjected to a fine of not less than twenty nor more than one hundred dollars; but it is provided, "that if he is convicted a second time for a like offence, the license of the person so offending shall be declared null and void by the judge of the court." And it seems to us that it would be impossible for the court to execute this part of the law, unless it appeared upon the face of the indictment, that the party charged was a licensed tavern keeper, or a licensed retailer, and in a predicament, therefore, to be visited with the forfeiture denounced against the commission of a second offence.
It follows from the views thus expressed, that we consider the indictment as defective, and upon that ground reverse the judgment of the city court.
JUDGMENT REVERSED.  

178 of 187 DOCUMENTS 

THE METHODIST PROTESTANT CHURCH, East Baltimore Station, vs. THE MAYOR AND CITY COUNCIL OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Gill 391; 1848 Md. LEXIS 6 

June, 1848, Decided 

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

On the 28th April, 1847, the appellants, the trustees of the Methodist Protestant Church, East Baltimore Station, filed their bill in the equity side of Baltimore County Court, in which they allege that in their corporate capacity, they are the owners of a certain lot of ground situated on the corner of Pitt and Aisquith streets, in the city of Baltimore, on which is erected a building regularly used as a place of public worship, by the religious society embodied under the said corporate name. That this lot and building was so owned and occupied, at the time the Mayor and City Council of Baltimore, passed an ordinance providing for the opening and widening "Little Aisquith street," approved on the 20th April, 1846, and has ever since been so owned and occupied. That by the act of 1817, ch. 148, full power was given to said Mayor and City Council to open, extend, widen or straighten any street in said city, "upon the application in writing, of the proprietors of not less than two-thirds of any property which may be intended to be taken for such purpose," and by the act of 1838, ch. 226, like power was given them, to provide for laying out, opening,  [**2]  extending, widening, straightening or closing up, in whole or in part any street in said city, "which, in their opinion, the public welfare or convenience may require;" that on the 9th March, 1841, the said Mayor and City Council passed an ordinance entitled "an ordinance for exercising certain powers vested in this corporation, in relation to streets in the city of Baltimore," by which a board of commissioners was created, with power and authority according to the provisions of the acts of Assembly, and ordinances of the corporation of said city, to open, &c., any street, &c. in said city, and to assess and tax the expenses thereof as thereby directed, "subject, nevertheless, to all such restrictions exempting certain descriptions of property from assessment, as are contained in any law of this State, or in this ordinance, or any other ordinance of this city;" that by the laws of this State and ordinances of the city of Baltimore, houses for public worship are exempt from any tax to the State or the city.

That afterwards on the 20th April, 1846, said Mayor and City Council passed another ordinance providing for the widening of "Little Aisquith street," by which, among other things [**3]  it was ordered that the commissioners for opening streets, should proceed in all respects in the widening of said street, agreeably to the provisions of the said ordinance of the 9th March, 1841, but that by said ordinance of the 20th April, 1846, it was not declared, and does not in any manner appear whether the widening of said street was determined on upon the application in writing of the proprietors of not less than two-thirds of the property intended to be taken in so widening said street; or whether in the opinion of the said Mayor and City Council, the public welfare and convenience required it; and that upon an inspection of the premises and of the plats made by said street commissioners, it manifestly appears that the widening of said street, as proposed, will not conduce to the public welfare and convenience; that said street commissioners not regarding the acts of Assembly and ordinances of the said city corporation, and the rights, privileges and exemptions of your orator, did not give the notice of sixty days required by the ordinance of March, 1841, before entering upon the duties assigned them, and did not in any manner conform thereto, but did assess the said lot and [**4]  building a large sum of money, as and for a benefit conferred by the widening of said street, and that in other particulars their proceedings were erroneous and contrary to law, and in violation of the rights of your orator; that the collector of taxes for said city, acting under the direction of said city corporation, was about to sell said property for the payment of said tax. The bill then prays for an injunction restraining said corporation and its agents from attempting further to enforce said tax against your orator, and that the proceedings of said street commissioners may be quashed, and for general relief. On the same day the injunction was granted as prayed by Baltimore County Court.

The answer of the Mayor and City Council of Baltimore to this bill, filed on the 9th July, 1847, admits the complainant to be a corporation and owner of the lot and building mentioned in the bill, but denies that said building is regularly used as a place of public worship by the religious society embodied under the corporate name of the complainant, and avers that said building, which is not connected with the complainant's meeting house, but separated from it by a private alley, consists [**5]  of a two story brick house, the upper story of which is occupied by the sexton of complainant and his family as a dwelling house, and the lower story of which is used for the Sunday School of complainant and its class meetings and prayer meetings. That complainant so used and occupied said building at the time of the passage of the ordinance of the 20th April, 1846. Respondent admits the passage of the acts of Assembly and the ordinance of the 9th March, 1841, referred to in the bill, and also that of the 20th April, 1846, for the widening of "Little Aisquith street," and avers that the public welfare and convenience required the widening thereof, and that the ordinance so passed, was passed because in the judgment of the respondent it was required by the public welfare and convenience. That the street commissioners entered upon their duties in regard to the widening of said street on the 20th April, 1846, and gave notice by advertisement inserted on the following day, and afterwards published in two of the daily newspapers published in the city of Baltimore, that they would proceed on the 24th June next ensuing, at 4 o'clock in the afternoon, at their office, to exercise the power [**6]  and perform the duty assigned them, in regard to widening Little Aisquith street, agreeably to the provisions of an ordinance, entitled "An ordinance for the widening of Little Aisquith street," and of the ordinance, entitled "An ordinance to provide for exercising certain powers vested in this corporation, in relation to streets in Baltimore city," and according to appointment, proceeded to perform their said duty, and in so doing, assessed upon the said lot and building of the complainant, the sum of seventeen dollars, as and for a benefit conferred by the widening of said street,--and that the collector of this corporation is bound and will collect said assessment, unless restrained by this court. That this corporation in passing said ordinances, have, in all respects, observed the requisitions of the act of 1838, referred to in the bill, and that said street commissioners have strictly followed the said act and ordinances, and that all acts and proceedings in the premises are well and lawfully done, and should be enforced. Respondent further saith, that by the ordinances aforesaid, an appeal to Baltimore City Court is allowed to all persons improperly assessed by the commissioners [**7]  of streets of the city of Baltimore, and that in said court, and not here, the case set forth in said bill is cognizable; and this respondent denies the jurisdiction of this court in the premises, and prays to have benefit of this objection, as if formally pleaded.

The deposition of Zaccheus O. Bond, taken before a justice of the peace, by consent of parties, was filed in the cause. The witness deposes, that the building spoken of is used for public worship, and also for a Sabbath School. A room up stairs is occupied by the sexton of the church. The room down stairs is open twice a week for public worship, and almost every evening in the week, (Sundays excepted,) it is open for business appertaining to the church. The public worship to which he refers, is prayer-meeting one night in the week, preaching another night. The class-meetings are held there through the day, nearly every day. The building is never open for public worship when the church is open. The attendance in this building is fewer than in the church. The prayer-meetings and preaching in this building are open acts of worship, and parts of the religious services of the Methodist Protestant Church.

The cause was [**8]  then removed to the Court of Chancery, and submitted upon motion to dissolve the injunction. The Chancellor (JOHNSON) on the 29th July, 1847, dissolved the injunction, and delivered the following opinion:--

The bill in this case was filed on the equity side of Baltimore County Court, and subsequently transferred to this court, under the provisions of the act of Assembly for that purpose.

It seeks to restrain, by injunction, the Mayor and City Council of Baltimore and their agents, from proceeding to collect a tax and assessment, which had been imposed upon the property of the complainant, as and for a benefit, which in the judgment of the street commissioners of the city of Baltimore, had been conferred upon their property by the widening of Little Aisquith street. The interposition of the court is asked upon the ground, that the commissioners in imposing the tax, have acted in disregard of the acts of Assembly, the ordinances of the Mayor and City Council in the premises; and especially in violation of those provisions of the laws and ordinances, which exempt this property of the complainants from taxation. The injunction was ordered, and after answer filed, the proceedings [**9]  were transferred to this court, in which the motion to dissolve has been argued by the solicitors of the parties.

The bill alleges, that upon the lot of ground upon which the tax has been assessed, there is erected a building, regularly used as a place of public worship, and it is contended, that such property is, by the laws of this State and the ordinances of the city, exempt from taxation for any purpose. The answer denies the allegation as to the use of the building, and some proof has been taken in regard to the character of the building, and its use as a place of public worship. And the answer also insists, that by the ordinances of the city upon the subject of opening and widening streets, an appeal to Baltimore City Court is allowed to all persons improperly assessed by the street commissioners, and that in that court, and not here, the case made by the bill is cognizable,--and, therefore, the jurisdiction of the Chancery Court is denied.

The Chancellor concurs in this view of the subject, and for that reason, forbears to express an opinion upon the other questions which have been argued by the counsel.

It was said by the court of Appeals, in the case of Gott and Wilson vs. Carr, 6 Gill & Johns. 312, [**10]  that "it is a salutary principle of law, that every person is bound to take care of, and protect his own rights and interests, and to vindicate them in due season, and in the proper place;" and because the complainant in that case did not vindicate his rights in due season, and in the proper place, the interposition of the Chancery Court in his favor was refused.

I think the principle of that case applies to this. The act of 1838, ch. 226, which gives to the corporate authorities of Baltimore, to lay out, open and widen streets, &c directs among other things, that they shall have power to provide for granting appeals to Baltimore City Court, from the decisions of the commissioners, and to secure to every person interested in such decisions, the trial by jury, on application within a reasonable time. And the 9th sec. of the ordinance of the City, No. 10, of 1841, approved on the 9th March of that year, which is an ordinance for exercising the powers vested in the city by the act of 1838, ch. 226, confers upon persons who may be dissatisfied with the assessment of damages or benefits, which may be made by the commissioners, the right of appeal within a limited and reasonable time,  [**11]  to the judges of Baltimore City Court, and gives to the said judges, power to hear and fully examine the subject, and decide thereon, with a provision for summoning a jury, to try any question of fact. And a similar provision in reference to the right of appeal, is made by the 9th sec. of the ordinance, No. 59, of 1846.

The street in question was widened under ordinance, No. 49, of 1846, which directs that the street commissioners shall proceed, in all respects, in the widening of the street, agreeably to the provisions of the ordinance of the 9th March, 1841, and consequently, the right of appeal to the City Court, secured by the latter ordinance, might have been enjoyed by any person conceiving himself aggrieved by the judgment of the commissioners. It seems to me, that the remedy thus provided for the examination and correction, (if erroneous) of the proceedings of the commissioners, should have been taken by these complainants, and that they have no right, passing by that remedy, to invoke the extraordinary power of a Court of Chancery, to interpose by way of injunction for their relief. The injunction will consequently be dissolved.

From this order, the complainant appealed [**12]  to this court.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

The legislature, by the acts of 1817, ch. 148, and 1838, ch. 226, conferred certain powers upon the corporate authorities of the city of Baltimore, in relation to the opening and widening of streets in said city. Held,

That it is not essential to the validity of an ordinance of said corporation, executing the powers thus conferred, that it should state or indicate the act in execution of which it was passed.

If no power be stated as its basis, the ordinance will be regarded as emanating from that which would have warranted its passage; and if two such powers exist, it may be imputed to either, in conformity to which, its provisions show it to have been adopted.

The power to determine whether or not the public welfare and convenience require the widening of any particular street, is, by the act of 1838, ch. 226, vested exclusively in the Mayor and City Council, and whether their judgment be right or wrong, is no subject for revision or correction in a court of equity.

When notice to all persons interested in the opening or widening of any street, has been duly given by publication, as required by the act of 1838, ignorance thereof, in any party, can afford him no ground for relief, either in equity, or by appeal to the City Court. The law imputes notice, and will not admit testimony to disprove it.

The Court of Chancery, except as an appellate tribunal, never interferes to arrest, or set aside, the proceedings of courts of law, or other judicial tribunals, upon the ground of legal error therein, unless prompted by conscience, to prevent wrong and injustice, but leaves the party complainant to his remedy at law.

Where a party fails to avail himself of the means provided by law, for the redress of the wrong of which he complains, he is without remedy in a court of Chancery.

The law having given to parties considering themselves aggrieved by the proceedings of the street commissioners of the City of Baltimore, an appeal to Baltimore City Court, they can successfully seek redress only in that tribunal.

The testimony of but one witness is clearly insufficient to overthrow the responsive and positive denials of an answer.  

COUNSEL:
T. P. SCOTT for the appellant, insisted:--

1st. That the ordinance of the 20th April, 1846, and the proceedings of the city commissioners do not show affirmatively, nor does it appear negatively, whether Little Aisquith street was to be opened and widened under the act of 1817, on the application of two-thirds of the proprietors of the ground, or under the act of 1838, because of the requirements for public convenience. There is no evidence of any application of proprietors under the act of 1817. It manifestly appears from the terms of the ordinance of the 20th April, 1846, that the public convenience will not be promoted by the proposed change. The city commissioners did not proceed, in conformity with the provisions of the ordinance of the 9th March, 1841, as directed by the ordinance of April, 1846. They did not give sixty days notice, as required by the former ordinance, and assessed the property of the appellant contrary thereto.

2d. That though provision is made under said acts and ordinances for an appeal from the decision of the commissioners, yet the appellant is not thereby precluded from his remedy by injunction; because,  [**13]  it had no actual notice in fact of the assessment complained of, until the attempt was made to enforce it by sale of the property. The whole proceedings of the city commissioners being coram non-judice, the appellant was not bound by any mere constructive notice. Though in an action of ejectment, brought by any purchaser of this property, the appellant might defend itself at law; yet to avoid circuity of action, needless and expensive litigation, and for more prompt, efficient and adequate justice under the peculiar circumstances of this case, it is entitled to its remedy by injunction.

CAMPBELL and WILSON for the appellee, contended:--

1st. That the notice given by the commissioners was given in conformity with the act of 1838, ch. 226, in its 2d section, and also with the 6th section of the ordinance of 1846, No. 59. That the building assessed is no house for public worship, and if it were, is not exempt from an assessment for benefits.

2d. That the remedy of the party is misconceived, even if the objections above answered were good. The City Court of Baltimore being provided for by law to entertain such questions.  

JUDGES:
The cause was argued before DORSEY, C. J., SPENCE [**14]  and MARTIN, J.  

OPINIONBY:
DORSEY 

OPINION:

 [*399]  DORSEY, C. J., delivered the opinion of this court.
Various grounds have been assigned by the complainant, why the injunction issued in this case, should not have been dissolved. And first, it is insisted, that the ordinance, of the 20th April, 1846, No. 49, for the opening of Aisquith street, is invalid, because it is not apparent on its face, whether it was passed in execution of the powers delegated to the Mayor and City Council of Baltimore, by the act of 1817, ch. 148, or by the act of 1838, ch. 226. It is not essential to the validity of an ordinance, executing powers conferred by the legislature, that it should state, or indicate, the power in execution, of which the ordinance was passed. If it state no particular power, as its basis, judicial courtesy requires that we should regard it as emanating from that power, which would have warranted its passage. If two such powers exist, it may be imputed to either; in conformity to which its provisions and prerequisites shew, that it has been adopted. If, in these respects, in accordance with both, no incongruity or injustice can result, in regarding it as the offspring of both,  [**15]  or either of 

 [*400]  the powers. It is, therefore, no fatal objection to the proceedings of the city commissioners, that they do not, therein distinctly unfold under what act of Assembly, or ordinance their powers were exerted. If sustainable on either, their proceedings cannot be invalidated on that ground, in a court of equity.
The allegation and offer to prove in the bill, that the public welfare or convenience does not require the widening of Aisquith street, furnishes no ground for relief, by the interference of a Court of Chancery. By the act of 1838, ch. 226, the determination of that question is exclusively vested in the Mayor and City Council of Baltimore; and whether their judgment be right or wrong, is no subject for revision or correction in a court of equity.
The appellant seeks to sustain the injunction issued in its behalf, on the ground, that it "had no actual notice in fact of the assessment complained of, until the attempt was made to enforce such assessment by a sale of its property." If such fact were at all material, it is a sufficient answer to it, to state, that it is unsustained by any proof; and that the bill discloses no such ground for equitable [**16]  relief; and that for aught appearing therein, it might be true, that the complainant had full knowledge of every proceeding of the city commissioners at the time it occurred: and could, in the mode prescribed by the act of 1838, by an appeal to the City Court of Baltimore, have been amply protected and redressed against all the illegality and injustice of which it now complains. But, it is immaterial whether such "actual notice in fact" were given to, or possessed by the complainant or not. By the act of 1838, the legislature have provided the mode, by which all persons are to be notified, whose interests are to be affected by the widening, opening, or straightening of streets in the city of Baltimore; and the time during which such notice shall be published in the newspapers. Which being complied with; ignorance thereof, in any owner on whose property benefits have been assessed, is his misfortune or his fault, but can furnish no 

 [*401]  ground for relief to him, either on a bill in equity, or an appeal to the City Court.
Before the Mayor and City Council of Baltimore could proceed to execute the powers vested in them by the act of 1838, at least sixty days notice [**17]  must be given of any application, which may be made for the passage of any ordinance, by advertisement, in at least two of the daily newspapers in the city of Baltimore. And "before any commissioners, appointed by any ordinance to be passed in virtue of this act, shall proceed to the performance of their duty, they shall give notice in at least two of the daily newspapers in the city of Baltimore, of the subject of the ordinance, under which they propose to act, at least thirty days before the time of their first meeting, to execute the same." And it is further enacted, "That upon the return of any assessment to be made under any ordinance, to be passed in virtue of this act, the register of the city of Baltimore, shall cause a copy of said assessment to be published for thirty days, in at least two of the daily newspapers of said city." It is not pretended that all these publications have not been regularly made pursuant to the provisions of the act of Assembly. Against the validity of such proceedings, a want of notice in point of fact can form no objection. The law imputes notice, and will not admit testimony to disprove it, in a case like the present. The time for [**18]  an appeal from any such assessment, is thirty days after the register's publication.
The ordinance of 9th March, 1841, No. 10, sec. 6, requires sixty days previous notice of the meeting of the commissioners to discharge their duties, to be published in at least two daily newspapers of the city of Baltimore: whereas, the act of 1838, in virtue of which that ordinance was passed, required the publication of such notice for but thirty days. Without deeming it necessary to inquire, whether the commissioners have not legally executed their powers, by giving the notices specified in the act of Assembly, it may be sufficient to say, that this objection, as to the time during which the notice was given, is, of itself, of a purely legal or technical 

 [*402]  character; and it not being even pretended, that the complainant was damnified thereby, it forms not the slightest ground for equitable relief; much less for the interposition of a court of equity, by way of injunction. A Court of Chancery, except when acting as an appellate tribunal, never interferes to arrest or set aside the proceedings of courts of law, or other judicial tribunals, upon the ground of legal error therein, unless [**19]  prompted by conscience to prevent wrong and injustice; but leaves the party complainant to his redress in a court of law.
As an authority that an appellant having failed to avail himself of the means provided by law for the redress of the wrong of which he complains, (the means in this case being an appeal to the City Court,) is without remedy in a Court of Chancery. See the case of Gott & Wilson vs. Carr, 6 G. & J. 309.
Another, and it is conceived, a conclusive objection to the injunction issued in this case, is, that by the 9th section of the ordinance of March 9th, 1841, No. 10, and of May 15th, 1846, No. 59, on an appeal from the proceedings of the commissioners, the City Court are authorized, after an examination into the same, in the mode therein pointed out, to amend or supply all defects and omissions in the return and proceedings of the commissioners, "and alter, modify and correct the said record of proceedings in all, or any of its parts," as it "shall deem just and proper." To the Court of Chancery or County Court, sitting as a court of equity, no such power is delegated; nor can it be lawfully or judiciously exercised by those tribunals. To persons [**20]  aggrieved by the proceedings of the commissioners in cases like the present, the legislative enactments upon the subject have provided the tribunal and means of redress, and there only can it be successfully sought.
To sustain a court of equity, in the exercise of the power it has assumed, would, in effect, be conferring upon it appellate authority, where it is wholly incompetent to administer justice and render full and adequate relief to all concerned; on whose rights, if it act at all, it ought to adjudicate. There is no 

 [*403]  time prescribed within which, such an application must be made. A complainant may wait until the proceedings of the commissioners are, in part, or wholly, except as to himself, executed by the widening, opening, or straightening the street, and then apply for relief to a court of equity. To tolerate such an interference, as the present, would produce endless confusion and difficulty; and would be wholly inconsistent with, and subversive of the policy and design of the acts of Assembly, and ordinances of the Mayor and City Council of Baltimore, in relation to the widening, opening and straightening of streets, and would render, almost impracticable,  [**21]  if not annihilate the exercise of such a power.
But if it were conceded, that the case stated by the bill, warranted the issuing of the injunction, it was rightly dissolved by the Chancellor. The allegation that the property, charged with the assessment for benefits, was a house for public worship, was responsively and positively denied by the answer; and to disprove and overrule such denial, the testimony of but one witness was offered; which was clearly insufficient for that purpose.
Whether the testimony of that witness, unaffected by the answer, shewed the house in question, to be such a house for public worship as was included in the exemption contained in the ordinances referred to, it is deemed unnecessary to consider.
The order of the Chancellor dissolving the injunction in this case is affirmed with costs; and the bill of complaint of the appellant, is dismissed with costs, both in this court and the court below.
DECREE AFFIRMED.  

179 of 187 DOCUMENTS 

MARTIN SMITH vs. THE STATE OF MARYLAND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Gill 425; 1848 Md. LEXIS 8 

June, 1848, Decided 

PRIOR HISTORY:
 [**1]   WRIT OF ERROR to Baltimore City Court.

At the October term, 1845, of Baltimore City Court, Martin Smith, the appellant, was indicted for leasing a house to one Dorcas Smith with the knowledge that the said Dorcas Smith intended to keep therein a common bawdy house. The indictment is as follows:--

"The jurors, &c. do on their oath, present that Martin Smith, late, &c. on the second day September, 1845, with force and arms, at, &c. unlawfully, willfully, and knowingly, did let a certain house, there situate, of him the said Martin Smith, to one Dorcas Smith, with an intent that the said Dorcas Smith should afterwards, and during the continuance of such lease thereof, then keep and maintain the said house as a common bawdy house; and that afterwards, and during the continuance of such lease thereof, to wit: on the day and year aforesaid, and on divers other days and times, between that day and the day of taking of this inquisition, at the city of Baltimore aforesaid, the said Dorcas Smith did actually keep and maintain the said house, as a common bawdy house, to the great scandal of all the liege inhabitants of the said State, to the evil example of all others in the like case [**2]  offending, and against the peace, government, and dignity of the State. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said Martin Smith afterwards, to wit--on the second day of September, in the year of our Lord, 1845, with force and arms, at the City of Baltimore aforesaid, unlawfully and knowingly, did let out a certain other house, there situate, which said last mentioned house, he the said Martin Smith, then and there had the control of, and the power of letting out, to one Dorcas Smith, with intent that the said Dorcas Smith should afterwards, and during the continuance of such lease thereof, there keep and maintain the said last mentioned house, as a common bawdy house; and that afterwards, and during the continuance of such lease thereof, to wit, on the day and year aforesaid, and on divers other days and times, between that day and the day of taking this inquisition, at the City of Baltimore aforesaid, the said Dorcas Smith actually did keep and maintain the said last mentioned house as a common bawdy house, to the great scandal of all the liege citizens of the said State, to the evil example of all others, in the like case offending, and [**3]  against the peace, government and dignity of the State."

To this indictment, the defendant pleaded not guilty, and the case being submitted to the court, the court (BRICE, C. J. NISBET and WORTHINGTON, A. J.,) declared the defendant guilty of the misdemeanor as above charged against him. The defendant then entered a motion in arrest of judgment and assigned for cause:--

1st. Because the indictment sets forth no crime under the laws of this State.

2d. Because the indictment sets forth no indictable matter.

The court overruled this motion, and imposed a fine of $ 20 and costs upon the defendant, and who sued out a writ of error to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

Leasing to another a house, with the intent of its being used as a common bawdy house, is an offence indictable at common law.

There can be no doubt that the keeper of a house of this description may be indicted, and he who leases to another a house, with the intent of its being so used, is particeps criminis--an aider and abettor in the misdemeanor.

The indictment must contain a certain description of the crime, and a statement of the facts by which it is constituted; but it need not state when the lease commenced, or was to end.  

COUNSEL:
By WALSH for the appellant, who cited 1 Eva. Har. 502. 2 Chitty's C. L. 5. 13 Pick. 169. 17 Pick. 83. 2 S. & R. 298. 5 Iredell, 603, 606. 2 Hill, 558, and

By RICHARDSON, Attorney General, for the appellee.  

JUDGES:
The cause was argued before DORSEY, C. J., SPENCE, MAGRUDER and MARTIN, J.  

OPINIONBY:
MAGRUDER 

OPINION:

 [*427]  MAGRUDER, J., delivered the opinion of this court.
The appellant in this case was convicted, in Baltimore City Court, of letting out to Dorcas Smith, a house in the City of  [**4]  Baltimore, with intent that she should keep and maintain the same as a common bawdy house, and which, afterwards and during the continuance of the lease, was kept as a house of that description.
It appears by the record, that there was a motion in arrest of judgment, and the following reasons were assigned. 1st. Because the indictment sets forth no crime under the laws of the State, and 2d. Because the indictment sets forth no indictable matter. The motion was overruled, and this court is now to decide, whether the court below erred therein.
It may be that none of us can recollect any case like this, which was prosecuted with success in any court of Maryland. But it cannot be inferred, from the mere circumstance, that a particular offence has never been punished, that there is no law to authorize its punishment. A jury may never have been furnished with the requisite proof, or if in some instances the proof was furnished, on which to ground such a prosecution 

 [*428]  and yet, no presentment was made, such neglect of duty is no evidence of the non-existence of a law, which made it the duty of the jury, to present it as a misdemeanor. An answer to what was urged on this subject [**5]  may be found in the Court's opinion, in the case of The State vs. Buchanan, in 5 H. & J. 317. A learned judge of a sister State, in answer to the argument, that the offence now under consideration, is "intangible by legal punishment," observed, "if any of the attributes of the common law, may be said to stand above the rest in point of excellence, its well known power of pursuing iniquity through all disguises, of stripping from crime the forms under which it seeks to mask itself, and dragging the offender from the dark recesses of fraudulent evasion, has seemed to me to occupy that position."
It cannot be denied, that the keeper of a house of this description, may be indicted at common law, and surely he who leases to another a house, with the intent of its being so used, is particeps criminis, an aider and abettor in the misdemeanor. It is true, that in the case of Brockway vs. The People, 2 Hill's N. Y. Reports, page 550, two judges decided, that for such an act the lessor could not be prosecuted, but with the reasoning of the judge who pronounced the opinion in that case, we are not satisfied. We cannot think that the act of furnishing a house [**6]  for such an iniquitous purpose, "is more remote, or indirect than the sending of an insulting and provoking message to another, for the express purpose of inducing him to return a challenge." Yet an indictment for sending such a letter has been sustained, see 6 East 464, and the correctness of that decision in not doubted by the court, in the case of Brockway. From that opinion too, one of the judges dissented, and we think his reasoning upon the point most satisfactory, although the precedents with which we have been furnished, would not authorize us to say, that the indictment must charge the owner of the house with being the keeper of it. We have also the decision in the case of Commonwealth vs. Carrington, 3 Pick. that such an act is a misdemeanor, see also 2 Wash. 5, and 5 Iredell 606.

 [*429]  We cannot, therefore, say that the offence charged in this case, is not one which is punishable by indictment.
Other objections to the indictment were taken at the bar, none of which are considered to be fatal. We cannot suppose that it was necessary to state when the lease commenced, or was to end. It would be in vain to prosecute, if in order [**7]  to support the indictment, this proof, it may be in the possession only of the offending parties, was required. Perhaps the phrase "let out," is not the most appropriate, but its meaning is quite plain.
It cannot be said, that this is a prosecution against Dorcas Smith, as well as the appellant. Her name, and what is alleged of her, are introduced of necessity, in stating the offence, for which the appellant is put upon trial. The concluding words are required in every indictment, and refer not to the acts of Dorcas, but to those of the appellant, which are charged to be against the peace, government and dignity of the State. Many indictments are to be found in the books, to which the same objection might have been made, and which seem to be sufficient. See for example, indictments for receiving stolen goods knowing them to be stolen.
It does not appear to us that any of the reasons assigned in support of this motion, require us to say, that the offence here charged, is not described with convenient certainty, so as to enable the court to impose the proper fine; or enable the defendant to make his defence, or to plead the indictment in bar to any subsequent proceeding. In [**8]  the case of The State vs. Buchanan, 5 H. & J. the court said, "an indictment must contain a certain description of the crime, of which the defendant is accused, and a statement of the facts by which it is constituted." We think the indictment in this case has these requirements, and that without calling in question, some of the principles recognized in that case, we cannot disturb this judgment.
JUDGMENT AFFIRMED.  

180 of 187 DOCUMENTS 

JANE REBECCA GRIFFITH, JAMES S. KEYS AND RUTH HIS WIFE et al. vs. PETER REIGART AND WIFE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Gill 445; 1848 Md. LEXIS 10 

June, 1848, Decided 

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

On the 29th March, 1839, a bill was filed on the equity side of said court, by Margaret Hermange and Mary H. Hannon, for the sale of certain real estate lying in the city of Baltimore, which had been mortgaged to the complainants by one George Riston, and afterwards conveyed by said Riston to Henry B. Griffith, who had deceased prior to the filing of the bill, and whose widow and heirs were made defendants. The proceedings in the case prior to the decree are immaterial to the questions involved in this appeal. The decree for a sale of the mortgaged premises was passed on the 4th September, 1839. The property was sold on the 30th April, 1840, and on the 2d October, of the same year, the auditor stated his first account by which a large surplus of the proceeds, after satisfaction of the mortgage debts, was assigned to the widow and heirs of said Griffith. This account was not ratified, but ordered to stand for hearing, and on the 5th November, of the same year, the auditor stated a second account correcting an error in the interest allowed to the complainant, Margaret Hermange. The widow of Griffith then filed her petition,  [**2]  claiming her proportion of the proceeds of sale in lieu of her dower, and the administrators of said Griffith filed their claim for the refunding of over-payments made by them as administrators. No notice was given to creditors to file their claims, and no further auditor's account stated until the 15th April, 1845.

On the 2d April, 1845, the appellees, Peter Reigart and Catharine, (formerly Catharine Diffenderfer) his wife, filed in the cause their petition, in which they allege that said Griffith in his life time was indebted to the petitioner, Catharine, in the sum of $ 2,000, with interest, on his promissory note to her for that sum. That in the year 1841, after the death of said Griffith, his personal estate being insufficient for the payment of his debts, the said Catharine filed her bill in the Court of Chancery against the widow and heirs-at-law of the said Griffith, for the sale of certain real estate of the deceased, situated in Montgomery County, for the payment of her said claim. That on the 18th May, 1841, a decree was passed for the sale of said real estate, which was accordingly sold, but the proceeds were insufficient to pay said claim, leaving a balance of $ 948 [**3]  76, with interest from the 18th June, 1842, still remaining due, as will appear by the auditor's second report and account, dated the 4th January, 1843, and ratified by the Chancellor, on the 6th of the same month. The petition then charges that the surplus in the hands of the trustees in this case, which has been assigned by the auditor to the heirs of said Griffith, is applicable to the payment of the claim of the petitioners, and prays that an order to that effect may be passed.

To this claim set up in this petition, the widow and heirs of Henry B. Griffith, pleaded the statute of limitations.

On the 15th April, 1845, the auditor filed a third report, in which he states that the claim of Reigart and wife had been filed, but as the plea of limitations had been filed thereto, it had not been stated. On the same day the court again referred the case to the auditor with directions to state a new account in which the sum of $ 1,050, is to be reserved to answer the claim of Reigart and wife, and granted leave to the petitioners to take testimony before the auditor in support of their claim. Under this leave, the record of the proceedings on the bill filed in Chancery in 1841,  [**4]  by the appellee, Catharine, referred to in the petition, was then filed in the cause. By this record it appears that the bill in that case, was filed on the 20th January, 1841, by Catharine Diffenderfer, alleging that said Henry B. Griffith, was, in his life time, indebted unto the complainant in the sum of $ 2,000, on a certain promissory note for that amount made by the said Griffith, by the name of "H. B. Griffith & Co." and a certain William Street, as his surety, dated the 31st December, 1831, and payable to the order of complainant three months after date, as will appear by the note which is exhibited with the bill. The bill then particularly describes certain real estate, situated in Montgomery County, of which said Griffith, died seized and possessed, and after averring the insufficiency of his personal estate for payment of his debts, prays that the said real estate may be sold for the payment of the claim of complainant. The defendants to this bill were the widow and heirs-at-law of said H. B. Griffith, the same who were parties to the proceedings in Baltimore County Court. Two of the heirs who were infants answered by guardian, the other defendants by counsel, admitting [**5]  the facts stated in the bill, and submitting to such decree as the court might deem proper. Proof was then taken establishing the claim of the complainant, the insufficiency of the personal assets, and the relationship of the defendants. And on the 18th May, 1841, the Chancellor passed a decree "that the real estate in the proceedings mentioned, whereof Henry B. Griffith died seized, shall be sold for the payment of his debts," &c. The sales were then made and finally ratified in April and October, 1842. The auditor then filed two accounts, the second of which was ratified on the 6th January, 1843, and showed the balance before stated, of the claim of the complainant to be still due and unpaid.

Upon this proof, the auditor of Baltimore County Court filed his fourth report and account, on the 26th April, 1845, allowing the claim of the appellees, which by agreement, was, if recoverable, stated to amount to $ 1,126 06.

To this account the appellants filed exceptions. 1st. On the ground that it was barred by limitations. 2d. That the personal estate of Griffith was not yet collected and exhausted. These exceptions the court (LE GRAND, A. J.,) overruled and ordered the claim [**6]  of Reigart and wife as stated in said account to be allowed, and the said account to be finally ratified and confirmed. From this decree the present appeal was taken.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

A decree of the Court of Chancery upon a creditor's bill, finally and conclusively establishes the claim of the complainant creditor, and the insufficiency of the personal estate to pay the same, and prevents the running of limitations against the claim, as a simple contract debt.

The case of Belt, Wright & Carroll vs. Diggs and others, decided at June term, 1836, is not in conflict with the decision in this case.  

COUNSEL:
GLENN and MCMAHON, for the appellants, insisted:--

1st. That the statute of limitations running against the claim until the filing of the petition in April, 1845, was a clear bar to it, unless there be something in the proceedings on the bill filed by Mrs. Reigart, in 1841, changing the nature of the original claim or removing the bar of the statute.

2d. That there is nothing in the proceedings in said chancery cause, changing the original nature of the claim of Mrs. Reigart, against said Griffith, as a simple contract debt.

3d. That the answers in that case, filed in April, 1841, are insufficient to take the claim out of the statute, and were never of any avail for that purpose, as it regards the answers put in by guardian for the infant defendants.

4th. That there was no sufficient proof of the exhaustion of the personal estate.

By DAVID STEWART and WM. GEORGE BAKER for the appellees.

As to the first objection, that the claim is barred by limitations, the appellees [**7]  contend that limitations do not bar, for the claim is not founded on the note of Henry B. Griffith, but on the decree of the Court of Chancery, a court of competent jurisdiction, made between proper parties, the same who are parties to the cause in Baltimore County Court, the widow and heirs of the deceased. It is not contended, that the decree in Chancery establishes any personal claim against the heirs and widow of the deceased, but that it establishes, finally and conclusively, a claim against all the real estate of which the deceased died seized, and the proceeds of all such real estate.

That the decree in a creditor's bill establishes the claim of the complainant in the cause, finally and conclusively, is settled beyond controversy. Strike's case, 1 Bland, 68. Strike vs. McDonald & Son, 2 H. & G. 261. Williamson vs. Wilson, 1 Bland, 441. Hammond vs. Hammond, 2 Bland, 359. Simmons vs. Tongue, 3 Bland, 353.

As to the second objection, not only does the decree establish the claim, but it establishes that the personal assets are insufficient for the payment of the debt. See same cases above cited, and McKubin vs. Brown, 1 Bland, 415. The ground of these decisions is, that [**8]  in order to obtain a decree for the sale of the real estate, both the claim, and the insufficiency of the personal estate to pay it, must first be proved. When a decree is passed, it shows that the claim has been proved, and that the insufficiency of the personal estate has been proved.

Besides, it is admitted in this cause, not only that the personal estate is insufficient, but that it has been more than exhausted; the administrators having been in the auditor's fourth account, allowed by agreement, $ 2,000, for over-payments made by them as administrators.

But it has been contended by the appellant's solicitors, that the decree in Chancery only establishes the claim in that particular case; that it does not change the original nature of Mrs. Reigart's claim, as a simple contract debt, with reference to the case in Baltimore County Court.

The general rule of evidence, in regard as well to decrees in equity as judgments at law, is, that they are binding on all parties and privies, as well in other cases in which they are adduced in evidence, as in the cases themselves in which such judgments or decrees are passed. Decrees in equity are binding on all who are parties [**9]  to the cause, and all claiming under them, or represented by them. Story's Eq. Pleading, 608. 1 Stark. Ev. 253. Manigault vs. Dreas, 1 Baily's Eq. (S.C.) 293. And there is nothing in this case to take it out of the operation of the general rule. The decree in question established two facts:--1st. The complainant had a just and valid claim against the deceased, Henry B. Griffith. 2d. That his personal assets were insufficient for the payment of the debt so established. Against whom were those facts established? Against the widow, the heirs and administrators of the deceased debtor, the parties defendant, and inasmuch as it was a creditor's bill, and the creditors were required to come in and prove their claims, against the creditors of the deceased also. By the establishment of these two facts, all the real estate of which the debtor died seized, became liable for the payment of the debt so established. The remedy applied by the Court of Chancery, was a decree for the sale of the Montgomery County lands, which were all the real estate of the deceased debtor, except that in Baltimore city, which had been previously sold by order of Baltimore County Court, but the remedy thus applied,  [**10]  did not limit the binding operation of the facts so established, as against the widow and heirs, merely to the lands in Montgomery County; for the complainant had no specific lien against those lands, as distinguished from other real estate of the debtor: her claim against the real estate arose not by contract, as by mortgage or other specific lien, but was given by act of Assembly, not against any specific portion, but against all and every part of the real estate; all is made amenable to the satisfaction of her claim.

If the Chancery proceeding be regarded as a proceeding in rem, it is submitted that from the character of the bill, being a creditor's bill, it is a proceeding against all the real estate of the deceased. The complainant is first bound to exhaust the Montgomery County lands; but the proceeds of those lands having been exhausted, the decree still remains operative to establish the debt and insufficiency of personal assets, as against all other real estate of which Henry B. Griffith died seized, and the proceeds thereof.

Further, assuming that the debt of the complainant is not made by the decree, so far a decree debt, as to constitute the decree, the foundation [**11]  of a further proceeding against the heirs as to other real estate of the deceased, it is submitted, that the application of proceeds of the sale towards the payment of the complainant's claim by the auditor's accounts ratified by the Chancellor, operates to remove the bar of limitations as to the balances then remaining due for three years from said ratifications, and before the expiration of three years from the ratification of the last auditor's account, the claim was filed in Baltimore County Court, the auditor's second account having been ratified 6th January, 1843, and the claim filed before 15th April, 1845.

It will be observed that according to the usual course of the court, the decree in the chancery cause requires notice to be given to the creditors of the deceased, that in conformity thereto notice was given, and inasmuch as no creditor produced a claim except the complainant, it must be presumed that the complainant is the only creditor, and in fact, no exception having been taken on the ground of there being other creditors, none can be taken in this court.

As to the third objection, the costs incurred by the exhibition of the claim are rightfully allowed by the [**12]  auditor; when the estate is solvent, as in this case, even the costs of re-stating the account by the auditor are to be paid by the estate, Dorsey vs. Hammond, 1 Bland, 468; but here the claim was filed before the auditor's account was stated; and the account was required to be stated, to state the claim of the administrator as agreed on: Besides in this case there is no ground to impute laches to the appellees in not sooner filing their claim, inasmuch as notice to creditors was not given, as in cases where the proceeds of the real estate of a deceased debtor are to be distributed, there ought to have been, according to the course of the court in such cases.

For these reasons it is submitted, that the order of the court below should be affirmed.  

JUDGES:
The cause was argued before DORSEY, C. J., SPENCE, MARTIN and FRICK, J.  

OPINIONBY:
SPENCE 

OPINION:

 [*451]  SPENCE, J., delivered the opinion of this court.
On the 29th March, 1839, Margaret Hermange and Mary H. Hannon filed their bill in Baltimore County Court, as a court of equity, for the sale of certain real estate, situated in the city of Baltimore, which had been mortgaged by George Riston to Margaret Hermange [**13]  and another, and afterwards conveyed by Riston to Henry B. Griffith, who died prior to the 

 [*452]  filing of this bill, and whose widow and heirs were defendants.
On the 4th September, 1839, a decree was passed for the sale of the real estate, which was sold on the 30th April, 1840. The auditor filed his first account on the 2d October, 1840, a second on the 5th November, 1840, and the third on the 15th April, 1845, before which time the claim of the appellees was filed in the cause.
This claim is stated to have arisen as follows:--
Catharine Diffenderfer, one of the appellees, who afterwards intermarried with Philip Reigart, the other appellee, was a creditor of Henry B. Griffith, deceased, on his note for $ 2,000. The personal estate of Henry B. Griffith being insufficient for the payment of his debts, on the 20th January, 1841, the said Catharine filed in the Court of Chancery a creditor's bill, setting forth her claim, and alleging the insufficiency of Griffith's personal estate to pay his debts. The widow and heirs of Griffith, by their answers, admitted the truth of the charges in the bill.
Under the commission to take testimony, the [**14]  execution of the note to the said Catharine, and the insufficiency of the personal estate of the said Griffith, were proved by competent testimony.
On the 18th May, 1841, the Chancellor decreed the sale of the real estate of said H. B. Griffith, in Montgomery County. By virtue of said decree, the lands were sold by the trustee. On the 25th October, 1842, the auditor's first account was ratified, which established the claim of the appellants, and his second, on the 6th January, 1843. This last account of the auditor shows that a large part of the complainant's claim is unsatisfied. It is to obtain the payment of this unsatisfied balance of this claim out of the surplus of the proceeds, after payment of the mortgage debt, of the real estate sold by the decree of Baltimore County Court, this application is made.
The widow and heirs of H. B. Griffith pleaded the act of limitations to this claim, and excepted to the auditor's account, which allowed the same. The court overruled the exceptions, 

 [*453]  and ratified the auditor's account, and from this order of the court thus ratifying the auditor's account, this appeal is taken.
The decree of the Chancellor [**15]  of the 18th May, 1841, decided the insufficiency of the personal estate of Henry B. Griffith to pay his debts, and the decree for the sale of the real estate for the satisfaction of this debt, is a final decision in favor of the claim of this creditor, on the ground that the decree can only be passed, upon the establishment of the debt. But it is said in support of the plea of limitations, that it is a decree in rem, and this is true; but, it at the same time ascertains and decides the indebtedness of the deceased, and the insufficiency of his personal estate to pay the same. If the decree in this case is to be viewed and taken as passed by a court of competent jurisdiction, to adjudge and determine the indebtedness, and the law subjects the real estate of all persons who die indebted, not leaving personal estate sufficient to pay their debts, to be thus applied, what sound objection can be advanced, that an adjudication thus made, should not be deemed and considered at the date of the decree, as a judgment, final and conclusive of the debt, and insufficiency of the personal estate to pay the debt?
It was insisted in the argument, that the decision of this court at June term,  [**16]  1836, in the case of Belt, Wright & Carroll vs. Diggs et al. was in conflict with this view of this question. But upon examination, it will be found that that case is distinguishable from the one now under consideration. The decree in that case was for the sale of specific property, which had been mortgaged for the payment of a specific debt for which the mortgagor was not personally liable, and the legal estate being in the mortgagee, the office of the decree was to do nothing more than by a sale, to divest the equitable interest, to pay the debt for which the mortgaged premises only were answerable. It would not be contended for a moment, that under a decree to foreclose such a mortgage, that the personal liability of the mortgagor, or any other property or estate than that embraced and described in the mortgage and decree, could be affected thereby. Whereas, the decree on a creditor's bill 

 [*454]  for the payment of debts is general, "the real estate or so much thereof as is necessary for the payment of the debts." The fund which the petition in this case prays may be applied to the payment of this debt, is the surplus proceeds of real estate, after the payment of the mortgaged [**17]  debt in the hands of the trustee; and, as we think, the statute of limitations is not a bar, we affirm the order of the court below.
DECREE AFFIRMED.  

181 of 187 DOCUMENTS 

NATHANIEL WILLIAMS AND JOHN PRENTISS, Executors and Trustees under the Will of JAMES MOSHER, vs. ELIZA M. MOSHER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Gill 454; 1848 Md. LEXIS 11 

June, 1848, Decided 

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

The appellee filed her bill on the 21st January, 1847, alleging that James Mosher, of Baltimore city, died in the year 1845, seized and possessed of a large and valuable real and personal estate, having first executed a last will and testament and five codicils thereto. That the appellants, named as executors in the first codicil, had taken out letters testamentary on the estate of the testator, and entered upon the discharge of their duties as executors. That complainant is the widow of James Mosher, Jr. deceased, a son of the testator, by whom she had three children, all of whom were alive at the date of the last codicil to the will. That by the true construction of the will, the surplus income of the testator's estate, after payment of all debts, legacies, annuities and other charges, was to be invested, and no distribution thereof made until the events therein mentioned should happen. But your oratrix is advised and charges, that by the legal effect and operation of the several codicils, and particularly by virtue of the fourth codicil or memorandum, ratified by the last codicil, the said investment of surplus income is rescinded and revoked,  [**2]  and the executors are requested and directed to appropriate a part of said surplus to your oratrix, for the benefit of her children, and out of the residue, if any, to allow $ 150 for the benefit of the family of Dr. Williams, which last provision is subsequently modified by the last codicil in the manner therein mentioned. That upon the whole effect and construction of said will and codicils,--and until the final settlement of the estate, that is until all the annuities shall cease and fall in, there is no other use or purpose to which the annually accruing surplus can be applied, than for the benefit of your oratrix's said children; and she charges that said surplus is equitably designed for the benefit of her said children, and ought to be so decreed as their rights. That if the executors have a discretionary power to determine what part of the same should be appropriated for the benefit of said children, a court of equity will, if necessary, compel them to exercise a sound discretion, by appropriating the whole, or a substantial part thereof, to that purpose.

The bill further charges, that the debts of the testator have been fully paid, and there will hereafter remain an annual [**3]  surplus in the hands of the executors, of no very large amount, which they are willing to apply to the benefit of the children of the complainant, if any discretion is vested in them, and they shall be protected in so doing by the authority of this court, at least until said annual surplus shall exceed the annuity bequeathed by the last of said codicils, for the benefit of the family of Dr. Williams. The bill then prays that the executors may account in this court for the personal estate and the income of the real estate of their testator received by them, and for an order directing said executors to appropriate the surplus income now in hand, or hereafter to arise from said estate, to your oratrix, to be applied by her for the benefit of her children, and for general relief.

Exhibit A, filed with the bill in the will of James Mosher, executed on the 13th February, 1840. By this will, the testator first devises to his wife, Elizabeth Mosher, in lieu of dower, and of her thirds of his personal estate.--First, a negro woman named Margaret, who, with her increase, is to be free after the death of his said wife, and to receive thereafter during life, an annuity of Twenty Dollars,  [**4]  to be paid by his executors out of his estate, unless his said wife should express in writing, her disapprobation of said Margaret's conduct. Secondly, he gives to his said wife during her natural life, his dwelling-house and office, in front thereof, situated on the south side of Fayette street, between Charles and St. Paul's street, in the city of Baltimore; the taxes and insurance on the same to be paid out of the income of his other estate and property: and in case said house should be destroyed by fire, then his wife, at her option, was to be furnished with another house, at a rent not exceeding $ 150, or be paid that sum in quarter-yearly instalments, out of his general estate, for the remainder of her life. Thirdly, he gives to his said wife during life, an annuity of $ 200, over and above the annuity or ground rent of $ 100 50, secured to her by his marriage contract, which annuity of $ 200, with the ground rent aforesaid, is to be paid to her in quarter-yearly instalments.

Then, after the bequest of freedom to his negro woman, Belinda and her increase, upon certain specified conditions, the will proceeds: "I give and devise unto my friend, Nathaniel Williams, Esq. and [**5]  my nephew, George R. Mosher, both of the city of Baltimore, the whole of my estate and property, real, personal and mixed, not herein otherwise specifically disposed of, and all debts, rights and claims whatsoever, to which I shall be entitled at the time of my decease, to have and to hold the same, to them and the survivor of them, and the heirs, executors and administrators of the survivor, in trust for the purposes hereinafter expressed."

The will then gives the said trustees the power of leasing or letting out any part of the real estate, for such time and on such conditions as to them shall appear most beneficial, and directs them, in case Lewis Nickerson, the grandson of his wife, should be living at the time of his death, "to make, if in their discretion it be necessary, some provision for him, say about Fifty Dollars per annum, if the same shall be justified by the condition of my estate, to assist in educating, raising and fitting him for some useful trade;" "the provision for him may be continued so long during his minority, as the said trustees may think proper." He then directs said trustees to pay to his niece, Isabella Mosher, so long as she remains unmarried, an [**6]  annuity of $ 100, in semi-annual instalments, out of the interest arising on a single bill of her brother, George R. Mosher, for $ 4,500 so long as said debt, or enough of it to raise said annuity, shall remain unpaid, and afterwards out of his general estate.

He then further directs said trustees to pay out of the income of his estate the sum of Twenty-five Dollars, towards educating each of the three younger children (naming them,) of Charles Nickerson, the son of his said wife, until they respectively attain the age of fifteen years. He then relinquishes his right, if he acquired any by marriage, to certain property on south Liberty street, in said city, and devises the same to Jane L. Nickerson, the daughter of his said wife. The trustees are then directed to apply annually the sum of $ 200, towards the maintenance and support of the family of William Mosher, a son of the testator, during his life, no part of which is in any event to be applicable to the payment of any debts contracted, or to be contracted by said William. And in the event of the death of his said son, William, leaving his present wife surviving him without a child, the trustees are directed to pay her out [**7]  of his estate, an annual sum of $ 200, in such instalments as may be convenient, so long as she remains the widow of said William; "if in the opinion and judgment of said trustees, or the survivor of them, the same shall be necessary for her comfort and support, and not otherwise." The will then proceeds: "I will and desire that the clear income of my estate, if any thing remain after the application annually, or otherwise, of the several sums of money hereinbefore charged thereon, shall be invested in such manner as my said trustees, or the survivor of them, shall think proper, and so on from time to time, until a final distribution of my estate be made as hereinafter directed. Upon the decease of my aforesaid son, William, I will and desire that a distribution of my estate be made among all my grand-children, to wit: the children of my late son, James Mosher, and the children of my aforesaid son, William, provided any child he shall have, all my said grand-children to take per capita, reserving, however, in the hands of the said trustees for future distribution, if necessary, so much of my estate as will be sufficient to countervail and pay the several annuities or sums of money,  [**8]  hereinbefore provided for the several annuitants or persons hereinbefore named, until the same shall have ceased, when a final distribution shall be made in manner aforesaid, and I hereby authorize and empower the aforesaid trustees and the survivor of them, to make any sale, disposition or deed of conveyance of my estate and property, that may be requisite and proper for making such final distribution, and for otherwise carrying into full effect the provisions of this my will." The said Nathaniel Williams and George R. Mosher are then appointed executors.

By the first codicil to this will executed on the 11th August, 1841, the testator appoints John Prentiss, of Baltimore County co-executor and devisee in trust with said Nathaniel Williams, in place of said George R. Mosher, who had recently died, and authorizes said executors to pay annually out of the testator's general estate the sum of $ 100, to his niece, Isabella Mosher, so long as she remains single and unmarried, provided said annuity cannot be raised from the debt owing from her brother mentioned in the will, and also an annuity or yearly sum not exceeding fifty dollars, to Jane L. Nickerson, the daughter of his said [**9]  wife (in case she should survive her mother and need assistance) so long as she remains single and unmarried, and also to contribute, in their discretion, during the continuance of their trust the annual sum of ten dollars, towards the support of free schools in the city of Baltimore.

By a second codicil executed on the 30th November, 1841, the testator gives an additional annuity of $ 200 to his wife during life, and also an additional annuity of $ 100 to his niece, Isabella Mosher, during her single life, and directs that the several annuities mentioned in the will should take effect from the time of his decease.

By a third codicil executed on the 13th December, 1841, he revokes the previous disposition made of his servant, Margaret, and manumits her absolutely at the expiration of six months from the time of his death, and gives her a legacy of twenty dollars.

The following memorandum was signed by the testator on 3d of June, 1842, in presence of Neilson Poe. "It is the desire of James Mosher, that if his estate should accumulate beyond the amount required to pay the legacies and bequests in his will, his executors, in their discretion, shall appropriate a part of [**10]  the surplus to Mrs. Eliza M. Mosher, for the benefit of her children until the estate shall be finally settled, and fifty dollars for the benefit of the family of his son Dr. William Mosher, and should such an accumulation accrue from the death of his wife, he desires that his executors will appropriate occasionally, according to their best discretion, the amount of $ 200 per annum, for the benefit of the children of Charles V. Nickerson, that is, for their support and education, until they shall have been provided for by learning some useful trade or profession, or shall have arrived at the age of seventeen years."

By a fourth codicil, duly executed on the 1st May, 1843, the above memorandum was confirmed by the testator and adopted as a part of his will, excepting the sum bequeathed for the benefit of the family of his son William, which was revoked, and the sum originally given in the will for that purpose, was increased to $ 600, on the same terms and conditions as are prescribed in the will for the original bequest.

The anwers of the executors, filed at the same time with the bill, states that they have paid the debts of the deceased and settled up his estate in the [**11]  Orphans court. They further state, that as trustees, they are desirous to settle an account before this court, and herewith file a statement of all their receipts and payments, for and on account of the said estate, and are content to make any distribution, in the discretion of this court, of the balance in their hands. They, however, suggest a doubt whether the complainant is entitled to any payment from said estate for the purposes set forth in her bill, until all or a part of the annuitants are deceased, all being at this time living.

The cause was then referred to the auditor, who on the 25th March, 1847, filed his report and account, in which he charged the trustees with the amount admitted to have been received by them, and credited them with commissions at five per cent. on the amount collected by themselves, and one-half per cent. on the residue, consisting of certain ground rents, for the collection of which they had paid to an agent, a commission of seven and a half per cent. the tax of ten per cent. being deducted and assigned to the State; with sundry disbursements made by them in the discharge of their duties, &c. leaving a balance in their hands of $ 470, subject [**12]  to the order of this court, which the auditor suggests, with the future annual surplus of the estate, should, upon proper proof as to their necessities, be paid over to the complainant for the use and benefit of her children. The allowance claimed by the trustees for a fee paid their solicitor for preparing their answer to the bill was rejected.

To this report the defendants excepted. 1st. Because the auditor awards to the complainant the surplus in the hands of the trustees; whereas, they submit, whether the true construction of the will and codicils of the testator entitles her to such surplus in the present condition of the annuitants who are all in full life, and whether, therefore, these defendants would be justified in paying over the same to her. 2d. To the rejection of a solicitor's fee of fifty dollars actually paid by them for drawing their answer and making up their account in the case. 3. To the allowance of only five per cent. commission on the amount of proceeds actually collected by them, there being for further security two trustees, whereas the business is almost necessarily done by one, and inasmuch as the Orphans court of Baltimore County, with a knowledge of [**13]  the trouble and care required for an exact attention to the estate, allowed for the part of the estate administered before them a commission of eight and a half per cent. 4th. Because the auditor only allows one-half of one per cent. on certain small ground rents, and which require for their collection, an old experienced collector who does not think himself over paid by seven and a half per cent., and only consents to continue to take the trouble because he was accustomed to do so for the testator, and being specially urged thereto by the trustees. 5th. Because the auditor allows tax on the commissions, on behalf of the State, although the testator died on the 27th March, 1845, immediately after which the duties of these defendants commenced, and the act under which the allowance has been made only began to take effect on the 2d June following.

This report and the exceptions thereto being submitted, the Chancellor (JOHNSON) on the 9th April, 1847, passed the following order:--

"The report of the auditor in this case and the exceptions taken thereto, having been submitted without argument, by an agreement filed on the 7th instant, the proceedings have been since read and [**14]  considered. It is the opinion of the Chancellor, that the memorandum to the will of the late James Mosher, and which is adopted and confirmed as a part thereof by his last codicil, executed on the 1st May, 1843, appropriates in the event which has happened, a part of the surplus of his estate, after paying the previous charges thereon, to Mrs. Eliza M. Mosher, the complainant, for the benefit of her children, until the estate shall be finally settled. In order, however, that a sound discretion may be exercised upon the subject, in determining what portion of such surplus shall be so applied, it would seem proper that evidence should be introduced, showing the situation and wants of the children to be benefitted by such appropriation.

"The Chancellor does not think, as stated in the bill, that until the final settlement of the estate, there is no other purpose to which the annual surplus of the estate can be applied; on the contrary, he thinks that the provision in the will of the deceased, that the clear income of his estate, after the payment of the sums charged upon it, shall be invested in such manner as his trustees may think proper, would attach to such surplus, and continue [**15]  to control its application, until the period for the final distribution shall arrive, according to the direction of the will. The distribution of the surplus appearing to be in the hands of the trustees, will therefore be reserved, until some proof shall be offered in regard to the conditions and necessities of the children of the complainant. The other exceptions on the part of the defendants, are not in the opinion of the Chancellor well taken, and will be overruled. It is thereupon ordered this 9th April, 1847, that the report of the auditor of the 17th March, 1847, so far as relates to the charges against and the allowances made to the trustees, be, and the same is hereby ratified and confirmed; and it is further ordered, that the application of the surplus in the hands of the trustees be suspended, until further order, and that the parties have leave to take depositions in reference thereto, before a justice of the peace, upon giving three days notice to the opposite parties, or their solicitor; provided, that the depositions so to be taken, be filed in the Chancery office, on or before the 20th May next. All exceptions at variance with this order, are overruled and rejected.  [**16]  "

From this order, the defendants appealed, and at the same time, stated the following grounds upon which their appeal was taken:--

It is the desire and intention of the defendants to appeal to the Court of Appeals from the Chancellor's decree, in overruling the exceptions taken by them to the report of the auditor, in the following particulars:--

First, wherein the auditor disallowed the fee of Fifty Dollars paid to their solicitor.

Second, wherein the auditor only allowed the defendants five per cent. commissions.

Third, whereas the auditor only allowed the defendants one-half of one per cent. on the amount collected by them through a collector.

Fourth, wherein the auditor makes a deduction of ten per cent. from the defendant's commissions, on behalf of the State.

The defendants decline to appeal from the decision of the Chancellor, in favor of the complainant.  

DISPOSITION:
ORDER AFFIRMED.  

HEADNOTES:

The appellants were appointed executors and trustees under the will of J. M. who died on the 27th March, 1845. Held, that the commissions of these trustees were subject to the tax of ten per cent. in favor of the State, imposed by the act of 1844, ch. 187, though that act did not go into effect until the 2d June, 1845.

The auditor allowed the trustees five per cent. commission upon certain rents of the trust estate, collected by them in person, and one-half per cent. on others, for collecting which, they had previously paid an agent seven and a half per cent. and rejected their claim for a solicitor's fee, paid for preparing their answer in this cause. Held, that these allowances and this rejection were properly made.  

COUNSEL:
By N. WILLIAMS for the appellants, and

By R. J. BRENT for the appellee.  

JUDGES:
The cause was submitted without argument to the court--DORSEY, C. J., SPENCE, MARTIN and MAGRUDER, J.  

OPINION:

 [*463]  By the court:
ORDER AFFIRMED.  

182 of 187 DOCUMENTS 

ASHTON ALEXANDER AND JOHN WILSON vs. THE MAYOR AND CITY COUNCIL OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Gill 383; 1847 Md. LEXIS 34 

December, 1847, Decided 

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

The bill of the appellants, Ashton Alexander and John Wilson, filed on the 26th January, 1847, charged that by an act of the General Assembly of Maryland, passed at its December session, 1838, chapter 226, entitled "An act to vest certain powers in the corporation of the city of Baltimore, in relation to streets," the State of Maryland purports and attempts to confer upon the Mayor and City Council of Baltimore, the full power and authority to provide for opening, laying out and extending, widening, straightening, or closing up, in whole, or in part, any street, square, lane or alley, within the bounds of said city, which, in their opinion, the public welfare or convenience may require; and bestows upon this municipal corporation, the unbounded privilege (heretofore regarded as one of the transcendant attributes of sovereignty) of taking private property and taxing, (and that even under a scheme of partial and arbitrary taxation) and for the taxes charged, selling real estate within the said city; that the said corporation, seeking to provide for the exercise of the powers thus proffered to it by the legislature, passed (on the 9th March, 1841)  [**2]  an ordinance, No. 10, entitled, "An ordinance to provide for exercising certain powers vested in the corporation," in relation to streets in the city of Baltimore, authorizing the appointment of commissioners, to act in effecting the extending, and opening, and changing streets, lanes and alleys, as aforesaid, under said act of Assembly, and the taking of property, and the taxation, (upon the partial basis as aforesaid) and the enforcement of taxation aforesaid, to which ordinance your orators refer; that under said ordinance, there were appointed commissioners, who are and have been acting as such, to wit: Anthony Miltenberger, John Dushane and John F. Hoss; that by an ordinance of said corporation, passed the 15th April, 1835, entitled "An ordinance providing for the extension of Fayette street, the said corporation required that Fayette street should be extended easterly from the east side of Gay street across Johnes' Falls, and thence to go in a straight line until it should strike the line of the south side of Pitt street, so connecting and opening into one continued street, Fayette street and Pitt street, said ordinance, among other things, providing and enjoining, as your orators [**3]  charge, that for said extension of Fayette street, and any expenses and damages therefor, any property on Baltimore street should not be assessed or charged, although, as your orators state, said Baltimore street is parallel with Fayette street, and next thereto, and within the possible, if not indeed the probable range of fair assessment, even upon the partial scheme of taxation prescribed by the said general ordinance, passed for carrying out the said act of Assembly; and said ordinance for extending Fayette street, also exempts the said corporation (constituted, as the incorporating act shows, of the inhabitants of the city of Baltimore) from any expense, cost or charge, in relation to, or connected with, said extension of Fayette street, except the building of a bridge over Jones' Falls; and as regards assessment on property held by said corporation, that the commissioners aforesaid proceeded in the office aforesaid, of extending and opening Fayette street, under color of the last mentioned ordinance, by ascertaining and assessing the value of the property, to be taken and appropriated for the said object, and the necessary expenditures, and assessing the amount and damages accordingly,  [**4]  not as a debt and burden of the public and of the city at large, but (in the terms and spirit of said general ordinance) upon particular individuals and corporations, judged (and conjecturally assumed, as your orators believe and charge) by said commissioners to be benefited by said work of extension and opening, in respect of pieces of ground owned by them on or near Fayette or Pitt street, among which parties so charged were certain religious congregations, whose taxation in that respect was of a large amount in all; that on an appeal from said assessment, and taxation of said commissioners, taken to Baltimore City Court, under the general ordinance aforesaid, the said religious congregations were absolved and declared exempt by said court from said assessment and taxation, and from all charge and taxation whatsoever, for or relative to said extension and opening; that thereupon, most unjustly and arbitrarily, and without reference to special benefits of any of the other parties charged, flowing from said extension and opening, the amount of the said taxation from which said religious congregations were relieved, was charged and apportioned (and most unequally too, apportioned) upon [**5]  and among the remaining taxed parties aforesaid, of which number are your orators; the taxation in some instances being made double the amount assessed as aforesaid by said commissioners; that they were not parties to said appeal, and were unrepresented and undefended before said City Court, as was the case with many of said parties, thus subjected to the increased and aggravated taxation aforesaid; nor had your orators any notice whatsoever of any claim or design or pretension whatsoever, to augment as aforesaid the said taxation already imposed on them by said commissioners, and not brought into question by your orators, nor submitted to the action of said City Court by any appeal on their part; that the tax on your orator Alexander's property, which, by the assessment of the commissioners was $ 368, is now, by the arbitrary increase aforesaid, $ 436 49; and that your orator Wilson's said tax, from (as is believed) $ 162, is increased to $ 220 68; that sales were made for the benefit and uses of said extension and opening of certain property taken for said project, and to an amount exceeding eighteen hundred dollars, which amount your orators insist and charge should in the taxation [**6]  reviewed and determined upon under said appeal, have been abated from the whole assessment, and been deducted rateably and distributively from the respective assessments of the parties charged; but your orators charge that no such abatement nor any allowance or consideration whatsoever, for or of said proceeds of sale, was made or had upon the final adjustment and determination aforesaid of the said taxation, in said City Court; that said entire assessment of said commissioners was thus in manner and arbitrarily as aforesaid, passed upon and finally determined by the verdict of a jury in the said City Court, on appeal aforesaid, and under the direction of the judges of said court. And thereby your orators are taxed and required to pay the amounts aforesaid, specified for and in respect of said extension and opening of Fayette street, and the said amounts are claimed from them respectively under the said oppressive and invalid act of Assembly, ordinances and proceedings of commissioners, and of jury and court; and the real estate of your orators respectively, in respect of which they are taxed as aforesaid, is liable to be sold and threatened to be sold to satisfy said unjust requirements;  [**7]  that said final assessment has been returned by the City Court aforesaid, to the Register of the city of Baltimore, and that the collector of taxes for said city, Henry Snyder, is accordingly now claiming payment of the several amounts of assessment aforesaid from your orators respectively, and in default of payment, the several pieces of ground, for which your orators are so taxed, are on the 11th February, 1847, to be advertised to be sold; and your orators are thus in jeopardy of their estate, from the operation of a law, ordinances, and proceedings, contrary to the acknowledged principles of constitutional law, and in defiance of all the safeguards of the citizen's property, and civil liberties; for your orators maintain that not only have the proceedings as now detailed by your orators under said ordinances, been most irregular and arbitrary, and the partial character of the said taxation been most oppressive, but that the said act of Assembly bestowing the supreme powers upon the said corporation is unconstitutional and invalid, as delegating to a subordinate agency, an authority and discretion peculiar to the sovereign power, and to abide with it, and to be exercised by that [**8]  sovereignty directly and exclusively. But notwithstanding all these irregularities and oppressive procedures, and the utter invalidity of said act of Assembly, and the virtual usurpation of power, although colorably conferred by said act, asserted by said corporation, and to which your orators are about to be subjected, by the penalty of having their property sold, and themselves divested of their rightful estates, the claims aforesaid against your orators are persisted in, and your orators are in imminent hazard of the unjust and onerous exactions aforesaid, all which is against equity, and much to the grievance of your orators. In tender consideration whereof, and for and to the end that the said corporation, the Mayor and City Council of Baltimore, may answer the premises, and that said corporation be perpetually enjoined, and prohibited from selling the property aforesaid of your orators respectively, for and in regard to which, they severally are as aforesaid assessed and taxed, and from in any wise claiming, or proceeding to obtain payment of said assessments and taxes from your orators, and that your orators may respectively have such further and other relief in the premises,  [**9]  as may seem proper. Prayer for injunction, enjoining and prohibiting the selling, or offering to sell, any of the property aforesaid, of your orators respectively, for or on account of the assessment, taxation and charges aforesaid against your orators respectively, or any of their property, and from in any wise claiming or proceeding upon, or in relation to said assessments, taxations and charges, until this court's further order in the premises.

The Chancellor (JOHNSON) refused the injunction, stating he could not regard the act of Assembly as unconstitutional; and for the alleged improper conduct of the commissioners, redress might have been had by appeal.

On the 10th day of March, 1847, the solicitor of the complainants filed in the said cause an attested copy of the said bill, with the following opinion and order of the Honorable STEVENSON ARCHER, Chief Judge of the Court of Appeals.

Opinion of ARCHER, C. J. of Maryland.

I think it cannot be contended, at this day, that the act of Assembly of 1838, ch. 226, is unconstitutional.

The appropriation of private property to public use is undoubtedly a high sovereign power; but the practice of our State, from [**10]  the formation of our government, has sanctioned the delegation of this power to subordinate jurisdictions, both judicial, and municipal.

The power of legislation is a high sovereign power, yet even that has been delegated with certain limitations to municipal corporations, and the power has never been disputed, but has been expressly sanctioned by judicial decision.

Judicial tribunals have been empowered from time to time to open roads for the public convenience, and the county commissioners or levy courts in some of the counties, possess, and exercise that power.

It is not perceived that the assessment of benefits equivalent to damages, if, in fact, the benefits are equal to the damages, on particular districts benefited, can be objectionable. Upon such principles, the roads in the counties are opened; the expenses are either levied on the counties generally, or on the petitioners immediately benefited. Why are roads opened? It is upon the ground that they are conducive to the general welfare; yet the expenses of opening them are levied not on the State, but upon the county benefited, in some instances; and in other instances, on a more circumscribed locality, if that [**11]  should be found to be more immediately benefited. The determination that assessment of expenses cannot be made, as was contemplated to be done under this law, would in fact overturn nearly our whole system of county and city expenditures, and county and city taxes. The welfare of the whole State is promoted by the prosperity of each part, and the prosperity of each part is promoted by convenient highways; yet who would say, that the taxation for opening a road in one county, must, for these reasons, be laid upon the whole State? These roads promote the public welfare, yet the expenses are laid on the particular district more immediately benefited. This has been sanctioned by the practice of the government since its organization, and even in the counties, (where particular districts are peculiarly benefited, or presumed to be benefited, from the fact that persons petitioning for a given road) the expenses are levied or may be levied on the persons applying, instead of subjecting the whole county to taxation for the road.

Applying this practice of the State authorities, which has existed so long, to the principles upon which the law of 1838 is based, and I am clearly of opinion [**12]  that no objection can be taken on constitutional grounds to the law of 1838, certainly in point of justice none can be taken. Each man according to the theory of this law, paying according and only equivalent to the amounts of his benefits, from the particular improvement made.

It is no objection to the mode in which this power has been executed by the city, that she pays no expenses, except that she is taxed with others for the benefits conferred on her property by the opening of the street; such a procedure is only equivalent to saying, that if the benefits are not equal to the damages, and the street cannot be opened in that way, it shall not be opened at all;--or in other words, there shall not be a general tax for opening the street. The law does not, nor does the ordinance, require any man to pay more than his benefits shall be valued at. The act of 1838, ch. 226, no doubt contemplated that the benefits from the opening of a street should be assessed on all the property within the city, benefited by such improvement; and if it had satisfactorily appeared, that property benefited by such opening was exempted by the city authorities from the proposed taxation, no doubt the [**13]  ordinance would be void, because, instead of carrying out the intention of the legislature, it would have been a violation of the system of taxation which the law proposed. But the ordinance for opening Fayette street does not indicate in any of its provisions, that the property on Baltimore street, which it exempts from taxation, would be benefited by the opening of Fayette street; on the contrary, the presumption from such exemption is, that it was the opinion of the City Council that it was not benefited, and therefore should not be assessed. There is nothing in the ordinance to show that any property on Baltimore street was benefited, nor is there any averment in the bill that the property on Baltimore street was benefited. The only averment is, that Baltimore street is parallel with Fayette street, and next thereto, and that it is within the possible, if not indeed the probable range of fair assessment.

When the exercise of so high and extraordinary a power is called for, as the granting an injunction, attended with such consequences as the granting of this would be, I must see clearly and distinctly that a positive injury has been inflicted. It will not do in such a case [**14]  to act on possibilities or probabilities. Suppose the injunction granted, it may turn out that by the exemption of property on Baltimore street, no injury has been done to the complainants, because the property on Baltimore street has not been benefited. Nay, it may appear that Baltimore street, being a great through fare from east to west through the city, is, instead of being benefited materially, prejudiced by the opening of another street, (Fayette) parallel to it, through the city from east to west, and near thereto, by means of which the travel and business of the street is diverted to the street to be opened, and the property thereon situated thereby materially lessened in value.

The other allegations in the bill do not furnish any ground for an injunction. I have accordingly endorsed on the bill, in pursuance of the act of 1832, ch. 197, my refusal to grant the injunction.

From the refusal of the Chancellor to grant an injunction, the complainants prosecuted this appeal.  

DISPOSITION:
ORDER AFFIRMED.  

HEADNOTES:

The act of 1838, ch. 226, enacted that the M. and C. C. of Baltimore should have full power to provide for laying out, opening, extending, &c., in whole or in part, any street, &c. within the bounds of said city, which in their opinion the public welfare or convenience may require; to provide for ascertaining whether any, and what amount, in value of, damage will be caused thereby, and what amount of benefit will thereby accrue to the owner &c. of any ground within or adjacent to said city, for which such owner &c. ought to be compensated, or ought to pay compensation, and to provide for assessing and levying either generally on the whole assessable property within the said city, or specially on the property of persons benefited, the whole or any part of the amount of damages and expenses which might be incurred; to provide for granting appeals to Baltimore City Court, from decisions of any commissioners who might be appointed under the authority of the city, &c. securing a review of the assessment by a jury. Held, that this act was a constitutional exercise of legislative power, and all proceedings of the city in conformity to it valid.

The power of appropriating to a public use the property of individuals, when public necessity or utility requires it, upon securing to the party whose property is sacrificed, a just compensation for any injury he may sustain, resides in the State as a portion of its inherent sovereignty.

It is this supreme power over the property of individuals which enables the State to confer upon our subordinate jurisdictions, both municipal and judicial, the right to take private property, for the purpose of opening streets and roads, when in their opinion it is demanded by the public welfare and convenience, adequate provision being made for indemnification.

The ordinance of the city of Baltimore, of the 9th March, 1841, passed to carry into effect the powers granted by the act of 1838, ch. 226, directed the commissioners, after ascertaining the amount of damages and expenses to be incurred in any case, to assess the same on all the ground and improvements within the city, the owners of which, as such, the said commissioners should decide to be benefited by accomplishing the object authorized in the said ordinance--apportioning them in just proportion, according to the value of the benefit, which, in the estimation of the said commissioners, will accrue to each owner of any right or interest claimed in any such ground or improvements--does not subject the individuals embraced by it to an unequal and partial tax, for the prosecution of an improvement in which the whole community is interested.

No burden is imposed by such an ordinance on the person on whom it operates. It is a mere requisition that the owners of property, the value of which is enhanced by the opening of the street, shall pay for the improvement in a ratio to the benefit derived from it.

Extravagant estimates of benefits in such cases may be corrected upon appeal, and by a contest before a jury, which is secured to an aggrieved party.

Assessments equivalent to benefits derived in such cases are equitable.

The ordinance in question exempted certain property, as not benefited, from the assessment to be made under it. If it had appeared in fact, that the property so exempted was benefited, then the ordinance would be void.

Chancery will not interpose, and arrest by injunction the progress of a public improvement in a municipal corporation, upon a mere inferential and argumentative statement with reference to an essential fact omitted in the bill, necessary to establish the complainants right to the writ.

Where an act of Assembly gave a power to a municipal corporation, to provide for opening a street, with a right of appeal, and to a trial by jury, by any party aggrieved, before an inferior tribunal, and the right of appeal was exercised, the Court of Chancery has no jurisdiction to supervise or re-examine the proceedings and judgment of the court, to which the appeal was taken.  

COUNSEL:
By MAYER for the appellants, and

By B. C. PRESSTMAN for the appellees.  

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

OPINIONBY:
MARTIN 

OPINION:

 [*392]   [**15]  MARTIN, J., delivered the opinion of this court.
In the argument of this case, the counsel for the appellants has contended that the act of Assembly of 1838, ch. 226, is to be considered as an unconstitutional exercise of legislative power, and that all the proceedings of the Mayor and City Council of Baltimore, with respect to the extension of Fayette street, as exhibited in the record, were unauthorized and void. And upon this ground he has claimed the interposition of the Chancery court, to protect the property of the appellants from the enforcement of a tax, which it is alleged was illegally imposed upon it.
But we think that the counsel for the appellant has not succeeded in establishing a want of power in the legislature to pass this act.
That the power, of appropriating to a public use the property of individuals, when the public necessity or utility requires it, upon securing to the party whose property is sacrificed, a just compensation for any injury he may sustain, resides in the State, as a portion of its inherent sovereignty, is a proposition which cannot be denied.
In defining the nature and extent of this power, in the case of Bonaparte vs. The Camden and  [**16]   Amboy Railroad Company, 1 Bald. Rep. 221, the learned judge, after stating that the complainant by his contract of purchase, authorized by the law of the State, is so far protected, that his property cannot be transferred to the defendants, without his consent, by mere legislative power, said:
"To make such a transfer valid, it must be an appropriation to a public use, in virtue of the inherent sovereignty of the States, which carries with it the obligation to make compensation. When this is done, no contract is impaired, as all persons hold their property subject to requisitions for public service; it is protected only against arbitrary seizure, not when it is taken or appropriated by public right for public use; compensation must indeed be made, but no particular mode is prescribed by which its amount shall be ascertained. It is a principle of Magna Charta, recognized in all the States, that 

 [*393]  no man shall be disseized or dispossessed of his property without due process of law, or legal process, or the judgment of a jury; but if either mode is pursued, the principle is unimpaired. A law which authorizes the appropriation of property to public use, and prescribes [**17]  a mode of proceeding by which compensation shall be ascertained and made, is not obnoxious to Magna Charta, or its construction in England or in this State."
It is this supreme and controlling power over the property of individuals, which enables the State to confer upon her subordinate jurisdictions, both municipal and judicial, the right to take private property for the purpose of opening streets and roads, when in their opinion, it is demanded by the public welfare or convenience; and when property is thus taken, and accompanied by an adequate provision for the indemnification of the injured party, the appropriation is legalized by the fact, that it has been taken for a public purpose, under the authority and sanction of the State.
It is not an arbitrary seizure of property, and therefore, is not in conflict with the principles of Magna Charta, or the provisions of the constitution.
The taxing power is a power of vital importance; it exists in the State, like that of the eminent domain, as a part of its inherent sovereignty; it is capable, from its nature, of being greatly abused, and yet this power was granted by the original and supplemental charters of the city [**18]  of Baltimore, to the Mayor and City Council, to be exercised in their discretion, upon all property within the corporate jurisdiction and limits, and without any limitation with respect to the objects on which it was to operate. This grant of power to the city, has never been questioned, and in principle cannot be distinguished from the authority delegated to the Mayor and City Council of Baltimore, by the act of Assembly of 1838, ch. 226.
In the case of Burgess vs. Pue, 2 Gill 11, the Court of Appeals held, that it was competent for the legislature to delegate the power of taxation to the taxable inhabitants of a school district, for the purpose of raising a fund for the support of primary schools; and we quote the opinion of the 

 [*394]  court, as directly applicable to the principle involved in this controversy. The court say--
"We think there is no validity in the constitutional question which was raised by the appellee's counsel in the course of his argument, relative to the competency of the legislature to delegate the power of taxation to the taxable inhabitants, for the purpose of raising a fund for the diffusion of knowledge, and the support [**19]  of primary schools. The object was a laudable one, and there is nothing in the constitution prohibitory of the delegation of the power of taxation, in the mode adopted, to effect the attainment of it; we may say that grants of similar powers to other bodies, for political purposes, have been coeval with the constitution itself, and that no serious doubts have ever been entertained of their validity. It is therefore too late at this day to raise such an objection. The ground of objection taken in the argument to the constitutionality of the tax, seemed to be, that the act of the legislature delegating the power of taxation to the taxable inhabitants, was a violation of the fourth and twelfth sections of the bill of rights, the first of which provides, 'that all persons invested with the legislative and executive powers of government are the trustees of the public, and as such, accountable for their conduct:' and the last, 'that no aid, charge, tax, fee or fees, ought to be set, rated or levied, under any pretence, without consent of the legislature.' It is not perceived how the act in question can be deemed a violation of either of those principles of the fundamental law. The tax was [**20]  levied with the consent of the legislature, because the power to impose it emanated from the legislative department of the government, and was expressly given by a law passed for that purpose, and there is nothing in it which can be considered as impairing in the slightest degree the responsibility of the law-making power to their constituents, for the due and faithful execution of the trust confided to them; because, if deemed to be unwise or inexpedient, an expression of the popular will to that effect was all that was necessary to procure its repeal."

 [*395]  That the General Assembly possesses the power to delegate to the Mayor and City Council of Baltimore, and to the commissioners or levy courts of the counties, authority to alter or open streets and roads, when, in their opinion, such an improvement is required by the public convenience, is a proposition that has been, repeatedly, and in various forms, acknowledged by both the legislative and judicial departments of the government; and is sanctioned by a practical exposition of the constitution, as exhibited in the usage and practice of the State, for a long series of years.
A statute of New York granting to the [**21]  corporate authorities of that city, a privilege similar to the one professed to be delegated by the act of 1838, was treated by the Chancellor, in the cases of Livingstone vs. The Mayor of New York, 8 Wend. 101 and Wiggin vs. the same party, 9 Paige 23, as an undoubted exercise of legislative power, and, we think, that this question of power must be considered as too firmly settled in Maryland to be questioned or disputed.
By the sixth section of the ordinance of the 9th March, 1841, passed to carry into effect the powers granted to the Mayor and City Council by the act of 1838, ch. 226, it is provided:
"That the commissioners after having ascertained the amount of damages, and added thereto an estimate of the amount of expenses which will be incurred in the performance of the duties required of them, shall proceed to assess the amount of said damages and expenses on all the ground and improvements within the city, the owners of which, as such, the said commissioners shall decide and deem to be benefited by accomplishing the object authorized in the ordinance aforesaid, apportioning them in just proportion according to the value of [**22]  the benefit, which in the estimation of the said commissioners will accrue to each owner of any right or interest claimed in any such ground or improvements."
And it has been contended, that this ordinance is to be pronounced unconstitutional and void, on the ground, that it subjects the individuals embraced by it to an unequal and 

 [*396]  partial tax for the prosecution of an improvement in which the whole community is interested. But the error of the argument addressed to the court on this point, exists in a misapprehension of the nature and object of this assessment. No burden is imposed by it upon the person on whom it operates. It is a mere requisition, that the owners of property, the value of which is enhanced by the opening of the street, shall pay for the improvement in a ratio to the benefit derived from it.
It cannot be denied that injustice is sometimes inflicted in the application of this principle, by an extravagant estimate of the benefits conferred by the improvements: but when this occurs, the aggrieved party may appeal to the City Court, and contest the correctness of the assessment made by the commissioners before a jury of the country. And, assuming [**23]  that the amount of the assessment is only equivalent to the benefit derived by the owner from the enhanced value of his property, nothing can be more equitable and just than that he should pay it.
In the matter of the Mayor of New York, 11 Johns. 77, the commissioners appointed by the court for the enlarging of Nassau street, made a report of their estimate and assessment of the damage and benefit to the parties interested, in enlarging the street, by which it appeared that they assessed the benefit of the proposed improvement to certain churches in the city of New York. The several churches objected to the assessment, on the ground, that they were exempt from it by virtue of the general tax act which declared, that no real estate belonging to any church, or place of public worship, should be taxed by any law of the State.
The claim of the churches was overruled; and we refer to the opinion of the court, as illustrative of the principle upon which this doctrine of assessments for benefits is supposed to stand.
The court said--
"The churches are not well founded in their claim to a total exemption of their lots from assessments, for opening, enlarging, [**24]  

 [*397]  or otherwise improving streets in the city of New York, made in pursuance of the act of the 9th April, 1813. These assessments are directed and intended to be made upon the owners of lands and lots who may receive benefit and advantage by the improvements. The exemption granted by the act of 1801, was in the general act for the assessment and collection of taxes; and the provisions of that act all refer to general and public taxes to be assessed and collected for the benefit of the town, county, and State at large. The words of the exemption are, "that no church or place of worship, nor any school house, &c., should be taxed by any law of the State." The word "taxes" means burdens, charges or impositions, put or set upon persons or property for public uses, and this is the definition which Lord Coke gives to the word talliage, 2 Inst. 532, and Lord Holt, in Carth. 438, gives the same definition, in substance, to the word tax. The legislature intended by that exemption to relieve religious and literary institutions from these public burdens, and the same exemption was extended to the real estate of any minister, not exceeding in value $ 1,500. But [**25]  to pay for the opening of a street, in a ratio to the benefit or advantage "derived from it, is no burden. It is no talliage or tax within the meaning of the exemption, and has no claim upon the public benevolence. Why should not the real estate of a minister, as well as of other persons, pay for such an improvement in proportion as it is benefited? There is no inconvenience or hardship in it, and the maxim of the law, that qui sentit commodum sentire debet et onus is perfectly consistent with the interests and dictates of science and religion."
The same doctrine is enunciated by the Chancellor, in the case of Livingstone vs. The Mayor of New York, 8 Wend. 101; and, we think, that the act of 1838, ch. 226, and the ordinance of the 9th March, 1841, passed in pursuance of it, must be regarded in all respects as a valid exercise of legislative power.
It was manifestly contemplated by the legislature, that the amount of damages and expenses incurred in the improvement 

 [*398]  of the streets in the city of Baltimore, under the act of 1838, ch. 226, should be distributed in a rateable proportion among the owners of property especially benefited; and [**26]  if it had appeared that the property in Baltimore street was enhanced in value by this extension of Fayette street, the ordinance of the 15th April, 1845, exempting this property from assessment, would be void.
But there is no allegation in the bill that the property in Baltimore street was benefited by this proposed improvement; and in the absence of such an averment, the objection that the ordinance is to be treated in this respect, as invalid, does not arise.
It is not to be supposed, that the Chancery court would be authorized to interpose its strong arm, and arrest by an injunction, the progress of this improvement upon the mere inferential and argumentative statement, that because Baltimore street and Fayette street were parallel, the property in the former street might, possibly, or even probably, be within the range of fair assessment.
As the property in Baltimore street is exempted from assessment by the provisions of the ordinance, the presumption is, that it was not benefited by the extension of Fayette street. And if it was the object of the complainants to call into action the preventive and conservative power of the Chancery court, for the [**27]  purpose of enjoining the collection of this assessment, upon the ground, that the ordinance was void; the fact on which they relied to invalidate the ordinance, should have been expressly charged in the bill, and not left to inference and conjecture. This they have not done: and upon the case made by the bill, the ordinance is to be regarded, we think, as a valid exercise of the power delegated by the act of 1838, ch. 226.
It is perfectly clear, that the Court of Chancery has no jurisdiction to supervise or re-examine the proceedings and judgment of the City Court, with respect to these assessments.  4 Johns. Ch. 352. And we think, that the order of the Chancery, refusing this injunction, was correct, and must be affirmed.
ORDER AFFIRMED.  

183 of 187 DOCUMENTS 

DAVID CARSON, SEN. AND DAVID CARSON, JR. vs. A. A. WHITE, CLAIMANT, &C.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Gill 17; 1847 Md. LEXIS 45 

December, 1847, Decided 

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

On the 21st September, 1844, David Carson, Sen. and Jr., prosecuted, out of the County Court, a writ of scire facias, reciting:

"Whereas, D. C. Sen. and D. C. Jr., carpenters, carrying on trade under the firm of D. C. & Son, have filed a claim in our court, for the county of Baltimore, against John Carson of D., for the sum of $ 357 50, with interest from, &c., for work done by them as carpenters, and for painting, plastering, glazing and materials furnished, and for grading, digging and brick work done, in the erection and construction of a brick dwelling house, being two stories and an attic high, with a basement covering the whole front of the following lot. Beginning for the same at, &c., as a lien as well against said lot of ground and dwelling thereon as against said Carson, owner or reputed owner thereof. And whereas, it is alleged that the said sum still remains due to the said D. C. Sen. and D. C. Jr., partners as aforesaid, now we command you, that you make known to the said John Carson of D., and to all such persons as may hold or occupy the said building, that they be and appear before the judges of our said court, at a court [**2]  to be held at Baltimore city, on the first day of January next, to show if any thing they know or have to say, why the said sum of, &c. should not be levied of the said building, to the use of the said D. C. Sen. and D. C. Jr., partners as aforesaid, &c."

This writ was made known by copy left with tenant in possession, 25th September, 1844, also advertised according to law.     "N. TRACY, Sheriff."

John Carson of D. appeared and pleaded that D. C. & Son did not do and perform upon, in or about the said building, the work and labor in the said claim, in the said writ mentioned, or any part thereof, &c.

And for further plea in this behalf, &c., the said defendant says, that the said plaintiffs did not furnish the materials, in their said claim charged, in and about the building of the said house, upon the said lot, &c. And of this he puts himself upon the country, &c.     T. P. SCOTT, Attorney Defendant.

Ambrose A. White, at January term, 1846, filed his petition, alleging that before the filing of the claim of lien in this case by the said plaintiffs, to wit: on 14th July, 1844, the said defendant, by deed of that date duly mortgaged the said lot of ground,  [**3]  in the said case mentioned to him, the said Ambrose; and that afterwards, to wit: on the fifth day of August, 1844, and before the filing of the said claim, the said defendant applied to the commissioners of insolvent debtors of the city and county of Baltimore, for the benefit of the insolvent laws of Maryland. And the said Ambrose says that he is the party in interest, in the matter of this suit, against the said property as above stated. Wherefore he prays the court here to permit him to defend the said suit, &c.

Leave was granted to the said Ambrose A. White, to appear as claimant, and defend the said suit as prayed; and he accordingly appeared.

At the trial of this cause, the plaintiffs to prove the issue on their part, offered in evidence, the claim on which the writ issued in this case, a general statement of the claim as set forth in the scire facias and the following account:

John Carson of D.     To David Carson & Son.

To amount of work done as per verbal contract for carpentering, painting, plastering and glazing, and materials for the same, in and upon the dwelling-house on East Baltimore

________________________________________________________________________________
  street, described above,	$ 335 00	
To extra framing of cupboard,	10 00	
 " grading yard, digging, &c.	10 00	
 " brick work, viz. paving yard and hearth and	
   cutting up for slating,	2 50	
	
	$ 357 50	
________________________________________________________________________________

 [**4]  

Said work having been commenced on the 1st May, 1844, and finished on the 14th September, 1844. Filed to be recorded, the 20th September, 1844, same day recorded and examined     Per THOMAS KELL, Clerk.

21st September, 1844, sci. fa. issued, No. 48, to January term, 1845.

True copy. Test,     A. W. BRADFORD, Clerk.

Also, a written admission of John Carson of D., the original defendant in this cause, as to the correctness of the plaintiffs' claim, as follows:

Mr. John Carson,     To David Carson & Son, Dr.

________________________________________________________________________________
  1844,	   To amount of contract work,	
 May 1st,	carpentering, painting, plastering, and	
(in pencil.)	materials for the same,	$ 335 00	
	   To extra framing cupboard, &c.	10 00	
To grading yard, digging, &c.	10 00	
" brick work, viz. [in pencil,] paving hearths and	
   yard, and cutting up for slating,	2 50	
	
		$ 357 50	
________________________________________________________________________________

Int.

Baltimore, 1844, 20th September. I admit this bill for $ 357 50, to be correct as above stated, per contract (verbal) between us, and for extras.     JOHN CARSON of D.

To the admissibility of this evidence, the defendant's counsel objected, because the [**5]  said John Carson of D. having acquired the house and lot on which the lien in this case is claimed, on the 6th April, 1844, had mortgaged the same on the 11th July, 1844, to Ambrose A. White, and on the 5th August, 1844, had filed his petition as an applicant for the benefit of the insolvent laws of Maryland, and the said admission was made thereafter, viz. on the 20th September, 1844, which objection the court (PURVIANCE and LEGRAND, A. J.) sustained, the said John Carson of D. being then the defendant on the record, and said mortgage and application being admitted. The plaintiffs excepted.

The plaintiffs excepted also to the leave granted to A. White to appear and defend this cause.

It was then agreed between the counsel that the pleas theretofore filed, should be considered as filed by said White, errors waived: and that he, White, be responsible for all the costs as defendant.

The plaintiffs then offered in evidence the claim on which the writ issued, deposition to maintain the same, and proof of a particular measurement bill of the work done, and its value.

The defendant, on his part, offered in evidence, a deed of mortgage from John Carson of D. to Ambrose [**6]  A. White, of 11th July, 1844, it being admitted to have been on the house in question, which said John had bought in April, 1844.

The defendant prayed the court to instruct the jury that the plaintiffs are not entitled to recover in this suit:

1st. Because there is no evidence of any special contract between the plaintiffs and the defendant for the work and materials, said to have been done and performed, in and upon the buildings, &c. and furnished therefor, &c. as stated by the said plaintiffs in the paper filed by them, with the clerk of this court, upon which the said writ issued.

2d. Because there is no evidence of any such contract between the parties as that set forth in the said claim filed, &c.

3d. Because the said pretended claim, upon which the said writ issued, and which pretended claim was filed in the office of the clerk of this court, before the issuing of said writ, does not set forth the amount or sum claimed to be due for the work and labor said to have been done and performed in and upon the said lot of ground in the said claim mentioned and described.

4th. Because the said pretended claim upon which, &c. and which was filed, &c. does not [**7]  set forth the amount or sum claimed to be due for materials said to have been furnished, &c. or the nature and kind of such materials so said to have been furnished, &c.

Which prayers the court granted. The plaintiffs excepted.

The trial of the cause having been commenced on the 4th, the prayers of defendant were considered, and decision thereupon delivered on the morning of the 5th February. Whereupon on said 5th, before the final decision of the case, the plaintiffs by their counsel filed the following motion and affidavits.

The plaintiffs asked leave of the court, and at this stage of the cause, (when the plaintiffs and defendant had concluded their respective evidence, and defendant had submitted three several prayers to the court, who had decided thereon) to offer evidence of the special contract set forth in the claim for lien filed in this cause, and the leave is prayed because of the discovery of such evidence (to establish the making of said special contract,) since the adjournment of this court on the 4th instant, when the trial was, so far as above stated, concluded, the existence of which evidence was previously unknown to plaintiffs or their counsel, and [**8]  not by any of them discovered until the evening of the 4th, after the adjournment of the court. That George Gelbach is the witness by whom the plaintiffs expect to establish the existence of said special contract. This motion was sustained by the affidavit of one of the plaintiffs.

This prayer was submitted, notwithstanding the 25th rule of said court, viz.:

"25th. The court will require, in all cases, that the whole testimony intended to be produced by both plaintiff and defendant shall be offered before any question of law is raised, except objections to the competency of testimony, which must be made when it is offered, or as soon thereafter as the party shall be apprised of the grounds of such objection. After the whole evidence is concluded, the court, when required, will instruct the jury on the law of the case, and the verdict shall be taken, or a non-suit entered, with leave to either party to move the court in bank to set aside the verdict, or non-suit for mis-instruction at the trial."

This motion the court overruled, and declared the evidence offered, at that stage of the cause, because of said rule, inadmissible; although discovered since the submission of [**9]  the cause on the preceding day: and before its final decision. To which decision of the court, overruling said motion and excluding said evidence, the plaintiffs excepted.

The verdict and judgment in this case being against the plaintiffs, they prosecuted the present appeal.  

DISPOSITION:
JUDGMENT AFFIRMED WITH COSTS.  

HEADNOTES:

The plaintiffs, on the 21st September, 1844, filed proceedings in Baltimore County Court, under the act of 1838, ch. 205, to establish a lien for work and labor done upon a house in the city of Baltimore, at the request of J. The claim filed showed that the work had been done between May and September, 1844, and the proof offered in support of it was the written admission of J. made in September, 1844, that the claim was correct. It appeared that in July, 1844, he had mortgaged this property to W. Held: That a mortgage would afford very little security for the debt intended to be secured thereby, if, after its execution, the mortgagor could by admissions create liens on the mortgaged premises; and thereby lessen or destroy the value of the mortgage.

The mortgagor can by no acknowledgment subsequent to the mortgage, prejudice the interest of the mortgagee; and hence the admission in this case ought not to have been received.

A mortgagee, in such a case, claiming the property sought to be affected by the plaintiffs, may appear to and defend the action.

This proceeding was in rem.

The trustees of the debtor-mortgagor, under the insolvent laws, might have appeared to defend the equity of redemption.

Our attachment laws do not expressly authorize a claimant of property to appear to an attachment; yet claimants are permitted to interpose their claim against a judgment of condemnation.

No mechanic, in virtue of the act of 1838, has a lien on the house which he has built or repaired, unless he has filed in the office of the Clerk of Baltimore County Court, a statement of his demand, and in that statement has given, not only the sum due, but also the nature and kind of work done, and the kind and amount of materials furnished, and the time when the work was done and materials furnished.

To obtain such a lien, the statement filed must state the particulars of his demand, the items, whereby all who may be interested can ascertain not only the amount demanded, but the correctness and reasonableness of the demand itself.

These statements, when filed, must be explicit and comprehensive, to protect strangers to the contract, who may have other contracts relating to the same property or liens thereon, from fraud, and may be required by the party at whose request the work is performed.  

COUNSEL:
By W. J. WARD, for the appellants, and

By T. P. SCOTT, for the appellee claimant.  

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

OPINIONBY:
MAGRUDER 

OPINION:

 [*23]  MAGRUDER, J., delivered the opinion of this court.
This is a proceeding by scire facias, grounded upon the act of 1838, chap. 205. The plaintiffs' claim is for work done, for carpentering, painting, glazing, and materials for the same, in and upon the dwelling-house in East Baltimore street, of which a description is given. The scire facias directs the sheriff to make known to said John Carson of David, and to all such persons as may hold, or occupy, said building, "to appear in Baltimore County Court, on the first day of January, 1845, to show if any thing they know or have to say, why the sum claimed should not be levied of the said building [**10]  to the use of said David Carson, Sen. and David Carson, Jr. partners as aforesaid, if to them it shall seem expedient."
The sheriff's return is "made known by copy left with the tenant in possession 25th September, 1844, and also advertised according to law."
Who was the tenant in possession is not stated, but at the same term, John Carson of David appeared, and by plea, denied that the plaintiffs did "do, or perform upon, in or about the said building the work and labor in the said claim in the said writ mentioned, or any part thereof. And for further plea said that the said plaintiffs did not furnish the materials in their said claim charged, in or about the building of the said house upon the lot aforesaid."
At January term, 1846, the appellee appeared in court, and suggested that before the filing of the claim of lien, 4th July, 1844, the defendant mortgaged the said ground to him, and on the 5th August, 1844, (before the filing of the said claim of lien by the plaintiffs) the defendant applied for the benefit of the insolvent laws of Maryland, and the appellee suggested that he is the "party in interest in the matter of this suit against 

 [*24]  the said [**11]  property," and prayed the court to be permitted to defend the said suit.
The record states that the leave was granted, and the appellee accordingly appeared to said suit by his counsel. Immediately following this is an agreement signed by counsel, that the pleas shall be considered as filed by the appellee, errors waived, and the said appellee (White) is individually responsible for all the costs as defendant.
There was a verdict for the defendant, several bills of exception having been taken by the plaintiffs in the course of the trial, which are now to be examined.
In the first exception, it is stated that the plaintiffs to support their claim, offered in evidence their statement of the work alleged to have been done by them in and about the house on the lot there described, and at the foot of it this acknowledgment:
"Baltimore, 1844, 12th September.
"I admit this bill for $ 357 50 to be correct as above stated, per contract (verbal) between us, and for extras.
Signed,     JOHN CARSON of D."
To the admission of this evidence the defendant objected, because the said John had, before the said admission, executed the mortgage and made the application for the benefit [**12]  of the insolvent laws--which facts were admitted by the plaintiffs.
Because of the rejection by the court of this testimony offered by the plaintiffs, the first exception to be found in the record is taken. Did the court err, in refusing to admit this testimony?
A mortgage would afford very little security for the debt intended to be secured thereby, if, after its execution, the mortgagor could, by admissions, create liens on the mortgaged premises, and thereby lessen, or it might be, destroy the value of the mortgage. The mortgagor can, by no acknowledgment subsequently to the mortgage, prejudice the interest of the mortgagee. The admission made in this case by the mortgagor ought not to have been admitted in the trial of those issues.
Immediately following the first exception it is stated--the 

 [*25]  defendant's counsel then made a written motion as follows: referring to the statement before given, and praying that the appellee for the reasons therein stated, have leave to defend, which is granted by the court, and to this there is an exception by the plaintiffs.
This part of the record, taken in connection with what has been previously stated, relative to an application [**13]  by the appellee to the court, is not very easily to be understood. It will be assumed, however, that the design of the exception was to question the authority of the court below, to permit an appearance in the case by the appellee.
Why should he not be permitted to appear? This is a proceeding in rem, and is designed to charge, with the claim of the appellants, property conveyed to the appellee, and the legal title to which we must assume was in him. Who was the proper person to appear, and resist this claim, as a claim against the mortgagee's interest? It cannot be that the mortgagor was the only person to decide whether the claim should be resisted or admitted.
It is suggested that John Carson's trustee, appointed upon his application for the benefit of the insolvent laws, was the proper person, and no doubt he was a fit person to defend the equity of redemption, which had been conveyed to him, if he thought it of any value; but it is equally clear, that the appellee was not bound to abandon his title to the protection of the trustee, over whom he had no control, and who, by his acts, admissions and omissions, might prejudice the rights of the appellee. If the appellee,  [**14]  claiming the property as he did, could not defend the suit, surely the plaintiffs ought not to be permitted to obtain a judgment, by which his interest was to be affected.
If the appellee could not be made a party, why is the sheriff to give notice to all such persons as may hold or occupy the building? Why are all such persons to appear before the judges of the court, to show if any thing they know, or have, to say why the sum of money claimed should not be levied of the said building, "if to them it shall seem expedient?" The appellee here 

 [*26]  was one of the persons, to whom the sheriff, it would seem, was to give notice. Why is he to be warned to appear, if although he "have to say," why the money is not to be levied on his property, he is not to be permitted to say it? He could only say it by being permitted to be made a party to the suit.
Our attachment laws do not expressly authorize the claimant of the property attached to appear to the suit; yet claimants are permitted to interpose their claim, and the cases of Campbell vs. Morris, 3 H. & McH. 535, and Ranahan vs. O'Neale, 6 G. & J. 298, tell us that they have the right to [**15]  appear. If then the act of 1838 did not expressly authorize the appellee to appear; yet this being a proceeding in rem, his right to appear and defend his interest cannot be questioned. There are, however, many clauses in this Act of Assembly which would be without meaning, if they leave the owner of the property designated to be condemned without liberty to show cause why his property should not be made to pay a debt for which he never was answerable. See clauses 16, 17, &c.
After excepting to the two above mentioned decisions by the court, the plaintiff then offered other testimony designed to prove the amount and value of the work done, and of the materials furnished about the said house; when the testimony was offered, the defendant prayed the court to instruct the jury that the plaintiff was not entitled to recover for the several reasons set forth in the exception. This instruction the court gave, and thereto also an exception was taken.
In examining the question thus brought before the court, it is proper to bear in mind that the court is not to inquire how much of this testimony ought to have been admitted, or the value of any portion of it; if this had been an action [**16]  brought for the value of this work, and of the materials furnished against the person, at whose request the materials were furnished, and the work done. The plaintiffs claim a right to a judgment, the effect of which would be to charge one man's property with the payment of a debt contracted by another, 

 [*27]  without the request, and perhaps without the knowledge, of the owner of the property. Grounding this proceeding upon the act of 1838, they are, of course, to prove that this act gives the remedy which they seek by this proceeding; and if the proof adduced is not such as the law requires of them, they have no cause to complain of the judgment of the court below.
The act of 1838 does not deprive any creditors of the remedies which the law gives to other creditors having claims of the same description. This additional or extraordinary remedy is allowed to mechanics and some others, if they comply with the conditions in the law prescribed, and the creditors who think proper to proceed under this law must show substantial compliance by himself with its requisites. No mechanic has, in virtue of the Act of Assembly, a lien on the house which he has built or repaired, unless he [**17]  has filed in the office of the Clerk of Baltimore County Court a statement of his demand, and in that statement has given not only the sum due, but also the nature or kind of the work done, and the kind and amount of the materials furnished, and the time when the materials were furnished, and the work done.
The mechanic, or other person then, who would claim a lien in virtue of this Act of Assembly, in his statement, to be filed in the office of Baltimore County Court, must not only state the sum claimed, but must also, in the statement to be filed there, for the inspection and scrutiny of all persons who are or may become interested in the premises, give a bill of particulars, where by all who may be interested can ascertain not only the amount demanded, but the correctness and reasonableness of the demand. The items must be furnished, in order that other creditors and persons interested may know for what services, and what materials, the sum alleged to be due is claimed, and thus have an opportunity of proving the injustice or extravagance of the demand. All this must be done in terms sufficiently explicit and comprehensive, in order to prevent the frauds which otherwise [**18]  might be practised upon others-- 

 [*28]  strangers to the contract, by the claimant and the reputed owner.
That the Act of Assembly was not in this case complied with, will be made obvious by a comparison of the statement of the demand furnished by the plaintiffs, with that which makes a part of the deposition of Samuel Harris, to be found in the exception. The statement filed in the office is not such a statement as the law requires, and must be supposed to require, for wise reasons. Indeed, it gives only the information which is afforded, in a declaration upon a quantum meruit, for work done, and materials found. Yet, with that information, the defendant, although alleged to be the party at whose request the work is done, and the materials are furnished, is not bound to be satisfied, but may insist upon being furnished with the particulars before he can be required to plead; whereas, in a proceeding of this description, to affect the interests of entire strangers to the contract, if the particulars cannot be required in the statement to be filed in the office, it cannot be required by them at all.
Having failed themselves to comply with the requisites of the act of 1838,  [**19]  the plaintiffs cannot avail themselves of that law, but must have recourse to the remedies before existing for the recovery of their claim. There is, then, no error in the instruction given by the court in the last exception.
The act of 1845, to which we have been referred, has no application to this case.
JUDGMENT AFFIRMED WITH COSTS.  

184 of 187 DOCUMENTS 

THE MAYOR AND CITY COUNCIL OF BALTIMORE vs. HENRY WHITE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 Gill 444; 1845 Md. LEXIS 3 

June, 1845, Decided 

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

This was an action of assumpsit, commenced on the 1st September 1840, for money had and received, by the appellee, for the use of the appellants. The defendant pleaded the general issue.

Before the jury was sworn, the parties agreed, that the action was brought for the purpose of trying the following questions.

1st. Whether the wharf in the city of Baltimore, known by the name of Oliver's wharf, or any, and if any, what part of it is a public wharf?

2nd. Whether, if it shall be decided, that the said wharf, or any part of it is public, the defendant has acquired any such right to the part so decided to be a public wharf, as to debar the plaintiffs from charging and collecting to their use, such rate of wharfage as they may think reasonable, of and from all vessels, resorting to or lying at, landing, depositing or transporting goods or articles, other than the productions of this State, at or on the part of said wharf, so decided to be public? And for the purpose of fully and fairly trying and deciding the said questions, it is mutually agreed, that the defendant shall admit the receipt of a sufficient sum of money, previous to [**2]  the institution of this action, as wharfage, to which the plaintiffs would be entitled, if entitled to recover by the decision of the questions above stated, as will sustain the jurisdiction of the court. It is further agreed, that each party shall be entitled, on the trial of the case, to give in evidence all such documents and testimony, as would be proper and competent to use in any other form of action at law, or in equity, that could be instituted and tried, in regard to the just and full decisions of the questions above stated, or either of them. It is also agreed, that printed copies of all acts of Assembly, and ordinances of the city, shall be read in evidence by each party, and that plats, maps, and copies of documents, deemed to be correct by the counsel on each side, shall be admitted in evidence, without incurring the expense of special surveys or authentication, and that all errors in the form of action, and in the pleadings, shall be released by each party.

The plaintiffs to support the issue on their part joined, offered in evidence to the jury, that:

Thomas McEldery of Baltimore county, deceased, was seized and possessed in fee of the tracts of land, called [**3]  "Cole's Harbor and Todd's Range." That he died so seized and possessed. That on the 29th day of July 1813, Elizabeth McEldery, John McEldery and Thomas McEldery, under authority of an act of Assembly of Maryland, passed at November session 1810, chap. 138, duly executed and acknowledged, and recorded an indenture of lease to Martin F. Mayer, for all that lot of ground, situate in the city aforesaid, and contained within, &c., beginning for the same on the west side of Union Dock, at the distance of 720 feet southerly, from the point or place, where the west side of said dock would be intersected by the south side of Wilkes street, if extended; and running thence southerly, bounding on the west side of said dock 425 feet; thence south forty-seven degrees west, still bounding on the water 36 feet; thence north forty-eight degrees west, still bounding on the water 205 feet, 2 inches; thence north three degrees west, still bounding on the water 305 feet; and thence by a straight line to the place of beginning, together with all, &c. To have and to hold the said lot and premises, with the appurtenances, together with the exclusive right of extending, not exceeding one hundred and four feet [**4]  into the water, any and every part of the said lot, piece or parcel of ground, which fronts the Basin, provided he can obtain permission for that purpose, from the city council of Baltimore, or from the legislature of the State of Maryland, unto the said Martin F. Maher, his, &c., from, &c., for and during, and until the full end and term of ninety-nine years, from thence next ensuing, with the right in the lessors, to distrain, re-enter, &c.

Whereby, they conveyed to Martin F. Maher, for the term of ninety-nine years, renewable forever, with the rights and privileges in said lease recited, the premises therein described, being parts of said tracts of land, of which the said Thomas McEldery died seized, and possessed as aforesaid. That on the 29th day of the same year, the said Martin F. Maher, by indenture, assigned and transferred said demised premises to Job Smith.

That on 25th February 1817, Horatio McEldery exhibited his petition in the Court of Chancery, praying for the sale of the real estate of Thomas McEldery, or of so much thereof as was necessary for the payment of his debts; that upon said petition proceedings were duly had, and on the 14th July 1817, a sale of [**5]  the interest of Thomas, in and to the premises described in the foregoing lease, was duly decreed by the Chancellor of Maryland, and Thomas Phenix was appointed trustee to make said sale; that the sale thereof, in pursuance of said decree, was made by said trustee to Robert and John Oliver, to whom a conveyance thereof was made by indenture, bearing date on the 1st April 1818.

That in 1820, Robert and John Oliver, re-entered upon said demised premises, for the non-payment of the rent accruing under said lease, and by an action of ejectment for the non-payment of rent under the statute of 4th Geo., 2d, instituted in Baltimore county court, ejected Job Smith from their premises.

The plaintiffs further offered in evidence the following petition, which it was admitted was signed and presented by Robert and John Oliver, dated October 16th, 1821.

"To the honorable, the Mayor and City Council of Baltimore: The petition of Robert Oliver and John Oliver, sheweth, that they are rightful owners and proprietors of a parcel of ground situated on the west side of Union Dock, in the city of Baltimore, and bounded, in part, by the water of the basin of Baltimore, which is shewn on the [**6]  plot hereto annexed. They further state, that under the conveyance to them of said ground, there was granted the exclusive right of extending, not exceeding one hundred and four feet into the water, any and every part of said parcel of ground which fronts the basin, provided permission for that purpose could be obtained from the corporation of Baltimore, or the legislature of this State. They conceive that the grant of such privilege, would not be an infringement of, nor would it interfere with private rights. Wherefore, they pray, that by an ordinance, or resolution of your honors, your petitioners may be permitted to extend their aforesaid ground from its present limits, to the dotted lines shewn on the plot aforesaid, from E to F, and from F to G, and they, as in duty bound, &c.

ROBERT and JOHN OLIVER.

Baltimore, October 6th, 1821."

And the ordinance thereon passed, approved 10th November 1821, chapter 103, also the following petition likewise: admitted to have been signed by the said Robert and John Oliver, dated 8th November 1821.

"To the Mayor and City Council of Baltimore. Gentlemen, having examined an ordinance, passed in pursuance of our petition, relative [**7]  to the extension of our property, binding on, and at the termination of Hugh street, deem the conditions too hard, and therefore ask leave to contract the same within the line on the plat from E to G, and request that an ordinance may pass accordingly, all which is respectively prayed for, by gentlemen.

Your ob't. servants,

Signed,     ROBERT and JOHN OLIVER.

8th November 1821."

And the ordinance of 19th November 1821, chapter 101, (which ordinance, with all others,) and the proceedings of the City Councils relating to the case, it is agreed, may be read from the printed books and proceedings of the said Mayor and City Council, as far as the same may be deemed material by either plaintiffs or defendant, as if the same had been incorporated with, and made part of this bill of exceptions.

The plaintiffs further proved, by Jesse Hunt, that he is register of the city of Baltimore, having the care and custody of the papers connected with the proceedings of the City Councils; that he had carefully searched said papers, and that he had not been able to find any papers relating to said ordinances subsequent to the date thereof; that there is no record existing of [**8]  the proceedings of the commissioners or port wardens, relating thereto; and they proved, by W. L. Marshall Esq., that he had carefully searched the papers of the port wardens' office, without being able to find any documents relating thereto. They then offered in evidence, by Joseph Owens, a competent witness, that he was one of the port wardens of the city of Baltimore, for the years 1821 and 1822; that he recollects the fact, that the grounds included within the lines of E, F, G, and the other lines embracing the parallelogram, described on the plat accompanying the petition of Robert and John Oliver, of the 16th of October 1821, were filled up in pursuance of the ordinance of the 19th of November 1821, by the authorities of the city of Baltimore; that they were engaged in said work during the period of about two years, and that the expense of said filling up, was paid by the city of Baltimore. They further proved, by said Owens, that he was present, in the office of the port wardens' of Baltimore in 1821, when the Mayor of the city presented to said port wardens, the letter of Robert and John Oliver, signifying their assent to the terms of the ordinance of the 19th of November 1821,  [**9]  and that soon thereafter, the work of filling up said ground was commenced by the city authorities; that said letter he supposed to have been filed, but, that he has no knowledge what has become of it. They further proved, by the said Owens, that after the passage of the said last mentioned ordinance, and when he, as port warden, was about to proceed to fill up said ground, he had an interview with Robert Oliver, upon private business of the said Oliver, in which the improvement of the property referred to, became the subject of conversation, when said Oliver told witness that he had assented to the terms of said ordinance, although he thought it hard, that he should be required to fill it up with fresh earth to the extent required, over the filling which was to be done by the city. They further offered evidence by Samuel Boyd, that he was likewise a port warden in 1821 and 1822; that he knows that the grounds of Robert and John Oliver were filled up by the city, in pursuance of the ordinance of 19th November 1821, but that he has no recollection of ever having seen a letter or other paper signifying the assent of said Olivers to the terms of said ordinance. They likewise offered evidence,  [**10]  by Walter Frasier, that he was a laborer in the mud machine belonging to the city of Baltimore, in the years 1821 and 1822; that he assisted in filling up the grounds of Robert and John Oliver, above described, and that Mr. Oliver was almost every day present whilst the work was in progress, and gave directions as to the manner in which it was to be done.

It was admitted, that the plat above referred to, and accompanying this bill of exceptions, justly locates and describes the premises purchased by Robert and John Oliver from Thomas Phenix, as before stated.

The plaintiffs further offered in evidence, by Jesse Hunt, the register of the city of Baltimore, that the city authorities collected wharfage upon the property in controversy, from 1826 to 1831 inclusive; and proved, by McNeill, that witness, in conjunction with Taylor, rented the wharf in controversy for several years before the year 1831, from Sprigg, who was the officer charged by the city authorities with the collection of wharfage and tonnage, and that he paid therefor, $ 10 per month; that by virtue of this renting, witness collected wharfage and otherwise used said property, without molestation or interruption [**11]  from Mr. Oliver until 1831, when he was told by Mr. Oliver that he was entitled to said wharf, and desired witness to acknowledge himself the tenant of one Boyer, who held under Oliver, and that upon witness declining so to do, Oliver cut loose the scow of witness from said wharf, after which, witness rented from Boyer, and continued so to do till he gave up possession of the wharf.

The plaintiffs further offered in evidence, that John Oliver is dead; that Robert Oliver thereupon became entitled to his interest in said property; that Robert Oliver is dead, and that the defendant purchased said property from his representatives, duly authorized to sell the same, and now holds under said purchase. It was admitted, that the defendant has in hand $ 100, received by him as wharfage upon said property.

The plaintiffs further proved, by George M. Gill, Esq., that the space of ground marked on the aforesaid plot, as a street thirty feet wide, Hugh street, was laid out as a street in the year 1820, by the commissioners appointed and authorized by law to divide the real estate of the said Thomas McEldery among his heirs, and that he, the said Gill, had become possessed of a portion [**12]  of the lots fronting on said street, by intermarriage with one of the heirs of said McEldery, and had leased and sold said lots as binding upon said street; and had always considered said street as a public street, or highway, made such in virtue of said division, and had so particularly explained to those who leased or purchased said lots from him.

The defendant proved, by said Gill, and by others, that the ground, thus marked, had not been paved or lighted, or otherwise reduced under the police regulations, but has always been very much blocked up by lumber and other obstructions of various kinds; and that the occupiers of the lots binding upon it had, from the filling up of the said ground to the division of the said McEldery's estate above referred to, collected wharfage upon the portions of said street in front of their respective lots, and that since the said division, they have continued to do so.

The defendant also offered in evidence, that Hugh's street had never been condemned, or opened as a public street or highway; and also proved, by John Dukehart, that he was a city commissioner the same years as Joseph Owens, and had never seen, or heard of a letter from Robert [**13]  and John Oliver, or either of them, in reference to the acceptance of said ordinance.

The defendant also proved, by one Fenby, that the parallelogram E, F, G, had not been kept in repair at the public expense, but that he was obliged, by the city, to pay the usual hire of the mud machine of the city for repairing the same. The said Fenby being, at the time said repairs were made, and hire claimed, the tenant under Robert Oliver, claiming as has been heretofore set out.

The defendants further gave in evidence the patent for the said property, and prayed the court to instruct the jury as follows:

1st. That if they find, from the evidence, that McEldery, the elder, was originally the owner of that part of the tract of land called Cole's Harbor, which was bounded by the waters of the basin, and being such owner, made by authority of law, all the ground upon the plat which is in evidence, which lies immediately contiguous to such part of said tract, and in front thereof, including that portion of said ground which was leased afterwards by said McEldery to Martin F. Maher, that then said McEldery was the owner, in fee simple, of all of said ground so made as aforesaid.

2nd.  [**14]  If the jury find the facts stated in the first prayer, and also find, that after said portion of said ground was leased to Martin F. Maher, and before the year 1821, Robert and John Oliver became, by due course of law, by title derived from said McEldery, the owners in fee of said portion of said ground, and that being such owners, they, by the permission of the Mayor and City Council of Baltimore, or their duly constituted agents for this purpose, extended the said portion of said ground further into the basin, as the same appears on the plats, that then the said Olivers, by virtue of said facts, became, as soon as said further improvement was made, owners in fee of the same.

3rd. If the jury find the facts stated in the two first prayers, and shall also find, that in the division which was made of that part of said ground on the plats, which was made as aforesaid, by said McEldery, amongst his heirs, and for the purpose of that division, the streets located on said plats, were laid out, and called for in the said division, and in the conveyances made in pursuance thereof; and shall also find, that said streets, or the ground on which they are located, have in no other way been [**15]  disposed of by the heirs or assigns of said McEldery, or condemned, or appropriated to the use of the plaintiffs; and if they shall further find, that such streets have never been actually opened or used by the public, but on the contrary, and especially, the one called in the evidence Hugh's street, have been always, from the time they were laid out as aforesaid, totally obstructed by the proprietors of the lots, bounding on the same, by fences or otherwise, so as to render a passage over the same impracticable; that the plaintiffs have no title in the said streets, or the ground covered by them, and cannot, because of any such title in said Hugh's street, derive any title to that portion of the said wharf improvement, made by the Messrs. Olivers, which is in controversy in this action.

4th. If the jury find the facts stated in the three preceding prayers, then the plaintiffs have failed to prove title in that part of said wharf which is in controversy in this suit, and are not entitled to recover.

The plaintiffs prayed the court to instruct the jury as follows:

That if they shall believe the facts set forth in the several prayers, submitted on the part of the defendant,  [**16]  and shall further find from the evidence in the cause, that the petition, dated 6th October 1821, and signed Robert and John Oliver, was so signed by said Olivers, on the day of the date thereof, and that afterwards, and before the passage of the ordinance, of the extra session of 1821, (and approved 9th November 1821,) the said petition was presented to the Mayor and City Council of Baltimore; and that afterwards, and on the basis of said petition, the said ordinance was passed, and made, and approved, and that the said Robert Oliver, and said John Oliver, had notice of the passage of said ordinance, and of all its terms, provisions and conditions; and shall further find, that after the passage of said ordinance, and after notice of the terms, provisions and conditions thereof, the said Robert Oliver and John Oliver, signed the other petition, and dated 8th November 1821, and presented the same, so signed by them, to the Mayor and City Council of Baltimore; and shall further find, that after the receipt of said last mentioned petition, and on the basis thereof, the Mayor and City Council of Baltimore, passed the ordinance which has been given in evidence, and approved 10th Nov. 1821,  [**17]  and that the said Robt. Oliver and Jno. Oliver had notice thereof, and assented to the terms, provisions and conditions thereof, and of the said preceding ordinance, as modified or altered by said last mentioned ordinance; and shall also further find, that the ordinance, approved 19th Nov. 1841, was passed and made by the Mayor and City Council of Baltimore, and that said Robert Oliver and John Oliver had notice thereof, and of the terms, conditions and provisions of said ordinance, and assented to the same; and that afterwards, said Robert Oliver and said John Oliver made and constructed the extension of ground into the basin, in the manner and to the extent given in evidence in this cause, and that the said extension was made under the authority, and under the terms, conditions and provisions of said ordinances; and shall further find from the evidence in the cause, that sand was supplied and delivered agreeably to the terms and provisions of the said last mentioned ordinance, and that the sand was so accepted and received by the said John Oliver and Robert Oliver, or by their agents, with their knowledge and acquiescence; and shall further find, that after said extension was made [**18]  and completed, the city authorities, with the knowledge and acquiescence of the said Robert Oliver and John Oliver, took possession of the wharf, (now claimed by the plaintiffs as a public wharf,) under the authority, and by force of the terms, conditions and provisions of said several ordinances, and so continued in possession thereof, from 1825 to 1831, without any claim on the part of said Robert Oliver and John Oliver, or either of them, and without any question or denial of the title of the said plaintiffs, to hold and possess the same as a public wharf, that then the plaintiffs, under and by virtue of said ordinances, and of the facts hereinbefore stated, became, and were entitled, by contract, to the use and possession of said wharf, as a public wharf of the city of Baltimore, and that as against said Robert and John Oliver, the said plaintiffs, under and by virtue of its provisions, was lawfully entitled to claim and hold the same as a public wharf. If the jury shall find the facts stated in the foregoing prayer, and that the defendant derived title to the property, connected with the matter in controversy, under the heirs of Robert and John Oliver, and is in possession, and [**19]  claiming the title thereto, under said Olivers; and shall further find, that said defendant has received from tenants, and others in possession of said wharves, $ 100 and upwards as wharfage, that then the plaintiffs are entitled to recover such sum so in the hands of the defendant.

And the court, (ARCHER, C. J., and MAGRUDER, A. J.,) granted the first and third prayers of the defendant so as aforesaid offered, and rejected the second and fourth prayers, substituting in lieu of said second and fourth prayers the instruction following:

If the jury find from the evidence, that Martin F. Maher never improved the grounds included in his lease, nor applied for leave to do so, and that Robert and John Oliver, in the year 1820, obtained a judgment in ejectment, as the grantee of the fee from the McElderys, and the jury should believe, that the McElderys were owners, in fee, of the lots fronting on the said improvement, and designated on the plot as line marked 104 feet, that then the plaintiffs cannot recover, because the lease to Maher, was merged by said recovery, by Oliver, as grantee of the fee, and that the covenant made to Maher by McEldery, in relation to said improvement,  [**20]  became thereby inoperative, and passed no rights to Robert and John Oliver; and that if the jury find the facts offered in evidence in the cause to be true, McEldery's heirs were the owners of the fee on said lots, fronting on the water as above designated.

The court also rejected the prayers offered by the plaintiffs, to which instruction, so given by the court, and each of them, and to their refusal to give the instructions prayed for by the plaintiffs, and each of them, the plaintiffs excepted, &c.

The verdict and judgment being against the plaintiffs, they prosecuted this appeal.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO ISSUED.  

HEADNOTES:

The tenant in fee of a lot binding on the basin of the city of Baltimore, leased the same for a term of years, reserving a right to distrain and re-enter; and granted his lessee "the exclusive right of extending, not exceeding, &c., into the water, any and every part of said lot which fronted the basin, provided he could obtain permission for that purpose, from the Mayor &c. of Baltimore, or the legislature of the State. The reversion of this lot was sold to O., who recovered the leased premises by ejectment for non-payment of rent, and applied to the corporation of B. for liberty to extend the lot into the basin, according to the original lease, which was granted, and the extension made. HELD:

1st. That the right to make the improvement, and it, when made, did not remain in the heirs of first tenant in fee, who leased it.

2nd. By the sale of the reversion to O., all the right of the original tenant in fee, both in the lot, and the permission to extend the same, as granted by the lease, vested in O.

3rd. By the forfeiture of the lease, consequent upon the recovery in ejectment, no right reverted to the first tenant.

4th. That if the lessee had made the improvement under the permission granted by his lease, the lessors and his assigns could have distrained or re-entered upon it, as upon the original lot.

The permission granted by the Mayor and City Council of Baltimore, to extend an improvement into the water, to an owner of a lot adjacent thereto, is not within our registration system.

That system sanctions no conveyance of, or incumbrance upon real property, created by matter in pais, or resting in parol.

The means by which a wharf is erected, under the act of 1745, in the city of Baltimore, and appropriated to the public use, form a part of the paper title, the record evidence, which must be resorted to, and examined, to trace the right to such property; no patent issues, but the title must conform to the acts of 1745, ch. 9; 1783, ch. 24; 1796, ch. 68; and the ordinances of that city.

The law imputes to a purchaser knowledge of all facts, appearing at the time of his purchase upon the paper or record evidence of title, which it was necessary for him to inspect to ascertain its sufficiency.

So the purchaser of a wharf in the city of Baltimore, erected under the authority of the acts of 1745, 1783, and 1796, though bona fide, is affected with notice of the permission granted to build it, and bound by it.

Where an ordinance was passed, granting permission to build a wharf, which required the written assent of the applicant for such permission, and it appeared that he erected the wharf, the law will presume such written assent, and the grantor, and his subsequent assignees, will be estopped from denying such assent.

Under the acts of 1783 and 1796, the Mayor and City Council of Baltimore may refuse their assent to the erection of a wharf, or may grant it with such condition, limitations and restrictions, as they may deem most beneficial to the navigation, and use of the port, of that city.

Such a grant upon condition, that its exterior margin shall constitute a public wharf, is valid. Its dedication to the public use, when erected, may be required.

The collection of wharfage upon a public wharf, is a fit subject for State legislation.

The act of 1827, ch. 162, sec. 4, gives the M. and C. C. of Baltimore, the right to charge and collect wharfage from public wharves, and where the owner of a lot adjacent to such a wharf, demands and receives the wharfage, the city may recover the amount unlawfully received, and withheld from them, by such owner.  

COUNSEL:
By PRESTMAN, NELSON and MCMAHON for the appellants, and

By GLENN and REVERDY JOHNSON for the appellee.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*456]  DORSEY, J., delivered the opinion of this court.
In bar of the appellant's right to recover, in the action they have instituted, a great variety of objections have been interposed.
First, it is insisted, that the right to make the improvement in question, and the improvement when made, remain in the heirs of Thomas McEldery;  [**21]   and that, therefore, the agreement of the Olivers, in regard to the public wharf, was wholly inoperative and void. This objection, we think, cannot be sustained. By the deed for the reversion to Robert and John Oliver, all the right, title, and interest of the heirs of McEldery, as well in the water lots demised to Martin F. Maher, as in the extension or improvement thereon, which the lessee was authorized to make, passed to said Olivers, who, by virtue of said conveyance, and their recovery in ejectment against the lessee, and those claiming under him, under the statute of 4 George 2, became seized, in fee, of all the right, title, and interest in the property held by the heirs of McEldery, prior to the lease to Maher; and, upon the forfeiture, or termination of the lease, no right or interest in the original lot demised, or the improvement or extension authorized to be made by the lessee, could revert to them. To sustain the argument, urged by the appellee, that no entry or distress could have been made by the lessors or their assigns, had the improvement been made by Maher, the lessee, no authority has been adduced, nor do we think any can [**22]  be found; nor can we conceive a reason why, if the improvement had been the work of the lessee, the right of entry, or distress, by the lessors or their 

 [*457]  assigns, upon the improvement, was not as indisputable, as it was upon the original water lot itself.
The next objection, relied on by the appellee, is, that to give validity to the creation of this public wharf, in the mode in which it has been attempted, would be in violation of the registration system of our State, in regard to interests in lands, and in direct opposition to the decision of this court, in the case of Hays and Richardson, 1 G. & J. 366. This objection cannot be maintained. To give efficiency to the arrangement, by which this public wharf has been provided for, is in perfect accordance with the doctrines established in the case of Hayes and Richardson, and with the general registry system of the State. It sanctions no conveyance, or incumbrance, created by matters in pais, or resting in parol; the means by which the wharf has been erected and appropriated to the public use form a part of the paper title, the record evidence, which must be resorted to and examined, to trace the [**23]  title to the property in question. No patent for this improvement has issued, or will issue from the land office of the State. No title to it can be shewn, but by a reference to the acts of 1745, ch. 9, sec. 10; of 1783, ch. 24, sec. 9; of 1796, ch. 68, sec. 10; and the ordinances of the city of Baltimore, of November the 10th and 19th, of 1821; and these disclose every thing in relation to the wharf, as fully as if its construction and use had been provided for in a patent from the land office, or by deed duly executed, acknowledged, and recorded amongst the land records of Baltimore county.
The next objection, raised to the appellants recovery, is, that the appellee is a bona fide purchaser, without notice, and, therefore, even though the Olivers were bound by the arrangement as to the public wharf, yet, that it has no obligation as to him. For this objection, there is not the slightest foundation; the law imputing to a purchaser a knowledge of all facts, appearing, at the time of his purchase, upon the paper or record evidence of title, which it was necessary for him to inspect, to ascertain its sufficiency.

 [*458]  Another of the objections of the appellee [**24]  is, that it would be a fraud upon him, to presume the writing by the Olivers of the letter assenting to the terms of the city ordinances, as required by the ordinance of the 19th of November 1821. If presuming the writing of such a letter would be a fraud upon the appellee, it would be equally a fraud upon the Olivers. Can such a presumption as against them, be termed a fraud? Nay, would it not rather be regarded as a fraud on their part, after exercising rights and acquiring property which only could have resulted from such a letter, to deny that they had written it? They are both at law and in equity estopped from doing so; and the estoppel applies with equal force against the appellee claiming under them.
The act of 1745, ch. 9, sec. 10, enacts, that "all improvements, of what kind soever, either wharves, houses, or other buildings, that have, or shall be made out of the water, or where it usually flows, shall (as an encouragement to such improvers,) be forever deemed the right, title, and inheritance of such improvers, their heirs, and assigns forever." To prevent the evil consequences likely to flow from this latitudinarian enactment, a prominent object of the act of [**25]  1783, ch. 24, in appointing "wardens for the port of Baltimore," was to protect, as concerns its navigation, the interests of its citizens, and the public at large; as a means of enabling the port wardens to do this, by the 9th section of this act it is enacted, "that no person, or persons, shall make, alter, or extend a wharf or wharves, from and after the publication hereof, without laying before the said wardens a plan of his or their intended wharf or wharves, and without consent first obtained, under the seal of the board, to carry the same into effect." Under this act it appears to be conceded in the argument, (as well it might be,) that the port wardens were competent to have authorized the extension or improvement asked for by the Olivers, upon condition, that it be constructed of particular materials; that it be abutted by a wall of stone, instead of wood, and that it be of a specified height, prescribed by the wardens of the port of Baltimore, or the successors to their powers, the 

 [*459]  Mayor and City Council of Baltimore. It is equally clear, that the Mayor and City Council of Baltimore might have refused their assent to the wharf extension, in [**26]  the plan proposed, or have required that a dock should be left in the middle of the extension, for the mooring of vessels, or that rings or posts be attached to the wharf, so that vessels might make fast, or moor to it, whether lying out in the basin or by the side of the wharf. If the safe and convenient navigation of the port of Baltimore, by the public, made such requisitions necessary, (of which necessity, the Mayor and City Council were the judges,) they were warranted in exacting them.
Of the great advantage and convenience resulting to the interests of navigation, by the public wharf in question, nobody can doubt. And, as the case is now before us, we are bound to presume that the extension, as proposed by the Olivers, could not, in the judgment of the city authorities, have been granted, without detriment to navigation, unless the injuries resulting from it, were counteracted by the great facilities afforded to navigation by the surrender to its uses, of the exterior margin of the improvement in the shape of a public wharf. If the city authorities believed that the unconditional grant of the power of improvement, proposed by the Olivers, would be ruinous to [**27]  the navigation of the port of Baltimore; but, that its effects would be wholly obviated by the facilities to navigation afforded by the wharf at the southern side of the improvement, being dedicated to the use of the navigating public, were they not authorized, nay, were they not bound to withhold their assent, unless such a dedication were made? or suppose the Olivers' original application had thus proffered the dedication, ought the corporate authorities, entertaining such opinions, to have withheld their assent? We think not.
This case is not at all changed by the fact, that the privilege sued for by the Olivers was not granted, but upon superadded terms and conditions imposed by the corporation. Their action upon this subject must receive the same interpretation as if the terms, ultimately agreed on, had been the first, and only 

 [*460]  plan and proposition of the Olivers, and as such, had been unconditionally assented to. Nor is the case varied by the fact, that the board of wardens of the port of Baltimore, had been abolished, and their powers vested in the corporate authorities of the city. What has been done, must receive the determination that would [**28]  be given to it, had the original plan or application from the Olivers, been to the wardens; and been that ultimately established by the city ordinances, and so unqualifiedly assented to by the board of wardens.
We do not concur with the counsel of the appellee, who regard this case as identical in principle, with the case of the Mayor, Aldermen and commonalty of the city of New York, against Scott, decided by the Supreme Court of New York, and reported in 1 Caines 543. In the latter case, the act of the legislature required the owners of lots to fill them up, and make piers according to the directions of the corporation. On non-compliance, the corporation were to be at liberty so to do, and to receive the wharfage to their own use. The corporation passed an ordinance requiring the owners of lots, within a time specified to fill them up and make the piers, (which was accordingly done,) and reserving a portion of the wharfage on the piers, and declaring the piers, public streets, or highways, to be kept in repair by the said owners, their heirs and assigns. For such a reservation and declaration, not a semblance of authority was shewn; and the court decided, that [**29]  such a reservation was void, being wholly unauthorized by the act of the legislature, and it is difficult to imagine, how a doubt could have arisen in such a case.
In the case before us, the ordinances of the corporation do not, peremptorily, legislate away the water rights of the Olivers, without color of authority, and in manifest contravention of the act of the legislature, under which the ordinances were passed, as was done to the lot owners, by the Mayor, Aldermen, and commonalty of the city of New York, in the case reported in 1 Caines; but simply refuse an unconditional assent (which as a faithful statutory guardian of the navigation of the port of Baltimore, the corporation was bound to withhold,) 

 [*461]  to an improvement that could only be made, consistently with the paramount interests of navigation, upon the terms prescribed by the ordinances. They, the Olivers, were deprived of no right which they possessed; they were imperatively enjoined to do nothing; their actions were the result of their own discretion. They were offered powers of great value and importance, limited by no restriction, but that necessarily imposed by a just regard to the rights [**30]  and interests of the public. The acceptance or rejection of them rested entirely with themselves.
If the conditional assent, given by the corporation of Baltimore, to the improvement, had, without reference to navigation, or the protection of the facilities thereof, secured to the corporation for its own benefit, a portion of the improvement, or of the wharfage arising therefrom, then would the condition, as such, be wholly inoperative and void. But such was not the conduct of the Mayor and City Council of Baltimore. They reserved nothing for the separate benefit of the corporation; but, as the protectors and guardians of navigation, stipulated exclusively for its preservation in securing to it, in exchange for the facilities surrendered, the equally important facilities to navigation resulting from the creation of the public wharf in question. We think, therefore, that the requisition, or condition, (or contract, if it may be so called,) under which the Olivers improvement was made, was, on the part of the Mayor and City Council of Baltimore, a legitimate exercise of the powers conferred on them, by the laws of the State, for the protection of the navigation of the [**31]  port of Baltimore.
Assuming the wharf in question to be a public wharf, the collection of wharfage upon it formed a fit subject for State legislation; and the 4th section of the act of 1827, ch. 162, gives to the Mayor and City Council of Baltimore, the right to charge and collect the wharfage for which their action was instituted, and which is unlawfully withheld from them by the appellee, who has received it.
We concur with the county court in granting the defendant's third prayer, but dissent from their rejection of the 

 [*462]  plaintiffs' prayers, and from the granting of the defendant's first prayer, and from the instruction given by the court to the jury, and therefore reverse its judgment.
JUDGMENT REVERSED AND PROCEDENDO ISSUED.
CHAMBERS J., dissented.  

185 of 187 DOCUMENTS 

WM. BURTON, EX-PARTE.--G. H. BRICE vs. THE STATE.--C. C. JAMESON vs. THE STATE.--C. C. JAMESON vs. THE STATE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 Gill 1; 1845 Md. LEXIS 8 

June, 1845, Decided 

PRIOR HISTORY:
 [**1]   APPEALS, &c.

The first of these appeals was from the Orphans court of Baltimore county, and arose upon the application of William Burton, for letters of administration on the estate of Ephraim Sims. The court had adjudged that the applicant was entitled to letters; he then tendered a bond with securities satisfactory to the court, and offered to take the oaths of office, but as the bond was not stamped, according to the act of 1844, ch. 280, the court, on that ground alone, refused to approve of it; Burton appealed to this court.

The second was a writ of error to Baltimore city court, sued out by G. H. Brice, against whom proceedings had been instituted for unlawfully signing, sealing, and delivering an unstamped bond in the penalty of $ 2000, with condition well and faithfully to perform a trust reposed in him for the sale of certain real property by Baltimore county court, sitting as a court of equity.

The third case arose upon the following unstamped check:

"BANK OF BALTIMORE, Baltimore, June 2nd, 1845.

"No. 2755.--Cashier of the Manhattan Co., N. York. Pay to the order of Jas. H. McCulloh, Pres't, one thousand dollars.

$ 1000.     C. C. JAMESON,  [**2]  Cash'r."

The fourth was upon an unstamped certificate of deposit, viz:

"Certificate of Deposit, Bank of Baltimore.

$ 1000.     BANK OF BALTIMORE, June 2nd 1845.

Dr. J. H. McCulloh has credit at the Bank of Baltimore, for one thousand dollars, subject to his order on the return of this certificate, deposited by himself.

No. 705.     C. C. JAMESON, Cash'r."

Brice and Jameson filed a general demurrer to these proceedings, and the City court rendered judgment for the State.

The act of 1844, ch. 280, enacts, "there shall be levied, collected, and paid, the several stamp duties following, viz: for every piece of paper &c., upon which shall be printed or written, any or either of the instruments following, to wit: on any bond, obligation, single bill or promissory note, or notes, made or executed in this State, above $ 100, and not made or issued by any incorporated bank; and on any foreign or inland bill of exchange, or other evidence of debt, whether endorsed or otherwise, and whether made or issued by any incorporated institution, individual or firm, according to the following scale," &c.  

DISPOSITION:
JUDGMENTS REVERSED, AND JUDGMENTS FOR APPELLANTS.  

HEADNOTES:

Under the act of 1844, ch. 280, the bonds of trustees, executors, and administrators, conditioned for the faithful performance of their official duties, are not required to be stamped.

Neither is a check of a bank in this State, upon a bank in another State, at sight, or otherwise, nor a certificate of deposit given by a bank.

The terms, "bonds and obligations" in that act, are to be confined to such as are given for the payment of money.

The banks of this State are secured in the privilege of issuing checks, bills of exchange, and certificates of deposit.

The original charters of the "old banks," as they are termed, will expire on the 10th March 1846.

Under the act of 1844, ch. 280, a mortgage, without a covenant to pay the debt secured; a lease on which is reserved a rent in money, or in specifics; an assignment of property, in consideration of an annuity, to be paid by the grantee for the life of the grantor; an order or draft not sold, nor intended to be put into circulation, but made solely to obtain possession by the party of his own funds, are not required to be stamped.

A mortgage with a covenant, to pay the debt secured; a due bill, or written acknowledgment of indebtedness to a certain extent; an account stated, signed by the parties, or by the party to be charged, as evidence of debt, are required to be stamped. 

COUNSEL:
By [**3]  S. J. DONALDSON for the appellees, cited Hughes vs. King, 2 Serg. and Low, 322. Jones and Hirst vs. Simpson, 9 S. and Low, 99. 1 Kent Com., 461. Faw vs. Marsteller, 2 Cranch, 10. Brig Aurora vs. The U. States, 7 Cranch, 382. 2 Step. N. P., 1241. Annandale vs. Pattison, 9 B. and Cres., 919. Bowen vs. Ashley, 4 Boss. and Pull, 274, 278, 279.

RICHARDSON, Att'y General, 1 Starkie Rep, 322. Davis vs. Ostrander, 1 John. Cases, 106. Somerset vs. Dighton, 12 Mass. 384. Head vs. Providence Insu. Co., 2 Cranch, 127. 7 Mass., 524. Pearce vs. Atwood, 13 Mass., 343. Byrne vs. Crowninshield, 1 Pick., 261. 1 Whart. Dig., 708. Co. Lit., 172, a. Bartlett, et al. vs. Kings Exrs., 12 Mass., 545. Ellis vs. Paige, et al., 1 Pick, 45. 3 A. and Ames on Corp., 3. Providence Bank vs. Pittman, 4 Peter, 514.

R. JOHNSON, in reply, cited Preston vs. Browder, 1 Wheat., 115. Calder and Wife vs. Bull and Wife, 3 Dallas, 386.  

JUDGES:
These causes were argued together, before ARCHER, C. J., DORSEY, CHAMBERS, MAGRUDER, and MARTIN, J. DORSEY, MARTIN, J., and CHAMBERS, J., dissenting.  

OPINIONBY:
MAGRUDER; CHAMBERS 

OPINION:

 [*3]  MAGRUDER, J., delivered his opinion as follows:
These several cases, although they present [**4]  different questions, have been argued together, and will be disposed of at the same time. All of them arise under the act of Assembly of 1844, chap. 280.
With respect to one of the appeals by G. H. Brice, the court below erred, in deciding that the bond tendered required a stamp. It is a bond with a collateral condition, and no bonds of that description are required by the act of Assembly to be stamped. It is true that such bonds, like others, are obligations, but they do not oblige the obligors to pay any sum 

 [*4]  of money. They are taken to secure the performance of some duty, not the payment of money. It is impossible therefore to tell, upon which of the stamps mentioned in the law, official or other bonds, for the performance of any duty, are to be written, or to say that they are obligated to pay above one hundred dollars. It is true that there is a sum of money mentioned in these bonds, but this is mentioned as the penalty; and the penalty, at the time of the execution of the bond, is not a debt. If it was, then, a bond given for the payment of money due, would require a larger stamp than a single, or even penal bill, for the same debt. If the bond had been received,  [**5]  and either of the obligors had died, it would have been no voucher or proof of a claim against his estate. If a suit was instituted upon such a bond, in order to sustain the action, other proof than that of the execution and delivery of the bond would be necessary. In addition to this it would have been necessary to prove a breach of the condition of the bond, which, of course, must have been committed subsequently to its execution, and then, not the penalty, but damages for the alleged breach of the condition, (to be ascertained by a jury,) would be recovered.
A recognizance taken in or out of court, for the appearance of a person, is an obligation, just as much as the bond in this case; yet surely it will not be said, that a recognizance must be written on a stamp.
Formerly, indeed, on the forfeiture of a bond the whole penalty was recoverable, but not until there had been a breach of the condition. Upon a bond conditioned for the payment of rent, the penal sum could not be recovered, or claimed, until the rent was due; and upon a bond given by an administrator, no suit can be brought until the administrator has done, or omitted to do some act, which is a breach of the condition.  [**6]  
A mortgage mentions a sum of money to be due by the mortgagor to the mortgagee, but still it is not an obligation to pay the money, but merely a conveyance of property to secure its payment. "No action of covenant will lie on the proviso or condition in the mortgage; and the remedy of the mortgagee for non-payment of the money, according to the proviso, 

 [*5]  would seem to be confined to the land where the mortgage is without any express covenant or separate instrument." 4 Kent 139. But if the mortgage contains a covenant to pay the debt, then it must be on a stamp; not because it is a mortgage, but because besides a mortgage, it is an obligation to pay a certain sum of money.
If there be an express covenant to pay the debt, a stamp is requisite, although the mortgage has a bond or note for the payment of the same, and on stamped paper. This is because the law requires that every obligation, (if the sum exceeds one hundred dollars,) shall be written upon a stamp; and does not make in favor of a creditor, who is about to take a covenant in addition to a bond, the same exception which is made in the case of more than one bill of exchange. These remarks are designed to show, what [**7]  obligations must be written upon stamped paper; and that no obligation like the one in this record, need to be stamped. The same is to be said of the trustee's bond.
In one other of the cases, it was claimed in behalf of the State, that foreign bills of exchange, though issued by a bank of Baltimore, must be upon stamped paper. This claim is resisted, not upon the ground that the act of the last session does not require such bills of exchange to be written upon a stamp, (it must be admitted that it does,) but, because the legislature had not the power to enact such a law. It is insisted, that the legislature has parted with the power thus to tax (as it is called,) the banks of Baltimore: and if not all of them, certain banks of that city, of which the bank that issued the bill of exchange, in the record, is one.
We are then to decide a grave and solemn question indeed. We are asked to say, that while the power of our legislature to require of its citizens to use a stamp, when executing instruments of this description, cannot be controverted, there are, among us, banking institutions deriving from the legislature their very existence, and all their powers, which may disregard [**8]  and disobey the law; although it requires of them nothing more than it requires of every one of its citizens.

 [*6]  It need not be remarked, that when the judicial department of the government is required to pronounce an act of the legislature to be unconstitutional, it must not be because the judges have doubts, even serious doubts, about the constitutionality of the act; even doubts, which would have constrained them, if they had been members of the legislature, to vote against the bill. "To authorize this court, (said Judge Patterson, 4 Dallas 161,) to pronounce any law to be void, it must be a clear unequivocal breach of the constitution: not a doubtful and argumentative implication."--"I will never decide any law to be void, but in a clear case," was the language of Mr. Justice Chase, 3rd Dallas, 386. This is, in truth, more than merely a question, whether an act of the legislature is constitutional. It forces upon us the question, whether past legislation has not taken from those who succeed to its powers and duties, the power for providing for the wants of the State, by just, because equal taxation? It is alleged that this has been done, and that the proof of [**9]  it is to be found in various acts of the General Assembly in 1821, and 1834, and 1835; and even anterior to all the laws of those sessions, to which reference has been given to us.
In the first place, we are told, that they all possess it, because in granting to them their charters, and the privileges thereby conferred on them, the legislature secured to them the privilege not claimed by them.
Of those who undertake to maintain the affirmative of this proposition, it might be required, carefully to examine the various charters, and to be sure that the power which is claimed for all, has been expressly granted to all. For, surely, it will not be pretended, that the mere act of incorporating a company, with an avowal in the act of incorporation, that the company is incorporated for banking purposes and with banking privileges, would confer upon them the right, or rather the exemption, which they now claim. But according to the view which I have taken of this subject, it is not necessary for me to examine all these charters, and to ascertain what privileges given to one, has not been conferred upon others. Let it be assumed, that the legislature in bestowing "individuality" [**10]  

 [*7]  on these associations, have granted to them all, a right to deal in every article, and to employ their funds in every way, in which any citizen may, still the question remains, how do they in virtue of their charters acquire a right, not only to deal in bills of exchange, (this many, if not all of them, possess, as every citizen of the State possesses it,) but to be exempted from all obligation to use stamps, as required by the act of Assembly, when they make a foreign bill of exchange? The law, it is said, imposes "a tax or burden" upon them, or rather, on one of their privileges. This will admit of doubt: but granting it to be true, it proves nothing in favor of these institutions, unless there can be found in their charters an exemption from the use of the stamps, whenever others are commanded to use them. The question, let it be kept in remembrance, is not whether the State has granted the privilege without limitation, to deal in bills of exchange, but whether the State has surrendered to them a particular portion of the taxing power?
In the case of the Providence Bank against Billings and Pittman, 4 Peters 514, at p. 561, Chief Justice Marshall [**11]  in delivering the opinion of the court, said: "that the taxing power is of vital importance; that it is essential to the existence of government; are truths which it cannot be necessary to reaffirm. They are acknowledged and asserted by all. It would seem that the relinquishment of such a power is never to be assumed. We will not say that a State may not relinquish it; that a consideration sufficiently valuable to induce a partial release of it, may not exist; but as the whole community is interested in retaining it undiminished, that community has a right to insist that its abandonment ought not to be presumed, in a case in which the deliberate purpose of the State to abandon it, does not appear. *** A company may be incorporated for the purpose of trading in goods as well as in money. If the policy of a State should lead to the imposition of a tax on incorporated companies, could those which might be incorporated, claim an exemption in virtue of a charter which does not indicate such an intention. The time may come, when a duty may be imposed on manufactures; would an incorporated 

 [*8]  company be excepted from this duty, as the mere consequence of its charter [**12]  ?"
Again, page 563: "The power of legislation, and consequently of taxation, operates on all the persons and property belonging to the body politic. This is an original principle which has its foundation in society itself. It is granted by all for the benefit of all. It resides in the government as a part of itself, and need not be reserved when property of any description, or the right to use it in any manner is granted to individuals or corporations. However absolute the right of an individual may be, it is still in the nature of that right, that it must bear a portion of the public burdens, and that portion must be determined by the legislature."
In the same case, much may be found, which conclusively demonstrates, that incorporated banks, no matter what property they may be authorized to hold; no matter with what powers they may be clothed, unless their charters shall express the exception, are no more exempted from taxation, than an unincorporated company, and, of course, individuals are, when carrying on the same business. "A mere private corporation engaged in its own business, would certainly be subject to the taxing power of the State, as any individual would [**13]  be."
Much of false conclusion upon subjects of this kind seems to have been produced, by applying the reasoning of the court, in the case of McCulloh against the State of Maryland, to private banks, created by the State, and taxed by the State which created them. The rights of these institutions, are not more sacred and inviolable than those of individuals. All that banks, when a charter has been granted to them, can claim, (and to this they have an unquestionable claim,) is, that they shall not be compelled to bear more than their just proportions of the burdens, which the wants of the State ought to impose upon all within its territorial jurisdiction; that exemptions granted to them, in express terms, be regarded, as are similar grants to individuals. For what, after all, is a bank charter? Some seem to regard it, as a grant of nothing but franchises of royal prerogatives. Not so was it understood by the learned judge, from whose opinion I have already borrowed so freely. 

 [*9]  individuality, on a collective and changing body of men. This capacity is always given to such a body. Any privileges, which may exempt it from the burdens, common to individuals, do not flow [**14]  necessarily from the charter, but must be expressed in it, or they do not exist." In this case an attempt was made by a bank, to get rid of a tax which was imposed subsequently to the grant of its charter. Of a similar attempt made in Massachusetts, we have a report in 12 Mass. 252; and in which the Chief Justice Parker explains very fully, the rights and privileges of incorporated banks. "The effect of this charter was to give, to the individuals who applied for it and their successors, the right to act as a body corporate and politic, in the management of their common funds, under the restrictions and regulations provided in the charter."
They are as one individual in the management of the capital, in the way and according to the purposes for which they are incorporated. They procure by their charter the privilege, in all contracts and suits, of using one short name, in place of all the names of the stockholders. In Maryland, and most of the States, of participating in the profits, without being subject to all the liabilities of a partnership, for banking purposes; of exempting their own portion of the capital from the payment of debts incurred, while [**15]  it was invested, by a sale of their stock. One effect of the charter, and of the public confidence which it acquires by reason of its incorporation, is, that they can issue notes, and by means of these, trade with a larger capital than they have invested. These are privileges of considerable value to those who have money to lend, and because of these advantages, prefer an investment in bank stock to the trouble and hazard of lending it themselves. For these privileges, what is called a bonus, is often paid, but the payment of a bonus, gives them no privileges, or exemptions, which are not expressed in the charter. We are authorized, by a decision of the Supreme Court, (The Bank of Columbia against Okely, 4 Wheat. 235,) to say, that the act of incorporation, may provide for the corporation valuable remedies, which may be taken away. See also 4th Cranch 384.

 [*10]  The cases above cited, and indeed, the definitions given above of bank charters, prove, that no matter how extensive their powers, in what articles they are permitted to deal; if all others dealing in the same articles, are required to use a stamp, the banks also may be required, unless the [**16]  State has, in express terms, exempted them from the obligation to use them.
If the banks, for any reason which has yet been assigned, could claim this exemption, they might, with equal reason insist, that the "power to sue," given by charter, will exempt them from all obligation to pay the tax upon writs, which all who sue in our courts, are required to pay.
The claim of these banks, to draw foreign bills of exchange, without using a stamp, is not "clear and unequivocal;" it cannot be made out without, (nor indeed by,) "a doubtful and argumentative implication." Those who maintain it, are obliged to rely on the old argument, (when introduced here, entirely out of place,) "a power to tax, is a power to tax ad libitum; that is, a power to prohibit; that is, a power to destroy;" and ex consequenti, if this law, so far as it relates to banks be constitutional, "the franchise, or banking privilege" granted, may be taken away indirectly; that is, by imposing upon it taxes, which would render the privilege of no value: "The taxes may absorb the profits." Chief Justice Marshall's answer to this is, "then the grant of any other thing implies the same exemption, for that thing [**17]  may be taxed to an extent, which will render it wholly unproductive to the grantee. Land, for example, has in many, perhaps in all the States, been granted by government, since the adoption of the constitution. This grant is a contract, the object of which is, that the profits issuing from it, may enure to the benefit of the grantee. Yet the power of taxation may be carried so far, as to absorb those profits. Does this impair the obligation of the contract? The idea is rejected by all," 4 Peters 514 at p. 562. Yet the belief is entertained, that it must be maintained in the case of a land, (or other,) tax, before the stamp act of the last session can be proved to be a violation of any contract, to be found in the charters of these banks.

 [*11]  Surely the words "franchise or banking privileges," wherever found, cannot be construed to exempt them from the use of stamps in any of their dealings. The correct meaning of the word "franchise" when used in our bank charters, it is not very easy to ascertain. Some writers are very fond of telling us, that "it is a royal prerogative in the hands of a subject." "In England it is some privilege in the hands of a subject,  [**18]  which the king alone can grant; in this country it is supposed to be a privilege or immunity of a public nature, which cannot legally be exercised, without a legislative grant." In 13 Peters 595, Chief Justice Taney gives a definition of franchises, of which I entirely approve. "Franchises are special privileges conferred by government upon individuals, and which do not belong to the citizens of the country generally of common right. It is essential to the character of a franchise, that it should be a grant from the sovereign authority; and in this country no franchise can be held, which is not derived from a law of the State." It would be difficult to ascertain, what franchise, according to this definition, the bank has, or how it is to be made out, that its "banking privilege" can authorize a claim by the banks to dispense with stamps, when they, in common with others, are required to use them.
I cannot discover the slightest foundation for this claim in the law of 1821, nor yet in those of 1834 or 1835. I consider the act of the last session, in all its provisions, to be constitutional.
Whether checks or orders require a stamp, must depend upon the quo animo [**19]  . If the payee named in them be the mere agent of the maker, to receive and convey to him the money, there is nothing in the law which would authorize us to say, that it needs to be stamped. It is a mere power of attorney, to be returned if the money be not collected; and gives to the party no right to demand it in his own name. Accordingly a bank needs not require a stamp on orders which it receives for collection. But if a bill, when received by a bank, is one of those which ought to be placed among "bills purchased," then a stamp, in my opinion, is necessary.

 [*12]  The certificate of deposit is, in effect, a promissory note, and not what is called a bank note. It is evidence of a debt, or indebtedness, to the amount expressed in it. It will answer all the purposes of a promissory note, and would probably supersede promissory notes, (in the usual form of them,) if while the latter require a stamp, the former did not.
CHAMBERS, J., stated the conclusions of the court, as follows:
The questions brought before us by the different records, are, in relation to--
1st. A trustee's bond.
2nd. Bonds by executors or administrators.
3rd. A check of a bank in this State, upon a bank [**20]  in another State; payable at sight, or otherwise.
4th. A certificate of deposit given by a bank.
We are of opinion, that a stamp is not required for either of these instruments, under the act of 1844, chap. 280.
That "bonds and obligations" are to be confined to such, as are given for the payment of money; and not for the performance of some official, or other act or duty.
That the banks are secured in the privilege of issuing checks, whether at sight or otherwise; bills of exchange, whether foreign or domestic; and certificates of deposit: and that this privilege does not exist, only, in virtue of the act of 1821, chap. 131, sect. 11; and is not, therefore, either confined to the "old banks," as they are termed, nor limited, as to its duration, to the 10th March 1846; when, in our opinion, the old charters will expire.
The attorney general, and the adverse counsel, having earnestly requested an expression of the views of the court, upon the various other points filed in these causes, and fully and ably argued, we feel justified, in the peculiar condition of the case, and in the known anxiety of the business portion of the community to be advised on these questions, in expressing [**21]  the conclusions to which the argument, and a consideration of the authorities, have conducted us.

 [*13]  We think the law does not require a stamp for any of the following instruments:
A mortgage without a covenant to pay.
A lease, on which is reserved a rent in money or in specifics.
An assignment of property in consideration of an annuity, to be paid by the grantee, for the life of the grantor.
An order or draft not sold, nor intended to be put into circulation, but made solely to obtain possession, by the party, of his own funds.
We think a stamp necessary to the instruments following:
A mortgage with a covenant to pay; and whether such mortgage be the only security taken, or whether there be, also, a note or bond, also stamped, and for the same debt: the note or bond being, of course, to be stamped.
A due bill, or written acknowledgment of indebtedness to a certain extent.
An account stated, signed by the parties or by the party to be charged, as evidence of debt.
The judgment of the court below is reversed in each case, and judgment entered for appellants, respectively, with costs.
DORSEY and MARTIN, J., dissented from the conclusion, that a mortgage without a covenant [**22]  to pay the debt, was not subject to a stamp.
CHAMBERS, J., dissented from the conclusion, that a due bill and an account stated should be stamped.
JUDGMENTS REVERSED, AND JUDGMENTS FOR APPELLANTS.  

186 of 187 DOCUMENTS 

THE STATE, USE OF JOHN HOLTON, vs. GARRET BURKE, JOHN DULANY AND BENEDICT I. FENWICK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 Gill 79; 1844 Md. LEXIS 11 

December, 1844, Decided 

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

This was an action of debt, commenced on the 19th September, 1839, by the appellants, who declared upon the bond of the appellees, dated the 12th March, 1835, containing the following recital and condition:

"Whereas the above bound Garret Burke hath obtained his discharge from the common jail of St. Mary's county, by virtue of the provisions of an act of the General Assembly of the State of Maryland, passed at November session, eighteen hundred and five, entitled, an act for the relief of sundry insolvent debtors, and the several supplements thereto. Now the condition of the above obligation is such, that if the above bound Garret Burke do, and shall well and truly make his personal appearance at the county court, to be held at Leonard town, in and for St. Mary's county, on the first Monday of August following the date hereof, before the judges of said court, from day to day, and not depart therefrom without leave of the said court first had and obtained, and do and shall make his personal appearance at all such other times and places as shall by the said court be directed and appointed, then this obligation to be void and of none effect.  [**2]  "

The defendants pleaded general performance of the condition of the bond, and the plaintiff replied, that the said Garret Burke did not make his personal appearance before the judges of, &c., at August term of St. Mary's county court, held on the first Monday of August, 1835, according to the condition of his bond; nor at March court, 1836, although so required to do by order of said St. Mary's county court; nor at March court, 1838; nor at August court, 1838; nor at March court, 1839; although so required to do by order of St. Mary's county court; to which said several terms of St. Mary's county court, the petition of the said Garret was continued, and his appearance required by the orders of the said court passed in the premises, which will more fully appear by reference to the records of said court, now in said court remaining, as by the condition of the said writing obligatory, he was required to do; whereupon the said State avers, that the said Garret Burke has not done all and every thing he was required to do and perform by the condition of the said writing obligatory; and the said State further saith, that at St. Mary's county court, held at Leonard town on the first Monday [**3]  of August, 1837, a certain Thomas Jones, by judgment of the said court, recovered against the said Garret Burke and John Holton, survivors of Thomas R. Johnson, the sum of, &c.; which said judgment, the said State avers, was for a debt due before the execution of the said writing obligatory; and the said State further avers, that the judgment aforesaid, was rendered against the said Garret Burke and John Holton as co-securities of the said Thomas R. Johnson, and that the said John Holton, at whose instance and for whose use this suit is instituted, paid and satisfied the whole of said judgment, and the same is assigned to his use; and, except by him, the said judgment remains in St. Mary's county court no way satisfied or reversed; and this, the said State, is ready to verify: wherefore the said State prays judgment for the debt aforesaid, and damages to the said State for the detention of that debt, to be adjudged, &c.

The defendants rejoined, that at the first term to which they were sued, to wit, the March term of St. Mary's county court 1840, the said defendants delivered up the said Garret in discharge of the liability on the said bond under the provisions of the act of Assembly [**4]  in such case made and provided, and that the said Garret was so surrendered in court, and by order of the court, and on the 2nd day of March 1840, committed to the custody of the sheriff, and this the defendants are ready to verify; wherefore, &c.

The plaintiffs demurred generally to the rejoinder, in which the defendants joined, and the parties agreed that all errors in pleading shall be and are hereby released.

The county court rendered judgment on the demurrer for the defendants, and the plaintiffs below prosecuted this appeal.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

By the act of 1834, ch. 336, (passed 21st March 1835,) any surety for the appearance of an insolvent petitioner is authorized to bring him into court, or before any judge thereof, as special bail may bring their principal into court, and when brought in, to surrender and commit him, provided that he be so surrendered before or at the first term to which suit shall be brought upon the bond for the appearance of such petitioner. HELD:

1. That such bonds are now assimilated to bail bonds.

2. That the surety of such insolvent petitioner may surrender him at or before the first term of suit brought on such appearance bond.

3. That the act applied to a bond executed on the 12th March 1835, the condition of which was not broken at the date of the passage of the act of 1834, ch. 336, and modified the remedy thereon.

4. That the surety is only called upon to exert his privilege under the act of 1834, after he is sued.  

COUNSEL:
By CRAIN for the appellants, and

By ALEXANDER, for the appellees.  

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

OPINIONBY:
STONE 

OPINION:

 [*81]  STONE, J., delivered the opinion of this court.
The question presented upon this appeal is whether the surrender by the securities of Burke, the principal in the bond, and his commitment to the sheriff by order of St. Mary's county court, is such performance of the condition of said bond, as discharges the securities from its liability.
According to the provisions of the acts of Assembly of this State for the relief of insolvent debtors prior to [**5]  1834, a petitioner for the benefit of these laws might be compelled to give bond, with security, for his appearance before the court of the county in which the petition was filed, or the commissioners in Baltimore city, as the case might be, at a time specified; and give notice to creditors of his application, as to enable them to resist, if they saw fit, his final discharge; and in case the final discharge was successfully resisted, the petitioner being present in court, his creditors might have such remedies affecting his personal liberty, as are provided by law.

 [*82]  The object and character of these bonds have been assimilated to bail bonds; if the petitioner failed to appear at the time specified, the bond was forfeited, and his securities became bound to each creditor for the amount of his claim. This was found to press with rigor upon securities, who were like bail, bound for the appearance of the principal in the bond, but had none of the power to relieve themselves which bail enjoyed, until by the act of 1834, the legislature passed an act for their benefit, and thereby gave similar power and authority to the securities which special bail had, to surrender the petitioner [**6]  at any time at or before the first court to which suit was brought upon the bond. This act was passed before a breach of the condition of the bond in this case had occurred. The right of the creditor to sue did not attach until the petitioner had failed to appear according to the condition of the bond, and the remedy upon the bond was subject to be controlled and modified by the provisions of the above mentioned act of Assembly.
The facts alleged in the rejoinder being admitted by the demurrer, and all errors in pleading being by consent released, it is evident, that the surrender by the securities of the petitioner, and the order of court committing him to the custody of the sheriff, are within the provisions of the act of Assembly, and the securities are entitled to the benefits thereby provided for them. They have proceeded according to the power and authority conferred, and so far as the act is directory to the court, "omnia rite acta proesu muntur," and although years had elapsed after the time specified in the condition of the bond for the appearance of the petitioner, and although he did not in fact appear, yet this lapse of time is attributable to the creditor in not pursuing [**7]  his remedy, and when at the first court suit was brought upon the bond, the petitioner was surrendered, he had all the remedies affecting the person of the petitioner provided by law. He is therefore not injured, and has not cause of complaint.
JUDGMENT AFFIRMED.  

187 of 187 DOCUMENTS 

ANDREW ALDRIDGE, EXECUTOR OF B. D. HIGDON, vs. JOHN T. BOSWELL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 Gill 37; 1844 Md. LEXIS 6 

June, 1844, Decided 

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

On the 4th October 1842, the appellee filed his petition alleging, that on the 28th February 1830, the late Benjamin D. Higdon of Baltimore city, duly made and published his last will and testament, by which said last will and testament, after making several specific bequests, he devised the residue of his estate in the following manner, to wit: "I give, devise and bequeath all the rest, residue and remainder of my estate and property, real and personal, not hereinbefore disposed of, unto all the children of my late brother John S. Higdon, and of my sister Phebe E. Lambert, of Prince George's county, that are now in existence, to be equally divided between and amongst them per capita, and share and share alike, to hold to them their heirs and assigns forever;" and that by said will said testator Higdon, also appointed Andrew Aldridge and Stewart Brown, of the city of Baltimore, the executors thereof. Your petitioner further states that afterwards, and in the year 1841, the said Benjamin D. Higdon died, without having in any manner altered or revoked said will, and leaving the said will and the aforesaid devise of the residue [**2]  of his property unrevoked and in full force at his death, and that said will has been duly admitted to probate by this court; that letters testamentary thereon have been granted by this court to Andrew Aldridge, the surviving executor. That at the period of the execution of said will, to wit, on the 28th February 1830, there were then in existence the following children of the said brother John S. Higdon, and the said sister Phebe E. Lambert, mentioned in the aforesaid residuary clause of said will, to wit: the following five children of his said brother John S. Higdon, namely, John B. Higdon; Ann, who intermarried with Charles A. Ely; Elizabeth, who intermarried with Urbane B. Oglesby; Augusta, who intermarried with Stoddard W. Smith; and Mary Jane, who intermarried with Matthew N. Shields; and the following children of his said sister Phebe E. Lambert, to wit: Benjamin H. Lambert, John J. Lambert, Elizabeth, the wife of Peter D. Hatton, Nancy who intermarried with John B. Spalding, and Mary or Polly Lambert, who was the wife of your petitioner. That the said Mary or Polly Lambert, one of the said ten children of the said brother and sister of the said testator, in existence at the [**3]  period of the execution of his aforesaid will, became the wife of your petitioner in the year 1831, and so continued until death, in the year 1833.

Your petitioner further states, that by virtue of the said will, and of the acts of Assembly in such case provided, he is, as he conceives and is advised, entitled, as the husband of the said Mary Lambert, to have and receive of the said executor her share, or the one-tenth part of the residue of the personal estate of the said Benjamin D. Higdon, but that the said executor declines paying over to him, or accounting to him, for said share, except under the order of this court.

Your petitioner therefore prays, &c.

The will of Benjamin D. Higdon, of, &c., devised as follows, viz:

I give unto my friend and partner Mr. Andrew Aldridge, my pew in St. Paul's church, and also the sum of one thousand dollars, in trust for, &c.

To Mrs. Ann Elizabeth Higdon, of, &c. widow of my late brother John S. Higdon, I give and bequeath the sum of five hundred dollars.

I will and desire that my executors hereinafter named, place in the hands of my nephew Benjamin H. Lambert, of Alexandria, in the District of Columbia, without requiring [**4]  of him any security therefor, the sum of $ 1,000; the interest, &c.

I give and bequeath to my aforesaid friend Andrew Aldridge, the sum of three hundred dollars, in trust, to be by him applied to the use and benefit of the Episcopal Sunday school, very lately incorporated, but by what particular name I do not know.

I give, devise and bequeath all the rest, residue and remainder of my estate and property, real and personal, not herein before disposed of, unto all the children of my late brother John S. Higdon, and of my sister Phebe E. Lambert, of, &c., that are now in existence, to be equally divided between and amongst them, per capita, share and share alike: to hold to them, their heirs and assigns forever.

Whereas, Peter D. Hatton, who married one of the daughters of my aforesaid sister Lambert, stands indebted to the firm of Aldridge & Higdon, between two and three hundred dollars upon a note, which I desire to be charged to me on the book of the concern, but that the amount thereof be considered as constituting a portion of the residuum of my estate, and be deducted from that part or share thereof which my niece, the wife of said Peter D. Hatton, shall appear to [**5]  be entitled to in the distribution of such residuum.

For the purpose of division and final settlement of my estate, I authorize and require my executors to sell and dispose of, either publicly or privately, as to them may seem fit, my interest, being a moiety, of and in the house and lot situate on the south side of Baltimore street, between South street and Tripolet's alley, in the aforesaid city of Baltimore, owned by Mr. Aldridge and myself, and on receipt of the consideration money therefor, to execute a good and valid conveyance to the purchaser or purchasers of such interest, to hold the same to him, her or them, their heirs and assigns forever.

And lastly I constitute and appoint my aforesaid friend and partner Andrew Aldridge, and my friend Stewart Brown, of the city of Baltimore, executors of this my last will and testament, which I again declare to be my last.

In witness whereof, I, the said Benjamin D. Higdon, have hereto set my hand and seal, this twenty-eighth day of February, in the year of our Lord one thousand eight hundred and thirty.

The answer of Andrew Aldridge executor, alleged that he admits that the said deceased executed his last will and [**6]  testament in his lifetime, as is stated in said petition, and devised the residuum of his estate to the children of his late brother John S. Higdon and his sister Phebe E. Lambert, then in existence, in the manner in said petition mentioned, and thereby appointed your respondent and the late Stewart Brown, executors thereof, and that letters testamentary were granted to respondent alone, the said Brown having departed this life before the death of the said testator; that said testator departed this life without having revoked said will and testament, that the same has been duly admitted to probate, and that he believes the copy thereof exhibited with said petition, marked A, to be a true copy of said will and testament.

Your respondent further states, that he has always understood that at the date of said will and testament, there were in existence of the children of testator's brother and sister, ten persons, five of each branch, but he has no other knowledge thereof, than that he is acquainted with or has seen some of them, but not all; that he has never seen Mary or Polly Lambert, stated in said petition to have been the wife of petitioner, and does not know when he died, or [**7]  was married to petitioner, and therefore leaves him to prove that she was a niece of the testator in existence at the date of the said will and testament, and that she afterwards became the wife of petitioner, and died as in said petition is stated. That having been warned by several of the residuary devisees, not to pay any part of the estate of the deceased to said petitioner, on the allegation that he is not entitled to any part thereof; your respondent therefore declines paying the same to petitioner, until he shall have fully proved his rights thereto.

On the 18th July 1843, the orphans court after proof taken, decreed that the said John T. Boswell, who intermarried with Mary or Polly Lambert, one of the children of Phebe E. Lambert, sister of the said deceased, is entitled by virtue of his marital rights to one-tenth part of the residue of the personal estate of the said Benjamin D. Higdon, deceased, in the hands of the said executor, and payment accordingly.

The executor appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

Where a testator devised all the rest, residue and remainder of his estate unto all the children of his sister and his late brother, that are now in existence, to be equally divided amongst them per capita, share and share alike, one of his nieces alive at the date of the will, married, and died before the testator. The sister and late brother had each five children alive at the date of the will. HELD: that the surviving husband of the deceased niece, was entitled to one-tenth of the testator's personal estate in the hands of his executor.  

COUNSEL:
By S. I. DONALDSON and REVERDY JOHNSON for the appellants, who waived all objections as to want of parties, &c.

By MCMAHON for the appellees.  [**8]  

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

OPINION:

 [*41]  BY THE COURT--
JUDGMENT AFFIRMED.